MIHRAN NOVSHATIAN v. ALEX CRUZ

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Court of Appeal, Second District, California.

MIHRAN NOVSHATIAN, Plaintiff and Appellant, v. ALEX CRUZ, Defendant and Respondent.

B205604

Decided: February 24, 2010

Law Offices of Maro Burunsuzyan and Maro Burunsuzyan;  Veatch Carlson and Dawn M. Oster for Plaintiff and Appellant. Vanderford & Ruiz, Ty Vanderford, Rodolfo F. Ruiz and Coleman D. Heggi for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Mihran Novshatian appeals from a judgment awarding him damages for a work-related injury.   We affirm.

FACTS

Novshatian's employer was hired by Alex Cruz dba Home Remodeling and Design (hereinafter, Cruz), a general contractor, to install the gutters and downspouts in a home remodeling project.   On November 5, 2003, Novshatian was injured when he fell from scaffolding built by Jose Renteria, a subcontractor hired to perform stucco and plastering work on the remodeling project.   The scaffolding had been partially dismantled and was not properly tied to the walls of the building at the time Novshatian mounted it and it collapsed.   Novshatian sued Cruz along with Renteria and Douglas Fregolle, the owner of the home.1

In a special verdict, the jury apportioned liability as follows:  30 percent of the fault to Novshatian, 35 percent to his employer and 35 percent to Cruz. The jury awarded Novshatian a total of $364,132 in damages:  $93,824 for past economic loss;  $100,000 for past noneconomic loss;  $170,308 for future economic loss;  and no damages for future noneconomic loss.   On November 1, 2006, the trial court adopted the proposed judgment submitted by Novshatian and entered judgment against Cruz in the amount of $219,892.40.

On November 13, 2006, Cruz filed a motion for reconsideration of the judgment, seeking to reduce the amount of the award against him by the amount Novshatian received from workers' compensation benefits.   The trial court granted the motion and reduced the judgment against Cruz to $128,787.51.   Novshatian filed a motion for new trial on November 22, 2006, arguing, among other things, that the jury's damages award was inadequate because it failed to award him future noneconomic damages;  there was insufficient evidence to support the jury's apportionment of 30 percent fault to Novshatian;  and the trial court erred by admitting evidence of workers' compensation benefits.   The trial court denied the motion for new trial.   On December 5, 2007, the trial court entered an amended judgment, taking into account the workers' compensation and other offsets.   Novshatian filed his notice of appeal on February 1, 2008.

DISCUSSION

I. Novshatian Was Not Entitled to Future Noneconomic Damages

Novshatian first contends the trial court erred when it denied his motion for new trial on damages.   In support of his argument, Novshatian relies on a case we decided in 2007, when we noted that “[c]ases finding an award inadequate for failure to account for pain and suffering ‘involve[ ] situations where the right to recover was established and ․ there was also proof that the medical expenses were incurred because of defendant's negligent act.’  [Citation.]”  (Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931, 937 (Dodson ).)   Because the jury here found that Cruz's negligence was a cause of his injuries and awarded him future economic damages, including damages for future medical care, Novshatian argues that Dodson 's holding requires an award for future pain and suffering.  “[Novshatian]'s position is a simple one:  no one can be expected to endure future medical treatment without the element of pain, suffering, inconvenience, physical impairment and other non-pecuniary damages.”

We review the denial of a new trial motion on the issue of damages under an abuse of discretion standard.  (Dodson, supra, 154 Cal.App.4th at p. 938.)   “[T]he determination of the element of damages to be awarded as compensation for personal injuries is a matter within the province of the jury and will not be disturbed unless an abuse of discretion clearly appears [citations], or the award is found to be inadequate on a fair consideration of the evidence [citations], or the facts before the appellate court suggest passion, prejudice or corruption on the part of the jury, or where the evidence demonstrates that the award is insufficient as a matter of law.”  (Haskins v. Holmes (1967) 252 Cal.App.2d 580, 584-585.)

