Filed 2/17/21 Montgomery v. The Whiskey Barrel Hesperia, LLC CA4/2 Opinion following rehearing NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
NICHOLAS MONTGOMERY,
Plaintiff and Appellant, E071477
v. (Super.Ct.No. CIVDS1518148)
THE WHISKEY BARREL HESPERIA, OPINION LLC,
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Bryan Foster,
Judge. Reversed and remanded with directions.
Carrazco Law, Angel Carrazco, Jr., Kent M. Henderson and Christopher L. Holm,
for Plaintiff and Appellant.
Hartsuyker, Stratman & Williams-Abrego and J. Michael McClure; Veatch
Carlson and Serena L. Nervez, for Defendant and Respondent.
1 I.
INTRODUCTION 1 During a fight between Fred Romero and plaintiff and appellant, Nicholas
Montgomery, at The Whiskey Barrel Hesperia, LLC (Whiskey Barrel), Romero gouged
out Montgomery’s left eye. Montgomery sued the owner of Whiskey Barrel for
negligence and damages. The jury entered a verdict finding Whiskey Barrel 10 percent
liable for negligence because Whiskey Barrel’s security guards did not eject Romero
from the premises after an initial altercation, which occurred shortly before the fight
leading to Montgomery losing his eye. Because the jury found Montgomery sustained
zero noneconomic damages, the trial court granted Montgomery’s motion for a new trial,
subject to an additur awarding Montgomery $1,000,000 in past and future noneconomic
damages. Whiskey Barrel accepted the additur. Montgomery appeals the judgment.
Montgomery contends the trial court erred in issuing an additur because there were
inadequate damages and the evidence of liability was in sharp conflict. Montgomery
argues that, under such circumstances, the trial court was required to grant a new trial as
to all issues. Montgomery further contends the trial court erred under Code of Civil 2 Procedure section 657 by not specifying what evidence it relied upon in issuing the
additur. We need not address whether the trial court’s order complied with the section
1 Romero is not a party to this appeal. 2 Unless otherwise noted, all statutory references are to the Code of Civil Procedure.
2 657 specificity requirements because we conclude the judgment must be reversed on the
ground the additur was improper. The sharply conflicting evidence of liability and
inadequate damages suggest a compromise verdict, requiring a new trial as to all issues.
The order granting the motion for new trial with additur, the acceptance of the additur,
and the amended judgment filed on September 13, 2018, are thus reversed and the matter
is remanded for a new trial on all issues.
II.
FACTS
During the evening of Saint Patrick’s Day, March 17, 2015, Montgomery, who
was 25 years old, went to the Tilted Kilt and had a few beers with his friends. Later, at
10:30 p.m., they joined Miranda Mobley at Whiskey Barrel. A security guard was
stationed at the door, checking identification and using a wand to detect weapons. After
entering Whiskey Barrel, Montgomery had a couple of beers.
Montgomery testified that, as he and his friends sat at a table at Whiskey Barrel,
Fred Romero walked by several times and pulled Mobley’s ponytail. Although
Montgomery thought Romero’s conduct was inappropriate and embarrassed Mobley,
Montgomery did not notify the Whiskey Barrel manager or security guards.
Later that evening, after Montgomery returned from the restroom, he found
Romero seated at Montgomery’s table, drinking beer Montgomery had purchased for his
friends. Montgomery testified that he and Romero argued, and then Romero threw beer
at Montgomery. In response, Montgomery pushed Romero, which knocked a glass of
3 beer off the table, onto the floor, shattering the glass. Eric Hughes, a Whiskey Barrel
security guard, approached and asked what was going on. Montgomery did not respond.
Romero walked away, over to the bar. Immediately after the incident, Whiskey Barrel
staff began cleaning up.
Because of the mess on the table and glass on the floor, Hughes moved
Montgomery and his friends to another nearby table. After Hughes left the area, a friend
of Romero’s approached Montgomery and apologized for the incident involving Romero.
Romero’s friend told Montgomery that Mobley and Romero used to date but were now
just friends, and that was what they did as friends. Montgomery replied he was very
sorry about the incident and felt he had overreacted. Montgomery added that he was
unaware of Mobley and Romero’s prior relationship. Romero’s friend and Montgomery
shook hands. Montgomery thought the incident was over.
Montgomery testified that about two minutes later, Romero approached him from
behind and struck him in the face with the back of his hand while holding a beer in his
other hand. Montgomery reacted by running towards Romero and attacking him, because
Romero had just hit him. During the fight between Romero and Montgomery, Romero
gouged out Montgomery’s left eye. Montgomery testified it felt like he had a dagger in
his eye. According to the surveillance video of the incident shown to the jury, Hughes
immediately responded within two seconds of the altercation.
4 Mobley testified she did not recall Romero pulling her ponytail, Montgomery
pushing Romero, or Romero striking Montgomery from behind. She recalled getting
beer in her face and feeling Romero and Montgomery at her feet.
Romero testified he did not pull Mobley’s ponytail and did not know why
Montgomery pushed him during the first incident. Romero denied throwing beer at
Montgomery. Romero testified he pled guilty to felony battery for injuring Montgomery
and acknowledged that he made a bad decision when he slapped Montgomery’s face.
