Filed 7/24/13; pub. order 8/20/13 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

NADJA RAYII,

Plaintiff and Appellant,

v.

MELVIN OVIDIO GATICA et al.,

Defendants and Respondents.

B236626

(Los Angeles County

Super. Ct. No. PC042687)

APPEAL from a judgment and order of the Superior Court of Los Angeles 

County, Melvin D. Sandvig, Judge. Affirmed.

R. Rex Parris Law Firm, R. Rex Parris and James P. Fowler; Liddy Law Firm 

and Donald G. Liddy for Plaintiff and Appellant.

Murchison & Cumming, Edmund G. Farrell III; Hunter, Molloy & Salcido and 

Richard Salcido for Defendant and Respondent Melvin Ovido Gatica.

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Lane J. Ashley, 

Caroline E. Chan; Kramer & Kramer and Mark D. Kramer for Defendant and 

Respondent Carlos Seciada.

Horvitz & Levy, David M. Axelrad, Daniel J. Gonzalez; and J. Dean Rice for 

Defendant and Respondent Gateway Insulation, Inc.

_______________________________________
2

Nadja Rayii suffered injuries when a car being driven by Melvin Ovidio Gatica 

collided head-on with the car she was driving. She appeals a judgment after a jury trial 

and the denial of her motion for judgment notwithstanding the verdict. She challenges 

the jury‘s finding that Gatica was not acting in the course and scope of his employment 

for Gateway Insulation, Inc. (Gateway), at the time of the collision; the denial of relief

against Carlos Seciada, who she contends was the registered owner of the car driven by 

Gatica; and the denial of her new trial motion on grounds of attorney misconduct, 

irregularity in the proceedings and inadequate damages. We conclude that she has 

shown no prejudicial error and will affirm the judgment and the denial of her motion for 

judgment notwithstanding the verdict.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

Gatica was driving a 1991 Honda Accord southbound on a two-lane road near 

Newhall on May 3, 2006, at approximately 5:26 p.m. when he crossed the 

double-yellow center line while negotiating a curve and crashed head-on into Rayii, 

who was traveling northbound. Rayii suffered a fractured vertebra, fractured ribs, 

a bruised knee and other injuries. She was approximately 61 years old at the time.

Gatica was employed by Gateway at its warehouse in Valencia at the time of the 

collision. His supervisor had sent him to a jobsite in Valencia, and he was returning 

from the jobsite at the time of the collision. The evidence is conflicting as to whether he 

was driving home or returning to the warehouse. Gatica purchased the Accord from his 
3

friend, Seciada, the day before the collision. He was not licensed to drive in California 

and had never driven in the United States before the day he purchased the car.

2. Trial Court Proceedings

Rayii filed a complaint against Gatica and Seciada in April 2008 alleging a single 

count for negligence. She substituted Gateway for a fictitious defendant in December 

2009. A jury trial commenced in June 2011. Rayii moved for a directed verdict against 

Gateway arguing that the evidence compelled the conclusion that Gatica was returning 

from a ―special errand‖ for Gateway, his employer, at the time of injury and therefore 

was acting within the scope of his employment. The trial court denied the motion.

The jury returned a special verdict finding that Gatica was negligent, that his 

negligence was a substantial factor in causing harm to Rayii, that he was not acting in 

the course and scope of his employment at the time of injury, that Gateway did not 

negligently hire or supervise Gatica and that Seciada was not an owner of the vehicle at 

the time of injury.1 The jury also found that Rayii‘s damages were $100,000, consisting 

of $60,000 for ―Past Harm and Loss, including physical pain, mental suffering, loss of 

enjoyment of life, loss of health, and loss [sic] independence,‖ $13,000 for ―Future 

Harm and Loss, including physical pain, mental suffering, loss of enjoyment of life, loss 

of health, and loss [sic] independence,‖ and $27,000 for future medical expenses. The 

 

1

The special verdict form instructed the jury to skip the further questions relating 

to negligent entrustment if it found that Seciada was not an owner of the vehicle at the 

time of injury. Accordingly, the jury did not answer the question whether Seciada knew 

or should have known that Gatica was unfit to drive.
4

jury wrote on the verdict form that the $60,000 figure ―includes reimbursement for 

$45,000 out of pocket expense.‖

The trial court entered a judgment on the special verdict on July 13, 2011, 

awarding Rayii a total of $100,000 in damages against Gatica and awarding her no 

relief against Seciada and Gateway.

