ARONSON, ACTING P. J.
Plaintiff Muslim Ahmadi appeals from a judgment in a personal injury action. The jury found defendant Koichiro Tsutsumi acted negligently in an auto accident, but awarded no damages, determining Tsutsumi's negligence was not a substantial factor in causing Ahmadi harm. Ahmadi contends the evidence is insufficient to support the judgment. For the reasons expressed below, we reverse.
Around 1:30 on the morning of March 18, 2007, Ahmadi was driving a taxi cab owned by his brother. He picked up two passengers in Laguna Beach, then drove north on Jamboree Road from Pacific Coast Highway in the number three lane. As he passed San Joaquin Hills Road while traveling about 45 miles an hour, a truck, driven by Tsutsumi,
Ahmadi briefly lost consciousness. When he came to, he saw smoke, panicked, and directed his passengers to exit the taxi. Both air bags had deployed. Ahmadi, dizzy and confused, could not feel his right arm. He felt a sharp pain in his right arm up to the shoulder and neck area, and on the upper right side of his back. The passengers moaned as they crawled out of the cab, but did not complain of injury. Police arrived on the scene to investigate the accident, and paramedics and a fire truck arrived to lend assistance.
A few days after the accident, Ahmadi found an attorney from the yellow pages, who referred him to a chiropractor. Ahmadi informed the chiropractor he had previous accidents in 1991 and 2000. In 1991, he suffered a broken clavicle that required surgery. In 2000, he injured his neck and arms in a "fender bender," but recovered after going to physical therapy for approximately two months. Ahmadi claimed the current accident caused him to suffer injuries to his right arm, neck, back, and scratches and bruises.
The chiropractor took X-rays and prescribed chiropractic and physical therapy. Ahmadi participated in therapy for about three weeks, but his pain increased. The chiropractor referred him to orthopedist Archie Mays.
Mays examined Ahmadi in June 2007, ordering a magnetic resonance imaging (MRI) and other tests. Ahmadi had a four-millimeter bulge or herniation of the disk between his fifth and sixth cervical vertebrae. The herniated disk pressed against a nerve root, causing intractable radiculopathy, or pain stemming from nerves along the spine. The defect "correlated exactly" to May's physical examination findings and Ahmadi's reported symptoms, which included limited range of motion, weakness, numbness, tingling and pain. Mays opined the car accident caused the herniation, explaining he found no sign the narrowing of Ahmadi's nerve passages predated the accident. Although the MRIs also showed degenerative disease, including bone spurs, this did not impinge Ahmadi's nerve tissue.
Mays recommended surgery and referred Ahmadi to a neurosurgeon, Dr. Frank Coufal. Ahmadi saw Mays two or three more times. Mays gave Ahmadi medication to reduce inflammation, relax his muscles and relieve pain, but his condition had worsened by the time of trial.
Coufal, a board certified neurosurgeon and director of neurotrauma at Scripps Hospital in La Jolla, examined Ahmadi in September 2007. His testing corroborated Ahmadi's symptoms. Coufal concluded Ahmadi suffered a disk herniation at the C5/6 level causing radiculopathy, and "the C5/6 disk herniation, in all medical probability, arose as a direct consequence of the motor vehicle accident . . . ." He recommended surgery.
Board certified orthopedic surgeon Boyd William Flinders testified for the defense. He reviewed Ahmadi's medical records and examined Ahmadi in April 2009. Flinders found Ahmadi's report of glove-like arm numbness did not correspond to irritation of a specific nerve. Ahmadi had normal strength in his arms and Flinders did not observe any atrophy of his arm muscles. Ahmadi appeared to underperform on a grip strength test, and did not have nerve irritation or increased pain when he tilted his neck back, which would be expected with compression of the vertebrae.
