Filed 2/25/21 Shui v. B.R. & Sons CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

CHRISTINE SHUI,

Plaintiff and Respondent,

v.

B.R. & SONS et al.,

Defendants and 

Appellants.

 B299251

 (Los Angeles County

 Super. Ct. No. BC649750)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Ernest Hiroshige, Judge. Affirmed.

Macdonald & Cody, Scott L. Macdonald and Douglas M. 

Carasso for Defendants and Appellants.

ElDabe Ritter Trial Lawyers, Jonathan M. Ritter and S. 

Edmond El Dabe; KP Law and Zareh Jaltorossian for Plaintiff 

and Respondent.

* * * * * *
2

The driver of a work truck clipped a passenger car on the 

freeway, causing it to careen out of traffic and into a woman 

standing behind her car on the freeway’s shoulder. The driver 

drove on. The woman sued the driver and his employer for 

negligence, and a jury awarded her $4 million for her pain and 

suffering. On appeal, the driver and employer argue that (1) the 

driver’s conduct in “hitting and running” should have been 

excluded from evidence once liability was conceded, and (2) the 

damages are excessive. Because neither argument has merit, we 

affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The accident(s)

This case involves a sequence of automobile accidents that 

culminated in a collision that nearly cost 31-year-old Christine 

Shui (plaintiff) her leg. 

On a rainy Sunday afternoon in November 2016, plaintiff 

and her husband were driving home on the 60 Freeway; the 

husband was driving, and plaintiff was a passenger. They were 

rear-ended by a car; moments later, that car was rear-ended. All 

three cars pulled over to the wide right shoulder of the freeway to 

exchange information. 

A few minutes later, Antonio Garcia (Garcia) approached 

this stretch of freeway while driving a heavy work truck. Garcia 

drove his truck into the rear corner bumper of a Volkswagen 

Jetta in the lane to his right, and the impact pushed the Jetta out 

of traffic and toward the shoulder. The Jetta struck plaintiff, 

pinning her left leg between its front bumper and the rear 

bumper of her husband’s car. 

Garcia kept on driving. 
3

B. Plaintiff’s injuries

The resulting injuries to plaintiff were significant.

1. Physical injuries

The impact squeezed copious amounts of muscle, tissue,

and blood out of plaintiff’s thigh and onto the cars and the 

ground. Although surgeons were able to graft skin from her left 

hip (using a mechanism similar to a deli cheese slicer to harvest 

the skin), the discolored skin grafts did not replace the lost mass 

in her thigh, which is now misshapen with a concave indentation. 

The impact also severed plaintiff’s femoral artery. 

Immediately after the accident, it was “touch and go” whether the 

resulting loss of oxygen to her left leg might necessitate 

amputation of the leg. However, surgeons were able to replace 

the severed segment of the artery with a vein removed from 

plaintiff’s right thigh. 

Plaintiff also suffered permanent nerve damage. 

Plaintiff spent 31 days in the hospital, and another few 

months bedridden. She underwent five surgical procedures while 

hospitalized, and two more after her release. 

2. Psychological injuries

As a result of the accident itself, the ensuing surgeries, and 

the physical therapy that followed, plaintiff endured a great deal 

of pain. She is also humiliated by the disfigurement of her left 

leg. She now suffers from two psychological conditions: (1) posttraumatic stress disorder (PTSD) from the trauma of the accident 

and its immediate aftermath as well as from the continuing 

possibility (albeit less than 5 percent) that her leg may yet have 

to be amputated, and (2) “adjustment disorder with depressed 

mood.” The PTSD causes plaintiff to have panic attacks and 
4

flashbacks, and prompts her to avoid situations that “trigger” 

them.

II. Procedural Background

A. Complaint

In February 2017, plaintiff sued Garcia and his employer, 

B.R. & Sons, Inc. (collectively, defendants). In the operative first 

amended complaint, her sole claim is for negligence.1

B. Motion in limine regarding Garcia’s conduct in 

leaving the scene

Defendants filed 11 motions in limine; in one of them, 

defendants moved to exclude all evidence and argument that 

Garcia had engaged in a “hit and run”—that is, that he left the 

scene after causing the accident. Because defendants stipulated 

to liability while this motion in limine was pending, the sole issue 

for trial was the extent of plaintiff’s damages and hence whether 

the hit-and-run conduct was relevant to her damages.

