1

Filed 6/17/14 Harmon v. S afeway CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

WILLIAM HARMON, Plaintiff and Appellant,

v. SAFEWAY, INC., Defendant and Respondent. A134891
(Sonoma County Super. Ct. No. SCV

- 248465)

INTRODUCTION Plaintiff William Harmon appeals from a judgment of the Sonoma County Superior Court following a jury trial awarding him $5
, 060 damages in his personal injury action against defendant S afeway, Inc. (Safeway) after he was hit by a runaway groc ery
cart. Harmon contends : (1) The trial court abused its discretion in granting Safeway leave to change its admission s admitting that the cart hit his wrist ; (2) after allowing defendant to withdraw its admissions, the court further erred in denying his motion for cost of proof sanctions ; (3) t he court erred in denying his motion for additur or for a new trial as to damages only
, on the ground s that the damages aw arded were inadequate
, the
verdicts were “ against law” and were inconsistent ( Code Civ. Proc., § 657) , 1 and the jury
refused to follow the court’s instructions on causation ; and (4) the court abused its discretion in denying his motion for judgment notwith standing the verdict (JNOV) after denying his additur and new trial motions. Finally, Harmon contends the court erred in

1 Unless otherwise indicated, all statutory references are to the Code of Civil Procedure and all references to rules are to the California Rules of Court.2

granting Safeway’s section 998 motion for costs, which resulted in a net a ward to Safeway of $35,092.50. We shall affirm the judgmen t.

APPEALA BILITY OF UNDESIGNATED ISSUES At the outset, we confront Safeway’s claim that pursuant to r ule 8.130(a)(2)
, 2 Harmon has waived his right to raise the issues identified above by his failure to designate them in his notice of appeal

. As Harmon points out, Safeway does not quote from the notice of appeal , which designates the appeal as being from a “jud gment after jury trial,” but from Harmon’s notice designating the record on appeal filed May 11, 2012, in which he specifically designat ed less than all of the reporter’s transcript. That record designation stated the points he intended to raise on appeal as: “1. Fact that Plaintiff received an injury from having a shopping cart pushed into his arm by a negligen t Safeway clerk. [¶] 2. That p laintiff suffered an injury in said accident requiring surgery. [¶] 3. That it was th e subject accident that caused p laintiff to undergo surgery, and not any pre

- existing condition. [¶] 4. Plaintiff be nefited from said surgery.” As pointed out by a leading appellate treatise, “D esignating less than all the testimony limits the scope of appellate review to the points stated in the designation notice, unless otherwise permitted by the court of appeal on appellant ’s motion. [ Citations.]” (Eis enberg et al., Civil Appeals and Writs (The Rutter Group, 2013) ¶ 4:80.1, p . 4

- 20 , citing r ule 8 .130(a)(2 ) and Ermoian v. Desert Hosp ital ( 2007) 152 Cal.App.4th 475 , 497 [“ T he purposes of a notice filed pursuant to [the r ule] are to inform the court reporter which portions of the oral proceedings to transcribe, to limit the scope of appellate review to the issues specified, and to enable the respondent on appeal to

2 Rule 8.130 (a), provides in relevant part:

“ (a) Notice

“ (1) A notice under rule 8.121 designating a reporter’s transcript must specify the date of each proceeding to be included in the transcript and may specify portions of designated proceedings that are not to be included

. . . . “ (2) If the appellant designate s less than all the testimony, the notice must state the points to be raised on appeal; the appeal is then limited to those points unless, on motion, the reviewing court permits otherwise. ” (Italics added.)3

determine whether to request that additional portions of t he oral proceedings be
transcribed. ”] ( Italics added )

. )
Moreover , after designating an incomplete transcript, Harmon did not seek this court’s permission to augment the record or raise appellate issues not identified in his record designation. Thus, Harmon waived any contention of error on appeal. (Rule 8.130(a)(2); see also McDaniel v. Dowell (1962) 210 Cal.App.2d 26, 30 [where appellant proceeded by partial transcript, appellate court would not consider contention that was
not listed as one of the points to be raised on appeal]; Wickham v. Southland Corp. (1985) 168 Cal.App.3d 49, 52, fn. 2 [where appellant designates only a partial record, issues not embraced within the points stated are not subject to review absent a successful motion to proceed on other points].) Nevertheless, in the exercise of our discretion, we will reach
the merits of Harmon’s claims to the extent permitted by the partial record before us and
the proper scope of review under which we operate when the record omits portions of the transcript. On a partial record containing less than all oral proceedings, there is a general presumption that the abbreviated record “includes all matters material to deciding the issues raised.” (Rule 8.163 ; 3 Hillman v. Leland E. Burns, Inc. (1989) 209 Cal.App.3d 860, 864; County of Yolo v. Francis (1986) 179 Cal.App.3d 647, 650 , fn. 2; Eisenberg et al., Civil Appeals and Writs, supra, ¶ 4:51, p. 4