Rayii moved for a new trial on grounds of inadequate damages, insufficiency of 

the evidence to support the findings that Gatica was not acting in the course and scope 

of his employment and that Seciada was not an owner of the vehicle at the time of 

injury, and irregularity in the proceedings. She also moved for judgment 

notwithstanding the verdict as to Gateway. The trial court denied the motions. Rayii 

timely appealed the judgment and the denial of her motion for judgment 

notwithstanding the verdict.

CONTENTIONS

Rayii contends (1) the evidence compels the conclusion as a matter of law that 

Gatica was acting in the course and scope of his employment for Gateway at the time of 

the collision, so the denial of her motion for judgment notwithstanding the verdict was 

error; (2) Seciada is liable as the registered owner of the Accord at the time of the 

collision; (3) Seciada is liable for negligent entrustment; (4) Gateway‘s counsel 

committed attorney misconduct in opening statement; (5) the calling of three of the 

defendants‘ expert witnesses out of order and a statement made by Dr. Klapper deprived 

her of a fair trial; (6) the award of future economic damages is inadequate; and (7) the 

past and future noneconomic damages awarded are inadequate.
5

DISCUSSION

1. Rayii Has Not Shown that Gatica Was Acting in the Course and 

Scope of his Employment at the Time of Injury

Rayii contends there is no substantial evidence to support the jury‘s finding that 

Gatica was not acting in the course and scope of his employment at the time of the 

collision and the evidence compels the conclusion as a matter of law that he was acting 

in the course and scope of employment. She argues that this is so because the evidence 

shows that Gatica was returning to Gateway‘s warehouse in Valencia from the jobsite in 

Lancaster. She also argues that the evidence shows that Gatica was on a ―special 

errand‖ for his employer, so he was acting in the course and scope of employment 

regardless of whether he was returning to the warehouse. Rayii cites Gatica‘s testimony 

that he was returning to the warehouse and other evidence to this effect and cites 

evidence that he was on a special errand, but she fails to cite and discuss contrary 

evidence in the record.

An appealed judgment is presumed correct, and the appellant must affirmatively 

demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) An appellant 

challenging the sufficiency of the evidence to support the judgment must cite the 

evidence in the record supporting the judgment and explain why such evidence is 

insufficient as a matter of law. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887; 

Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 80.) An appellant who fails to cite 

and discuss the evidence supporting the judgment cannot demonstrate that such 

evidence is insufficient. The fact that there was substantial evidence in the record to 
6

support a contrary finding does not compel the conclusion that there was no substantial 

evidence to support the judgment. An appellant, such as Rayii, who cites and discusses 

only evidence in her favor fails to demonstrate any error and waives the contention that 

the evidence is insufficient to support the judgment. (Marriage of Fink, supra, at 

p. 887; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Accordingly, we 

conclude that substantial evidence supports the finding that Gatica was not acting in the 

course and scope of his employment at the time of injury and that Rayii has shown no 

error.

In any event, Gatica testified that he arrived at the warehouse in Valencia that 

morning at 5:30 a.m. His supervisor sent him to Lancaster at about 10:00 a.m. The 

collision occurred at 5:26 p.m. on his return trip on a road that he would have taken to 

go either home or to the warehouse. His supervisor testified that he did not require or 

expect Gatica to return to the warehouse if he finished a job late in the afternoon, that 