Hughes testified he was four or five tables away when he noticed commotion
during the first incident. Two individuals at the table got into an argument and were
loud. Hughes did not see Montgomery push Romero. He went over to Montgomery’s
table. There were five people at the table. The people told Hughes they were all friends
being rowdy and nothing was going on. They said it was St. Patrick’s Day and they were
having a good time. Hughes told the group to keep it down. Hughes testified that, two
and a half minutes later, during the second altercation, he did not see Romero hit
Montgomery’s face with his hand. Within seconds after Montgomery responded by
attacking Romero, Hughes attempted to break up the fight.
As a result of losing his left eye during the fight, Montgomery had two surgeries to
remove the uvea and scrape out everything in the eye socket, leaving the sclera shell.
Because Montgomery had to wait for the eye area to heal, it took one year and three
months before Montgomery could use a plastic eye prosthesis to fill the eye socket.
Neuro-ophthalmologist Dr. Sadun testified that Montgomery could do most things with
5 one eye but had reduced depth perception and reduced peripheral vision, from 180
degrees to 130 degrees. Montgomery was also at risk of getting glaucoma and must be
vigilant in taking care of his good eye.
Montgomery testified that people would stare at him and he felt like he looked
“weird.” The recovery process was painful and he had to get used to the prosthesis.
Montgomery now sleeps with the prosthesis and cleans it every morning. Sometimes the
prosthesis moves out of place and he is unaware of this unless someone tells him, which
is embarrassing. After his eye injury, Montgomery has had to work harder to prove he
can do certain tasks during his work as a heavy equipment mechanic. Montgomery also
stopped playing softball and riding dirt bikes on a track. His mother testified
Montgomery has become less outgoing. After the incident, Montgomery initially had
“really, really bad” anxiety. At the time of the trial, it was “not so bad.”
Montgomery’s security expert, Scott DeFoe, testified that security guards at
Whiskey Barrel were required to have valid guard cards through the state Bureau of
Security Investigative Services. Hughes’s guard card expired in 2005. In DeFoe’s
opinion, Montgomery and Romero should have been escorted off the premises after the
initial incident, when Montgomery pushed Romero. According to DeFoe, Whiskey
Barrel failed to properly train their security guards and lacked internal policies requiring
removal of patrons from the premises if seen causing a disturbance or fight. DeFoe
acknowledged that a sudden assault could have occurred even if Whiskey Barrel had
adequate security in place. DeFoe did not observe in the video of the incident any
6 indication Hughes had seen Montgomery push Romero or that Romero pulled Mobley’s
hair.
Whiskey Barrel’s security expert, Chris McGoey, testified that Whiskey Barrel is
classified as a restaurant because it serves a full food menu. It was therefore not legally
required to have security. Whiskey Barrel opened in November 2014. From that time
until the subject incident four months later, there had not been any violence at Whiskey
Barrel. McGoey stated that, in his opinion, the risk of an assault or other crime or injury
at Whiskey Barrel on March 17, 2015, was very low. Nevertheless, that night Whiskey
Barrel had three security guards: one who checked identification at the door; one who
covered the left side of the restaurant; and Hughes, who covered the right side of the
restaurant. The industry standard for a high risk club was one guard for every 50 patrons.
Whiskey Barrel had three guards for 80 patrons the night of the incident. McGoey
concluded Whiskey Barrel had adequate security and the security guards responded
appropriately to the altercations involving Montgomery and Romero.
McGoey agreed the video did not show Romero throwing a glass of beer at
Montgomery before Montgomery pushed Romero during the first incident. Therefore, in
McGoey’s opinion, Montgomery was the aggressor during the first incident. McGoey
testified that, although Hughes did not see Montgomery push Romero, Hughes properly
responded when he became aware of the commotion by speaking to the group for about a
minute. McGoey concluded Hughes’s actions were reasonable. McGoey testified that
during the second altercation, when Romero backhanded Montgomery, Romero was the
7 aggressor. The video showed that after Romero hit Montgomery, Romero backed up 10
feet and took a stance indicating “come and get me.” Because Montgomery at that point
had the option of calling security and not fighting Romero, Montgomery became the
aggressor when he charged toward Romero.
III.
PROCEDURAL BACKGROUND
Montgomery filed a complaint against Whiskey Barrel for damages. The
complaint included causes of action for negligence, assault, and battery. Only the
negligence cause of action is against Whiskey Barrel. The other causes of action were
against unnamed Doe defendants who were either Whiskey Barrel “bouncers” or
individuals who threatened and attacked Montgomery. The complaint alleged in the first
cause of action for negligence that while Montgomery was a patron at Whiskey Barrel on
March 17, 2015, he was harassed and threatened. Whiskey Barrel knew Montgomery
was about to be attacked. Because Whiskey Barrel bouncers negligently failed to
intervene and escort the attacker out of Whiskey Barrel, Montgomery was struck in the
face with a glass and closed fists, causing him to lose his left eye and suffer severe
injuries. Whiskey Barrel also allegedly negligently managed, hired, trained, employed,
and supervised its bouncers.
Before the trial, the parties stipulated Montgomery incurred economic loss in the
amount of $11,697.92, for lost earnings, and $75,000 in future economic damages for
future medical costs. On the twelfth day of trial, the jury returned a special verdict,
8 finding Montgomery 45 percent at fault, Romero 45 percent at fault, and Whiskey Barrel
10 percent at fault. The jury also found zero past and future noneconomic loss, including 3 past and future physical pain and mental suffering. The jury was polled and then
excused, without either party requesting the jury under section 619 to clarify its verdict.
On June 28, 2018, the trial court entered judgment in favor of Montgomery and against
Whiskey Barrel in the amount of $47,683.86 (55% of $86,697.92, Montgomery’s
economic damages).
Montgomery filed a motion for new trial on “damages and on percentages of
fault.” Montgomery argued in his motion that the award of zero past and future
noneconomic damages constituted inadequate damages and the jury failed to follow the
jury instruction requiring an award of damages for each item of harm caused by Whiskey
Barrel. Whiskey Barrel filed opposition, arguing the motion should be denied.
Alternatively, Whiskey Barrel requested the trial court to issue an additur “in an amount
[that] the court in its independent judgment determines from the evidence to be fair and
reasonable.” Montgomery argued in its reply brief that the jury was required to award
noneconomic damages and that the jury reached a compromise verdict.
3 The judgment was amended to correct a clerical error in the judgment, in which the original judgment stated “d. Past noneconomic loss,” and was corrected to state: “d. Future noneconomic loss.” The original judgment stated in paragraph c, “Past noneconomic loss,” and then erroneously stated it again in paragraph d. This was obvious clerical error, which contradicted the special verdict.
9 During the hearing on Montgomery’s motion for new trial on August 31, 2018, the
court stated it was inclined to grant Montgomery’s motion for new trial as to the entire
action, without an additur. The court concluded that the judgment was unlawful because
there were “no damages assessed as to general damages.” The parties and court
discussed at length whether the court should grant a motion for new trial subject to an
additur. Montgomery argued there was a sharp conflict in the evidence regarding
liability. Therefore, an additur was improper. Counsel for Whiskey Barrel disagreed,
urging the court to issue an additur.
The court noted that the jury verdict appeared to be a compromise verdict, with the
jury split on the issue of liability. The court noted “the evidence was very light as far as
the liability of the defendant.” The court stated, “I would have given a defense verdict
because I think that the showing as far as responsibility on the part of the security was
minimal at best. I think that this was an altercation between two individuals.” The court
further stated that “I have some issues as to whether or not anything they did that was
wrong actually caused this incident to occur. That is a question in my mind. And
secondly, as far as the damages are concerned I don’t have any problem with their
economic damages. I do have a problem with the fact they gave no general damages
which I think are required under the circumstances of this case.”
With regard to an additur, the court acknowledged that it was “having difficulty
setting an amount in terms of general damages that I think would be sufficient to indicate
general damages. What I have real concerns [about is] as to the liability portion of it as
10 to what was actually caused by the defendants’ actions. My intent at this point after
listening to argument is to not give an additur on this matter, but to grant a new trial only
on the issue of causation and damages.”
After taking the matter under submission, the trial court entered a written ruling on
Montgomery’s motion for new trial on August 31, 2018, stating the following: “The
Court finds that the evidence clearly shows that Plaintiff sustained pain, suffering,
disfigurement, loss of enjoyment of life, mental suffering and functional impairment as a
result of the loss of his eye. There was no evidence introduced that contested the
Plaintiff’s noneconomic damages. The jury failed to assess any compensation for the
noneconomic damages sustained. The Court finds that a fair and reasonable award for
noneconomic damages is $1,000,000. [¶] The Court grants the Plaintiff’s motion for
new trial based on insufficiency of the evidence because the damages are inadequate
subject to the condition that if Defendant accepts an additur to the judgment of $100,000
determined by assessing past and future noneconomic damages of $1,000,000 and
applying the jury’s determination of 10% apportionment of damages caused by the
negligence of the defendant. [¶] If Defendant does not accept the additur within 15 days
of the date of this ruling, Plaintiff’s motion for new trial on all issues is granted.”
Whiskey Barrel filed a timely notice of acceptance of additur. The trial court
thereafter entered an amended judgment, which added to the judgment the additur and
entered judgment in favor of Montgomery and against Whiskey Barrel in the amount of
$147,683.86. Montgomery filed a notice of appeal from the judgment, order granting the
11 motion for new trial with additur, acceptance of the additur, and amended judgment filed
on September 13, 2018.
IV.
ADDITUR
Montgomery contends the trial court abused its discretion by granting his motion
for a new trial, subject to and conditional upon an additur.
A. Standard of review
The trial court’s order granting a motion for a new trial subject to a remittitur or
additur will not be reversed unless it plainly appears that the trial court abused its
discretion. (Gerard v. Ross (1988) 204 Cal.App.3d 968, 978 (Gerard); Jehl v. Southern
Pac. Co. (1967) 66 Cal.2d 821, 832 (Jehl).) “‘All presumptions are in favor of the order
and it will be affirmed if it is sustainable on any ground.’ [Citation.] In passing on a
motion for a new trial the trial judge is entitled to reweigh the evidence and exercise his
independent judgment thereon and if he concludes that the damages awarded do not
adequately compensate for the injuries sustained he may grant a new trial.” (Harper v.
Superior Air Parts (1954) 124 Cal.App.2d 91, 94.)
B. Law Applicable to a Motion for New Trial Conditional Upon Additur
Section 657, which governs motions for new trial, states 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
12 rights of such party: . . . [¶] 5. Excessive or inadequate damages. [¶] 6. Insufficiency
of the evidence to justify the verdict or other decision, or the verdict or other decision is
against law.” Section 657 further states that, “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.”
Section 662.5 authorizes the court to issue an additur as an alternative to granting
a new trial. Section 662.5 provides in relevant part: “(a) In any civil action where after
trial by jury an order granting a new trial limited to the issue of damages would be
proper, the trial court may in its discretion: [¶] (1) If the ground for granting a new trial
is inadequate damages, issue a conditional order granting the new trial unless the party
against whom the verdict has been rendered consents to the addition of damages in an
amount the court in its independent judgment determines from the evidence to be fair and
reasonable.”
In Jehl, supra, 66 Cal.2d 821, the court addressed the trial court’s failure to
consider the option of issuing an additur. The Jehl court affirmed the order granting the
plaintiff a new trial limited to damages but remanded the case to allow the trial court to
exercise its discretion in determining whether to grant a conditional additur. (Id. at pp.
833, 835.) In reaching its holding, the Jehl court explained that, “[u]pon a motion for
new trial grounded on insufficiency of the evidence because the damages are inadequate,
13 the court should [1] first determine whether the damages are clearly inadequate and, if so,
[2] whether the case would be a proper one for granting a motion for new trial limited to
damages. [Citation.] [] If both conditions exist, [3] the court in its discretion may issue
an order granting the motion for new trial unless the defendant consents to an additur as
determined by the court.” (Id. at p. 832, fn. omitted.)
C. Inadequate Noneconomic Damages
It is unrefuted that the jury awarded Montgomery “clearly inadequate”
noneconomic damages. (Jehl, supra, 66 Cal.2d at p. 832.) Montgomery’s eye was
gouged out, which caused him to suffer from, among other things, severe pain, several
eye surgeries, embarrassment from his changed facial appearance, adjusting to using a
prosthetic eye, the loss of his left eye, and the loss or reduction of stereopsis (depth
perception) and peripheral vision in his remaining eye.
The trial court instructed the jury that, “If you decide that Nicholas Montgomery
[has] proved his claim against the Whiskey Barrel [Hesperia, LLC], you must also decide
how much money will reasonably compensate Nicholas Montgomery for the harm. This
compensation is called ‘damages.’” (See CACI Instruction 3901.) The court explained
to the jury that the damages the jury must decide “fall into two categories called
economic damages and non-economic damages. (See CACI Instruction 3902.) The trial
court instructed the jury that “items of non-economic damages” claimed by Montgomery
included “[p]ast and future physical pain, mental suffering, loss of enjoyment of life,
disfigurement and inconvenience.” (See CACI Instruction 3905A.) Despite unrefuted
14 evidence that Montgomery suffered significant pain and suffering and emotional distress,
the jury did not award him any past or future noneconomic damages. The trial court
therefore reasonably found that the jury award of zero past and future noneconomic
damages was inadequate and not supported by the evidence. Therefore, under section
657, granting a motion for a new trial would have been proper because the noneconomic
damages were clearly inadequate.
D. Caselaw Applicable to Issuing an Additur
The key issue here is whether the trial court abused its discretion in issuing an
additur. Montgomery argues that in the instant case granting a new trial limited to the
issue of damages would have been improper under Clifford v. Ruocco (1952) 39 Cal.2d
327, 329 (Clifford); Hamasaki v. Flotho (1952) 39 Cal.2d 602, 606-607 (Hamasaki);
Beagle v. Vasold (1966) 65 Cal.2d 166, 183 (Beagle); Gallentine v. Richardson (1967)
248 Cal.App.2d 152, 156 (Gallentine); Capelouto v. Kaiser Foundation Hospitals (1972)
7 Cal.3d 889, 893 (Capelouto); Smith v. Moffat (1977) 73 Cal.App.3d 86, 95 (Smith); and 4 Gerard, supra, 204 Cal.App.3d at p. 984. Montgomery asserts that under these cases he
is entitled to an entire new trial as a matter of law because the jury awarded inadequate
noneconomic damages and there was a sharp conflict in the evidence on liability,
4 Although these cases, with the exception of Gerard, were decided before Proposition 51, this is not a significant consideration here. Proposition 51 did not affect the general principles in deciding the motion for new trial and additur in the instant case. Proposition 51, entitled the Fair Responsibility Act of 1986, effective June 4, 1986, provided for joint and several liability and allocated liability for damages based on percentages of fault. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 599-600; Civ. Code, §1431.2.)
15 suggesting a compromise verdict. Upon reviewing these cases cited by Montgomery, we
conclude the trial court erred in issuing an additur, rather than granting a new trial on all
issues. Whiskey Barrel has not cited any persuasive authority to the contrary.
In Clifford, supra, 39 Cal.2d 327, the defendant was in an automobile accident
while driving the plaintiff. The jury returned a verdict for the plaintiff in the amount of
$1,500. The plaintiff moved for a new trial on the ground the awarded damages were
inadequate. The trial court conditionally granted the motion for new trial of all issues
unless the defendant consented to paying the plaintiff $2,000 in damages. The defendant
consented, but the plaintiff refused to accept the additur award. The trial court then
denied the motion for new trial and entered a judgment for $1,500.
The Clifford court concluded there was substantial evidence the defendant’s
negligence caused the accident and that the plaintiff’s damages were inadequate as a
matter of law and therefore must be reversed. (Clifford, supra, 39 Cal.2d at pp. 328-639.)
In Clifford, the court addressed the issue of “whether the case should be remanded on all
the issues or on the issue of damages alone.” (Id. at p. 329.) The Clifford court stated
that, “on an appeal from a judgment where the evidence as to liability is ‘overwhelming’
a retrial may be limited to the issue of damages. [Citations.] Where, however, the
evidence as to liability is in sharp and substantial conflict, and the damages awarded are
so grossly inadequate as to indicate a compromise on the issues of liability and damages,
the case should be remanded for a retrial of both issues. [Citations.] A failure to allow
for undisputed special damages and loss of earnings is one circumstances which the
16 courts have considered as being some indication of a compromise verdict. [Citations.]”
(Id. at pp. 329-330.)
In Clifford, the court further concluded there was a sharp and substantial conflict
in the evidence on the question of liability. The Clifford court concluded that, in view of
the conflict in the evidence, “and considering that the damages awarded were less than
plaintiff’s undisputed special damages and loss of earnings, it would appear that the
verdict was the result of a compromise on the issues of liability and damages, and
substantial justice requires that the case be retried in its entirety.” (Clifford, supra, 39
Cal.2d at p. 330.) As a consequence, the Clifford court reversed the judgment awarding
reduced damages after denying the plaintiff’s motion for new trial. (Ibid.) Under
Clifford, this court must consider whether there was a conflict in the evidence and
whether there were inadequate damages, when determining whether the jury verdict was
a compromise verdict requiring a new trial on all issues.
In Hamasaki, supra, 39 Cal.2d 602, the trial court denied the plaintiffs’ motion for
an entire new trial but granted a motion for new trial limited to the issue of damages, after
the defendants rejected a judgment for $7,500. The child plaintiff was severely injured
while crossing the street, when hit by the defendant’s vehicle. There was conflicting
evidence as to both liability and damages. On appeal, the defendants argued the jury
entered a compromise verdict by awarding little more than the amount of special
damages. The court in Hamasaki concluded the jury award for general damages was
grossly inadequate. (Id. at pp. 606-607.) The Hamasaki court further held that the trial
17 court erred in granting the plaintiffs’ motion for new trial on the issue of damages only.
The order was reversed and the trial court was directed to vacate the judgment and order
a new trial on all issues. (Id. at p. 612.)
The court in Hamasaki noted that, “[a]lthough the granting of a new trial limited
to the issue of damages rests primarily in the discretion of the trial court, it is an abuse of
discretion to grant such a new trial if the question of liability is close, if the damages
awarded are grossly inadequate, and if there are other circumstances that indicate that the
verdict was the result of prejudice or an improper compromise.” (Hamasaki, supra, 39
Cal.2d at pp. 604-605.)
The Hamasaki court further stated the following principles govern the granting of
partial new trials: “A new trial limited to the damages issue may be ordered by the trial
court when it can reasonably be said that the liability issue has been determined by the
jury. A refusal to allow for undisputed special damages is usually convincing evidence
that the jury failed to make a decision of the liability issue, and that circumstance has
therefore been stressed in a number of appellate opinions. [Citations.] In a particular
case, however, gross inadequacy of unliquidated general damages may be just as
convincing. . . . As a general rule, it is only when the verdict allows a substantial, even
though inadequate, amount for general damages that it can reasonably be concluded that
the jury’s error related solely to the damages issue.” (Hamasaki, supra, 39 Cal.2d at pp.
606-607.)
18 In Hughes v. Schwartz (1942) 51 Cal.App.2d 362, cited by Hamasaki, supra, 39
Cal.2d 602, the court explained that, “where no award at all is made for general
damages[,] the only possible explanation is that the jurors compromised the issue of
liability, and it is error to limit the new trial to the issue of damages alone. But where, as
in the instant case, a substantial but inadequate award of general damages is made, the
question as to whether the new trial should be limited rests within the discretion of the
trial judge.” (Hughes v. Schwartz, supra, at p. 368.)
Hamasaki also cited McNear v. Pacific Greyhound Lines (1944) 63 Cal.App.2d
11, in support of this general rule. In McNear, the court stated that “it is an abuse of
discretion to limit a new trial to the issue of damages when the amount awarded by the
jury is so small in view of the damages proved that it must be concluded that the verdict
is the result of some of the jurors sacrificing their conscientiously held view that the
defendant was not liable and agreeing to a small but inadequate award for the plaintiff in
order to arrive at some verdict.” (McNear v. Pacific Greyhound Lines, supra, at pp. 15-
16, citing Hughes v. Schwartz, supra, 51 Cal.App.2d at p. 368.)