In Dodson, the plaintiff suffered an injury to his spinal cord, which required surgery to remove a herniated disc and insert a metallic plate.   The plaintiff was also required to use a walker for some time afterwards.   The jury awarded damages, at least in part, for the surgical expenses but did not award any damages for pain and suffering.  (Dodson, supra, 154 Cal.App.4th at p. 936.)   The trial court denied the plaintiff's motion for a new trial on noneconomic damages.   Looking to the Fourth District's analysis in Miller v. San Diego Gas & Elec. Co. (1963) 212 Cal.App.2d 555, we held, “where a plaintiff has undergone surgery in which a herniated disc is removed and a metallic plate inserted, and the jury has expressly found that defendant's negligence was a cause of plaintiff's injury, the failure to award any damages for pain and suffering results in a damage award that is inadequate as a matter of law.”  (Dodson, supra, at p. 933.)   We concluded the trial court abused its discretion when it denied the motion for new trial.  (Id. at p. 936.)

However, we also observed that “an award that does not account for pain and suffering is ‘not necessarily inadequate as a matter of law’ [citation], and that ‘[e]very case depends upon the facts involved [citation].”  (Dodson, supra, 154 Cal.App.4th at p. 936.)   Here, Novshatian presented expert testimony at trial that he suffered from depression, headaches, dizziness and pain as well as loss of hearing, smell and cognitive abilities.   He further testified that he suffered fractures to his shoulder after the accident, which required surgery and that he had difficulty using his arms and hands.   The defense, on the other hand, presented evidence that Novshatian was malingering and should not have been in pain at the time of trial.   Defense experts also opined that he “embellished” his loss of hearing, smell and cognitive abilities.   Novshatian testified that he still drove, met friends at the park, carried bags, shopped for groceries and took the trash out.

Faced with this conflict in the evidence, the jury could reasonably have inferred that while Novshatian may have suffered pain in the past, he was no longer in pain.   The jury accordingly awarded him $100,000 for past pain and suffering but none for future pain and suffering.   This result is consistent with most of the decisions in which claims alleging inadequate awards are upheld.   As here, those cases usually involve insufficient or conflicted evidence on the elements of damage.  (6 Witkin, Summary of Cal. Law (10th ed.   2005) Torts, § 1751, p. 1289.)

By contrast, the plaintiffs in each of the cases cited by Novshatian suffered extensive injuries that required surgery and extended stays in the hospital.   In Haskins v. Holmes, supra, 252 Cal.App.2d at pages 583-584, footnote 1, the plaintiff suffered fractures to the cheek and jaw bones which required “considerable drilling” and wire and catgut sutures to reposition the bone and hold the cheek and jaw into position.   In Gallentine v. Richardson (1967) 248 Cal.App.2d 152, 153, the plaintiff was shot in the area of his right kidney in a hunting accident which required surgery and six months to heal.   In Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 891 (Capelouto ), an infant was infected with salmonella at birth.   Throughout the first year of her life, she suffered from projectile vomiting, severe diarrhea, dehydration, cramps and shock.   She was hospitalized six times that year and almost died when she was five months old as a result of the infection.  (Ibid.) In Wilson v. R.D. Werner Co. (1980) 108 Cal.App.3d 878, 880, the plaintiff fell off of a ladder manufactured by the defendant.   He fractured his elbow and both his wrists, requiring surgery to remove a bone fragment from his elbow and to reattach certain muscles.   The right wrist fracture required insertion of wires to hold fragments of bone in place.   Both of his arms were placed in casts from his fingers to his shoulders.   He was hospitalized for 10 days.  (Ibid.)

“[F]or certain injuries the inference of pain may be so compelling that the trial judge would be justified in ordering a new trial if the jury declines to draw it.”  (Capelouto, supra, 7 Cal.3d at p. 896.)   The above cases provide examples of those types of cases.   While we do not intend to diminish the harm suffered by Novshatian, his injury is not so severe that “the jury in its common experience knows it is normally accompanied by pain.”  (Id. at p. 896.)   We find no error.

II. Substantial Evidence Supported the Jury's Apportionment of Fault

Novshatian also contests the jury's apportionment of fault:  30 percent to Novshatian, 35 percent to his employer and 35 percent to Cruz. He contends that substantial evidence does not support the jury's finding that he was 30 percent at fault because he did not construct the scaffolding, his employer told him the scaffolding was safe and he did not have any special knowledge or skill in judging the safety of scaffolding.

A jury's apportionment of fault will be disturbed only if unsupported by the evidence.  (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 147.)   Here, Novshatian testified at trial and in his deposition that he knew he needed to be vigilant about his own safety when he was at the work site.   He also admitted that he knew to shake the scaffolding and look for wire ties to ensure the scaffolding was safe to use.   Defense experts testified that both Novshatian and his employer had a duty of care at the work site.   This testimony constitutes sufficient evidence to support the jury's finding.

