NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

Plaintiff Juan Estrada was involved in an automobile accident with a vehicle owned by Time Warner NY Cable LLC and driven by Ceola Bullet, a Time Warner employee. Estrada sued Time Warner and Bullet (hereafter together referred to as "TWC") for injuries he sustained in the accident. At trial, a jury found TWC fully liable for the accident and awarded Estrada compensatory damages for his lost wages, past and future medical expenses, and past pain and suffering. The jury awarded no damages for Estrada's future pain and suffering.

Estrada appeals, contending that the damage award was inadequate. He also challenges the trial court's evidentiary ruling which he maintains prevented him from proving a major component of the medical expenses he incurred, as well as the court's grant of a partial judgment notwithstanding the verdict, which reduced the damage award. We reverse the judgment with directions.

FACTS

In June 2007, Estrada was hit from behind by a Time Warner vehicle. He experienced pain in his head, back, shoulder, neck and leg as a result of the accident, and was treated with medication and physical therapy. His back pain did not abate over time; his doctor recommended spinal surgery, which he underwent in May 2008 at Century City Doctor's Hospital (the "Hospital").

Estrada sued TWC for his injuries. TWC contested both liability and damages. The case was tried to a jury.

The Hospital had gone into bankruptcy at some time prior to trial. While the Hospital's trustee-in-bankruptcy and/or the certified public accountant in charge of the Hospital records produced various Hospital records to both Estrada and TWC, the Hospital had no custodian of records who could testify to the Hospital's practices in preparing its business records. TWC argued in an in limine motion that, as a result of this state of affairs, the Hospital's business records, including the bill mailed to Estrada, could not be authenticated and thus were not admissible under the business records exception to the hearsay rule. The trial court agreed, and the bill was not admitted into evidence.

Dr. Schiffman, the surgeon who performed Estrada's spinal surgery, testified, without objection, to the necessity of medical treatments reflected in various medical providers' bills, and opined as to the reasonableness of the charges. Among the invoices presented to Dr. Schiffman was the Hospital's bill for Estrada's surgical and post-operative care. Estrada's counsel posed the question: "Doctor, Exhibit 39 is a total bill from Century City Hospital totaling $94,289.45. Did you find that to be reasonable for the community in which you practice? [¶] And do you find the treatment necessary at the — did you find the treatment that he received at Century City Doctor's Hospital necessary as a result of the accident of June 12, 2007?" Dr. Schiffman answered both questions in the affirmative.

Subsequently, Estrada and his counsel engaged in the following colloquy regarding the Hospital's bill:

Citing its earlier ruling regarding lack of authentication, the court sustained TWC's objection to counsel's question, "How much is that bill?" Estrada went on to testify that he had been contacted by a collection agency regarding the bill, and had made arrangements to pay the bill in full over time, at the rate of $200 per month.

At trial, a jury found TWC fully liable for the accident and awarded Estrada $255,464.67, consisting of $13,046 in lost wages, $163,100.67 in past medical expenses, $54,318 in future medical expenses, and $25,000 in past pain and suffering. Although Estrada sought to recover damages for future loss of earnings, other future economic damages (including, e.g., a case manager for vocational training), and future pain and suffering, the jury made no award for future damages other than for future medical expenses.

Estrada moved for a new trial, arguing that the damages awarded were inadequate to compensate him for his pain and suffering, while TWC moved for a partial judgment notwithstanding the verdict based on excessive damages — specifically, the jury's award of $94,289.45, the amount of the Hospital's bill which the trial court had ruled was inadmissible. In opposition to the latter motion, Estrada argued that a judgment notwithstanding the verdict was not available as a procedure to reduce the jury's award of damages for past medical expenses. The trial court denied Estrada's motion, granted TWC's, and entered judgment in the "total modified amount of $161,175.22."

Estrada appeals the judgment, claiming three errors at trial. He contends that the trial court erred by (1) excluding evidence of the medical expenses he incurred in connection with a surgery performed at the Hospital; (2) considering, and granting, a motion for a partial judgment notwithstanding the verdict in order to reduce the compensatory damages awarded by the jury; and (3) denying his motion for a new trial with respect to his past and future damages for pain and suffering. We begin with a discussion of the propriety of TWC's motion for partial judgment notwithstanding the verdict.

DISCUSSION

1. Partial judgment notwithstanding the verdict

Code of Civil Procedure section 629 permits the grant of a judgment notwithstanding the verdict ("JNOV") "when a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made." Thus, "The trial court's discretion in granting a motion for judgment notwithstanding the verdict is severely limited" (Garretson v. Harold I. Miller (2002) 99 Cal.App.4th 563, 568, citations omitted), and "is identical to his power to grant a directed verdict." (Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1603.)

TWC was entitled to a JNOV only if it would have been entitled to a directed verdict had such a motion been made. TWC does not, and cannot, argue that had it moved for a directed verdict, the motion would and/or should have been granted. Rather, by its motion for JNOV, TWC sought only to reduce the damage award, which it deemed excessive. TWC argues on appeal that it "did not claim that award was excessive — [it] claimed that part of the award was without the support of substantial evidence. Therefore the JNOV was proper."

We reject TWC's wordplay. An award of economic damages supported by substantial evidence is not subject to challenge as being excessive. Conversely, a challenge to an economic damages award on the ground that it is excessive necessarily implies that there is no substantial evidence to support the award. In legal terms, TWC contends that the portion of the damages awarded representing past medical expenses was not supported by substantial evidence and was, for that reason, excessive.

Code of Civil Procedure section 657 provides the proper procedure for TWC to challenge the damage award: "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 . . . [¶] . . . [¶]

5. Excessive or inadequate damages." Moreover, Code of Civil Procedure section 662.5 specifies that "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: [¶] (b) If the ground for granting a new trial is excessive damages, make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party in whose favor the verdict has been rendered consents to a reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable." "The Legislature has provided an exclusive remedy for a trial court to employ where some damages are properly awarded but the amount is excessive. That is through a remittitur pursuant to Code of Civil Procedure section 662.5." (Teitel v. First Los Angeles Bank, supra, 231 Cal.App.3d at pp. 1604-1605.)

In short, the trial court was without authority to reduce the compensatory damages award by means of a JNOV.

2. Evidentiary rulings regarding Century City Hospital bill

Because we reverse the JNOV, we have no need to review the trial court's refusal to admit the Hospital's bill into evidence, and to permit Estrada to testify to the amount of the bill. We simply note in passing that the jury's verdict, which the parties agree included the Hospital's bill, is supported by substantial evidence. As noted above, