Opinion
E051498 Super.Ct.No. SCVSS136381
11-22-2011
LA TONYA CARR, Plaintiff and Appellant, v. CINNAMON CREEK APTS., INC. et al., Defendants and Respondents.
Russell & Lazarus and Marc Lazarus for Plaintiff and Appellant. Law Office of Kevin B. Jones, Gregory W. Marks and Kevin B. Jones for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Frank Gafkowski, Jr., Judge. (Retired judge of the former Mun. Ct. for the Southeast Jud. Dist. of L. A., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Russell & Lazarus and Marc Lazarus for Plaintiff and Appellant.
Law Office of Kevin B. Jones, Gregory W. Marks and Kevin B. Jones for Defendants and Respondents.
I. INTRODUCTION
Plaintiff and appellant La Tonya Carr appeals from judgment in her favor in her personal injury action against defendants and respondents Cinnamon Creek Apartments, Inc. (the owner of an apartment complex in Redlands), Woodman Realty, Inc. (the parent company), and Anza Management (the property management company). Carr contends the damages award was inadequate as a matter of law because the jury failed to award non-economic damages, despite awarding her economic damages, and she is therefore entitled to additur or a new trial. We find no error, and we affirm.
II. FACTS AND PROCEDURAL BACKGROUND
The record on appeal is limited to the clerk's transcript, which includes the register of actions, exhibit list, judgment on verdict, notice of appeal, notices designating the record on appeal, and three exhibits, and to the reporter's transcript of a pretrial hearing on motions in limine. Our statement of facts is therefore necessarily limited.
Defendants moved to augment the record with five full days of testimony from the trial, and this court granted the motion. However, Carr failed to pay the fees and costs for the supplemental reporter's transcript, and it therefore never became part of the record.
On September 22, 2004, Carr's leg fell through the floor of a patio/balcony at premises owned and/or managed by defendants; when the accident occurred, she was showing a property inspector a soft spot on the decking. She brought an action for premises liability against defendants, and the matter proceeded to a jury trial.
Carr claimed injuries to her leg, neck, and back as a result of the incident. She initially went to St. Bernardine Medical Center, where she was examined and X-rays were taken of her lower right leg and ankle. Redness was noted on her right leg, but the X-rays were normal. She was prescribed Motrin and was discharged. Her discharge instructions state she had a sprained ankle, and she was told to elevate the ankle for two to four days, use ice packs and compression bandages, and not to walk on it if it hurt. The charge for her treatment was $835.08. The hospital intake form notes she complained of pain in her right lower leg.
The jury awarded economic damages to Carr in the amount of $6,207.08, and apportioned fault at 20 percent to each of the three defendants and 40 percent to Carr. The jury failed to award Carr any non-economic damages for pain and suffering.
Carr brought a motion for new trial or for modification of the verdict, but the court denied the motion.
III. DISCUSSION
Carr contends the damages award was inadequate as a matter of law, because the jury failed to award non-economic damages despite awarding her economic damages, and she is therefore entitled to additur or a new trial.
Standard of Review
"The question of the amount of damages is a question of fact. In the first instance, it is for the jury to fix the amount of damages, and secondly, for the trial judge, on a motion for a new trial, to pass on the question of adequacy. Whether the contention is that the damages fixed by the jury are too high or too low, the determination of that question rests largely in the discretion of the trial judge. The appellate court has not seen or heard the witnesses, and has no power to pass upon their credibility. Normally, the appellate court has no power to interfere except when the facts before it suggest passion, prejudice or corruption upon the part of the jury, or where the uncontradicted evidence demonstrates that the award is insufficient as a matter of law. In determining whether there has been an abuse of discretion, the facts on the issue of damage most favorable to the respondent must be considered. [Citations.]" (Gersick v. Shilling (1950) 97 Cal.App.2d 641, 645.)
In Miller v. San Diego Gas & Elec. Co. (1963) 212 Cal.App.2d 555 (Miller), the jury in a personal injury action returned a verdict in the exact amount of the plaintiff's medical expenses. (Id. at p. 557.) The plaintiff moved for a new trial on the ground the verdict was inadequate as a matter of law because the jury awarded no damages for pain and suffering. (Ibid.) The trial court denied the motion, and the appellate court affirmed. The court noted there was significant conflict as to whether the plaintiff had suffered any substantial injury and whether the medical expenses and treatment had been necessary. Thus, the court held that substantial evidence supported the jury's verdict, and the trial court did not abuse its discretion in denying the plaintiff's motion for new trial. (Id. at pp. 560-562; see also Randles v. Lowry (1970) 4 Cal.App.3d 68, 73-74 (Randles)[affirming a jury's verdict in a personal injury case in the exact amount of the plaintiff's medical treatment costs for injuries consisting of minor lacerations].)
Miller and Randles stand for the principle that an award of damages that does not include recovery for pain and suffering is not necessarily inadequate as a matter of law, but rather "depends upon the facts involved." (Miller, supra, 212 Cal.App.2d at p. 558.) As the court stated in Miller, the jury, in failing to award damages for pain and suffering, "'may well have believed that plaintiffs' injuries . . . [were] most minimal, to the point of being incapable of evaluation, and that plaintiffs would be fairly compensated if they only received their specials.'" (Id. at p. 559.)
Miller and Randles are precisely on point. Other cases on which Carr relies are not. In Wilson v. R. D. Werner Co. (1980) 108 Cal.App.3d 878, the plaintiff fractured his elbow and both wrists in a fall from a ladder; his injuries required surgery to remove a bone fragment, reattach muscles, and place wires to hold the bones in place. Both arms were placed in casts from the fingers to the shoulders for about three months, and he spent 10 days in the hospital. His injuries caused substantial and permanent impairment of function. (Id. at p. 880.) On appeal, the court held that the jury's award of damages in the approximate amount of his medical expenses and lost income was inadequate as a matter of law. (Id. at pp. 883-884.) Haskins v. Holmes (1967) 252 Cal.App.2d 580 (Haskins),is similarly distinguishable. The plaintiff in that case suffered, among other injuries, fractured cheek and jaw bones, requiring surgical correction. (Id. at pp. 583-584 & fn. 1.) The court held that an award in the approximate amount of his medical expenses was inadequate as a matter of law in light of the evidence of substantial injuries. (Id. at p. 587.)
In Wilson and Haskins, the plaintiffs' serious injuries were undisputed. In Carr's opening brief, she asserts that "it was undisputed that these injuries [to her leg, neck, and back] had effected every of [her] life daily life [sic], impacting her activities of daily living such as, bathing, dressing, shopping, carrying groceries, walking stairs due to pain related to the incident." However, she provides no citation to the record, and indeed, the abbreviated record on appeal is insufficient for us to evaluate her contention.
We conclude that Carr has failed to establish the jury's award was inadequate as a matter of law. The trial court did not abuse its discretion in failing to grant additur or a new trial.
IV. DISPOSITION
The judgment is affirmed. Costs are awarded to defendant and respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
RICHLI
J.
MILLER
J.