Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and postjudgment orders of the Superior Court of Orange County, No. 30-2009-00117812 Franz E. Miller, Judge.
Wesierski & Zurek, Thomas W. Ely and John E. Stobart for Defendant and Appellant.
Wentworth, Paoli & Purdy, William M. Delli Paoli and Court B. Purdy for Plaintiffs and Respondents.
OPINION
FYBEL, J.
Introduction
Lauren Fetzer, the daughter of Patrick Fetzer and Jacqueline Fetzer, became seriously ill. Lauren, by and through Jacqueline as her guardian ad litem, and Patrick sued Sadiq Saferzadeh, the owner of the house they rented, claiming Lauren’s illness was caused by the presence of mold and mold byproducts in the house. Lauren and Patrick alleged Saferzadeh failed to properly maintain the house, by allowing mold to flourish due to the leaking roof, windows, and plumbing. A jury awarded compensatory and punitive damages to Lauren and Patrick. Saferzadeh appeals, raising several arguments. We affirm.
We will refer to Lauren, Patrick, and Jacqueline by their first names to avoid confusion; we intend no disrespect.
We conclude the trial court did not err by admitting the testimony of a tenant who had lived in the house before Saferzadeh bought it. The tenant’s testimony was probative of the condition of the house and Saferzadeh’s knowledge of the presence of mold in the house when he bought it. The evidence was not unduly prejudicial or too remote in time.
We further conclude there was substantial evidence supporting the experts’ opinions regarding liability and causation.
Saferzadeh forfeited the issue whether there was sufficient evidence supporting the expert witness’s testimony regarding damages by failing to object to the testimony at trial on the specific ground urged on appeal.
Finally, we conclude the trial court did not err by refusing to permit Saferzadeh to offer evidence at trial of the amount accepted as full payment of Lauren’s medical bills. The proper procedure in a case like this one is to present to the jury the full amount of the patient’s medical bills, and then, after trial, to have the court consider reducing the damages awarded, based on evidence of the amount actually accepted as full payment.
Statement of Facts
I. History of the House
The house at 255 Center Street, in Laguna Beach (the house) was built in 1927. Chad Cooper lived in the house during the six months before Saferzadeh bought it. Cooper testified the house “leaked like a sieve” when it rained. Water entered the house in many locations, including the windows, doors, and the roof. Cooper noted a “musty, wet, kind of damp smell, kind of pungent” odor in the house, which he believed was related to the water leaks. Cooper observed mushrooms growing out of the fireplace. The moisture content in the walls was very high, to the extent Cooper could peel away a layer of the wall, exposing its dark, wet interior, or poke his finger through it.
Saferzadeh bought the house in 2002. At that time, he was provided with a transfer disclosure statement noting: “The house is ready to be remodeled – there probably is mold in the house. The last tenants thought there was mold, ” and “last tenants complained of mold.... Buyers advised to have their own inspection of house.” Before the purchase, Saferzadeh personally inspected the house, but he testified he did not see any water stains, indications of leaks, or drywall deterioration, and did not notice any musty smells.
Wendy Radin moved into the house after Saferzadeh purchased it, and lived there for about one and one-half years. Radin complained to Saferzadeh at least five times about “smells or odors” in the house. The handyman employed by Saferzadeh was never able to stop the leaks in the roof. Radin noticed a musty smell when she moved into the house; she complained to Saferzadeh about the smell after the first rain. Radin’s clothes got wet while they were in the closet, and the house smelled “very musty” when it rained. The musty smell did not go away after the rain. The smell was located in the “whole front area” of the house. Radin told Saferzadeh the house still had a musty odor when she moved out.
