Filed 9/17/14 Sievers v. Hill CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




MARISA SIEVERS,                                                                              C073413

                   Plaintiff and Appellant,                                   (Super. Ct. No. SCV-0030233)

         v.

VIOLET HILL,

                   Defendant and Respondent.




         Defendant Violet Hill injured plaintiff Marisa Sievers in a car accident. The jury
awarded Sievers $2,175.27 in medical damages, but no general damages for pain and
suffering. Sievers appeals from the judgment and the order denying her motion for a new
trial. She contends the verdict is inadequate as a matter of law; it was error not to dismiss
Juror No. 2; and it was error to allow Hill to testify that she was not injured in the
accident. As we will explain, we find no prejudicial error and affirm.




                                                             1
                      FACTUAL AND PROCEDURAL BACKGROUND
          The Accident
          Both Sievers and Hill were students at Whitney High School. The accident
occurred on May 20, 2009, just after school was let out for the day. Sievers was in the
back seat of a Jeep Liberty driven by student Holly Martinelli. Hill was driving her
mother’s Camry. Hill stopped behind the Jeep at a stoplight. She leaned over, either to
grab something or to put something in her backpack. Out of the corner of her eye she
saw something green; thinking it was the light, she took her foot off the brake and may
have pressed the accelerator. She ran into the Jeep and slammed on the brakes. The
impact was abrupt and loud, but her air bag did not deploy. The cars pulled onto a side
street.
          Both cars were damaged. The spare tire on the back of the Jeep hit the grill and
hood of the Camry, breaking the grill and buckling the hood. The bumpers of the two
cars made contact. The Camry sustained $5,900 in damage, more than its value. The
Jeep had $2,900 in damage.
          Martinelli went up to Hill and asked if she was all right, and Hill asked her the
same. Both said yes. Sievers called her mother to come get her. She told her mother that
her back was hurting and she wanted to see the doctor.
          Treatment
          Sievers went directly to the doctor. She presented with tenderness in her mid to
lower spine and the doctor diagnosed a spinal strain. He prescribed a muscle relaxer,
alternating heat and ice, and stretching. Sievers, a year-round soccer player, was already
on sports restriction due to a concussion she had suffered a week earlier.1 The doctor
extended the restriction one week. Sievers did not miss any school.



1 Sievers had played soccer since she was four years old. She began with recreational
soccer and progressed to a select team and then a competitive team. She played all

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       She returned to the doctor about a week later. She was feeling better and not using
the medication; she took the muscle relaxer for only one day. The doctor prescribed back
strengthening exercises and ice. On June 9, Sievers saw a nurse practitioner and said she
still had back pain. They discussed the use of heat and exercises and considered physical
therapy if she did not recover soon.
       Sievers saw the nurse practitioner again in August. She had the full range of
motion in her back and no SI joint or sciatic pain. She did have generalized muscle
tension. The nurse ordered an X-ray, which came back normal. She referred Sievers to
physical therapy.
       In early October 2009, Sievers saw the doctor for insomnia. He examined her
spine and found no visible or palpable muscle spasms. She had a good range of motion.
The doctor performed a thorough physical examination and a neurological examination.
Sievers had no pain or tenderness in her lower back; this visit was not a follow-up to the
accident.
       The doctor had ordered physical therapy for twice a week for eight weeks after the
August visit to the nurse practitioner. Sievers responded well and did not complain to the
therapist that the exercises hurt. She continued to play soccer. She reported a flare-up of
back pain after a vigorous soccer practice on October 27, 2009. The physical therapist
could not say whether this flare-up was due to the accident or a new injury. Sievers
stopped going regularly to physical therapy. She went once in October, twice in
November, and once in December. She was not discharged, but simply dropped out.
       Subsequent Treatment
       Sievers saw her doctor in March 2010 for a problem with her hands; she did not
complain about her back. In May, the doctor saw her for fatigue, hand problems, and a


summer and fall of 2009. In early 2010, she played on her high school team and was
named MVP and All-League. When the season ended, she played competitive soccer
with trips to North Carolina and Florida. In early 2011, she returned to school soccer.