Gatica would have called if he planned to return to the warehouse and that Gatica did 

not call him that afternoon. His supervisor also testified, contrary to Gatica‘s testimony, 

that there was no company policy requiring workers to return to the warehouse at the 

end of the workday. We conclude that the jury reasonably could find based on this 

evidence that Gatica was not returning to the warehouse at the time of the collision, but 

instead was going home. The evidence also shows that Gatica worked both at the 

warehouse and occasionally as an installer at jobsites. We conclude that the jury 

reasonably could find based on this evidence that the Lancaster job was not an 

extraordinary ―special errand,‖ but instead was part of Gatica‘s routine work duties.
7

2. Rayii Cannot Argue for the First Time on Appeal that Seciada 

Is Liable as the Registered Owner

The jury found that Seciada was not an owner of the Accord at the time of injury, 

as stated. Rayii does not challenge the sufficiency of the evidence to support this 

finding.2 Instead, she argues for the first time on appeal that Seciada is liable as the 

registered owner of the vehicle at the time of injury pursuant to Vehicle Code 

section 17150. Rayii did not assert this theory of liability at trial or in her new trial 

motion.

An appellate court generally will not consider a new theory of liability for the 

first time on appeal. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 

874.) We have the discretion to consider for the first time on appeal an issue of law 

based on undisputed facts, but we will not consider a new issue where the failure to 

raise the issue in the trial court deprived an opposing party of the opportunity to present 

relevant evidence. (Ward v. Taggart (1959) 51 Cal.2d 736, 772; Richmond, supra, at 

p. 879.)

Vehicle Code section 17150 states, ―Every owner of a motor vehicle is liable and 

responsible for death or injury to person or property resulting from a negligent or 

wrongful act or omission in the operation of the motor vehicle, in the business of the 

owner or otherwise, by any person using or operating the same with the permission, 

express or implied, of the owner.‖ The owner‘s liability under the statute for death or 

 

2 Gatica testified that he purchased the Accord from Seciada two days before the 

collision. No conflicting evidence was presented at trial.
8

injury to one person is limited to $15,000. (Id., § 17151, subd. (a).) For purposes of the 

statute, the transfer of ownership to a motor vehicle is effective only if (1) the transferor 

has endorsed and delivered to the transferee the certificate of ownership, and the 

transferee has delivered the certificate to the Department of Motor Vehicles (DMV) or 

placed it in the United States mail addressed to the DMV; or (2) the transferor has 

delivered to the DMV or placed in the United States mail addressed to the DMV the 

appropriate registration or transfer documents. (Id., §§ 5600, subd. (a), 5602.)

Seciada did not testify at trial, and the evidence does not conclusively show 

whether he did or did not timely deliver or mail the appropriate transfer documents to

the DMV. Although Gatica testified that he never received or completed any paperwork 

in connection with the sale, this does not preclude the submission of paperwork by 

Seciada directly to the DMV. The traffic collision report completed by a California 

Highway Patrol officer stating that Seciada was the owner of the vehicle also fails to 

conclusively establish that fact, and the officer did not testify on the source of that 

information. If the significance of the issue had been apparent at trial, it seems likely 

that further evidence could have been presented as to the DMV‘s records. We therefore 

conclude that the evidence does not conclusively establish Seciada‘s liability as the 

registered owner and that this issue cannot be raised for the first time on appeal.

3. Rayii Has Shown No Error with Respect to Negligent Entrustment

Rayii contends Seciada is liable for negligent entrustment because Gatica was 

unfamiliar with the rules of the road and was unfit to drive and Seciada should have 

known that. Rayii does not explain how the trial court or the jury purportedly erred but 
9

appears to argue that the evidence compels the conclusion that Seciada was negligent in 

entrusting the vehicle to Rayii. She cites evidence that Gatica was unfit to drive, but 

cites no evidence that Seciada knew or should have known that.

The trial court instructed the jury that Seciada could be liable for negligent 

entrustment only if he owned the vehicle at the time of injury. The jury did not decide 

whether Seciada knew or should have known that Gatica was unfit to drive because the 

special verdict form instructed the jury to skip that question if it found that Seciada was 

not an owner of the Accord. Rayii does not challenge the special verdict form, has 

shown no error in the finding that Seciada was not an owner and therefore has shown no 

error in the jury‘s failure to find that Seciada knew or should have known that Gatica 

was unfit to drive. Moreover, Rayii‘s perfunctory argument fails to show that the 

evidence compels the conclusion as a matter of law that Seciada knew or should have 

known that Gatica was unfit to drive.