Deborah Williams rented the house from Saferzadeh from April 2005 to March 2006. Williams testified that during her tenancy, she observed water leaking into the house from the roof, the windows, and the plumbing, and saw what she believed was mold in the front bathroom. Williams also smelled strong, musty odors in the house. Williams reported the problems to Saferzadeh. Saferzadeh claimed Williams told him about a “minor leak... when the very heavy rain comes, ” but denied she told him about musty odors, or water entering around the windows and doors. Saferzadeh’s handyman tried to fix the leak on the roof, but was never able to completely stop the leaking. Mold was discovered inside a wall, and was shown to Saferzadeh’s handyman. Williams asked Saferzadeh what he was going to do to resolve the mold issue; Saferzadeh replied it was a “localized issue and that it wasn’t a problem.” Saferzadeh told Williams he did not want to put a lot of money into the house because he wanted to tear it down and rebuild.
Saferzadeh denied being aware of musty or unpleasant odors, or of stains or leaks in the doorways, before the Fetzers moved in. Saferzadeh never investigated to determine whether there was a problem with mold inside the wall cavities due to water leaking from the roof. He admitted that the presence of mold, leaking windows and doors, a leaking roof, or excessive dampness inside the house would be a defective condition.
In 2006, Saferzadeh replaced a part of the roof, but problems with leaking continued. Saferzadeh’s handyman did additional work after Williams moved out. The handyman and others who did repairs on the roof were not licensed roofing contractors.
The Fetzers moved into the house in June 2006. Before moving in, Patrick and Jacqueline noticed a musty odor throughout the house, which was particularly strong in the areas of the back bedroom closet, back bathroom, front closet, and front bathroom. Saferzadeh told Patrick the smell was due to the house being old. Saferzadeh admitted there had been problems with a leaking roof, but promised to put on a new roof. There was water damage to the ceiling in the back bathroom, water damage and staining on the floor of the back bedroom closet, water stains on the ceiling, and damage to the drywall.
When the rains came, moisture entered the house in the back bedroom closet, back bathroom, and front closet. Patrick told Saferzadeh the roof was leaking; Patrick could not recall anyone fixing the roof. The roof continued to leak during the Fetzers’ tenancy, and the problem grew progressively worse. Many of the windows in the house leaked when it rained; they were never fixed, although Patrick notified Saferzadeh of the problem. The musty odors in the house never went away during the Fetzers’ tenancy.
About one year after moving into the house, Patrick and Saferzadeh again inspected the house, and Patrick notified Saferzadeh about the musty odors, the leaking roof, and the deteriorating drywall. With respect to his complaints, Patrick claimed Saferzadeh “blew me off.”
In mid-2008, Patrick told Saferzadeh he might not renew the lease for a new term, but would stay in the house if Saferzadeh fixed the leaking roof and investigated the musty smell. Patrick was aware that the musty odors could be linked to mold growth. Saferzadeh told Patrick he would not investigate, but Patrick could do so if he wished. Patrick had an environmental report prepared, and gave a copy to Saferzadeh. The report indicated the presence of mold spores and an elevated moisture content throughout the house. The report recommended that a certified mold remediation company be hired to fix the problem. Patrick asked Saferzadeh to hire a professional to fix the problem; Saferzadeh never responded.
In mid-August 2008, Saferzadeh admitted to Patrick he had known there was mold in the house, but it was “not a big deal.” Saferzadeh told Patrick the environmental report would affect Saferzadeh’s ability to make money on the house, and asked Patrick to “bury” it. The Fetzers moved out of the house on September 2, 2008.
Mary Quellmalz moved into the house in September 2009. Saferzadeh or his real estate agent provided Quellmalz with a mold disclosure form, and told her there had been an issue with the shower pan, which had been corrected. Saferzadeh did not tell Quellmalz that he had been told there was probably mold in the house, or that previous tenants had complained to him of leaks and pervasive musty odors in the house. Quellmalz experienced some water migration from the roof, but denied it was as significant as a leak. Quellmalz reported the water intrusion to Saferzadeh, but was not aware of anyone coming to the house to evaluate or fix the problem.