Flinders agreed Ahmadi had severe narrowing of the neural foramen, the "port hole" where the nerve exits the spine, and compression of the exiting C-6 nerve root. He disagreed the narrowing was due to a disk protrusion or herniation, however. Flinders believed that arthritic cervical disk degeneration or bone spurs predating the accident caused the narrowing. Flinders diagnosed "cervical spine strain and sprain, which I felt had been probably, to a slight degree had resolved, and that [he] had cervical disk disease preexisting without evidence of acute traumatic changes." Ahmadi "aggravated and strained the muscles in his neck. It's like he sprained his ankle and sprained the muscles and ligaments in his neck. He had an aggravation of that underlying condition but did not sustain any acute disk herniation. All the findings that I noted were consistent with degenerative spurs." (Italics added.) Flinders agreed Ahmadi "may well have had some contusions to his torso. When the air bag deploys, you are going to have something." But, he believed these injuries would resolve in a healthy young adult male "anywhere from a few months to six months." He agreed Ahmadi might require surgery for degenerative disk disease.
Neurologist Tony Feuerman also testified for the defense. He reviewed the other doctors' reports and the MRI films, but did not examine Ahmadi. Feuerman explained that degenerative disease, rather than discrete trauma, caused most herniated disks. Ahmadi had degenerative cervical disk herniation or bulging, and bone spurs, causing nerve root compression. Feuerman believed Ahmadi's degenerative condition developed over the years, explaining that Ahmadi's herniated disk was irregularly configured and not smooth, which was consistent with a chronic rather than acute cause. Ahmadi had complained to Flinders of a glove-like numbness in his arm, but Feuerman explained this was not symptomatic of a herniated disk. A nerve root problem in the cervical spine would cause pain and numbness only in a particular area of the arm. Feuerman did not address whether the accident aggravated Ahmadi's preexisting condition. He did not believe Ahmadi was a candidate for surgery because his subjective complaints did not correspond to the objective pathology.
Following a trial in August 2009, the jury returned a special verdict finding Tsutsumi's negligence was not a substantial factor in causing Ahmadi's harm.
Ahmadi challenges the sufficiency of the evidence to sustain the jury's finding Tsutsumi's negligence was not a substantial factor in causing Ahmadi harm. Referencing his testimony, photos of the accident, and the testimony of the medical experts, Ahmadi argues "common experience and case law tells us that a plaintiff's award cannot be zero where there is uncontradicted evidence that he or she has sustained substantial pain, suffering and inconvenience caused by" Tsutsumi's negligence.
Tsutsumi faults Ahmadi for failing to provide a complete reporter's transcript of the trial proceedings, asserts Ahmadi waived or forfeited his claim by failing to include all material facts in his brief, and substantial evidence supports the jury's finding the accident did not cause Ahmadi damage.
Ahmadi provides a partial reporter's transcript of the proceedings containing his own testimony and the testimony of the medical experts, including defendant's two experts. The clerk's transcript contains trial exhibits, including photographs of the accident and medical records.
Tsutsumi notes the partial reporter's transcript reflects one of Ahmadi's passengers, Anthony Ippolito, testified. Tsutsumi asserts the failure to include Ippolito's testimony, coupled with Ahmadi's testimony no one complained of injury at the time of the accident and no one received treatment at the scene, contradicts Ahmadi's claim that the injury stemmed from a violent collision. He states "[t]he inadequate record alone justifies affirmance of the judgment on the special verdict since Plaintiff cannot demonstrate from the record his cornerstone argument that the nature of the accident and his alleged injury at the time of the accident require a finding that Defendants proximately caused him damage."
""`The judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it"'"; conflicts in the declarations must be resolved in favor of the prevailing party, and the trial court's resolution of any factual disputes arising from the evidence is conclusive.'" (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Generally, in the case of challenges to the sufficiency of the evidence, error cannot be shown in the absence of the full evidentiary record. (In re Silva (1931) 213 Cal. 446, 448 ["Without the benefit of the entire record we cannot say that the evidence is insufficient to support the finding"]; Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 412 ["[I]n all cases, the determination whether there was substantial evidence to support a finding or judgment must be based on the whole record"].) A complete record is ordinarily required to review a sufficiency claim because, "the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination [of the trier of fact]." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted; see Estate of Fain (1999) 75 Cal.App.4th 973, 992 ["To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error"].)