- 13.) In other words, we will not presume that the absence of error would have been shown by something that is not in the record. “This rule makes it possible to take an appeal on a partial re cord without risking defeat by a presumption that omitted proceedings would have shown the absence of error.” (Eisenberg et al., Civil Appeals and Writs, [¶] 4:51, p 4

- 13; but see, Haywood v. Superior
Court (2000) 77 Cal.App.4th 949, 955 [refusing to find error on a silent record and

3 “The reviewing court will presume that the r ecord in an appeal includes all matters material to deciding the issues raised. If the appeal proceeds without a reporter’s transcript, this presumption applies only if the claimed error appears on the face of the record.” (Rule 8.163.)4

therefore inferring substantial evidence in favor of th e trial court’s conclusions] ; Vo v. Las Virgenes Municipal Water Dist

. (2000) 79 Cal.App.4th 440, 447 .) In determining whether substantial evidence supported the jury verdict and the

court ’ s resolution of the post trial motions, we must review the entire record before us ; we cannot limit our review to isolated pieces of the evidence. ( See In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 50.) An ad equate record is critical to our substantial
evidence review. We presume the judgment is correct, and a party challenging a judgment must provide an adequate record to permit us to determine whether the jury
verdict is su pported by substantial evidence an d whether the trial court abused its
discretion in denying motion for additur, new trial
, or judgment notwithstanding the
verdict.
FACTS AND PROCEDURAL BACKGROUND Harmon sued Safeway, alleging that on May 17, 2009, while shopping at Safeway,
he suffered a fracture of his right wrist and other damages when a train of shopping carts
bei ng pushed by a Safeway employee broke free from the employee and struck his wrist. Safeway answered, generally denying all allegations and specifically denying Harmon was inj ured as a result of any act or omission on its part

. B efore taking Harmon’s deposition, Safeway responded to his R equest for
A dmissions

– S et O ne, by admitting at least one shopping cart being pushed by its employee Anthony Jones, struck Harmon’s right w rist and that the wrist was injured as a
result. 4 At that point, Safeway had only information that Harmon claimed his right wrist had been struck and a handwritten statement by Safeway employee Anthony Jones that
he saw a car t strike Harmon’s arm.

4 Specifically, in response to Harmon’s request for admission 4, Safeway admitted: “The shopping carts pushed by Mr. JONES accidentally struck plaintiff’s right wrist.” In response to request for admission 5, Safeway admitted that plaintiff’s right wrist was injured in the subject accident.5

In hi s later deposition of May 18, 2011, 5 Harmon testified that he had both hands on the handle of the cart the entire time, up until the time he claims the cart struck his

arm. In July, Safeway served a section 998 “Offer to Compro mise” for $100,000.
Harmo n did not accept the offer. In August, Safeway conducted an independent medical examination of Harmon and was informed by its expert, board certified Orthopedic S urgeon Charles Stuart, M.D., that in his opinion it would have been physically impossible fo r Harmon’s arm to have been struck if the accident had occurred in the manner claimed by Harmon in his deposition

— that is, with both hands holding on to the handle of the cart the entire time. Safeway retain ed Engineer Richard Stuart and Biomechanics E xpert Laura Liptai to reconstruct the accident and determine whether plaintiff could have been injured in the manner to which he testified at his deposition. Both opined it was a physical impossibility. Harmon’s counsel took depositions of Dr. Stuart and Liptai in September. Harmon’s expert, B iomechanical E ngineer Albert Ferrari testified at his deposition that it was “possible” Harmon’s arm could have been struck if the front end of the cart raised up
off the ground on impact. On October 20, upon Harm on’s motion in limine to preclude Safeway from attempting to prove Ha rmon was not struck on the wrist, Safeway moved to withdraw its admissions that Harmon’s right wrist was injured when struck by a shopping cart

. Safeway’s counsel declared under oath tha t due to counsel’s mistake, inadvertence and excusable neglect, counsel had not previously moved to withdraw Safeway’s responses to request for admissions Nos. 4 and 5. Counsel argued there was no prejudice to Harmon, who had been aware of Safeway’s posit ion and defense for months and had retained its own expert to explain how the injury could have occurred despite a height discrepancy
between the handle and the basket of the carts . All witnesses h ad been disclosed and

5 All dates are in 2011, unless otherwise stated.6

deposed. The court granted Safeway’ s motion to withdraw the admissions on October
24. Jurors were summoned to the courtroom on October 25 and counsel presented

ope ning statements on October 26.
It was undisputed at trial that Harmon had severe, degenerative arthritis in the joint
at the base of the thumb that preexis ted the cart incident. Evidence was presented that was consistent with Harmon’s theory that although pre

- existing degenerative arthritis, such as Harmon’s
, was not caused by the cart incident and can gradually worsen and

ext end on its own, the collision with the cart caused a shearing, or torking of the thumb, which would have resulted in the severe pre