Nonetheless, Novshatian contends the trial court erred when it allowed the jury to apportion liability between him and his employer because they should be viewed as a single tortfeasor and as such, “the jury penalized [him] twice when it determined that both [he] and his employer were equally at fault for the injuries․”  However, there is no authority for this single tortfeasor theory:  the case upon which Novshatian relies for his argument was reversed by the Supreme Court over 17 years ago.  (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593 (DaFonte ).) 2

In DaFonte, supra, 2 Cal.4th 593, a ranch employee's arm was drawn into a mechanical grape harvester he was attempting to clean.   The employee and his family sued the harvester's manufacturer on theories of negligence and product defect.   In a special verdict, the jury found the employee 15 percent at fault, the employer 45 percent at fault and the manufacturer 40 percent at fault.   (Id. at p. 596.)   The parties agreed to reduce the total damage award by 15 percent and the trial court further reduced the amount of noneconomic damages by 45 percent, the portion attributed to the employer, under Civil Code section 1431.2 (several liability for noneconomic damages).  (DaFonte, at p. 597.)   On appeal, the Fifth District concluded that the trial court had erroneously precluded a full joint and several award of noneconomic damages against the manufacturer.  (Ibid.) The Supreme Court reversed, holding that section 1431.2 limits the joint liability of every defendant to economic damages and shields every defendant from any share of noneconomic damages beyond that attributable to his own comparative fault.  (DaFonte, at p. 602.)   Given the Supreme Court's holding in DaFonte, there was no error to the jury's allocation here.3

III. There Was No Error Related to Admission of Worker's Compensation Evidence

Before trial, Novshatian moved to exclude evidence that he received workers' compensation benefits under the collateral source doctrine.   The trial court granted the motion in limine, but qualified its order by stating:  “Should Defendant believe that Workers Compensation Benefits is relevant to impeachment, counsel may submit moving papers providing a proffer supporting its admission, allowing Plaintiff's counsel an opportunity to oppose in writing.”   Novshatian contends that Cruz violated the trial court's order by eliciting trial testimony from defense experts and referring to medical records which mentioned workers' compensation benefits.

Rather than discuss specific instances in which Cruz violated the order in limine, however, Novshatian merely provides parenthetical citations to parts of the record which fail to show that the jury was exposed to evidence of workers' compensation.   After thoroughly reviewing Novshatian's citations, we find no such violations by Cruz. With one exception,4 the record shows counsel argued at length outside the presence of the jury about upcoming witnesses whose testimony could potentially refer to workers' compensation, but there are no references that point to actual testimony or other evidence showing the jury learned that Novshatian received workers' compensation.

For example, Novshatian cites to an August 22, 2006 minute entry by the trial court to support his argument that “on August 21, 2006, the trial court confirmed [Cruz]'s violation of the order.”   The court minutes merely note, “[a]t 9:30 a.m., plaintiff confers with the court concerning the issue of precluding insurance and states that defendant has violated the motion in limine ruling.   Matter is heard and argued and the court makes its ruling.”   The record does not contain a transcript of the arguments or the court's ruling.   Novshatian's remaining citations are to vague references in the trial court's minute entries that oral objections were made or that counsel conferred with the court about exhibits or testimony (e.g., “plaintiff confers with the court on the issue of defendant displaying slides and displays to the jurors”).   No explanation is provided as to how the particular exhibit or testimony references workers' compensation.5

We have also reviewed parts of the record beyond those citations provided by Novshatian and discovered no evidence that the jury was alerted to workers' compensation benefits.   Instead, we note the trial court observed, “I don't see a pattern of trying to get something like this in.”   Novshatian explains the lack of a record by stating that his counsel objected outside the presence of the jury and without the court reporter present “[i]n an attempt to avoid drawing too much attention to [Novshatian]'s ‘Worker's Compensation Benefits'.”   Even assuming that were true, it does not explain why Novshatian fails to point out the underlying testimony or evidence that warranted the objection.   In the absence of an adequate record and specific citations to the record demonstrating error, we presume no error occurred and reject Novshatian's claim.  (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132;  Laursen v. Tidewater Assoc.   Oil Co. (1954) 123 Cal.App.2d 813, 817.)   Otherwise, we “have no way of knowing ․ what grounds were advanced, what arguments were made, and what facts may have been admitted, mutually assumed or judicially noticed at the hearing.   In such a case, no abuse of discretion can be found except on the basis of speculation.”   (Snell v. Superior Court (1984) 158 Cal.App.3d 44, 49.)

