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Nazari v. Ayrapetyan

February 26, 2009

VAROJ NAZARI, PLAINTIFF AND APPELLANT,
v.
SET AYRAPETYAN, DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle R. Rosenblatt, Judge. Affirmed. (Los Angeles County Super. Ct. No. EC037446).

The opinion of the court was delivered by: Aldrich, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

INTRODUCTION

In his personal injury action against defendant Set Ayrapetyan, plaintiff Varoj Nazari obtained a special verdict in his favor. He appeals from the ensuing $53,061.40 judgment and the order denying his new trial motion. At issue in the published portion of this opinion is Evidence Code section 755.5, which renders inadmissible the record of, or testimony concerning, a defendant‟s medical examination conducted of a plaintiff who is not proficient in English without the aid of a certified interpreter. We hold that section 755.5 does not prohibit testimony of medical examinations that do not involve communication with the plaintiff. Therefore, the court‟s ruling limiting the testimony of three defense physicians to their observations, results of non-language-dependent tests, and review of plaintiff‟s physician‟s records, was not error. In the unpublished portion of this opinion, we affirm the trial court‟s ruling denying plaintiff‟s new trial motion on other grounds. Accordingly, we affirm the judgment in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND

On March 27, 2003, defendant invited plaintiff to his house for tea. In the backyard, defendant offered to pick an orange for plaintiff. Defendant stood on a stool to pick the fruit, but lost his balance while reaching too far and fell. Defendant landed on plaintiff, who was leaning over to serve himself tea. The force of defendant‟s 215 pounds pushed plaintiff‟s face into the tea service that defendant had placed on a rock. The fall pushed plaintiff‟s left eye and cheek into the cups and tray. Defendant acknowledged that he had lost his balance on the same stool a "couple [of] times" in the past.

Plaintiff was standing two to three feet from defendant when the latter grabbed the stool to pick the orange. Plaintiff saw the orange tree and the four-legged stool in defendant‟s hand. Plaintiff testified he did not offer to help defendant when the latter climbed up onto the stool. Nor did he move away. Instead, plaintiff turned to serve himself tea.

Having sustained injuries to his face and eye, plaintiff brought this negligence action against defendant.

After trial, the jury rendered a special verdict finding that defendant was negligent and that his negligence was a substantial factor in causing plaintiff‟s harm. The jury found plaintiff sustained a total of $75,802 in damages, comprised of:

$25,802 in past economic damages, $0 future economic damages, $50,000 in past noneconomic loss, and $0 in future noneconomic loss.

The jury also found that plaintiff was 30 percent negligent. After subtracting plaintiff‟s comparative negligence, the trial court awarded plaintiff $53,061.40.

Plaintiff moved for a new trial on the following grounds: (1) inadequate damages; (2) irregularity in the proceedings; and (3) jury misconduct. (Code Civ. Proc., § 657.) The trial court denied plaintiff‟s new trial motion on all grounds raised by plaintiff and ruled on objections raised to six juror declarations. Plaintiff‟s appeal followed.

Additional facts will be discussed in connection with the relevant issues below.

DISCUSSION

The standard of review of the denial of a motion for new trial is as follows: " "[A] trial judge is accorded a wide discretion in ruling on a motion for new trial and [] the exercise of this discretion is given great deference on appeal. [Citations.] However, we are also mindful of the rule that on an appeal from the judgment it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party [citation], including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial.‟. . . Prejudice is required: "[T]he trial court is bound by the rule of California Constitution, article VI, section 13, that prejudicial error is the basis for a new trial, and there is no discretion to grant a new trial for harmless error.‟ [Citation.]" (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161.)*fn2

[[End published portion.]]

1. The Damages Were not Inadequate

On a motion for new trial based on the grounds of insufficiency of the evidence or inadequacy of damages, the trial court may reweigh the evidence and draw reasonable inferences of its own (Charles D. Warner & Sons, Inc. v. Seilon, Inc. (1974) 37 Cal.App.3d 612, 617); on review, we do not. (Ibid.) "[O]ur power begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. [Citations.]" (Ibid.)

Plaintiff first contends that the damages award was disproportionate to the damages sustained by him and so the trial court erred in denying his new trial motion pursuant to Code of Civil Procedure sections 657, subdivision (5) and 662.5, subdivision (a). Plaintiff contends that considering the lack of evidence of contributory negligence, the evidence of his "severe and permanent injuries," and that his economic damages were significantly more than zero, the damage award was "grossly insufficient." We disagree.

a. There Was Evidence To Support The Jury's Finding That Plaintiff Was Comparatively Negligent

Plaintiff contends there was no evidence of his comparative fault. We review the jury‟s apportionment of fault for substantial evidence. (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1234.) "[T]he jury‟s power to apportion fault is as broad as its duty to resolve conflicts in the evidence and assess credibility: "These same considerations apply to the jury‟s apportionment of fault under comparative negligence rules.‟ " (Ibid.)

Plaintiff‟s description of the testimony to argue there is "no conflicting evidence as to fault apportionment . . . ." completely omits to discuss other evidence of his fault. The jury was instructed from CACI No. 401, that a person can be negligent "by acting or by failing to act" (italics added) and from CACI No. 405, that defendant claimed that plaintiff‟s harm was caused in whole or in part by plaintiff‟s own negligence. A person is negligent if he or she fails to do something that a reasonably careful person would do in the same situation. The jury heard plaintiff's testimony that he was aware that defendant had offered plaintiff fruit and was aware of the stool in defendant‟s hand. Additionally, although plaintiff testified at trial that he was not aware of defendant‟s plans for the stool immediately prior to the accident, defense counsel read to the jury from plaintiff‟s deposition testimony that defendant was not using the stool as a chair; instead in plaintiff‟s words, defendant "wanted to get fruit off the tree" and that he needed to use the stool to pick the fruit. What is most important is that the jury heard plaintiff testify that he was standing within two to three feet of defendant but did not move away or offer to help defendant when the latter climbed onto the stool. To be sure, the jury could infer, as plaintiff insists, that defendant was planning to offer plaintiff the stool ...


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