Ahmadi responds an appellant is only required to provide an adequate record. He asserts the omitted record concerned causation of the collision, but the only issue on appeal is whether substantial evidence supports the jury's finding defendant's negligence was not a substantial factor causing him harm, and he has supplied the evidence, medical and otherwise, necessary to determine this issue. (See Cal. Rules of Court, rule 8.163 [reviewing court presumes "the record in an appeal includes all matters material to deciding the issues raised"].)
Ahmadi's failure to include the passenger's testimony is not fatal to the appeal. The uncontradicted photographic evidence established a significant collision occurred. The jury's finding that Tsutsumi was at fault establishes he negligently caused the impact. While the passenger's testimony might have had some bearing on the nature of the incident, the question raised on appeal is whether Ahmadi suffered any injury. As we explain below, plaintiff supplied a complete record of the expert medical testimony, and the testimony establishes plaintiff would, at a minimum, have aggravated a preexisting neck condition. The partial reporter's transcript supplied by plaintiff is adequate to review his claim. (See Haskins v. Holmes (1967) 252 Cal.App.2d 580-582 [appellate court reviewed claim of inadequate damages based on clerk's transcript and trial exhibits].)
Generally, an appellant attacking the sufficiency of the evidence must summarize in the briefs all material evidence on the issue, not merely the evidence supporting the appellant's position. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875 (Foreman & Clark).) The failure to present all the material evidence will result in forfeiture of the issue. (Ibid.) Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, is illustrative. There, the appellant slanted the facts in her briefing to such an extent that the appellate court noted an "impartial reader . . . unfamiliar with the testimony at trial must come away with a sense of bafflement as to why the jury and trial court did not decide in her favor . . . ." (Id. at pp. 744-745.) The court concluded that "[b]y failing to recount much defense evidence, plaintiff Myers has waived her claim of lack of substantial evidence to support the verdict." (Id. at p. 749, fn. omitted.)
Here, Tsutsumi asserts Ahmadi's brief is similar to the brief submitted in Myers. For example, Tsutsumi complains that "on pages 3-4 of the Opening Brief, Plaintiff claims as a fact that Dr. Flinders agreed that he had no objective or subjective evidence of preexisting condition. But that is clearly not so. Dr. Flinders found objective signs of Plaintiffs' preexisting injury from the MRI [RT 143:20-144:12] and consistently so testified. Further, Dr. Flinders found objective evidence of the lack of actual nerve damage in the Spurling maneuver [RT 140:7-26], the lack of atrophy in Plaintiffs right arm [RT 137:21-138:9] and Plaintiffs contention of glove-like numbness that could not possibly exist on the claim of disk herniation at level C5/6 [RT 136:25-137:13]." Defendant recounts other evidence Ahmadi allegedly misstates or ignores, including whether the experts agreed surgery was required.
In his statement of facts, Ahmadi acknowledged defendant's experts testified Ahmadi's stenosis was a preexisting condition not caused by the accident. He generally recapped Flinders' testimony and opinion that while Ahmadi may have aggravated an underlying condition (nerve root compression or stenosis), he did not sustain any acute disk herniation. Tsutsumi concedes Ahmadi's failure to recount the facts was "not as dramatic" as in Meyers. While we agree Ahmadi did not exhaustively address all the evidence in the record, including evidence reflecting on credibility, we decline to hold he forfeited his substantial evidence claim.
Ahmadi contends the jury's finding defendant's negligence was not a substantial factor in causing Ahmadi harm is not supported by substantial evidence. He grounds his argument on two main points: (1) the severity of the collision as shown in photographs depicting that both driver and passenger airbags deployed in the taxi, Tsutsumi's vehicle landed on top of a fire hydrant, and the cars suffered significant damage; and (2) testimony of his medical experts suggesting Ahmadi suffered (or would have suffered) some personal injuries in the collision. He explains, "Both common experience and case law tells us that a plaintiff's award cannot be zero where there is uncontradicted evidence that he or she has sustained substantial pain, suffering and inconvenience caused by a defendant's negligence[.]" We agree the jury lacked an evidentiary basis for its verdict.