IV. The Trial Court Did Not Err When It Revised the Judgment

Judgment on the jury's verdict was entered on November 1, 2006, awarding Novshatian $219,892.40.   In a motion for reconsideration filed on November 13, 2006, Cruz argued that the trial court should have reduced the award to Novshatian by the amount he received in workers' compensation benefits.   Under Cruz's calculation, the total net award to Novshatian should have been $156,118.97.   Because that total was less than Cruz's settlement offer of $250,000 under section 998 of the Civil Code, Cruz argued the judgment should have been further reduced by his post-offer costs, including the cost for his experts.   Novshatian opposed the motion, arguing that the court lacked jurisdiction to reconsider the judgment because it had already been entered.   The trial court granted the motion and amended the judgment to include the workers' compensation offset and awarded Cruz his post-offer costs, but not his expert witness fees.   In reaching its decision, the trial court deemed Cruz's motion for reconsideration to be a motion to vacate the judgment.   The trial court considered the motion to be mislabeled and found that Cruz had sufficiently explained why the judgment was inconsistent with and unsupported by the facts within the meaning of Code of Civil Procedure section 663.

A. Jurisdiction

Relying on APRI Ins. Co. S.A. v. Superior Court (1999) 76 Cal.App.4th 176, 181, Novshatian repeats his contention that the trial court lacked jurisdiction to consider a motion for reconsideration.   Novshatian is correct.   A motion for reconsideration may only be considered before the entry of a judgment.   (Ibid.;  Eddy v. Sharp (1988) 199 Cal.App.3d 858, 863, fn. 3.) APRI Insurance, however, plainly holds that a trial court may “ ‘correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.  [Citations.]’  [Citation.]”  (APRI Insurance, at p. 181.)  Section 663 of the Code of Civil Procedure sets forth:

“A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment:

1.  Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts;  and in such case when the judgment is set aside, the statement of decision shall be amended and corrected.

2. A judgment or decree not consistent with or not supported by the special verdict.”

Because a court may consider a motion regardless of the label put on it by the moving party, the trial court did not abuse its discretion by deeming the motion for reconsideration to be a motion to vacate the judgment.  (Eddy v. Sharp, supra, 199 Cal.App.3d at p. 863, fn. 3.) Accordingly, the trial court had jurisdiction to consider Cruz's motion seeking to revise the judgment.6

B. Workers' Compensation Offset

Although Novshatian acknowledges that “[a] plaintiff cannot recover full damages and receive workers' compensation benefits, since that would constitute a double recovery[,]” he claims that the trial court erred when it offset his award by the amount he received from workers' compensation.   Relying on Witt v. Jackson (1961) 57 Cal.2d 57 (Witt ), Novshatian argues “either the employer is entitled to obtain reimbursement for the workers' compensation benefits from the employee's tort recovery ․ or the tort judgment is reduced by the amount of the applicable workers' compensation benefits obtained by the employee [citations].”  (Italics added, boldface omitted.)   Because Novshatian's employer sought reimbursement from the workers' compensation board and his tort judgment was reduced, he claims he suffered a double deduction.   Novshatian is mistaken.

As the court in Scalice v. Performance Cleaning Systems (1996) 50 Cal.App.4th 221, 226-227 (Scalice ), explained:

“In general, when an employee is injured at work, the exclusive remedy against the employer is workers' compensation.  [Citation.]  This fact does not prevent an employee from suing a culpable third party for damages resulting from the work injury.  [Citation.]  The employer may also make a claim against the award in a third party action for reimbursement of workers' compensation benefits paid to the employee.  (Lab.Code, § 3852.)   When our Supreme Court decided Witt [, supra,] 57 Cal.2d 57, a tort plaintiff's concurrent negligence was a bar to recovery in a third party action.   The Witt court stated that a negligent employer could not be allowed to ‘profit from his own wrong’ and was also barred from obtaining reimbursement from the third party for workers' compensation benefits.  (Witt [, at p.] 73.)   The portion of the Witt opinion which is relevant to the instant case is the corollary to the above rule, as stated by the Witt court:  ‘[s]ince, however, the injured employee may not be allowed double recovery, his damages must be reduced by the amount of workmen's compensation he received.’  (Ibid.) ‘In [Witt ], denial of the concurrently negligent employer's recovery from the third party was premised on the law's policy to prevent the former from taking advantage of his own wrong;  while the latter's credit for workmen's compensation payments against his own tort liability was grounded on the policy of denying the employee double recovery.’  [Citation.]”