Although it was undisputed that Garcia had left the scene, 

there were factual disputes as to whether Garcia left the scene 

knowing he had caused an accident, as to whether plaintiff knew

Garcia had left the scene, and as to whether that knowledge had 

1 Plaintiff initially sued defendants for intentional infliction 

of emotional distress based on Garcia’s conduct in not stopping 

after causing the accident, but the trial court ultimately 

sustained a demurrer to that claim without leave to amend on 

the grounds that (1) Garcia’s conduct in leaving the scene did 

“not constitute extreme and outrageous conduct,” and (2) the 

resulting impact on plaintiff as alleged in the operative 

complaint—namely, that she “began to cry, worry and became 

afraid”—did not constitute “severe emotional distress.” 

Plaintiff’s husband also sued defendants for negligent 

infliction of emotional distress, and settled with defendants for 

$400,000. 
5

caused plaintiff any damages. In support of their motion in 

limine, defendants introduced evidence that (1) Garcia had told 

the California Highway Patrol (CHP) officers who interviewed 

him the next day that he thought he had just run over debris, 

and those officers had found Garcia to be credible and thus had 

not recommended criminal prosecution for a “hit and run”; and 

(2) according to plaintiff’s psychologist expert, the psychological 

injury to plaintiff from learning that Garcia left the scene 

depended on her belief that Garcia committed a hit-and-run, and 

hence depended on her rejecting Garcia’s view of what happened. 

In opposition to the motion, plaintiff introduced evidence that (1) 

Garcia “kept on driving” and refused to “go back” even after 

another motorist who witnessed the accident caught up to Garcia 

and gestured to him to circle back to the scene of the accident; (2) 

Garcia’s story to the CHP was untrustworthy because Garcia’s 

account of the accident (i.e., whether he was changing lanes and 

whether his defroster was on) had changed over time; (3) plaintiff 

testified in a deposition that she “found out there was another 

truck at the scene”; and (4) according to plaintiff’s psychologist

expert, plaintiff’s “understanding that the truck driver had fled 

the scene” was an “aggravating factor” to her emotional distress 

and prevented her from “getting closure.” 

Following multiple rounds of briefing as well as extensive 

argument and re-argument, the trial court ruled that (1) the hitand-run evidence was admissible, and (2) no evidentiary hearing 

pursuant to Evidence Code section 4022 (“402 hearing”) was 

necessary. With regard to admissibility, the court concluded that 

(1) the evidence as to whether Garcia knowingly committed a hit2 All further statutory references are to the Evidence Code 

unless otherwise indicated.
6

and-run, whether plaintiff knew about it, and whether that 

knowledge exacerbated her emotional distress was 

“contradictory” but nonetheless “sufficient” for a jury to 

“conclude” that his knowing flight had aggravated her emotional 

distress; and (2) the CHP officers’ recommendation not to 

prosecute Garcia for a hit-and-run did not mandate exclusion of 

the hit-and-run evidence under section 352 because the quantum 

of evidence necessary “for a criminal prosecution” is greater than 

the quantum necessary to create a “triable issue” for a jury 

“under the preponderance of the evidence standard.” The court 

declined defendants’ invitation to “ignore” plaintiff’s evidence and 

“just believe the defense side” in evaluating the threshold 

question of admissibility. The court also found that holding a 402 

hearing would be an “undue waste of time” because it would “end 

up with [the same] conflict in the evidence” set forth in the 

parties’ papers and because it would still be the jurors’ job to 

resolve that conflict, such that a 402 hearing would do no more 

than “inconvenience” “witnesses to . . . come down [to court] twice 

to tell their testimony.” 

C. Trial

1. Opening statements

Plaintiff made no mention of Garcia’s possible hit-and-run 

conduct in her opening statement to the jury. In their opening 

statement, defendants told the jury that plaintiff was “making a 

claim that the truck didn’t stop at the scene and that bothers 

her,” but that Garcia “didn’t know there was an accident.” 