II. Lauren’s Illness
In June 2006, Lauren was six years old. After moving into the house, her health gradually worsened. Lauren began experiencing cold-like symptoms—a runny nose, itchy eyes, and headaches—which developed into coughing and shortness of breath. In August 2006, Lauren’s doctor prescribed an Albuterol inhaler. Lauren began having absences from school due to chronic asthma in September 2006. Before September, Lauren had shown no symptoms of, and had not been diagnosed with, asthma.
In early 2007, Lauren was referred to an allergist; her medical history at that time read, “intermittent cough bouts that start with sneeze and postnasal drip. This progresses to some daytime cough, more significant symptoms at night and associated wheeze and shortness of breath.” In June 2007, Lauren was seen at the emergency room at Children’s Hospital of Orange County. She was suffering weakness, heart pounding, blue pallor, wheezing, and shortness of breath. She was given breathing treatments, and admitted to the hospital for three or four days.
In August 2007, Lauren was seen by an ear, nose, and throat specialist, who diagnosed her with sinusitis and allergic rhinitis. A skin test showed Lauren was allergic to dust mites.
On September 23, 2008, Lauren was admitted to the pediatric intensive care unit at Fountain Valley Hospital. Lauren was sedated and underwent two broncholavages to remove mucous plugs from her bronchial passages. She was in the hospital for approximately three weeks.
Lauren’s health improved dramatically after moving out of the house in September 2008, although she continues to take medications for her asthma.
III. Expert Witnesses Regarding Mold Contamination in the House
Lauren and Patrick’s mold inspector, Jack Clausen, inspected the house in July 2008. Clausen used moisture meters to locate elevated moisture in the back bathroom shower and the adjoining wall. He noted a musty odor in the back bathroom, which is consistent with mold growth. He also located apparent mold under the sink in the back bathroom. Clausen believed the most likely cause of elevated moisture in the wall cavity was from a plumbing leak. He took a wall cavity sample from a wall in the back bathroom; testing revealed significantly elevated levels of aspergillus/penicillium spores. Highly elevated levels of basidiospores, which are often found in water damaged buildings, were also identified. Clausen opined that the mold contamination in the wall cavity was migrating into the air of the adjoining bathroom. He found elevated levels of two other mold spores in the house’s playroom. Fungus was found on the chimney and fireplace, showing there was a “constant source of moisture” inside the house.
Lauren and Patrick’s construction and water intrusion expert, Robert Reed, opined the house had experienced roof leaks before and during the Fetzers’ tenancy. Reed reviewed photographs of the roof taken in May 2006, and testified the roofing techniques used would allow water to leak into the house. Water stains and black growth on the floor of the back bedroom closet was indicative of water leaks. Based on Clausen’s July 2008 moisture meter readings, Reed opined that the roof of the house was leaking above the back bathroom, which, combined with plumbing problems, caused elevated moisture levels in the house during the Fetzers’ tenancy.
Joe Spurgeon, a certified industrial hygenist, testified as Lauren and Patrick’s environmental expert. He opined that musty odors are indicative of mold contamination, whether or not mold growth is visible. Spurgeon also testified microbial volatile organic compounds (MVOC’s), which are the metabolic byproducts of mold and cause the musty smell, act as an irritant in people suffering from asthma. In Spurgeon’s opinion, the house suffered repeated water intrusion, which resulted in active mold growth, elevated levels of mold, and the emission of MVOC’s during the Fetzers’ tenancy. Spurgeon also testified dust mite levels in the house would have been elevated during the Fetzers’ tenancy.
Ray Kashefi, a certified mold inspector and remediator, testified as an environmental expert on behalf of Saferzadeh. Kashefi inspected the house in September 2008. He ran moisture tests throughout the house and found only one area of concern, six inches above the floor under the sink in the back bathroom. Kashefi removed the wall and found a moderately moist stud, but saw no mold or fungi. He found no plumbing leaks, and opined that the water causing the moisture in the wall came from water splashing out of the sink.