4. Rayii Failed to Preserve Her Claim of Attorney Misconduct

Rayii contends statements made by Gateway‘s counsel in opening statement 

violated an order on her motion in limine and constituted attorney misconduct justifying 

a new trial. Rayii filed a motion in limine to preclude any evidence of or reference to 

Gateway‘s ―solvency, bankruptcies, judgments, or other debts of any kind.‖ Gateway‘s 

counsel argued at the hearing on the motion that he was not aware of any bankruptcy 

but that the jury might wonder why other employees from Gateway‘s Valencia branch 

were not testifying at trial. He argued that it was appropriate to briefly explain to the 

jury that the Valencia branch had closed ―because anybody in the construction business 
10

such as Gateway, they are now down to one branch.‖ The trial court stated that it would 

grant the motion, ―but they can discuss downsizing of the company or that that branch 

no longer exists or something to that effect if it comes out.‖

Rayii‘s counsel then argued, ―We‘re just concerned about the suggestion that 

maybe they‘re not doing well financially. So if they want to say that branch is no longer 

operating, I don‘t have a problem with that. But if they want to say it in the context of 

we‘re not doing well because construction is down, I think that‘s improper.‖ Gatica‘s 

counsel suggested that ―they be allowed to say it‘s closed but not give a reason for it.‖ 

The trial court stated, ―That‘s fine.‖

Gateway‘s counsel stated in opening statement that at the time of the collision 

Gateway had 127 employees in four different branches, but at the time of trial it had 

only 25 employees and a single branch in Corona. He referred to the economy and its 

impact on the construction industry, stating, ―if we fast-forward five years into the 

economy we‘re in today, they now have—Corona is the only office left. And they 

employ about 25 people. So if you‘re wondering why we don‘t have more witnesses 

here, it‘s because this company has shrunk over the years as has been the case with the 

construction business.‖ Rayii‘s counsel did not object at the time or request an 

admonition to the jury.

Rayii‘s counsel argued the following day that it was improper for Gateway‘s 

counsel to mention downsizing because of the economy. The trial court stated, ―Well, 

that‘s already done. We‘re not going to go into that anymore anyway, right? 

Everybody agree?‖ The court stated further, ―Nobody is going to go into that area, 
11

insurance, downsizing. Whatever‘s been said has already been said. I understand 

[plaintiff‘s counsel]. He doesn‘t want anything else to come up, like what you brought 

out about the downsizing or about insurance, which is understandable.‖

3

 Again, Rayii‘s 

counsel did not request an admonition to the jury.

Attorney misconduct is a ground for a new trial (Code Civ. Proc., § 657, 

subd. (1)). (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870.) Attorney 

misconduct can justify a new trial only if it is reasonably probable that the party moving 

for a new trial would have obtained a more favorable result absent the misconduct. 

(Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802 (Cassim); Decker, supra, at 

p. 872.)

A party ordinarily cannot complain on appeal of attorney misconduct at trial 

unless the party timely objected to the misconduct and requested that the jury be 

admonished. (Whitfield v. Roth (1974) 10 Cal.3d 874, 891-892.) The purpose of these 

requirements is to allow the trial court an opportunity to remedy the misconduct and 

avoid the necessity of a retrial; a timely objection may prevent further misconduct, and 

an admonition to the jury to disregard the offending matter may eliminate the potential 

prejudice. (Cassim, supra, 33 Cal.4th at pp. 794-795; Horn v. Atchinson, 

T. & S. F. Ry. Co. (1964) 61 Cal.2d 602, 610.) The failure to timely object and request 

an admonition waives a claim of error unless the misconduct was so prejudicial that it 

could not be cured by an admonition (People v. Cunningham (2001) 25 Cal.4th 926, 

 

3 Rayii‘s counsel also complained to the trial court that Gateway‘s counsel had 

improperly referred to insurance in opening statement.
12

1000-1001; Whitfield, supra, at p. 892), an objection or request for admonition would 

have been futile (People v. Hill (1998) 17 Cal.4th 800, 820) or the court promptly 

overruled an objection and the objecting party had no opportunity to request an 

admonition (Cassim, supra, at pp. 794-795). Attorney misconduct is incurable only in 

extreme cases. (Horn, supra, at p. 610; see, e.g., Simmons v. Southern Pac. 