2. Pertinent evidence at trial

To support her claim for noneconomic damages, and as 

noted above, plaintiff introduced evidence that her physical 

injuries caused her great pain and humiliation. Also as noted 
7

above, plaintiff called a psychologist as an expert witness who 

opined that plaintiff suffers from PTSD and depression, and that 

“most of [that] anxiety” stems from her “injury and the effects of 

her injury.”

The jury heard conflicting evidence as to whether Garcia’s 

conduct in leaving the accident scene exacerbated plaintiff’s 

emotional distress. Plaintiff introduced evidence that (1) Garcia 

was aware he had caused an accident because (a) a motorist who 

saw the accident caught up to the work truck that caused the 

accident, gestured for the truck’s driver (that is, Garcia) to turn 

around and go back, saw the driver look at him, and watched the 

driver speed away, (b) Garcia admitted to the CHP officers that 

he saw a motorist pull up alongside him, and (c) Garcia testified 

at trial that he both “knew” and “didn’t know” he “had collided 

with another car and left the scene”; (2) plaintiff learned, as she 

lay on the roadside, that the motorist who caused the accident 

never stopped because (a) the driver of the Jetta testified that he 

was “standing there by [plaintiff] after the accident” when he 

announced that “the truck had driven away after hitting” him, 

and (b) plaintiff testified that she heard the Jetta’s driver say

that “[s]omebody else hit him” and she did not see the truck at 

the scene; and (3) plaintiff’s knowledge that the “truck didn’t 

stop” was an “aggravating” “trigger” for her PTSD. Defendants 

elicited evidence that (1) Garcia thought he only hit debris and 

not another vehicle, and both of the CHP officers who interviewed 

Garcia found his explanation to be credible and did not 

recommend criminal charges; and (2) plaintiff did not know about 

Garcia’s conduct at the time of the accident because (a) her 

psychologist expert testified that plaintiff “didn’t know . . . at the 

time” that Garcia had driven away, and (b) plaintiff herself 
8

testified on direct examination that she did not “learn[] that the 

person responsible for the collision was found” until “two months 

after the accident” and, on cross-examination, that she did not 

learn until two months after the accident that the truck had left 

the scene.

3. Pertinent jury instructions

At the suggestion of plaintiff’s counsel, the trial court 

instructed the jury that it could “use” “[t]he evidence you have 

heard regarding whether . . . Garcia ‘hit and ran’ from the scene 

of the accident knowing he struck a vehicle” “for a limited 

purpose”—namely, “to decide whether [plaintiff] sustained 

emotional distress due to this” conduct. The court also instructed 

the jury that it “must not include in [its] award any damages to 

punish or make an example of [defendants].” 

4. Closing arguments

In her initial closing argument, plaintiff argued that 

Garcia’s conduct in leaving the scene operated as a “trigger” for 

her PTSD. 

A few minutes later, plaintiff argued that “[f]rom the 

moment that B.R. & Sons found out about this accident, damage 

control began.” Defendants objected: “Argument to punish.” At 

a sidebar, the trial court sustained the objection because plaintiff 

was “linking the hit-and-run to damage control” but whether 

“damage control began” was “beyond the scope of whether or not 

the hit-and-run occurred.” Defendants moved for a mistrial on 

the ground that plaintiffs were signaling to the jury that it 

should punish defendants for Garcia’s hit-and-run conduct, but 

the trial court denied the motion: “I didn’t hear any comment 

about punishing anybody because there was no such comment by 

[plaintiff’s] counsel.” 
9

In their closing argument, defendants asserted that 

plaintiff’s damages demand “has everything to do with 

punishment.” Seizing on plaintiff’s testimony on crossexamination, defendants also urged that the “only evidence” at 

trial showed that plaintiff learned about Garcia’s hit-and-run 

conduct two months after the accident. 

In rebuttal, plaintiff pointed out other evidence at trial 

indicating that plaintiff was contemporaneously aware of 

Garcia’s flight from the scene—namely, the Jetta driver’s 

testimony that he reported it to everyone on the freeway shoulder 

and plaintiff’s testimony that she heard him. 

5. The verdict

After two days of deliberations, the jury awarded plaintiff 

$5,310,021 in damages. Specifically, the jury voted 12-0 to award 

plaintiff $1,310,021 for future medical expenses, voted 10-2 to 

award her $2 million for future pain and suffering, and voted 9-3 

to award her $2 million for past pain and suffering. 

D. Motion for new trial

As pertinent to this appeal, defendants moved for a new 

trial on the ground that the trial court erred in denying their 

motion in limine to exclude evidence that Garcia knowingly fled 

the accident scene. Defendants also mentioned in passing that 

the damages were excessive. After briefing and argument, the 

trial court denied the motion. The court ruled that it had 

committed “no error” in allowing the jury to consider whether 

Garcia had fled the scene because there was sufficient evidence to 

present that issue to the jury; the court went on to note that the 

evidence adduced at trial “that Garcia had knowledge that he 

was involved in an accident” ended up being “overwhelming.” 

The court also found that “no prejudice to defendants resulted.” 
10

The court went on to find that “[t]he special and general damages 

awarded by the jury [were] fair and reasonable and within the 

range to be expected with the significant life-changing injuries 

that plaintiff sustained . . . .” 

E. Appeal

Defendants filed this timely appeal. 

DISCUSSION

Defendants argue that the trial court erred in (1) admitting 

evidence that Garcia had knowingly left the accident scene, and 

(2) concluding that the noneconomic damages award was not 

“excessive.”

I. Admission of Hit-and-Run Evidence

Defendants contend that the trial court should not have 

admitted the hit-and-run evidence because it is (1) irrelevant, 

and (2) subject to exclusion under section 352. We review 

evidentiary rulings for an abuse of discretion. (People v. Powell

(2018) 5 Cal.5th 921, 961.) “[A]n erroneous evidentiary ruling 

requires reversal only if ‘“there is a reasonable probability that a 

result more favorable to the appealing party would have been 

reached in the absence of the error.”’ [Citation.]” (D.Z. v. Los 

Angeles Unified School Dist. (2019) 35 Cal.App.5th 210, 231

(D.Z.).)

A. No abuse of discretion

1. Relevance

Evidence is relevant if it has “any tendency in reason to 

prove or disprove any disputed fact that is of consequence to the 

determination of the action.” (§ 210, italics added.) Under this 

definition of relevance, it is therefore “error to receive evidence 

. . . material solely to” facts that are undisputed. (Fuentes v. 

Tucker (1947) 31 Cal.2d 1, 5 (Fuentes).) But where, as here, 
11

liability is undisputed but damages are not, evidence tending to 

show “how an accident happened” is relevant if it is “material to 

the issue of damages.” (Ibid.) More to the point here, a 

motorist’s “failure to stop” after an accident can be relevant to 

show “the aggravation of injuries sustained in the accident or 

additional injuries incurred after it.” (Karl v. C.A. Reed Lumber 

Co. (1969) 275 Cal.App.2d 358, 362; see generally Abelson v. 

National Union Fire Ins. Co. (1994) 28 Cal.App.4th 776, 789 

(Abelson) [“Damages for emotional distress are inextricably 

related to the conduct causing that distress . . .”].) Applying 

these definitions, evidence that Garcia knowingly left the 

accident scene would be relevant to prove plaintiff’s emotional 

distress damages only if (1) plaintiff knew Garcia left the scene, 

(2) this knowledge caused plaintiff emotional distress, and (3) 

Garcia knew of the accident at the time he left the scene 

(because, otherwise, the emotional distress plaintiff experienced 

would be due to her misperception rather than anything Garcia 

actually did).

In this case, the trial court did not abuse its discretion in 

ruling that evidence that Garcia left the accident scene was 

relevant because there was sufficient evidence for the jury to find 

each of the three logical prerequisites for relevance to be true: 

The Jetta driver told plaintiff that the car that caused the 

accident drove off and plaintiff testified that she heard him and 

did not see the responsible vehicle at the scene; plaintiff’s 

psychologist expert testified that Garcia’s hit-and-run conduct 

was an “aggravating” “trigger” for plaintiff’s PTSD; and Garcia’s 

conduct in ignoring the motorist who signaled him to turn back 

and his admissions on the stand supported a finding that Garcia 

did, in fact, know he struck another vehicle and drove off anyway. 
12

Defendants raise what boil down to four arguments in 

response.

First, defendants point to several pieces of evidence that 

would have supported a finding that the three logical 

prerequisites for relevance were absent or only “weak[ly]”

established. In particular, defendants assert (1) that plaintiff did 

not know about the hit-and-run until later because (a) both she 

and her psychologist expert indicated that she did not learn of 

the hit-and-run “until later,” (b) the Jetta driver was unable to 

identify Garcia as the hit-and-run driver at the time, and (c) 

plaintiff was merely told Garcia drove away (rather than seeing 

him drive away herself); (2) that plaintiff’s emotional distress was 

caused by her “lack of closure” due to not knowing who caused 

the accident, but her lack of knowledge was due to her own 

ignorance because the CHP officers had identified Garcia the day 

after the accident; and (3) that Garcia did not knowingly commit 

a hit-and-run because the CHP officers found Garcia to be 

credible when he disclaimed any such knowledge. 

As a global matter, the trial court’s task in assessing the 

relevance of evidence turning on preliminary facts is to determine 

whether there is sufficient evidence for a jury to find those 

preliminary facts to be true; the court’s task is not to definitively 

decide those preliminary facts for itself. (§ 403, subd. (a)(1) 

[when assessing “relevance” of “proffered evidence,” that evidence 

is admissible if “the court finds that there is evidence sufficient to 

sustain a finding of the existence of the preliminary fact”]; People 

v. Cottone (2013) 57 Cal.4th 269, 283 [“‘the preliminary fact 

questions listed in [section 403, subdivision (a)] . . . are not finally 

decided by the judge because they have been traditionally 

regarded as jury questions’” because they “‘involve the credibility 
13

of testimony’”].) Because, as noted above, plaintiff introduced 

evidence that would have supported a finding as to each of the 

three prerequisites (or, in the vernacular, preliminary facts) upon 

which the relevance of the hit-and-run evidence turned, section 

403 required the trial court to let the jury decide those facts; the 

court would have erred if, as defendants now request, the court 

had decided those facts for itself. This is also why the trial court 

did not abuse its discretion in declining to hold a section 402 

evidentiary hearing—namely, because that hearing would have 

adduced the same conflicting evidence and thus required that 

evidence to be submitted to the jury for resolution. (People v. 

Williams (1997) 16 Cal.4th 153, 197 [decision not to hold section 

402 hearing is reviewed for an abuse of discretion]; People v. 

Chavez (2018) 22 Cal.App.5th 663, 703 [section 402 hearing 

unnecessary when exercising discretion under section 352]; cf. In 

re Kathleen W. (1987) 190 Cal.App.3d 68, 73 [error not to hold a 

section 402 hearing for matters outside section 403, subdivision 

(a)].)

The items of evidence defendants point to would not have 

mandated exclusion for additional reasons, too. Although the 

testimony of both plaintiff and her psychologist expert contained 

some internal inconsistencies regarding when plaintiff learned 

that Garcia had not stopped, it is up to a jury to resolve those 

conflicts within the witnesses’ testimony. (Pleasant Hill v. First 

Baptist Church (1969) 1 Cal.App.3d 384, 408 [noting “the duty of 

the jury to reconcile conflicting testimony”]; People v. Morgan

(1997) 58 Cal.App.4th 1210, 1216 [same, even as to 

inconsistencies within a single witness’s testimony].) Further,

the Jetta driver said he told plaintiff about the truck driving 

away and plaintiff at one point said she heard the Jetta driver; 
14

that is enough to get the question of fact to the jury. Whether the 

Jetta driver could identify Garcia as the hit-and-run driver 

moments after the accident and whether plaintiff actually saw 

Garcia driving away are not preliminary facts upon which 

relevance turns; their absence is therefore of no moment.3 The 

psychologist expert’s testimony that plaintiff’s emotional distress 

was also caused by her “lack of closure” did not negate his 

testimony that Garcia’s hit-and-run conduct was an “aggravating 

factor” to her PTSD. And the CHP officers’ belief that Garcia was 

credible when Garcia disclaimed any knowledge of hitting 

another vehicle is entitled to no weight because one person’s 

belief regarding another person’s credibility is not usually 

relevant—let alone dispositive. (E.g., People v. Zambrano (2004) 