- existing degenerative arthritis becoming symptomatic. Eventually, Harmon had surgery for this condition, performed by board
certified Orthopedic S urgeon Vatche Cabayan, M.D. The surgery was successful and
Harmon was released to work without limitations in 2010. Contrary to Harmon’s theory and evidence, Safeway presented evidence that
Harmon would have needed surgery on the thumb at some point in his life to remedy his preexisting severe arthritis and that even if he had been hit by the carts, he suffered only a
bruise on his arm as a result and that the cart collision did not trigger a flare up or cause worsening of the preexisting arthritis condition. Such evidence included the following: Jones, the Safeway employee, saw no redness or bruising on Harmon’s arm where the
cart struck it. Harmon sought treatment two days later at Sutter Medical Center Emergency Departmen t. T he emergency room ( E.R. ) physician diagnosed a 1 to 1 and 1/2 inch area of redness on the inside of Harmon’s forearm. Harmon had full range of motion in his fingers, wrist and elbow and there was no record of any swelling, although
there was some tend ern ess to palpation. Five days after the accident, when Harmon saw his treating physician, that physician noted a bruise on the outside of the forearm with minimal swelling in the area of the bruise. Harmon returned to his physician on June 4, 2009, and the doctor diagnosed a contusion of the forearm, finding Harmon still had some bruising, swelling and tenderness around the bruise and that his range of motion was much improved, alt hough not full. Neither the records of the E.R. nor Harmon’s7

own physicia n noted any complaint by Harmon about symptoms regarding his thumb.
T he MRI showed no evidence of a ny acute or traumatic injury. On June 16, 2009, nearly a month after the accident, Harmon saw a physical therapist. On t he new patient information form, H armon marked a single X on the inside area of his right forearm and not his thumb, wrist or hand, as the area where he was having complaints or symptoms. The first mention of symptoms related to the thumb came when Harmon visited the physical therapist th e second tim e, 29 days after the accident.
Dr. Stuart testified he had performed an independent medical examination upon Harmon, had reviewed all of Harmon’s medical records, including physical therapy
records and the MRI taken at Santa Rosa Memorial Hospital, and had read depositions of
Harmon and other witnesses, including Dr. Cabayan . Dr. Stuart testified to his opinion that if Harmon sustained any injury in the accident, it was a bruise on the outside of his
forearm. He opined that the Safeway ca rt incident was not a significant factor in the need for surgery, given the lack of any positive physical findings related to the thumb in t he acute post incident period.
The record before us does not contain any testimo ny by Harmon. However, he
told Dr . Stuart that he continued to work as a self

- employed carpenter and contractor
after the accident. Safeway presented expert testimony from an economist who had reviewed available information to try to determine whether Harmon suffered any wage
loss afte r the accident. He testified that Harmon’s income in the six months following the incident was actually higher than during the same months the previous y ear. He also testified it appeared Harmon’s income did decline for a few months after surgery into the early summer. If the thumb surgery were related to the Safeway cart incident, then Harmon’s loss for three to four months would be approximately $10,000 to $12,000 gross income, not taking expenses of $5,000 to $6,00 0 into account. Upon returning to work after surgery in 2010, Harmon was back to his full time earnings an d had no future
economic loss. On November 2, the jury rendered its verdict, finding Safeway was negligent and that Safeway’s negligence was a substantial fac tor in causing harm to Harm on. The jury8

awarded total damages of $5
, 060 for past economic loss, including: $1
, 080 for lost earnings; $830 for emergency room treatment ; $1
, 350 for physical therapy, and $1
, 800
for an MRI. Th e jury made no award for future economic loss or past or f uture non

economic loss, including physical pain or mental suffering. On November 9, pursuant to section 998, Safeway moved to recover from Harmon costs and expert wi tness fees it incurred after his rejection of its offer to compromise. It
filed a cost memorandum s howing $59,963 in such costs. On November 23, Harmon moved for additur, or in the alternative, for a new trial as to damages only , on the ground damages were inadequate and the verdict was against
law

. Hearing was held on December 21, on Sa feway’s section 998 motion for cost of proof sanctions and on Harmon’s motions for additur, or in the alternative for new trial as to damages only and his motion for costs of pr oof sanctions. On February 3, 2012, the court granted in part Safeway’s motion in support of its memorandum of costs and to enforce its section 998 offer to compromise, awarding Safeway half its pretrial expert fees or $19
, 810.5, plus all other claimed costs, for a total of $40,152.50, with a jury
verdict set

- off in the amount of $5 ,060, for a total judgment of $35,092.50. The court denied Harmon’s motions for additur, new trial as to damages only, an d for cost of proof
sanctions. On February 3, 2012, judgment was entered in favor of Safeway and against
Harmon in the a mount of $3 5,092.50. On February 27, Harmon moved for JNOV on the ground there was no substantial evidence to support that portion of the verdict awarding him zero for past non

- economic loss, including s ubstantial pain and suffering. That matter was hear d on April 4, 2012
and denied. This timely appeal followed.
DISCUSSION
I. Withdrawal of Admissions and Denial of Cost of Proof Sanctions Harmon contends the court should not have allowed Safeway to withdraw its admission of liability and causation after trial had commenced and that, having done so, it9

erred in denying his motion for cost of proof sanctions. We conclude the trial court acte d within the scope of its discretion in granting the motion to withdraw admissions and in denying Harmon’s request for cost of proof sanctions

. A. Withdrawal of A dmissions Section 2033.300 provides in relevant part:

“ (a) A party may withdraw or amen d an admission made in response to a request for admission only on leave of court granted after notice to all parties.