                                             3
cough. In June, she had coughing paroxysms, which can cause back pain. On this visit,
Sievers told the doctor she still had back pain from the accident. He examined her back;
her spine was straight and relaxed, with no spasms, but some tenderness. A neurological
exam was negative. He referred Sievers again to physical therapy for core strengthening
exercises. Sievers attended physical therapy through early September. At her last
session, she reported pain of one out of 10 while at rest, and three out of 10 with activity.
She had pain for 30 to 45 minutes after a soccer game.
       In October 2010, Sievers saw her doctor for abdominal pain, caused by a disorder
of the cartilage of the ribs. In January 2011, she went to the doctor for an eye infection,
with no complaint of back pain. On January 27, 2011, she underwent a sports physical.
A full examination revealed no active medical problems and the doctor cleared her to
play soccer.
       Sievers’s mother learned about a chiropractor from a friend. She signed a lien
agreement, under which the chiropractor would be paid from the judgment or settlement
in the contemplated lawsuit. Sievers told the chiropractor she was hit by a car going 45
miles per hour. The chiropractor found back pain and a significant finding in the neck
region. He suggested three treatments a week at first, and then saw Sievers less
frequently until he released her from treatment on June 27, 2011. Sievers’s pain had
subsided and she felt “normal.”
       The Lawsuit
       Sievers sued Hill for negligence. The parties stipulated that Sievers’s medical
expenses were $1,045.93 for Sutter Medical Group, $3,493.60 for physical therapy, and
$2,070 for chiropractic.
       At trial, Sievers and her mother claimed Sievers had been in constant pain from
the accident until she saw the chiropractor. She had to take ibuprofen if she was on her
feet for an hour or more. The physical therapy did not help and the exercises were
painful.

                                              4
       The defense presented an accident reconstructionist who estimated the Camry’s
speed on impact as eight to 10 miles per hour. He testified the force of the collision was
1.1 to 1.4 Gs, about the same as hitting a curb in a parking lot and less than that in an
amusement park ride.2
       An orthopedic surgeon testified Sievers sustained a thoracolumbar sprain/strain in
the accident, with no structural injury. Based on the medical records, he opined that she
improved over the next three to five months and was pain free in October 2009. He
explained that her need for subsequent treatment could have been caused by a new
precipitator of back pain, the intense soccer practice on October 27, 2009. He believed
there should have been an investigation as to the cause of this new back pain, but it was
not related to the accident. He also indicated there were congenital conditions causing
back problems that surface in this age group.
       In closing argument, Sievers asked for all her medical expenses and damages for
pain and suffering of $40,000 to $60,000. In determining the amount of damages for pain
and suffering, counsel told the jury to consider the severity of the injury, its duration, and
how it interfered with Sievers’s life.
       The defense argued that by October 8, 2009, Sievers was pain free. Her medical
bills to that date were $2,175.27. Counsel argued the case was a “little whiplash case
worth a couple of thousand dollars.”
       The jury returned a verdict of $2,175.27 for medical expenses and no damages for
pain and suffering.
       Sievers moved for a new trial, claiming inadequate damages and prejudice from
the failure to remove a certain juror. The trial court denied the motion.




2 Sievers testified she had been to Disney World, Disneyland, and Six Flags since the
accident.

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                                       DISCUSSION
                                              I
                                    Inadequate Damages
       Sievers contends the trial court erred in denying her motion for a new trial on the
basis of inadequate damages. She contends the verdict is inadequate as a matter of law
because she was awarded special damages for her medical expenses but no general
damages for her pain and suffering. She contends the jury was improperly influenced by
the fact that she continued to play soccer after the accident.
       A. The Law
       “ ‘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. [Citation.] 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.] 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.’ [Citation.]” (Rayii v. Gatica (2013) 218
Cal.App.4th 1402, 1415–1416.)
       “Under section 3333, Civil Code, plaintiff is entitled to damages which will
compensate him for all detriment proximately caused by defendant’s tortious acts; and
under section 3359 damages must, in all cases, be reasonable. There are few cases in
which appellate courts have found damages to be inadequate as a matter of law. An

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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. [Citation.]” (Haskins v. Holmes (1967) 252
Cal.App.2d 580, 586 (Haskins).)
       “An appellate court will not set aside a judgment for no more than actual medical
expenses unless the trial court abused its discretion. [Citation.] If the evidence clearly
indicates that plaintiff suffered serious pain, inconvenience, or mental suffering, a verdict
for medical expenses alone might be inadequate as a matter of law. [Citation.] However,
an award for the exact amount of, or even less than, the medical expenses is not
necessarily inadequate if there is a conflict as to whether the plaintiff suffered any
substantial injury or pain. [Citations.]” (Randles v. Lowry (1970) 4 Cal.App.3d 68, 73 -
74.) A jury may properly return a verdict 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.’ [Citation.]”
(Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931, 937, fn. omitted (Dodson).)
       B. Analysis
       Here, the jury awarded Sievers less than the stipulated amount of her medical
expenses. However, there was evidence to support the jury’s implied finding that all of
the stipulated medical expenses were not caused by Hill. The orthopedic surgeon
testifying for the defense opined that Sievers’s medical expenses incurred after
October 8, 2009, were not related to the accident, but to the separate injury caused by the
vigorous soccer practice at the end of October or to a congenital condition that caused
back problems.
       Despite the testimony of Sievers and her mother about her constant pain, there was
evidence from which the jury could reasonably conclude that Sievers suffered only

                                              7
minimal pain and suffering from the injury caused by the accident. She testified she used
the prescribed muscle relaxer for only one day. She was anxious to return to playing
soccer and played soccer continuously from one week after the accident. She did not
complain of additional pain to her doctor until over a year after the accident. The
conflicting evidence in this case distinguishes it from cases where it was undisputed that
plaintiff was subjected to surgery and hospitalization, and therefore indisputably suffered
substantial pain, so that a judgment that failed to award general damages was inadequate
as a matter of law. (E.g., Dodson, supra, 154 Cal.App.4th at p. 938 [surgery to remove
herniated disk and replace it with metallic plate]; Gallentine v. Richardson (1967) 248
Cal.App.2d 152, 153 [surgery and three days hospitalization for gunshot wound].)
       Sievers contends the evidence did show she suffered a serious injury, and
therefore suffered substantial pain, because her doctor diagnosed muscle spasms the day
of the accident and the nurse practitioner noted them in June 2009. She produced no
evidence, however, that a muscle spasm invariably indicates a serious injury. She relies
on Whyatt v. Kukura (1958) 157 Cal.App.2d 803, where a doctor “testified that muscle
spasm was an objective finding usually present in a case of serious injury to the neck or
back.” (Id. at p. 805.) Even if we were to consider that testimony in this case, it does not
establish that the presence of a muscle spasm conclusively signals a serious injury.
       Because there was conflicting evidence as to whether “plaintiff received any
substantial injury or suffered any substantial pain,” the damage award was not inadequate
as a matter of law. (Haskins, supra, 252 Cal.App.2d at p. 586.) The jury may have
believed Sievers suffered only minimal injuries and she was fairly compensated by
receiving some of her medical expenses. “ ‘We must not mislay the jury’s inherent right
to pass upon the credibility of the evidence and the witnesses.’ ” (Miller v. San Diego
Gas & Electric. Co. (1963) 212 Cal.App.2d 555, 559.)




                                             8
                                               II
                               Failure to Remove Juror No. 2
        Sievers contends the trial court erred in failing to remove Juror No. 2 once it was
discovered that Juror No. 2’s husband was friends with an attorney in the same firm as
defense trial counsel. Recognizing that while “this is not her strongest argument,”
Sievers argues “it nonetheless sheds additional light on perhaps why the jury ruled the
way it did.” We find no error.
        A. Background
        After the jury was sworn, Juror No. 2 indicated that she knew one of the attorneys
in the law firm representing Hill. She recognized him when he appeared in the courtroom
during opening statements. That attorney was a friend of her husband; they went to
sporting events together every few months. Her husband and the attorney also conferred
on building ukuleles. She had met the attorney three times, once at a holiday party at her
house. Juror No. 2 said remaining on the jury would not create an awkward situation for
her and she did not think it would influence her decision.
        The trial court found Sievers failed to establish actual bias and denied her
challenge to Juror No. 2.
        B. Law and Analysis
        After the trial begins, the court may substitute a juror with an alternate if good
cause is shown and discovering a ground for disqualification during trial may be good
cause. (Code Civ. Proc., § 233.)3 A trial court’s decision whether to remove a juror is
reviewed for an abuse of discretion. (People v. Marshall (1996) 13 Cal.4th 799, 843.)
        Section 229 sets forth the exclusive circumstances in which a challenge for
implied bias may be taken. Among these circumstances are where the juror has




3   Further undesignated statutory references are to the Code of Civil Procedure.

                                               9
consanguinity or affinity within the fourth degree to any party (id., subd. (a)) or an
attorney-client relationship with a party or a party’s attorney. (Id., subd. (b).) The
friendship between a juror’s husband and an associate in the law firm representing one
party does not establish implied bias and thus cause for removal. (§ 229; cf. People v.
Earnest (1975) 53 Cal.App.3d 734, 750 [juror not subject to challenge for cause even
though he knew members of victim’s family].) When the juror consistently affirms his
willingness and ability to act impartially in weighing the evidence and applying the law
upon which he will be instructed, there must be facts which clearly show the juror’s bias
to warrant a reversal of the trial judge’s decision. (West Coast Sec. Co. v. Kilbourn
(1930) 110 Cal.App. 293, 296-297.)
       Here, Sievers does not contend that Juror No. 2 was actually biased. Instead, she
relies on implied bias and argues the relationship at issue is “a hybrid relationship”
similar to proscribed consanguinity/affinity or attorney-client relationship. We disagree.
Sievers fails to set forth any facts to show bias on the part of Juror No. 2. The attenuated
relationship at issue does not fall within the statutory grounds for a challenge for implied
bias under section 229. The trial court did not abuse its discretion in declining to excuse
Juror No. 2 for bias.
                                               III
                          Hill’s Testimony on Her Lack of Injury
       Sievers contends the trial court erred in admitting, over objection, Hill’s testimony
that she was not injured in the accident. After Hill responded “no” to the defense
question asking if she was hurt, Sievers objected, “relevant (sic) and move to strike.”
The trial court overruled the objection. Sievers contends this evidence was irrelevant and
unduly prejudicial because it suggested that if Hill was not hurt, Sievers was malingering
to claim an injury lasting nearly two years.




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       We review the trial court’s ruling on the admissibility of evidence for an abuse of
discretion. (San Lorenzo Valley Community Advocates for Responsible Education v. San
Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1414.)
       Not every error in admitting evidence is reversible. Under article 6, section 13, of
the California Constitution, “No judgment shall be set aside, or new trial granted, in any
cause, on the ground of misdirection of the jury, or of the improper admission or rejection
of evidence, or for any error as to any matter of pleading, or for any error as to any matter
of procedure, unless, after an examination of the entire cause, including the evidence, the
court shall be of the opinion that the error complained of has resulted in a miscarriage of
justice.” In keeping with this constitutional provision, the Evidence Code precludes
setting aside a verdict or finding or reversing a judgment based thereon, because of the
erroneous admission of evidence unless the error complained of has resulted in a
miscarriage of justice. (Evid. Code, § 353.)
       Even if we were to find the admission of Hill’s testimony was error, there was no
prejudice. Hill testified, without objection, that after the accident, she and Martinelli
asked if the other was hurt and each said no. Thus, evidence that neither Hill nor
Martinelli was hurt in the accident was already before the jury. There was no comment
in closing argument about the lack of injury to Hill or others, and nothing in the record
indicates Hill’s testimony emphasized this evidence. As set forth ante, there was
considerable evidence as to the limited nature of Sievers’s injury. Sievers has failed to
show how admission of this additional evidence prejudiced her.4




4 In her reply brief, Sievers contends Hill’s accident reconstructionist should not have
been allowed to testify about the amount of force in the accident without interpretation by
a biomechanical engineer. We will not consider arguments raised for the first time in a
reply brief. (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 268.)

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                                     DISPOSITION
       The judgment is affirmed. Hill shall recover her costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(2).)



                                                      DUARTE                , J.



We concur:




      NICHOLSON             , Acting P. J.




      MURRAY                , J.




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