The Hamasaki court further concluded the jury verdict was an improper
compromise verdict requiring reversal of the order granting a limited new trial on
damages, based on the great disparity between the jury’s award of $182.90 in general
damages and the judge’s additur award of $6,682.90 for general damages, which was
more than 36 times the jury’s award of $182.90. (Hamasaki, supra, 39 Cal.2d at p. 607.)
The Hamasaki court stated that this “great disparity between the jury’s determination and
19 that of the judge provides an additional and striking indication that the jurors could not
agree on the liability issue and that those who believed defendants were liable consented
to inadequate damages in return for the votes of those who had decided that defendants
should pay nothing.” (Ibid.)
Here, as in Hamasaki, the question of Whiskey Barrel’s liability was a close call
and the general damages award of zero economic damages was grossly inadequate. As
the trial court noted in the instant case, the evidence supported a finding of nonliability on
the part of Whiskey Barrel. In addition, the jury’s verdict attributed only 10 percent fault
to Whiskey Barrel. This was after the jury had submitted a question during deliberations
asking for examples of a substantial factor and then advising the court it had reached an
impasse. After the court encouraged the jury to continue deliberations, the jury entered
its verdict two hours later, apportioning liability between Montgomery (45%), Romero
(45%), and Whiskey Barrel (10%). This is not a case in which “the verdict allows a
substantial, even though inadequate, amount for general damages.” (Hamasaki, supra, 39
Cal.2d at p. 607.) Here, the jury did not award any general damages.
In addition, with such a great disparity between the jury award of zero general
damages and the trial court additur award of $1,000,000 in general damages, it cannot be
reasonably concluded that the jury’s error of awarding zero general damages related
solely to the damages issue. As the trial court initially noted, the jury verdict appears to
be a compromise verdict in which “the grossly inadequate award cannot reasonably be
20 explained as a mere error of the jury in the assessment of damages.” (Hamasaki, supra,
39 Cal.2d at p. 607.)
There was also conflicting evidence regarding liability and percentages of fault,
including that of Whiskey Barrel. There was conflicting evidence as to whether Romero
was the aggressor during the first confrontation. It was disputed as to whether he pulled
Mobley’s ponytail and threw beer in plaintiff’s face. It was also disputed whether
Romero initiated the second altercation by hitting Montgomery in the face or whether
Montgomery was the aggressor when he attacked Romero. In addition, there was
conflicting evidence as to whether Whiskey Barrel was negligent in any way. There was
conflicting testimony by the parties’ security experts as to whether Whiskey Barrel and
its security guards, including Hughes, provided inadequate security and were negligent
during the incident. Therefore, the question of liability and percentages of fault were
disputed and close, particularly as to Whiskey Barrel.
Under Hamasaki, in the instant case, the conflicting evidence and jury verdict
award of zero general damages suggested a compromise verdict requiring a new trial on
all issues. It was therefore an abuse of discretion to grant a new trial conditional upon an
additur, when the question of liability was close and the damages awarded by the jury
were grossly inadequate. (Hamasaki, supra, 39 Cal.2d at pp. 604-605.)
21 Beagle, supra, 65 Cal.2d 166, also supports this proposition. In Beagle, the
plaintiff suffered injuries from an accident in which the plaintiff was a passenger in a car
that went over an embankment. The driver died from the accident. The plaintiff suffered
serious injuries, including vision impairment and severe, radiating back pain. The
plaintiff’s injuries prevented him from returning to work as a carpenter. The plaintiff
requested $21,502.48 in special damages, including $1,377.48 in past medical expenses.
The jury returned a verdict for $1,719.48 in favor of the plaintiff. The verdict thus
amounted to only $342 more than the plaintiff’s past medical expenses. The plaintiff
appealed, contending the damages were inadequate. The plaintiff argued the trial court
erred in prohibiting his attorney from stating during closing argument the specific amount
of general damages plaintiff was claiming or, alternatively, stating a per diem amount.
The Beagle court agreed. (Id. at pp. 171-181, 183.)
In finding prejudice, the Beagle court explained: “When prejudicial error appears
in the determination of the issue of damages, ‘It has been held that on an appeal from a
judgment where the evidence as to liability is “overwhelming” a retrial may be limited to
the issue of damages. [Citations.] Where, however, the evidence as to liability is in
sharp and substantial conflict, and the damages awarded are so grossly inadequate as to
indicate a compromise on the issues of liability and damages, the case should be
remanded for a retrial of both issues.’” (Beagle, supra, 65 Cal.2d at p. 183, citing
Clifford, supra, 39 Cal.2d at p. 329; Hamasaki, supra, 39 Cal.2d at pp. 604-607.)
22 Beagle, supra, 65 Cal.2d 166, supports the proposition that, here, there was a
compromise verdict on the issues of liability and damages, because the evidence as to
liability was in sharp and substantial conflict, and the damages awarded were grossly
inadequate. Therefore, the case should be remanded for a retrial of both liability and
damages. (Id. at p. 183; Clifford, supra, 39 Cal.2d at p. 329; Hamasaki, supra, 39 Cal.2d
at pp. 604-607.)