“ (b) The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, i nadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially preju diced in maintaining that party’ s action or defense on the merits.

“ (c) The court may impose conditions on the granting of the motion that are just, including, but not limited to, the following:

“ (1) An order that the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended
admission.

“ (2) An order that the costs of any additional discovery be borne in whole or in part by the party withdrawing or amending the admission. ” As described above, the admissions were made before any substantial discovery had occurred, including depositions of Harmon and experts for both sides. Those depositions disclosed substantial disagreement over whether the accident could have occurred in the manner to which Harmon testified, that is that he had both hands on the cart at the time of impact. The response to the request for admission s specifically stated that “all of the following responses are provided without prejudice to defendant’s right to introduce at trial any evidence that is subseq uently discovered.” Safeway’s counsel submitted a declaration on October 20, in support of Safe way’s motion to withdraw its response to the two admissions and in opposition to Harmon’s in limine motion to preclude defendant from attempting to prove that he was not hit on the wrist by a shopping cart, declaring that counsel had failed to move to with draw the admission10

earlier in the litigation solely due to counsel’s mistake, inadvertence and excusable neglect. That motion was granted on October 2 4 , and opening statements were made the next day.
Pursuant to section 2033.300 , the court may permit amendment or withdrawal of
an admission only if it determines that the admission was made as a result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially preju diced in mai ntaining that party’ s action or defense on the merits. Here, both requi rements were satisfied. First , we agree with the authors of California
Civil Practice

– Procedure ( Thomson Reuters 2013) that “[a] lthough [section] 2033.300 does not provide a time fr ame within which a responding party must make a motion for withdrawal or amendment of an admission, [section] 2024.020, [subdivision] (a) requires that hearings on discovery motions must occur no later than 15 days before the date initially set for trial. Thus, motions for amendment or withdrawal of an admission should be made well in advance of the 15

- day time limit. A lengthy hiatus between a party’ s admission and the date on which that party makes a motion for amendment or withdrawal may strengthen the requesting party ’ s prejudice argument. ” (Lambden et al

. , Cal

. Civil
Practice

– Procedure, supra, at § 13:178 , italics added .) Nevertheless, “should” does not equate to “must” and the court may grant the request to withdraw when it appears clear that no prejudice to the other party will result from allowing the withdrawal. Moreover, “[t] o establish prejudice, requesting parties must do more than asser t that, without benefit of the admission, they will have to convince the fact finder of a matter previously
conceded. They must prove that they are less able to assemble the evidence needed to establish the matter involved in the admission than they were when the admission was
made. [Citation.] ” ( Ibid., citing Modern California Discovery (4th ed.), Requests for Admission § 9.15 .) Furthermore, it is well established “ that any doubts in ruling on a
motion to withdraw or amend an admission [under section 2 033.300] must be resolved in favor of the moving party. The record here does not clearly establish that [the defendant supermarket’s] mistake in admitting the matter was inexcusable or show that the withdrawal of the admission would substantially prejudic e the [plaintiffs]
, so the policy11

in favor of trial on the merits compels the conclusion that the motion to withdraw the
admi ssion should have been granted.” ( New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1408 , fn. omitted .)
The s ame is true here. As counsel for Safeway declared, the parties had been aware of Safeway’s position and defense

— that the accident could not have happened as
Harmon testified

— for months and each had retained its own expert to explain how the injury could h ave occurred despite the height discrepancy between the handle and the basket. All witnesses had been disclosed and deposed. No additional discovery costs
were incurred. The court did not abuse its discretion in granting Safeway’s motion t o withdraw adm issions Nos. 4 and 5.
B. Cost of P

roof S anctions Harmon contends that the court erred in refusing to assess cost of proof sanctions
, including reasonable attorney’s fees, p ursuant to section 2033.420
, to reimburse him for
the cost of having to prove liabilit y and causation in connection with the accident

. Harmon moved for cost of proof sanctions in the sum of $51,269.20 in connection with his Requests for Admissions

– Set Two, in which he asked Safeway to admit

— and Safeway denied

— that it was entirely responsible for the accident and that Harmon was not contributorily negligent. 6 Section 2033.420 provides in relevant part: “(a) If a party fails to admit the . . . truth of any matter when requested to do so under this chapter, and if the party reques ting that admission thereafter prove s

. . . the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, incl uding reasonable attorney’s fees. [¶] (b) The court shall make this order unless it finds any of the following: [¶] . . . [¶] (3) The party failing to make the

6 Those requests sought admissions that: “ ‘No. 1: Liability and legal responsibility for the subject accident of May 17, 2009 . . . are entirely yours. [¶] No part of the liability or legal responsibility for the subject accident is attributable to plaintiff.’ ”12

admission had reasonable ground to believe that that party would prevail on the matter. [¶] (4) There was other good reason for the failure to admit.”