Transportation Co. (1976) 62 Cal.App.3d 341, 351-355 (Simmons).)

Rayii did not timely object to the statements made by Gateway‘s counsel in 

opening statement, but instead raised the issue for the first time the following day. Even 

then, Rayii did not request an admonition to the jury, but instead seemed content to rely 

on the trial court‘s admonition to opposing counsel. Rayii has not shown that the 

purported misconduct was so persistent or egregious as to justify the conclusion that it 

was incurable. We conclude that Rayii‘s failure to timely object and request an 

admonition to the jury precludes our consideration of the point on appeal.

5. Rayii Has Not Shown that the Calling of Defense Witnesses Out of Order

or Statements Made by Dr. Klapper Deprived Her of a Fair Trial

a. Order of Proof

Rayii contends the calling of three of the defendants‘ expert witnesses out of 

order and a statement made by Dr. Klapper deprived her of a fair trial. The trial court 

granted a request by Seciada‘s counsel to call Dr. Klapper, an orthopedic surgeon, to 

testify out of order during plaintiff‘s case-in-chief in order to accommodate his family 

vacation plans, over plaintiff‘s objection. Dr. Klapper was the third witness to testify at 

trial and interrupted the testimony by Rayii‘s son. Dr. Klapper testified that he believed 
13

that Rayii bruised her knee in the collision but that the bruise had healed, that other 

injuries to her knee did not result from the collision and that Rayii‘s proposed life care 

plan included medical care that either was not needed or related to injuries that did not 

result from the collision.

Rayii later agreed to allow Gateway to call Dr. Sam Maywood, an 

anesthesiologist who also had family vacation plans, to testify out of order during 

plaintiff‘s case-in-chief. Dr. Maywood testified on Rayii‘s proposed life care plan. The 

trial court also allowed Seciada‘s counsel to call Dr. Amy Sutton, a psychologist, to 

testify out of order due to her family vacation plans, over plaintiff‘s objection. 

Dr. Sutton proposed an alternative life care plan and interrupted the testimony by 

plaintiff‘s expert witness Sandra Callaghan, who presented Rayii‘s proposed life care 

plan. Rayii objected to further interrupting her case-in-chief, particularly after 

Dr. Maywood‘s testimony out of order.

Code of Civil Procedure section 607 prescribes the order of proceedings at trial, 

―unless the court, for special reasons otherwise directs.‖ Evidence Code section 320 

states that the court has the discretion to regulate the order of proof: ―Except as 

otherwise provided by law, the court in its discretion shall regulate the order of proof.‖ 

Accordingly, we generally review a trial court‘s ruling as to the order of proof at trial 

for abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 207.) Specifically, 

the court exercises discretion in ruling on a request to call a witness out of order, and its 

ruling will not be disturbed absent a clear showing of abuse of discretion. (Estate of 

Lefranc (1950) 95 Cal.App.2d 885, 887-888.)
14

―An abuse of discretion occurs if, in light of the applicable law and considering 

all of the relevant circumstances, the court‘s decision exceeds the bounds of reason and 

results in a miscarriage of justice. [Citations.] This standard of review affords 

considerable deference to the trial court provided that the court acted in accordance with 

the governing rules of law. We presume that the court properly applied the law and 

acted within its discretion unless the appellant affirmatively shows otherwise. 

[Citations.]‖ (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 158.)