In Gallentine, supra, 248 Cal.App.2d 152, the plaintiff sustained a gunshot wound
to the kidney area by the defendant while deer hunting. The parties stipulated that the
plaintiff’s medical expenses totaled $297.60, and he incurred $225 in loss of earnings.
(Id. at p. 154.) The jury did not award any general damages for pain, suffering,
inconvenience, shock, or mental suffering. The Gallentine court noted that the defendant
did not seriously dispute the extent of the plaintiff’s injuries, or dispute that the plaintiff’s
expenses were proximately caused by the gunshot wound. (Ibid.) The Gallentine court
held the damages award, which was limited to special damages, was inadequate as a
matter of law. (Id. at p. 155.) The Gallentine court further concluded that, because the
general damages award was grossly inadequate, the jury award was a compromise
verdict, which required reversal of the judgment and remand the case for an entire new
trial. (Id. at p. 156.) The Gallentine court rejected the plaintiff’s request for a new trial
limited to the issue of damages because “‘“[i]t would work a grave injustice upon
defendant to force it to a new trial of the issue as to damages only, with the issue as to
23 liability, upon which no verdict other than in name had been rendered, forever closed
against any inquiry.”’” (Ibid.)
In reaching its holding, the court in Gallentine noted the well-established
principles that, “[g]enerally speaking, a judgment will be reversed on the grounds that the
damages are inadequate only where the award is found to be inadequate on a fair
consideration of the evidence.” (Gallentine, supra, 248 Cal.App.2d at p. 154.) The
Gallentine court added that, “‘If the liability is undisputed or clear, the reversal may be
for a limited new trial on the issue of damages. But where the evidence of liability is so
doubtful or sharply conflicting as to indicate a compromise verdict, the reversal will be
general.’” (Id. at p. 154, citing 2 Witkin, Summary of Cal. Law (7th ed. 1960) Torts,
§ 448, p. 164; see Clifford, supra, 3 Cal.2d at p. 329.)
The Gallentine court further stated: “When a verdict has been returned for the
exact amount of special damages in a case where substantial general damages were
obviously incurred, and where a strong case of negligence has been made, a denial of a
new trial by the trial court must be held an abuse of discretion and a judgment on a
verdict in an insufficient amount may not be affirmed. [Citations.] We find this to be
such a case.” (Gallentine, supra, 248 Cal.App.2d at p. 155.) Furthermore, “‘[a] limited
new trial should not be granted, where substantial justice requires that a new trial, if
granted at all, should cover all the issues.’” (Id. at p. 156.)
24 Here, as in Gallentine, supra, 248 Cal.App.2d 152, the jury award included
stipulated special damages and no general damages, even though the evidence established
that Montgomery sustained serious injuries and was entitled to general damages. As the
court in Gallentine held, limiting the new trial to only the issue of damages was improper
because the jury award appeared to have been a compromise verdict. Therefore, an
additur was also improper.
In Capelouto, supra, 7 Cal.3d 889, the Supreme Court also addressed the issue of
the proper scope of a new trial. (Id. at pp. 892, 897.) In determining whether to remand
the case for a new trial of all issues or just damages, the court in Capelouto did not view
the infant plaintiff’s recovery, consisting of only special damages, as evidence of a
compromise because the damages award, although relatively small, constituted the most
the jury could award the plaintiff pursuant to the trial judge’s instructions. The trial court
instructed the jury it could not award the infant plaintiff any general damages. Because
ample evidence supported the jury’s finding of liability against the defendant and the jury
awarded the maximum amount permissible under the erroneous instructions on
damages, the Capelouto court reversed the judgment only as to the damages and ordered
a limited new trial solely on the issue of damages. (Id. at pp. 891, 898.)
Capelouto, supra, 7 Cal.3d 889, is distinguishable in that in the instant case the
inadequate damages were not the result of an erroneous instruction precluding the jury
from awarding general damages. Unlike in the instant case, the circumstances in
Capelouto did not support a finding there was a compromise verdict. The lack of general
25 damages in Capelouto was in accordance with an erroneous jury instruction precluding
general damages. However, in the instant case, the jury was instructed to award damages
for all injuries and losses, including general damages for pain and suffering. Unlike in
Capelouto, here, the jury did not comply with the damages instructions. The jury did not
award any general damages when it was instructed to do so where there was unrefuted
evidence of general damages. This failure to award any general damages, along with
conflicting evidence of proportionate liability on the part of Montgomery, Romero, and
Whiskey Barrel, furnished sufficient proof of a compromise verdict, such that a new trial
on all issues was required.
In Smith, supra, 73 Cal.App.3d 86, the plaintiff minor brought a wrongful death
action against the defendant medical providers. The jury awarded the plaintiff $5,000 in
damages. The trial court granted the plaintiff’s motion for new trial on all issues as
against the defendant physician. The trial court concluded the jury awarded inadequate
damages and the evidence was insufficient to support liability against the defendant
physician. (Id. at pp. 89-90.) The defendant appealed the order granting the new trial
and the plaintiff filed a cross-appeal of the judgment on the ground the damages were
inadequate as a matter of law. (Id. at p. 93.)
The Smith court concluded it need not decide the defendant’s appeal of the order
granting a new trial because the court reversed the judgment on the plaintiff’s cross-
appeal. Consistent with well-established case law, the Smith court concluded that the
sharp conflict in evidence of liability and the inadequate award of damages suggested a
26 compromise verdict requiring reversal the judgment and order granting a new trial.
(Smith, supra, 73 Cal.App.3d pp. 89, 91, 93-95.)
In reaching its holding on the plaintiff’s cross-appeal, the Smith court explained
that, “[w]hile as a general rule the factfinders are the final judges of the extent of
damages suffered by a plaintiff in a tort action, the rule is not of universal application.
The uncontradicted evidence may demonstrate that the damages awarded are so
inadequate as to justify appellate intervention. [Citations.] In such cases, the award has
been held to be insufficient as a matter of law and to warrant reversal of the judgment.”
(Smith, supra, 73 Cal.App.3d at p. 94, citing Clifford v. Ruocco, supra, 39 Cal.2d 327,
329.) In Smith, the court held the jury’s damages award “was so grossly disproportionate
to the economic loss sustained by the child, not to mention the loss of the society and
comfort of his mother, that it must be held to be inadequate as a matter of law. The
judgment must, therefore, be reversed.” (Smith, supra, at p. 94.)
The Smith court then addressed the question of whether the judgment should be
reversed in its entirety or on the damage issue alone as requested by the plaintiff. (Smith,
supra, 73 Cal.App.3d p. 94.) The court concluded that, “[a]lthough a retrial may be
limited to damages where the evidence of liability is overwhelming, whereas here the
evidence on liability is in sharp conflict and the award is manifestly so inadequate as to
suggest a compromise verdict, the case should be remanded for retrial on all issues.” (Id.
at pp. 94-95, citing Hamasaki, supra, 39 Cal.2d at pp. 606-607; Clifford, supra, 39
Cal.2d 327, 329, 246 P.2d 651.)
27 Finally, in Gerard, supra, 204 Cal.App.3d 968, the plaintiff, George Gerard, filed
claims for malicious prosecution and conspiracy. The jury returned a special verdict,
finding the defendants liable for malicious prosecution and awarding Gerard special
damages and punitives, but no general damages. Thereafter, the trial court granted one of
the defendant’s motion for new trial subject to a remittitur of the punitive damages,
reducing the punitive damage award from $50,000 to $25,000. Gerard accepted the
remittitur but then appealed, arguing among other things that the jury’s special damages
award was inadequate. Gerard requested the Gerard court to increase the award by
$1,000 plus 6 percent interest.
In addressing this contention, the Gerard court stated the well-established
principle that “Section 662.5 grants the trial court discretion to exercise its additur powers
to determine, upon its review of the entire record, an addition which is fair and
reasonable. The Law Revision Commission comment on this section states that: ‘The
exercise of additur authority . . . is limited to cases where “an order granting a new trial
limited to the issue of damages would . . . be proper.” This limitation prevents the use of
additur where the inadequate damages are the result of a compromise on liability.’”
(Gerard, supra, 204 Cal.App.3d at p. 984.) The Gerard court added that it would
“disturb a trial court’s refusal to exercise its additur power only if the record reveals an
abuse of discretion.” (Ibid.)
28 Based on these principles, the Gerard court upheld the special damages award,
concluding that Gerard had not demonstrated that the jury verdict was a compromise
verdict. The Gerard court reasoned that “Gerard points us solely to the fact that the
jury’s award of compensatory damages was exactly $1,000 less tha[n] the
amount Gerard’s testimony identified. Without more, this is an insufficient fact upon
which to base a conclusion that the trial court abused its discretion.” (Gerard, supra, 204
Cal.App.3d at p. 984.)
The instant case is distinguishable from Gerard, supra, 204 Cal.App.3d 968, in
that in the instant case the jury award was obviously erroneous because the jury did not
award any noneconomic damages even though there was unrefuted evidence
Montgomery suffered noneconomic damages. Under the well-established case law on
motions for new trial and additurs, the trial court’s order issuing an additur was improper
because there was conflicting evidence on liability and it was unrefuted the jury awarded
inadequate general damages. We therefore conclude the trial court erred in issuing an
additur and, instead, was required to grant a new trial on all of the issues.
V.
DISPOSITION
The trial court order granting the motion for new trial with additur, the defendant’s
acceptance of the additur, and the amended judgment filed on September 13, 2018, are
reversed and the matter is remanded to the trial court for a new trial on all issues.
29 Pursuant to the parties’ stipulation to settle, filed with this court on November 12,
2020, the parties have agreed to settlement of this case upon (1) this court entering its
decision reversing the trial court judgment; (2) this court's opinion becoming final
immediately upon entry of the decision, with the clerk of this court issuing a remittitur
forthwith; and (3) all parties waiving all rights to seek rehearing or review.
Accordingly, each party is ordered to bear its own costs on appeal and the clerk of
this court is directed to issue the remittitur forthwith.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
RAPHAEL J.