“ The determination of whether there are good reasons for the denial, whether the requested admission was of substantial importance, and the amount of the expenses, if any, are all within the discretion of the trial court. [Citation.] ” ( 2 Witkin, Cal. Evidence ( 5th ed. 2012) Discovery, § 177, p. 1152 , citing Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500 , 508; accord, Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1 275

- 12 76 [“ We review the court’ s ruling for an abuse of
discretion. ”].) Although the record before us is incomplete, containing no ne of Harmon’s trial testimony, it nevertheless provides substantial evidence to support the trial court’s
determination that Safeway had reasonable ground to believe that it would prevail on the question of liability and comparative fault. The court reasonably may have read the request for admissions as going solely to the question of comparative fault . T he record
before us contains a declaration by Safeway’s counsel in opposition to the motion for cost of proof sanctions which included portions of Harmon’s deposition

. In that deposition
Harmon testifie d that he “didn’t see anything approaching” before he was hit by the carts, but that he heard something “at the last minute

. ” Jones, the courtesy clerk, testified at
trial that he believed he yelled out a warning to Harmon, but that the carts made a “really loud noise.” Jones opined it was reasonable that Harmon did not h ear his warning. The question of comparative fault, which encompasses questions of whether Harmon heard either Jones’s warning shout or the clatter of the carts coming toward him in time to take
evasive action
, was a question of fact for the jury. On thi s record, t he court reasonably concluded that Safeway acted in good faith in denying th ese request s for admission.
Further more , Witkin reminds us that “[t]he basis for imposing sanctions is directly related to the purpose of requests for admissions, i.e., expediting trial by putting issues to

rest. The statute is not a penalty; it is designed to reimburse reasonable expenses incurred in proving a matter encompassed in a request for admission where the admission was of substantial importance ‘ such that tri al would have been expedited or shortened if the13

request had been admitted. ’ ( [ Brooks v. American Broadcasting Co. , supra, 179 Cal.App.3d at p. 509].) ” ( 2 Witkin, Cal. Evidence
, supra, Discovery, § 177, p. 1151 .) Harmon sought to recover as costs of proof sanctions money he paid to his experts , including his surgeon Cabayan
, expenses incurred in deposing experts (both his and Safeway’s) the cost of having his experts testify at trial, jury fees, court reporter’s
fees and 50 hours of trial preparation by counsel. There was no showing that he would have not incurred these expenses but for the need to establish Safeway’s liability and legal responsibility and his lack of comparative fault. For example , Dr. Cabayan and the economic experts whose costs Ha rmon sought to recoup in his motion, provided no testimony regarding the occurrence of the accident or any issue of comparative fault at
all. Nor did the experts both parties retained to opine whether the accident could have occurred as Harmon described, have anything relevant to say on the issue of comparative
fault. On appeal, Harmon also folds into his argument a claim that the court erred in refusing to award him the costs he in curred proving Safeway was entirely liable and he had no comparative faul t responsibility ( R equests for A dmissions

– S econd Set, Nos. 1 & 2), when it allowed Safeway to withdraw admissions Nos. 4 and 5 from the initial set of
admissions. “ A court may impose just conditions on the withdrawal or amendment of
admission. Such conditions may include permitting the requesting party to pursue additional discovery relating to the matter involved in the withdrawn or amended admission, or shifting costs of such additional discovery to the party withdrawing or amending the admission. [Citation.] ” ( Lambden et al

. , Cal

. Civil Practice

– Procedure,

supra, at § 13:178 .) Harmon apparently sought none of these remedies in opposing Safeway’s request to withdraw its admissions Nos. 4 and 5

. In denying plaintiff’s motion for cost of proof sanctions
, the court observed that “p laintiff could have sought more time to regroup or other remedy at the time, but chose not to do so. And those liability issues for wh ich p laintiff Harmon now seeks redress for costs of proof were very much in play thr ough the trial which ultimately resulted in a finding of physical responsibility but minimal financial liability on d efendant Safeway’s14

part. There is no bas is for sanctions.” The trial court did not abuse its discretion in granting Safeway’s motion to w ithdraw admissions and in refusing to award Harmo n cost of proof sanctions.