Rayii argues that the calling of the three defense witnesses out of order and 

particularly the interruption of Callaghan‘s testimony on Rayii‘s proposed life care plan 

―caused a great deal of prejudice to the Plaintiff and resulted in an insufficient verdict.‖ 

Her argument is conclusory and fails to adequately explain why the decision to allow 

the witnesses to testify out of order was an abuse of discretion in light of the alternatives 

facing the trial court at the time. We conclude that the trial court acted within its 

discretion by allowing the witnesses to testify out of order so as to avoid having to 

continue the trial date, force the witnesses to cancel their vacation plans or forego their 

testimony. Rayii has shown no error.

b. Dr. Klapper’s Statements

Rayii also argues that statements made by Dr. Klapper on cross-examination 

suggested that Rayii was faking her injuries and that everyone‘s insurance rates would 

increase if she succeeded on her claim for damages. She argues that the statements 

were improper and prejudicial and should have been stricken.
15

Rayii‘s counsel asked Dr. Klapper a series of questions about his annual income 

from testifying in court and his planned trip to Hawaii. The trial court sustained 

objections to those questions as irrelevant and argumentative. The questioning and 

testimony proceeded:

Plaintiff‘s counsel: ―$600,000, the money you make testifying, how does that 

help patients?‖

Dr. Klapper: ―Well, first of all, I have to pay my staff, so I don‘t—‖

Plaintiff‘s counsel: ―That‘s not my question. How does it help patients?‖

Dr. Klapper: ―It keeps people from being abused in accidents where a lawyer 

can say they are badly injured, which will increase the insurance that all of us have to 

pay. When there is real pathology, it‘s justified. But where there is not real pathology, 

each and every one of these folks is a potential patient.‖

Plaintiff‘s counsel: ―Move to strike as nonresponsive.‖

The court: ―Overruled.‖

―A witness must give responsive answers to questions, and answers that are not 

responsive shall be stricken on motion of any party.‖ (Evid. Code, § 766.) A motion to 

strike must be timely made and must clearly state the specific ground for the motion. 

(Id., § 353, subd. (a).) Moreover, ―[a] motion to strike must be directed with precision 

to the matter sought to be stricken. [Citation.] A motion to strike out inadmissible 

evidence may properly be denied where it is general and embraces evidence which is 

admissible as well as that which is inadmissible. [Citations.]‖ (Rose v. State of 

California (1942) 19 Cal.2d 713, 742; see 3 Witkin, Cal. Evidence (4th ed. 2000) 
16

Presentation at Trial, § 383, pp. 475-476.) If part of the answer is responsive and part is 

nonresponsive, the moving party must specify the nonresponsive part, and a motion to 

strike the entire answer as nonresponsive may properly be denied. (Bates v. Newman

(1953) 121 Cal.App.2d 800, 804.)

We can reverse a judgment based on the erroneous admission of evidence only if 

it is reasonably probable that the appellant would have obtained a more favorable result 

absent the error, so the error resulted in a miscarriage of justice. (Cal. Const., art. VI, 

§ 13; Evid. Code, § 353, subd. (b); People v. Richardson (2008) 43 Cal.4th 959, 1001.)

We need not decide whether Dr. Klapper‘s answer was nonresponsive in its 

entirety because we conclude that Rayii has failed to show any likely prejudice. 

Dr. Klapper testified that he believed that Rayii suffered a bruised knee as a result of the 

collision and that he was not suggesting that she was faking her injuries. He provided 

medical reasons for his conclusion that the more serious injuries to her knee predated 

the collision. The trial court instructed the jury not to consider insurance and that the 

presence or absence of insurance was totally irrelevant, and we presume that the jury 

followed the instructions absent some indication to the contrary. (Cassim v. Allstate Ins. 

Co., supra, at pp. 803-804.) In light of the evidence and the instructions, we conclude 

that any error in the denial of the motion to strike was nonprejudicial.
17

6. The Damages Are Not Inadequate

a. Future Economic Damages

Rayii contends the award of only $27,000 in future economic damages is 

inadequate in light of the evidence of her need for future medical care. The trial court 

denied Rayii‘s motion for a new trial on this ground.