Brian Daly, an environmental expert who testified on behalf of Saferzadeh, performed moisture and mold testing in the house in April 2009. Daly’s tests did not reveal any increased moisture, and provided normal findings with respect to the presence of mold and mold spores. Daly also reviewed Clausen’s test results, and concluded they did not show any abnormally high levels of mold spores. Although the tests of the bathroom wall cavity did show high mold levels, Daly opined the mold would have been contained within the wall and would not have had any adverse effect on the air quality in the house.
IV. Expert Witnesses Regarding Causation
Dr. Zacharia Reda was Lauren’s treating pulmonologist beginning in September 2008. Lauren suffered from asthma and was allergic to dust mites. Patients with allergies to dust mites might develop asthma, allergic rhinitis, and sinusitis. MVOC’s, which are the gases released from mold and are identified by the presence of musty odors, can act as an irritant to the respiratory system causing those diseases. Water leaks in a house can cause an unhealthy level of mold growth, dust mites, and MVOC’s.
The bronchoscopy performed on Lauren in September 2008 revealed she suffered from an extremely rare malady called secondary pulmonary alveolar proteinosis (PAP). PAP is an abnormality in the fluid in the lungs. Dr. Reda opined that exposure to mold could have caused Lauren to develop PAP. Dr. Reda testified with a reasonable degree of medical certainty that Lauren’s exposure to mold in the house, in combination with her asthma, caused her to develop PAP; that conditions in the house caused an elevation in the levels of dust mites which triggered Lauren’s allergic sensitivity, causing her to develop asthma, allergic rhinitis, and sinusitis; and that the musty odors in the house were evidence of the presence of MVOC’s, which acted as an irritant to Lauren’s asthma and allergic rhinitis.
Dr. Kenneth Kim testified as Lauren and Patrick’s expert allergist. Dr. Kim opined that Lauren developed asthma, allergic rhinitis, and sinusitis after moving into the house. Dr. Kim further opined that Lauren developed asthma, allergic rhinitis, sinusitis, and PAP due to her particular sensitivity to exposure to dust mite allergens and MVOC’s while living at the house. He testified all homes in Southern California have a background level of mold and dust mites, but homes with increased moisture due to plumbing or roof leaks would be expected to have higher levels. The musty odor emitted by mold is a marker of MVOC’s, which can be irritating to the eyes, nose, and lungs, and can aggravate asthma.
Dr. Gary Rachelefsky testified as Saferzadeh’s expert allergist. Dr. Rachelefsky testified Lauren’s illness started in the fall of 2005, before the Fetzers moved into the house. Dr. Rachelefsky disputed that Lauren suffered from asthma, because her symptoms did not start until after she turned five years old, and she did not respond to standard asthma treatments. He also opined that none of Lauren’s illnesses was caused by living in the house, that none of Lauren’s illnesses was caused by the presence of MVOC’s, and that musty odors do not necessarily indicate the presence of MVOC’s.
V. Evidence Regarding Damages
Dr. Reda testified that he had reviewed all of Lauren’s medical bills; that all services provided were reasonable and necessary; and that the total billed amount of $411, 299.31 was reasonable. Dr. Kim testified the total cost of future medical care for Lauren would be $589, 320, including medications, immunotherapy treatments, and environmental measures. An economist testified the present value of the future medical costs was $407, 215.
Procedural History
Lauren, by and through Jacqueline as her guardian ad litem, and Patrick sued Saferzadeh for negligence, private nuisance, breach of the implied warranty of habitability, breach of the implied warranty of peaceful and quiet enjoyment, and fraud. The complaint alleged Saferzadeh failed to maintain the house and permitted it to suffer from chronic water intrusion, which in turn caused an elevated moisture content, resulting in mold growth, the presence of MVOC’s, and excessive dust mites. The complaint also alleged Saferzadeh was aware of the conditions in the house, but failed to investigate or properly fix the problems, and that he concealed information about the problems from Lauren and Patrick. Finally, the complaint alleged the condition of the house caused bodily injury, loss of use, and emotional distress. Lauren and Patrick sought compensatory and punitive damages.