II. Denial of M otions for Additur, New Trial , 7 and JNOV As described, the jury found Safeway was negligent and that Safeway’s negligence was a substantial factor in caus ing harm to Harmon. Harmon assumes that the jury necessarily found the harm caused by the cart collision was the worsening of his
arthritis symptoms and that such injury made necessary the thumb surgery that followed.
Such is not the case. Harmon’s th eory of the case was that he was more susceptible to injury because of his preexisting condition and therefore entitled to all the damages that were proximately caused by Safeway’s negligence. We agree with this general statement of the law. The jury was instructed on aggravation of a preexisting condition or disability in accordance
with CA CI No. 3927 as follows: “ William Harmon is not entitled to damages for any physical or emotional condition that he had before Safeway’s conduct occurred. However, if William Harmon had a physical or emotional condition that was made worse by Safeway’s wrongful conduct, you must award damages that will reasonably and fairly compensate him for the effect on that condition.” We review the record in the light most favor able to the prevailing party . When so viewed, i t is apparent the jury concluded the injury to Harmon caused by the cart incident was the bruising of his arm, resulting in his visits to the E.R., to his personal physician,
and to his physical therapist. T he jury could well determine on the evidence before it that Harmon’s degenerative arthritis was not caused to flare or made worse in any way by Safeway’s wrongful conduct. Substantial evidence supporting the jury’s verdict is found in our description of t he facts above, and particularly in the expert testimony of Dr.

7 “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the grou nd of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. ” (§ 657 , subd. 7.)15

Stuart. Consequently, the damages awarded by the jury were reasonable and the trial
court did not abuse its disc retion in denying Harmon’s post verdict motions challenging the damages as inade quate. When an award of damages is challenged as either excessive or inadequate,
similar standards apply: “ The amount of damages awardable is a question of fact for the trier of fact (in a jury trial, committed first to the jury ’ s discretion and next to the judge ’ s discretion on a motion for new trial).

. . [¶] The appellate court may interfere with the
trier of fact ’ s determination only where the damages award, or lack thereof, is ‘ totally unconscionable and without evidentiary justification. ’ [ Johnso n v. Stanhiser (1999) 72 [Cal.App.] 4th 357, 361

— default judgment awarding plaintiff $0 damages ‘ compels
reversal and remand ’ where substantial evidence exists to establish prima facie case for damages] .” (Eisenberg et al., Civil Appeals and Writs, supra, ¶ 8:139, 8

- 104

– 8

- 105 .) Although a “ ‘ passion or prejudice ’ ” inquiry defies any precise formula for measuring adequacy of damages, we are still bound by the substantial evidence standard of review. ( Id. at ¶ 8:140, p. 8

- 105.) “ ‘ The reviewing court d oes not act de novo . . . the trial court ’ s determination . . . is entitled to great weight because it is bound by the “ more demanding
test of weighing conflicting evidence than our standard of review under the substantial
evidence rule . . . ” All presumpt ions favor the trial court ’ s determination . . . , and we review the record in the light most favorable to the judgment

. . . ’ [Citations.] ” ( Ibid, quoting Fortman v. Hemco, Inc . (1989) 211 Cal.App.3d 241, 259; see also Rufo v. Simpson (2001) 86 C al.App. 4th 573, 614

— “We have very narrow appellate review of the jury ’ s determination of the amount of compensation for the parents ’ loss of comfort and society”; Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 720

- 721

— “We usually defer to the jury ’ s d iscretion unless the record shows inflammatory evidence, misleading instructions, or improper argument by counsel that would suggest the jury relied on improper considerations

. ”] .) Measured by these standards, the damage award was supported by substantia l
evidence and we cannot say that the jury’s damage award was “ ‘ totally unconscionable16

and without evidentiary justification. ’ ” ( Johnson v. Stanhiser , supra, 72 Cal.App.4th at
p. 361.)
Harmon ’ s contention that the jury did not award adequate damages for his medical and related expenses founders on our conclusion that substantial evidence supported the determination that the only injury caused by the cart incident was the bruise on Harmon’s arm. That the jury awarded him only $1,250 for his physical therapy when the bill was $2,520 may be explained by the evidence that he had two physical therapy appointments. The jury could believe the first was for the bruise, but that the second was due to the unrelated, worsening arthritis. Similarly, the jury d id not err in refusing to award greater damages for medical expenses or loss of earnings attributable to the surgery. Indeed, Safeway’s expert opined there were no loss of earning. It appears the jury award of $1
, 080 for lost earnings indicates it believ ed he may have lost some time at work attributable to the bruise or the attendant medical appointments. Given the expert testimony that Harmon’s income, without taking expenses into account, was approximately $2,500 to $3,000 a month, this award seems gen erous. Harmon argues that a jury verdict that awards any amount for a plaintiff’s medical expenses caused by defendant’s negligence, but fails to award damages for pain and suffering is inadequate as a matter of law. He cites Wilson v. R.D. Werner Co. ( 1980)
108 Cal.App.3d 878 , Smith v. Moffat (1977) 7 3 Cal.App.3d 86, and Capelouto v. Kaiser
F oundation Hospitals (1972) 7 Cal.3d 889, for this proposition . These cases all involved significant, undisputed injuries. ( Wilson
, at p. 880 [fractured elbow and both wrists required surgery as well as permanent impairment of function]; Capelouto , at p. 891 [long