124 Cal.App.4th 228, 239 [“a lay witness’s opinion about the 

veracity of another person’s particular statements is inadmissible 

and irrelevant on the issue of the statements’ credibility”]; People 

v. Melton (1988) 44 Cal.3d 713, 744 [same].) 

3 Defendants also make a hearsay objection to plaintiff’s 

reliance on what the Jetta driver told her about the truck driving 

away. This objection is without merit. What the Jetta driver told 

plaintiff is relevant to prove the effect of that statement on its 

hearer—that is, its effect on plaintiff’s mental state. A statement 

admitted to show its effect on the hearer is not hearsay. (E.g., 

Holland v. Union Pacific Railroad Co. (2007) 154 Cal.App.4th 

940, 947 [a “‘statement is not hearsay’” when “‘it is the hearer’s 

reaction to the statement that is the relevant fact sought to be 

proved—not the truth of the matter asserted in the statement’”].) 

Although, as noted above, the relevance of this evidence turns

upon a finding that Garcia had knowingly fled the accident scene, 

that finding is supported by evidence other than the Jetta driver’s 

statement. 
15

Second, defendants contend that the CHP officers’ decision 

not to recommend prosecution for hit-and-run precluded 

reference to Garcia’s underlying conduct in this case. This 

contention ignores the different burdens of proof in criminal and 

civil cases. The CHP officers’ assessment that a prosecutor could 

not prove a hit-and-run beyond a reasonable doubt does not mean 

that plaintiff could not do so by a preponderance of the evidence. 

(See United States v. Watts (1997) 519 U.S. 148, 157 [“a jury’s 

verdict of acquittal does not prevent the sentencing court from 

considering conduct underlying the acquitted charge, so long as 

that conduct has been proved by a preponderance of the 

evidence”].)

Third, defendants assert that the preliminary fact that the 

hit-and-run affected plaintiff’s psyche cannot be established 

because the psychologist expert’s testimony was inadmissible. 

Because neither of defendants’ two proffered bases for 

inadmissibility was raised before the trial court, they are 

forfeited. (§ 353, subd. (a).) Both bases also lack merit. 

Defendants claim that the expert was not competent to testify 

because he was not plaintiff’s treating physician. This claim is

frivolous, as non-treating physicians may testify as experts. 

(E.g., Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35-36.) 

Defendants also claim that the expert impermissibly relayed to 

the jury what plaintiff had told him, which violates the hearsay 

rule under People v. Sanchez (2016) 63 Cal.4th 665. This claim is 

also frivolous, as experts may relay “case-specific facts” that are 

“independently proven by competent evidence” (id. at p. 686), and 

plaintiff here competently testified at trial to the statements the 

expert relayed to the jury.
16

Lastly, defendants assert that the trial court was wrong to 

rely upon Fuentes, supra, 31 Cal.2d 1 and Abelson, supra, 28 

Cal.App.4th 776 because those cases are factually 

distinguishable. This assertion is meritless. The trial court cited 

those cases for the legal rule they applied; whether those cases

were factually analogous is of no concern.

2. Section 352

Section 352 grants trial courts “discretion” to “exclude 

evidence if its probative value is substantially outweighed by the 

probability that its admission will (a) necessitate undue 

consumption of time, or (b) create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.” 

(§ 352.)

The trial court did not abuse its discretion in admitting the 

hit-and-run evidence under section 352. For the reasons 

explained above, Garcia’s conduct in knowingly leaving the scene 

of the accident was relevant to prove—and hence had significant 

probative value in establishing—plaintiff’s emotional distress 

damages. What is more, the trial court substantially mitigated 

any unfair prejudice by explicitly instructing the jury that it was 

only to consider the hit-and-run evidence “to decide whether 

[plaintiff] sustained emotional distress.” 