After trial, the jury awarded Patrick $116, 766 in compensatory damages, and $10, 000 in punitive damages. The jury awarded Lauren $1, 005, 629 in compensatory damages, and $140, 000 in punitive damages. Judgment was entered on April 7, 2010.
Saferzadeh moved for judgment notwithstanding the verdict (JNOV), and for a new trial. The trial court denied the JNOV motion, but granted the motion for a new trial as to damages only. Saferzadeh timely appealed.
After the notice of appeal was filed, Lauren and Patrick filed an objection to the trial court’s order granting a partial new trial. Lauren and Patrick argued the order was factually flawed and without legal basis because the ground on which the order was granted—that the trial court erroneously overruled Saferzadeh’s hearsay objection to the admission of Lauren’s past medical records—was untrue. The trial court overruled the objection and ruled that the scope of the issues for trial would be determined later.
Discussion
I. Standards of review
“We review the trial court’s denial of defendants’ JNOV motion to determine ‘“whether there is evidence in the record of sufficient substance to support [the] verdict.”’ [Citations.] In so doing, we consider the evidence in the light most favorable to the prevailing party, and indulge in all legitimate and reasonable inferences to uphold the verdict. [Citation.] Even the uncorroborated testimony of a single witness may constitute substantial evidence. [Citation.]” (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1143-1144.)
“We review the trial court’s order granting a new trial for abuse of discretion. [Citation.] An order granting a new trial ‘“must be sustained on appeal unless the opposing party demonstrates that no reasonable finder of fact could have found”’ for the moving party on the theory relied upon by the trial court. [Citation.]” (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 194.)
Alleged errors by the trial court in its evidentiary rulings are reviewed for abuse of discretion. (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640; Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.)
II. Testimony of the tenant before Saferzadeh purchased the house
Saferzadeh argues the trial court abused its discretion by admitting the testimony of Chad Cooper, the tenant who lived in the house just before Saferzadeh purchased it, because that testimony was too remote in time, was highly prejudicial, and had little probative value. We do not find any abuse of the trial court’s discretion in permitting Cooper to testify. Cooper’s testimony corroborated the transfer disclosure statement’s identification of mold in the house. Saferzadeh’s defense was based on his lack of awareness of the mold problems in the house, his contention that the problems were not as bad as Lauren and Patrick’s witnesses testified, and his good faith attempts to fix the roof and any other areas where water was entering the house. Cooper’s testimony was relevant to disprove that defense. Although Cooper did not live in the house when Saferzadeh owned it, he was able to testify as to the condition of the house when Saferzadeh purchased it, which was highly relevant. The period of Cooper’s tenancy was not too remote in time. Additionally, photographs of the house taken by Cooper were not overly prejudicial; rather than inflaming the jury, they were relevant when compared to the photographs taken during the Fetzers’ tenancy to show the steps taken (or not taken) by Saferzadeh to correct the water intrusion problems at the house.
The only case cited by Saferzadeh in support of his contention that Cooper’s testimony was too remote in time is inapposite. The issue the Court of Appeal dealt with in Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 234-238, was whether the evidence of a previous accident was before the trial court, given the trial court’s reference to Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419, in its order granting the defendant’s motion for summary judgment. The Court of Appeal independently concluded the defendant’s objection to the evidence was well taken because the previous accident was not sufficiently similar to the accident in the case before it, not because it was remote in time. (Sambrano, supra, at p. 238.)
III. Expert opinions on liability were based on reliable matters.
Saferzadeh argues the opinions of Lauren and Patrick’s expert witnesses on liability lacked foundation and were not supported by competent evidence. The problem with Saferzadeh’s argument is that he cites selectively to the testimony of the witnesses in question, and then draws the conclusion that their opinions were not properly supported. When the entirety of the witnesses’ testimony is considered, we conclude the opinions had adequate foundation and were supported by competent evidence.