―Code of Civil Procedure section 657 states:  ̳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 ground 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.‘ A trial court has broad discretion in ruling on a new trial motion, and the 

court‘s exercise of discretion is accorded great deference on appeal. (City of 

Los Angeles v. Decker (1977) 18 Cal.3d 860, 871–872 [135 Cal.Rptr. 647, 558 P.2d 

545].) An abuse of discretion occurs if, in light of the applicable law and considering 

all of the relevant circumstances, the court‘s decision exceeds the bounds of reason and 

results in a miscarriage of justice. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479 

[243 Cal.Rptr. 902, 749 P.2d 339]; Denham v. Superior Court (1970) 2 Cal.3d 557, 566 

[86 Cal.Rptr. 65, 468 P.2d 193].) Accordingly, we can reverse the denial of a new trial 

motion based on insufficiency of the evidence or [inadequate or] excessive damages 

only if there is no substantial conflict in the evidence and the evidence compels the 

conclusion that the motion should have been granted.‖ (Fassberg Construction Co. v. 

Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 751-752.)
18

Defendants presented evidence that Rayii had osteoarthritis throughout her body 

and a meniscal degenerative tear in her knee before the collision. They also elicited 

testimony on cross examination that a compression fracture in her vertebra and rib 

fractures that she suffered as a result of the accident had healed at the time of trial. 

Other evidence indicated that she suffered trauma to her back in November 2009, more 

than three years after the collision, and Rayii acknowledged that she ―may have fallen‖ 

at that time. Rayii fails to acknowledge or discuss this evidence and other evidence 

tending to show that the majority of any future medical care needed did not relate to 

injuries suffered in the collision and that much her proposed future medical care was not 

needed. We need not discuss that evidence in detail. We conclude that the evidence 

was in substantial conflict and that Rayii has shown no abuse of discretion in the denial 

of her new trial motion on the ground of inadequate damages with respect to future 

medical expenses.

b. Past and Future Noneconomic Damages

Rayii contends the awards of only $15,000 in past noneconomic damages and 

$13,000 in future noneconomic damages are inadequate in light of the evidence.4 The 

trial court denied Rayii‘s motion for a new trial on this ground.

 

4 Rayii argues that the jury‘s interlineation on the verdict form indicates that it 

awarded only $15,000 for past noneconomic damages and $45,000 for past medical 

expenses, despite the fact that she did not seek a recovery of past medical expenses. We 

need not decide the point because we conclude that Rayii has shown no abuse of 

discretion regardless of whether the jury awarded $15,000 or $60,000 in past 

noneconomic damages.
19

The amount of noneconomic damages to award for pain and suffering is 

a subjective determination that is particularly within the discretion of the jury. 

(Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 893.) The evidence of 

Rayii‘s preexisting conditions and other medical conditions unrelated to the collision, if 

credited by the jury, tends to show that the majority of her past and future pain and 

suffering is unrelated to the collision. Again, Rayii fails to discuss that evidence. We 

conclude that the evidence was in substantial conflict and that Rayii has shown no abuse 

of discretion in the denial of her new trial motion on the ground of inadequate damages 

with respect to past and future noneconomic damages.

DISPOSITION

The judgment and the order denying the motion for judgment notwithstanding 

the verdict are affirmed. Defendants are entitled to recover their costs on appeal.

CROSKEY, J.

WE CONCUR:

KLEIN, P. J.

ALDRICH, J.
Filed 8/20/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

NADJA RAYII,

Plaintiff and Appellant,

v.

MELVIN OVIDIO GATICA et al.,

Defendants and Respondents.

B236626

(Los Angeles County

Super. Ct. No. PC042687)

ORDER CERTIFYING OPINION

FOR PUBLICATION

[NO CHANGE IN JUDGMENT]

THE COURT:

The opinion in the above-entitled matter filed on July 24, 2013, was not certified 

for publication in the Official Reports. For good cause it now appears that the opinion 

should be published in the Official Reports and it is so ordered.

[There is no change in the judgment.]