- lasting, life

- threatening infection incurred by infant in the hospital ]; Smith
, at
pp. 93

- 94 [ where liability was hotly disputed retrial required where the jury rendered a compromise verdict awarding general damage award of $5,000 to young child whose
mother had died a s a result of medical n egligence ]. ) The jury’s refusal to award Harmon non

- economic damages for pain and suffering indicates the jury’s d etermination that any such pain and suffering attributable to the
bruise was minimal

. “ In some cases, courts have found jury awards which fail to17

compensate for pain and suffering inadequate as a matter of law. ( E.g., Haskins v.
Holmes (1967) 252 Cal.App

. 2d 580, 585

- 586 ( Haskins ) [award insufficient where plaintiff sustained severe head injuries necessarily requiring surgery, but the trial judge awarded only $8 8.63 in excess of the plaintiff’ s actual medical expenses, in effect

‘ allowing nothing for pain and suffering ’ ; it was ‘ patently obvious ’ that ‘ substantial pain, suffering, shock and inconvenience ’ necessarily and inevitably accompanied the injuries].) The courts have also stated
, however, that an award that does not account for pain and suffering is ‘ not necessarily inadequate as a matter of law ’ ( id . at p. 586), and
that ‘ [e]very case depends upon the facts involved. ’ ( Miller v. San Diego Gas & Elec.
Co. (1963) 212 Cal.App.2d 555, 558 ( Miller ).)

“ The controlling rule, we believe, was best stated in Miller [ , supra, 212 Cal.App.2d 555] , which affirmed a jury verdict that made no allowance for pain and suffering. Miller distilled this principle from the precedents it reviewed: Cases finding
an award inadequate for failure to account for pain and suffering ‘i nvolve[ ] 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. ’ ( Miller, supra , 212
C al.App.2d at p. 558.) In such situations, Miller concluded, ‘ [i]t is of course clear that

. . . a judgment for no more than the actual medical expenses occasioned by the tort would be inadequate. ’ ( Ibid .) On the other hand, a verdict may properly be ren dered for an amount less than or equal to medical expenses in cases where, ‘ even though liability be established, a jury .

. . may conclude that medical expenses paid were not occasioned by the fault of the defendants.” ( Id . at p. 559; see also Haskins, s upra , 252 Cal.App.2d at p. 586 [an award ‘ for the exact amount of, or even less than, the medical expenses is not necessarily inadequate as a matter of law, because in the majority of cases there is conflict on a variety of factual issues

— whether plaintiff received any substantial injury or suffered any substantial pain, or whether the medical treatment was actually given or given as a result of the injuries, or reasonable or necessary ’ ].) ” ( Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931, 936

- 9 37 , f ns. omitted .)18

The only testimony at all in the record before us with respect to relevant non

economic loss was that of Jones, who testified that Harmon yelled out in pain when he
was hit. The limited record we review does not contain any testimony by Harmon. There
is no other testimony that he suffered significant pain and suffering from the cart incident if, as we must, we assume the jury found that incident was not a substantial factor i n Harmon’s later pain related to the arthritis or to his subsequent surgery

. In denying Harmon’s motion s for additur , new trial and cost of proof sanctions,
the judge stated: “Juries are, by definition, fallible in that they are made up of human beings, but they almost invariably ‘get it right’ when they collectively put their heads together to work on a verdict. It is this court’s opinion that their verdict in this case rested on solid ground, accepting testimony from both sides and following the law to its logical conclusion based on who they believed and what their ultimate findings of truth were. There is absolutely no basis to disturb the majesty of their labors.” We agree. Harmon contends that the court erred in refusing to grant a new trial wher e the jury failed to compensate him for all his medical expenses and refused to award him anything for his general damages. Therefore, he argues that the verdict was inconsistent ( § 657, subd. 6 ) 8 and that the jury refused to follow the court’s instructio n on causation

. This claim rests on the premise that his injury included the triggering of worsening of his
arthritic thumb symptoms, requiri ng surgery. Having rejected that premise, we also reject this contention as well. We similarly reject Harmon’s contention that the court erred in refusing to grant
his m otion for JNOV. Once again, he premises his claim on the jury’s having found Safeway negligent and that such negligence was a substantial factor in Harmon’s injury. He contends that once the jury made these findings it could not legally award him less

8 Section 657, subdivision 6 provides in relevant part: “The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] . . . [¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. ”19

than all his special damages and could not legally award him nothing for his pain and suffering. Again, he assumes the injury caused by the cart collision is the worsening of
his arthritis necessitat ing his subsequent surgery, arguing that he “had to endure an operation, undergo general anesthesia and then, months of physical therapy, directly as
the re sult of the subject accident.” We have previously rejected that claim.

III. Award of S ection 998 C osts to Safeway
Harmon challenges the court’s award to Safeway of its section 998 costs . He raises no challenge to the amount of costs awarded, but contends only that the award is unjust because the court allowed Safeway to withdraw its admissions and be cause he reasonably rejected Safeway’s $100,000 settlement offer where
, at the time he rejected
the offer
, Safeway had admitted liability and his sp ecial damages totaled $87,504

. 35.