Saferzadeh argues the trial court “abused its discretion by continually overruling objections to hearsay, speculation, foundation and personal knowledge during expert testimony.” He then lists multiple pages from the reporter’s transcript, but fails to provide any specific argument regarding those objections which were allegedly improperly overruled. “‘“On appeals challenging discretionary trial court rulings, it is appellant’s burden to establish an abuse of discretion. [Citations.]” [Citation.]’ [Citation.]” (Geffcken v. D’Andrea (2006) 137 Cal.App.4th 1298, 1307 (Geffcken).) Saferzadeh has failed to establish an abuse of discretion in any evidentiary ruling.
Saferzadeh contends Clausen found no visible evidence of mold or active water leaks. Clausen, however, located active moisture intrusion in the back bathroom; smelled a musty odor which, based on his training and experience, he identified as the emission from mold growth; observed mold growing under the sink in the back bathroom; and found elevated levels of several types of mold spores throughout the house. Clausen’s opinions that mold contamination in the wall cavity of the back bathroom was migrating into the house, and that water intrusion had occurred in the house for a long period of time, were amply supported by the evidence.
Saferzadeh next contends that Reed’s opinion was improperly admitted because Reed did not inspect the house while the Fetzers lived in it, and never actually saw the roof leak or subjected the roof to testing, but only testified the roof could leak. Reed’s opinion that the house had experienced water leaks before and during the Fetzers’ tenancy was supported by his review of photographs of the roof, which were consistent with photographs of interior water stains, and by his review of the transfer disclosure statement, environmental data, the deposition testimony of Patrick and Jacqueline, and his own inspection of the house after the Fetzers moved out. Reed’s opinion was supported by competent, admissible evidence.
Finally, Saferzadeh contends that Spurgeon’s opinion that the house suffered from microbial contamination was not supported by competent evidence because Spurgeon had no personal knowledge of water intrusion during the Fetzers’ tenancy, did not test for the presence of MVOC’s or dust mites in the house, never saw any plumbing leaks, and found elevated moisture levels only in the back bathroom. But Spurgeon properly based his opinion on his review of the deposition testimony of Patrick and Jacqueline, photographs of the house, and the environmental data provided by Clausen and Daly. Those were all matters an expert witness may properly consider in forming his or her opinions. Additionally, given Spurgeon’s training and experience, he was able to opine on the topics.
IV. There was substantial evidence supporting Dr. Reda and Dr. Kim’s opinions that the condition of the house caused Lauren’s illness.
Saferzadeh argues there was insufficient evidence of causation because (1) Lauren and Patrick failed to establish the existence of mold or MVOC’s in the house while they lived there, and (2) Dr. Reda and Dr. Kim relied on speculative and conjectural evidence in reaching their opinions that Lauren’s illness was caused by the MVOC’s in the house.
The existence of MVOC’s was amply demonstrated. Even Daly, Saferzadeh’s own expert witness, agreed, “if you can smell those musty smells, that, in fact, you are smelling the MVOCs.” The evidence of musty smells in the house before and during the Fetzers’ tenancy was substantial. Saferzadeh’s argument that there was no evidence of MVOC’s in the house is specious.
Saferzadeh relies on Geffcken, supra, 137 Cal.App.4th 1298, and Dee v. PCS Property Management, Inc. (2009) 174 Cal.App.4th 390 (Dee). Both cases are distinguishable. In Geffcken, supra, 137 Cal.App.4th at page 1301, the trial court granted a motion in limine to exclude the testimony of the plaintiffs’ expert witness that exposure to mycotoxins had caused the plaintiffs’ illnesses. The expert had based his opinion on the plaintiffs’ medical histories, medical literature, and environmental reports that showed mold spores had been found at the properties in question; no tests showing the presence of mycotoxins had been performed. (Id. at p. 1302.) The appellate court affirmed the order granting the motion in limine because there was an “absence of any reliable evidence that [the plaintiffs] had been exposed to mycotoxins at the properties in question, [making] Dr. Ordog’s opinions... speculative and conjectural.” (Id. at p. 1311.)