Defendants respond with five arguments. First, they argue 

that plaintiff impermissibly referred to Garcia’s conduct as 

“criminal” and implied that defendants engaged in a “cover up.” 

The record does not support this argument. Plaintiff’s counsel

never used those terms. And to the extent plaintiff implied that 

defendants tried to conceal Garcia’s involvement, that implication 

was supported by Garcia’s own testimony that he gave “different 

explanations” at “different times.” Second, defendants contend 
17

that plaintiff sought to “vilify and demonize” defendants and to 

make Garcia look like a “bad guy,” which was aimed at 

engendering anger toward defendants. What made Garcia look 

like a “bad guy” was his decision to keep driving, and section 352 

does “not . . . allow for the exclusion of evidence merely because it 

is ‘prejudicial’ in the sense of damaging to a litigant’s position.” 

(O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 

Cal.App.4th 563, 575.) Third, defendants assert that plaintiff’s 

elicitation of evidence on the hit-and-run aspect of the case was 

unduly time consuming and took “days” of testimony. The record 

does not support this assertion, as the questions directed at the 

hit-and-run aspect of the case took mere minutes—not multiple 

days. Fourth, defendants argue that the court’s limiting 

instruction was ineffective, but this argument is purely 

speculative and runs contrary to the longstanding presumption 

that “the jury follows its instructions.” (Cassim v. Allstate Ins. 

Co. (2004) 33 Cal.4th 780, 803.) Fifth, defendants urge that 

plaintiff would have been able to prove her case without the hitand-run evidence. However, section 352 does not provide for the 

exclusion of a portion of a party’s case merely because the party 

could obtain a lesser recovery based on what was still admitted; if 

it did, section 352 would mandate the exclusion of wide swaths of 

evidence. This most certainly is not the law.

B. No prejudice

Even if we assume that the trial court abused its discretion 

in admitting evidence of Garcia’s hit-and-run conduct as part of 

plaintiff’s emotional distress damages, there is no reasonable 

probability that the admission of this evidence altered the result 

of the trial. (D.Z., supra, 35 Cal.App.5th at p. 231.) 
18

Defendants bear the burden of establishing prejudice 

(Vaughn v. Jonas (1948) 31 Cal.2d 586, 601), and to satisfy that 

burden, they point to the size of the $4 million noneconomic 

damages award and urge that the hit-and-run evidence was a 

“major” part of the trial and the “entire foundation” of the $4 

million award. The record does not support defendants’ position. 

As we conclude below, the size of the $4 million award is not 

excessive on its face and defendants offer no evidence as to how 

the hit-and-run evidence affected that verdict.4 Further, the hitand-run evidence occupied a minor role at the trial and was 

accurately characterized by plaintiff as merely an aggravating 

factor to the emotional distress that was chiefly attributable to 

the crash itself. Indeed, the hit-and-run evidence had a slightly 

elevated profile at trial only because defendants repeatedly 

brought up that evidence: Defendants were the first to raise the 

issue during opening statements; defendants were the first to 

elicit testimony (from the CHP officer) on the issue; and 

defendants devoted a substantial portion of their closing 

argument to the issue. In other words, defendants are 

complaining about a prejudicial effect that, if it exists at all, is 

one that they themselves created. 

II. Excessive Damages

Defendants argue that the trial court erred in denying their 

new trial motion because the $4 million award for past and 

future noneconomic damages is excessive. 

4 Before the trial court, defense counsel submitted a 

declaration stating that the “jury would have awarded a lower 

verdict amount if evidence and argument on the issue of ‘hit and 

run’ had been properly excluded,” but the trial court correctly 

struck that statement as speculative.
19

A trial court may grant a new trial when the jury’s award 

of “damages” is “[e]xcessive.” (Code Civ. Proc., § 657, subd. (5).) 

For these purposes, a damages award is “excessive” only when it 

is “‘so grossly disproportionate’” as to “‘raise[] a presumption that 

it was the result of passion and prejudice’” because it “shocks the 

conscience.” (Seffert v. Los Angeles Transit Lines (1961) 56 

Cal.2d 498, 508-509 (Seffert); Daggett v. Atchison, T & S.F.R. Co.