We review the record "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.]" (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1143-1144.) "Our search for substantial evidence in support of the judgment `does not mean we must blindly seize any evidence in support of the respondent in order to affirm the judgment. The Court of Appeal "was not created . . . merely to echo the determinations of the trial court. A decision supported by a mere scintilla of evidence need not be affirmed on review." [Citation.] "[I]f the word `substantial' [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with `any' evidence. It must be reasonable . . ., credible, and of solid value. . . ." [Citation.] The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record. [Citation.] While substantial evidence may consist of inferences, such inferences must be "a product of logic and reason" and "must rest on the evidence" [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding.'[Citation.]" (Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1328.)
The jury could have based its special verdict finding on three possible conclusions: (1) Ahmadi was not harmed in the accident; (2) any harm Ahmadi claimed he suffered was preexisting; or (3) Tsutsumi was not the legal cause of the collision. We may eliminate the latter possibility because Tsutsumi does not deny he caused the accident. Thus, in challenging the evidence to support the jury's conclusion Ahmadi either suffered no harm or his harm was preexisting, Ahmadi must show the evidence conclusively demonstrates he suffered some harm from the accident Tsutsumi directly caused. (See Horn v. Oh (1983) 147 Cal.App.3d 1094, 1098-1101.)
Here, there was conflicting evidence whether Ahmadi's neck condition existed before the accident. The jury could reasonably conclude it did, based on expert testimony Ahmadi's condition was degenerative. But a person injured by negligence is entitled to an award to compensate for injury suffered. (Civ. Code, § 3333 ["For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this Code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not"].) A person therefore is entitled to damages for the aggravation of a preexisting condition caused by another's negligent act.
Here, Tsutsumi's lawyer asked his expert, Flinders, "What, if any, injury do you suspect that Mr. Ahmadi sustained as a result of the accident on March 18, 2007?" Flinders replied, "I think that he aggravated and strained the muscles in his neck. It's like he sprained his ankle and sprained the muscles and ligaments in his neck. He had an aggravation of that underlying condition but did not sustain any acute disk herniation. All the findings that I noted are consistent with degenerative spurs. [¶] Granted, there is a narrowing where the nerve exits in his neck. That is truly is from the spurs that developed. And he may well have had some contusions to his torso. When the air bag deploys, you are going to have something."
The medical evidence was undisputed Ahmadi had (1) a bulge or herniation of the disk between his fifth and sixth cervical vertebrae and bone spurs, (2) a severe narrowing of the neural foramen compressing the exiting C-6 nerve root caused by arthritic cervical disk degeneration or bone spurs; and/or (3) degenerative cervical disk herniation or bulging, and bone spurs, causing nerve root compression. There is no evidence in the record this condition did not, or would not, cause discomfort or pain if aggravated. The severity of the collision as shown in photographs, coupled with Flinder's concession and the testimony of Ahmadi's treating physicians, demonstrates Ahmadi must have suffered at least some compensable injury in the accident. At a minimum, he would have sprained his neck, or suffered additional pain and discomfort related to his preexisting neck condition.
Defense counsel admitted at oral argument there was nothing in the record, and no physician testified, directly indicating "plaintiff wasn't aggravated in some fashion." But counsel points to testimony by Flinders and Feuerman the MRI film did not show "signs of edema, swelling . . . [¶] . . . [¶] [or] disruptive tissue that would indicate acute trauma[.]" Counsel argues "one could argue that [this constitutes] medical testimony that there was no actual trauma suffered" by Ahmadi in the accident. The problem with this argument is the accident occurred in March 2007, the MRI was taken in June 2007, and there is no evidence swelling would have persisted for three months after the accident. In any event, it defies common sense the impact of this particular accident would not have caused Ahmadi some pain and discomfort given plaintiff's allegedly preexisting neck condition. The jury's finding to the contrary is not supported by substantial evidence.
The judgment is reversed. Ahmadi is entitled to his costs on appeal.
WE CONCUR:
FYBEL, J.
IKOLA, J.
This evidence, if believed by a jury, arguably shows Ahmadi exaggerated his injuries and falsely attributed a prior condition or injury to the current accident. But it does not demonstrate he suffered no "detriment proximately caused" by defendant's negligence, as explained above.