Similarly, in Dee, supra, 174 Cal.App.4th at pages 395 396, the trial court granted a motion in limine to exclude the same expert witness’s (Dr. Ordog’s) testimony that exposure to mycotoxins had caused the plaintiff’s illness, based on Evidence Code section 801. The appellate court found no abuse of discretion, because the expert’s opinion that exposure to mycotoxins caused the plaintiff’s symptoms “without any evidence that [the plaintiff] was exposed to mycotoxins” relied on an incorrect premise and lacked foundation. (Dee, supra, at p. 405.)
In the present case, Saferzadeh never filed a motion in limine to preclude the expert witness’s testimony on this ground. Moreover, there was reliable evidence that MVOC’s were present in the house at the time the Fetzers lived there, based on the musty odors which all experts agreed were evidence of the presence of MVOC’s.
Saferzadeh did file a number of motions in limine, some dealing with expert witness testimony. None of those motions sought to exclude the experts’ testimony on the ground that the evidence underlying the opinions was unreliable, or that the experts’ opinions were inadmissible under Evidence Code section 801.
V. Evidence of the amount of Lauren’s medical expenses was properly admitted.
Evidence of Lauren’s medical expenses was provided through the testimony of Dr. Reda. Dr. Reda testified that Lauren incurred $411, 299.31 in medical bills. Dr. Reda further testified he had been provided with copies of Lauren’s medical bills and a summary of those medical bills, from which he determined Lauren had incurred $411, 299.31 in medical expenses. Dr. Reda also stated Lauren’s medical expenses were reasonable, necessary, and attributable to Saferzadeh’s conduct.
On appeal, Saferzadeh argues Dr. Reda’s testimony should have been excluded as hearsay. Although Saferzadeh’s counsel objected at trial to Dr. Reda’s testimony on the grounds it was vague, ambiguous, and compound, Saferzadeh’s counsel did not object to the testimony as hearsay. In order to challenge the erroneous admission of evidence, Saferzadeh was required to make a timely objection or motion to strike the evidence on the specific ground asserted on appeal. (Evid. Code, § 353, subd. (a); People v. Geier (2007) 41 Cal.4th 555, 611 [failure to object to evidence forfeits the claim on appeal]; Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226 1227, fn. 13; City Bank of San Diego v. Ramage (1968) 266 Cal.App.2d 570, 584 [“[h]earsay admitted without objection is evidence that may be considered”].)
Saferzadeh raises a number of arguments why he did not forfeit this claim on appeal. First, he contends he raised the hearsay objection in a pretrial motion in limine. In that motion, Saferzadeh actually argued that the medical bills should be excluded as hearsay. Saferzadeh never argued in a motion in limine or otherwise that Lauren’s doctors should be precluded on hearsay grounds from testifying about the amount and appropriateness of her medical expenses.
Second, Saferzadeh argues his counsel’s objection that Dr. Reda’s testimony was vague, ambiguous, and compound constituted an objection that the testimony was hearsay. The trial court cannot be accused of abusing its discretion by failing to sustain an objection that was not raised while it overruled an objection on a different ground. This is especially true when Saferzadeh had specifically objected that the medical bills, as opposed to the doctor’s testimony, were hearsay.
Third, Saferzadeh argues his counsel “objected continuously throughout trial, and was repeatedly overruled, ” and therefore contends that a further objection would have been futile. In support of his contention, Saferzadeh quotes People v. Morton (2008) 159 Cal.App.4th 239, 249, as follows: “The failure to make a futile argument does not amount to a waiver.” People v. Morton, however, addressed whether a criminal defendant could waive the issue of factual findings of aggravating sentencing factors before the United States Supreme Court issued its opinion in Cunningham v. California (2007) 549 U.S. 270. Saferzadeh’s argument on this point is wholly inapposite. Moreover, Saferzadeh fails to show that a hearsay objection to this particular testimony would have been futile. Indeed, the fact that the trial court partially granted a new trial motion on damages, based on Saferzadeh’s posttrial claim he had made a hearsay objection that was improperly overruled, defeats this argument.