(1957) 48 Cal.2d 655, 666 (Daggett).) Because a finding that a 

particular damages award is excessive is akin to a finding that 

there is not enough evidence to support that award (Sprague v. 

Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1055), we review a trial 

court’s finding that a damages award is not excessive for 

substantial evidence and, in so doing, view the record in the light 

most favorable to that finding. (Rony v. Costa (2012) 210 

Cal.App.4th 746, 753-754; Mendoza v. City of West Covina (2012) 

206 Cal.App.4th 702, 720.)

Although defendants arguably forfeited their right to 

challenge the excessiveness of the damage award by making no 

more than a passing reference to it in their motion for new trial, 

their challenge lacks merit in any event because substantial 

evidence supports the trial court’s finding that the $4 million 

noneconomic damages award does not “shock the conscience.” 

Whether a noneconomic damages award of this size for a 

significant injury that risked—and still risks—the loss of a limb 

is closer to the infield or to the outfield wall, the award is still 

well within the proverbial ballpark. Defendants have also not 

provided any evidence indicating that the jury’s assessment of 

damages was corrupted.

Defendants respond with two arguments.
20

First, they contend that the $4 million award for 

noneconomic damages is out of whack with the awards for 

noneconomic damages in other cases involving crushed limbs. 

Although courts sometimes “consider amounts awarded in 

similar cases” when evaluating the excessiveness of an award 

(Daggett, supra, 48 Cal.2d at p. 666), doing so is of limited utility 

because “such awards vary greatly” and “each case must be 

decided on its own facts and circumstances” (Seffert, supra, 56 

Cal.2d at p. 508). This is especially true for awards of 

noneconomic damages because “[i]njuries are seldom identical 

and the amount of pain and suffering involved in similar physical 

injuries varies widely.” (Ibid.; Fernandez v. Jimenez (2019) 40 

Cal.App.5th 482, 490-491 (Fernandez).) Defendants point to 

several cases where the noneconomic damages award was 

substantially less than the $4 million award in this case; plaintiff 

cites cases where the award was substantially more (e.g., Cobb v. 

Cty. of L.A. (2019) 2019 Cal.App.Unpub.LEXIS 3084, *3-*6 

[award of $9.8 million for past and future noneconomic damages 

due to crushed foot and leg]). If anything, this exercise in 

comparison confirms that the award in this case is within—and 

not beyond—the pale.

Second, defendants suggest that plaintiff’s closing 

argument inflamed the jury by referencing “Lady Justice” and 

the Bible’s “eye for an eye” maxim, and accusing defendants of 

engaging in “damage control.” To be sure, a damages award may 

be excessive if traced to “improper argument by counsel that 

would suggest the jury relied upon improper considerations.” 

(Fernandez, supra, 40 Cal.App.5th at p. 490.) But plaintiff’s 

closing argument was not improper. Plaintiff’s counsel

mentioned the “statue . . . of Lady Justice” in the courtroom, but 
21

to explain how the scales she holds “represent[] weighing 

evidence” and how the sword she holds represents “the power to 

see those decisions through.” Plaintiff’s counsel mentioned the 

Bible’s “old system” of seeing “an eye for an eye,” but to explain 

how “society changed” and how we “now . . . use money to 

compensate for the justice.” And while plaintiff’s counsel

mentioned “damage control,” he did not link it to punishing 

defendants; indeed, it was defendants who first mentioned 

punishment in their objection and in their responsive closing 

argument. What is more, the trial court specifically instructed 

the jury that the attorneys’ arguments were not evidence and 

that the jury was not to consider punishment in assessing 

damages. Indeed, the $4 million noneconomic damages award is 

closer to the $1 million to $1.5 million range suggested by 

defendants than to the $30 million sought by plaintiffs. This 

tends to negate the inference that the jury got “carried away” by 

plaintiff’s arguments.
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DISPOSITION

The judgment is affirmed. Plaintiff is entitled to her costs 

on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