Here, the trial court correctly computed the offset to Novshatian's recovery to prevent a double recovery as directed in Scalice.

C. Recovery of Post-Offer Costs

Though Novshatian claims Cruz's “proposed offset based on his [Civil Code section] 998 Offer ․ was flawed[,]” he fails to explain how the trial court and Cruz got it wrong.   Instead, he contends “the § 998 reduction must necessarily be revisited with respect to the payment of post-offer costs.”   Because he fails to support his argument with any facts or citation to authority, we consider it waived.7  (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)

DISPOSITION

The judgment is affirmed.   Cruz is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

MOHR, J.7

FOOTNOTES

FN1. Fregolle and Renteria were dismissed from the matter and we handled Renteria's appeal in a related opinion.  (Renteria v. Cruz (Aug. 18, 2008, B196359) [nonpub. opn.].).  FN1. Fregolle and Renteria were dismissed from the matter and we handled Renteria's appeal in a related opinion.  (Renteria v. Cruz (Aug. 18, 2008, B196359) [nonpub. opn.].)

FN2. We find it troubling that the attorneys representing Novshatian on this appeal, each of whom have over 15 years of experience, failed to notice that the Court of Appeal opinion in DaFonte v. Up-Right, Inc. (1991) 2 Cal.App.4th 1169, 1178 was not citeable for any reason, much less to support a major point of contention for the first time in the reply..  FN2. We find it troubling that the attorneys representing Novshatian on this appeal, each of whom have over 15 years of experience, failed to notice that the Court of Appeal opinion in DaFonte v. Up-Right, Inc. (1991) 2 Cal.App.4th 1169, 1178 was not citeable for any reason, much less to support a major point of contention for the first time in the reply.

FN3. In any event, Novshatian failed to object to the special verdict form, which instructed the jury to apportion responsibility.   While Novshatian contends he did not stipulate to the special verdict form, it is the failure to raise the issue in the trial court that precludes Novshatian from complaining on appeal.  (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.).  FN3. In any event, Novshatian failed to object to the special verdict form, which instructed the jury to apportion responsibility.   While Novshatian contends he did not stipulate to the special verdict form, it is the failure to raise the issue in the trial court that precludes Novshatian from complaining on appeal.  (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.)

FN4. Cruz's trial counsel admitted he inadvertently showed the jury one document on the Elmo that referred to the State Compensation Insurance Fund..  FN4. Cruz's trial counsel admitted he inadvertently showed the jury one document on the Elmo that referred to the State Compensation Insurance Fund.

FN5. To the extent Novshatian does identify testimony by a specific witness, he fails to provide any citations to the record that show exactly what the jury heard or saw that was objectionable.   The record here contains almost 20 volumes of trial transcripts with witnesses often taken out of order.   We are not obligated to scour thousands of pages of transcripts in an attempt to find evidentiary error..  FN5. To the extent Novshatian does identify testimony by a specific witness, he fails to provide any citations to the record that show exactly what the jury heard or saw that was objectionable.   The record here contains almost 20 volumes of trial transcripts with witnesses often taken out of order.   We are not obligated to scour thousands of pages of transcripts in an attempt to find evidentiary error.

FN6. Because we find the trial court properly considered Cruz's motion as one to vacate the judgment, we need not address Novshatian's contention that Cruz failed to comply with Code of Civil Procedure section 1008, governing motions for reconsideration..  FN6. Because we find the trial court properly considered Cruz's motion as one to vacate the judgment, we need not address Novshatian's contention that Cruz failed to comply with Code of Civil Procedure section 1008, governing motions for reconsideration.

FN7. Novshatian also argues that the trial court's “order requiring [Novshatian] pay [Cruz]'s expert witness fees in accord with § 998 was in error.”   The trial court's order expressly denied Cruz's request that Novshatian pay his expert witness fees..  FN7. Novshatian also argues that the trial court's “order requiring [Novshatian] pay [Cruz]'s expert witness fees in accord with § 998 was in error.”   The trial court's order expressly denied Cruz's request that Novshatian pay his expert witness fees.

FN7. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution..  FN7. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

RUBIN, J.

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