California Court of Appeals, Second District, Third Division
PUB.ORDER 8/20/13 (SEE END OF OPN.)
APPEAL from a judgment and order of the Superior Court of Los Angeles County, No. PC042687 Melvin D. Sandvig, Judge.
R. Rex Parris Law Firm, R. Rex Parris and James P. Fowler; Liddy Law Firm and Donald G. Liddy for Plaintiff and Appellant.
Murchison & Cumming, Edmund G. Farrell III; Hunter, Molloy & Salcido and Richard Salcido for Defendant and Respondent Melvin Ovido Gatica.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Lane J. Ashley, Caroline E. Chan; Kramer & Kramer and Mark D. Kramer for Defendant and Respondent Carlos Seciada.
Horvitz & Levy, David M. Axelrad, Daniel J. Gonzalez; and J. Dean Rice for Defendant and Respondent Gateway Insulation, Inc.
Nadja Rayii suffered injuries when a car being driven by Melvin Ovidio Gatica collided head-on with the car she was driving. She appeals a judgment after a jury trial and the denial of her motion for judgment notwithstanding the verdict. She challenges the jury’s finding that Gatica was not acting in the course and scope of his employment for Gateway Insulation, Inc. (Gateway), at the time of the collision; the denial of relief against Carlos Seciada, who she contends was the registered owner of the car driven by Gatica; and the denial of her new trial motion on grounds of attorney misconduct, irregularity in the proceedings and inadequate damages. We conclude that she has shown no prejudicial error and will affirm the judgment and the denial of her motion for judgment notwithstanding the verdict.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Gatica was driving a 1991 Honda Accord southbound on a two-lane road near Newhall on May 3, 2006, at approximately 5:26 p.m. when he crossed the double yellow center line while negotiating a curve and crashed head-on into Rayii, who was traveling northbound. Rayii suffered a fractured vertebra, fractured ribs, a bruised knee and other injuries. She was approximately 61 years old at the time.
Gatica was employed by Gateway at its warehouse in Valencia at the time of the collision. His supervisor had sent him to a jobsite in Valencia, and he was returning from the jobsite at the time of the collision. The evidence is conflicting as to whether he was driving home or returning to the warehouse. Gatica purchased the Accord from his friend, Seciada, the day before the collision. He was not licensed to drive in California and had never driven in the United States before the day he purchased the car.
2. Trial Court Proceedings
Rayii filed a complaint against Gatica and Seciada in April 2008 alleging a single count for negligence. She substituted Gateway for a fictitious defendant in December 2009. A jury trial commenced in June 2011. Rayii moved for a directed verdict against Gateway arguing that the evidence compelled the conclusion that Gatica was returning from a “special errand” for Gateway, his employer, at the time of injury and therefore was acting within the scope of his employment. The trial court denied the motion.
The jury returned a special verdict finding that Gatica was negligent, that his negligence was a substantial factor in causing harm to Rayii, that he was not acting in the course and scope of his employment at the time of injury, that Gateway did not negligently hire or supervise Gatica and that Seciada was not an owner of the vehicle at the time of injury. The jury also found that Rayii’s damages were $100, 000, consisting of $60, 000 for “Past Harm and Loss, including physical pain, mental suffering, loss of enjoyment of life, loss of health, and loss [sic] independence, ” $13, 000 for “Future Harm and Loss, including physical pain, mental suffering, loss of enjoyment of life, loss of health, and loss [sic] independence, ” and $27, 000 for future medical expenses. The jury wrote on the verdict form that the $60, 000 figure “includes reimbursement for $45, 000 out of pocket expense.”
The trial court entered a judgment on the special verdict on July 13, 2011, awarding Rayii a total of $100, 000 in damages against Gatica and awarding her no relief against Seciada and Gateway.
Rayii moved for a new trial on grounds of inadequate damages, insufficiency of the evidence to support the findings that Gatica was not acting in the course and scope of his employment and that Seciada was not an owner of the vehicle at the time of injury, and irregularity in the proceedings. She also moved for judgment notwithstanding the verdict as to Gateway. The trial court denied the motions. Rayii timely appealed the judgment and the denial of her motion for judgment notwithstanding the verdict.
Rayii contends (1) the evidence compels the conclusion as a matter of law that Gatica was acting in the course and scope of his employment for Gateway at the time of the collision, so the denial of her motion for judgment notwithstanding the verdict was error; (2) Seciada is liable as the registered owner of the Accord at the time of the collision; (3) Seciada is liable for negligent entrustment; (4) Gateway’s counsel committed attorney misconduct in opening statement; (5) the calling of three of the defendants’ expert witnesses out of order and a statement made by Dr. Klapper deprived her of a fair trial; (6) the award of future economic damages is inadequate; and (7) the past and future noneconomic damages awarded are inadequate.
1. Rayii Has Not Shown that Gatica Was Acting in the Course and Scope of his Employment at the Time of Injury
Rayii contends there is no substantial evidence to support the jury’s finding that Gatica was not acting in the course and scope of his employment at the time of the collision and the evidence compels the conclusion as a matter of law that he was acting in the course and scope of employment. She argues that this is so because the evidence shows that Gatica was returning to Gateway’s warehouse in Valencia from the jobsite in Lancaster. She also argues that the evidence shows that Gatica was on a “special errand” for his employer, so he was acting in the course and scope of employment regardless of whether he was returning to the warehouse. Rayii cites Gatica’s testimony that he ...