Finally, Saferzadeh argues the issue has not been waived because he raised it in his motion for a new trial. Raising an issue in a posttrial motion does not resolve the problem of forfeiture by failing to object to the evidence at trial.
We conclude Saferzadeh did not object to Dr. Reda’s testimony as hearsay in the trial court, and has therefore forfeited the issue on appeal.
Lauren and Patrick ask this court to reverse the trial court’s order granting a partial new trial on damages, because, contrary to Saferzadeh’s contention in the motion for a new trial, a hearsay objection to this evidence was never raised. Patrick did not appeal from the judgment or the postjudgment orders, and Lauren’s cross-appeal was abandoned. When Lauren and Patrick raised this issue by means of an objection in the trial court, that court overruled the objection and concluded that the scope of the new trial issues would be determined when the matter returned to the trial court. No party is precluded from arguing those issues to the trial court.
VI. Exclusion of collateral source evidence
Saferzadeh argues the trial court erred by refusing to permit him to offer evidence before the jury of the amount accepted by health care providers as full payment of Lauren’s medical bills. The court ruled as follows: “With regard to the issue regarding the evidence to be presented to the jury with regard to the medical expenses... [¶]... [¶]... that Lauren incurred or her parents incurred on her behalf, the court’s tentative is at trial... the plaintiff may submit evidence of the amount of medical charges that were billed. [¶] The defense may submit evidence by way of testimony of any competent witness that those fees were either unnecessary in the sense that whatever medical procedure that was performed was unnecessary or even if the procedure was necessary, that the amount of any particular bill was not reasonable. [¶] But it is clear that the plaintiff is not entitled to recompense for a procedure that was unnecessary or for a bill that was unreasonable. [¶] The defense may not offer evidence at trial of the amount that insurance actually paid on the bill. In a nutshell, I’m essentially moved to that conclusion by the case of Howell vs. Hamilton Meats [2009] 179 Cal.App.4th [686].”
Saferzadeh argues that because the California Supreme Court granted a petition for review of Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, review granted March 10, 2010, S179115 (Howell), on which the trial court relied, the trial court’s ruling was in error. We disagree.
Cases before and after Howell have approved of a procedure in which the jury is presented with evidence of the total amount of medical expenses billed to a plaintiff, and the court, after trial, may consider reducing the damages awarded to the plaintiff based on evidence of what was actually paid. (Cabrera v. E. Rojas Properties, Inc. (2011) 192 Cal.App.4th 1319, 1328-1329; Olsen v. Reid (2008) 164 Cal.App.4th 200, 204; Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1157.)
Quintero v. United States (E.D.Cal., Mar. 2, 2011, No. 1:08-cv-01890-OWW-SMS) 2011 U.S.Dist. Lexis 20489, on which Saferzadeh relies in his appellate reply brief, does not change this analysis. Quintero v. United States involved a personal injury case tried to the bench, not to a jury. (Id. at p. *1.) The federal district court specifically noted that because there was no jury hearing the case, the admission of evidence regarding the actual amounts paid for the plaintiff’s medical care would not create a risk of undue prejudice. (Id. at pp. *20-*21.)
We also emphasize that the principal issues before the Supreme Court in the petition for review in Howell are not the issues presented by this case. The Supreme Court’s Web site identifies the issues for review in Howell, as follows: “(1) Is the ‘negotiated rate differential’ the difference between the full billed rate for medical care and the actual amount paid as negotiated between a medical provider and an insurer a collateral source benefit under the collateral source rule, which allows plaintiff to collect that amount as economic damages, or is the plaintiff limited in economic damages to the amount the medical provider accepts as payment? (2) Did the trial court err in this case when it permitted plaintiff to present the full billed amount of medical charges to the jury but then reduced the jury’s award of damages by the negotiated rate differential?” (<http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=1930127&doc_no=S179115> [as of July 21, 2011].)
Disposition
The judgment and postjudgment orders are affirmed. Respondents to recover costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., ARONSON, J.