“ The policy behind section 998 is ‘ to encourage the settlement of lawsui ts prior to
trial. ’ [Citations.] To effectuate this policy, section 998 provides ‘ a strong financial disincentive to a party

— whether it be a plaintiff or a defendant

— who fails to achieve a better result than that party could have achieved by accepting hi s or her opponent ’ s settlement offer. ’ [Citation.] At the same time, the potential for statutory recovery of expert witness fees and other costs provides parties ‘ a financial incentive to make
reasonable settlement offers. ’ [Citation.] Section 998 aims to avoid the time delays and
economic waste associated with trials and to reduce the number of meritless lawsuits. [Citations.] ” ( Martinez v. Brownco Construction Co., Inc. (2013) 56 Cal.4th 1014,
1019 .)
The law is clear: “ ‘ A prevail ing party who has made a valid pretrial offer pursuant to Code of Civil Procedure section 998 is eligible for specified costs, so long as the offer was reasonable and made in good faith. [Citation.] ’ [Citation.] ‘ Whether a
section 998 offer was reasonab le and made in good faith is a matter left to the sound discretion of the trial court, and will not be reversed on appeal except for a clear abuse of
discretion. ’ ( Barba v. Perez (2008) 166 Cal.App.4th 444, 450.) ‘ “ In reviewing an award
of costs and fee s under Code of Civil Procedure section 998, the appellate court will
examine the circumstances of the case to determine if the trial court abused its discretion20

in evaluating the reasonableness of the offer or its refusal. ” [Citation.] ’ [Citation.] On appeal, the burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown along with a miscarriage of justice, a reviewing court will not substitute its opinion and thereby divest the trial court of its d iscretionary

power. [Citation.] Such a discretionary ruling will not be disturbed on appeal absent a showing that discretion was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citatio n.] ” ( Najera v. Huerta (2011) 191 Cal.App.4th 872, 877

- 8 78 .)

“ An important factor in deciding whether a section 998 offer is unreasonable or in bad faith is whether the offeree was given a fair opportunity to intelligently evaluate the
offer. As stated in Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692 at page 699: ‘[ T]he section 998 mechanism works only where the offeree has reason to
know the offer is a reasonable one. If the offeree has no reason to know the offer is

reasona ble, then the offeree cannot be expected to accept the offer. ’ (See also Nelson v.
Anderson (1999) 72 Cal.App.4th 111, 135

– 136.) As similarly expressed in Wilson v.
Wal

– Mart Stores, Inc. (1999) 7 2 Cal.App.4th 382, [ at page 390 ] : ‘ [L]itigants should be

g iven a chance to learn the facts that underlie the dispute and consider how the law applies before they are asked to make a decision that, if made incorrectly, could add significantly to their costs of trial. ’ ” ( Najera v. Huerta , supra, 191 Cal.App.4th a t
p. 8 78 .) Hence, the focus of the court is not upon whether plaintiff reasonably rejected the
offer . Rather, the court must determine whether the offer to compromise was reasonable and whether the plaintiff had the opportunity to intelligently evaluate it. Implicit in Harmon’s challenge is his claim that he could not have intelligently evaluated the offer because, when it was made, Safeway had admitted liability and he had incurred substantial medical expenses. Again, Harmon refuses to acknowledge the importance of the question of causation

— that is, whether his arthritis was made worse by the cart
collision. That issue was at the heart of this case. It remained a contentious issue throughout this litigation and was the issue upon which his case ultimately foundered.21

In granting Safeway’s motion to enforce section 998, the court observed: “[D]efendant did what [section] 998 was precisely designed to do, namely, get a genuinely good faith offer on the tabl e for p laintiff to consider before taki ng the gamble of the uncertainty of trial. Defendant Safeway offered $100,000[,] which, having heard the case, appears to have been eminently reasonable. D espite the offer’s expiration,
d efendant Safeway once again made the offer at the Mandatory Settlem ent Conference,
wh ich was once again rejected by p laintiff William Harmon. [¶] Clearly it was p laintiff Harmon’s right to reject those offers and take this matter to trial, but, having done so, he must suffer the consequences of the meager verdict and th e overwhelming of same by the legitimate costs that Safeway incurred. As the c ourt has s uggested, this was a gamble by

p laintiff Harmon and the gamble did not pay off. He was not ‘playing with the house’s money’ her e. And whether d efendant Safeway is a multi

- million dollar corporation or simply an individual of modest means, the company has the right to expect that a rejection of their good faith offer would trigger the consequences set forth in the statute
should the ve rdict fall short of the mark.”
I n the circumstances of this case, we cannot conclude that the trial court abused its
discretion in determining that Safeway’s offer was “eminently reasonable” and in awarding Safeway its section 998 costs following rejection of its settlement offer.
DISPOS ITION The judgment is affirmed. Safeway is awarded its costs on appeal.22 _________________________ Kline, P.J.

We concur:

_________________________ Richman, J.

_________________________ Brick, J.*

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.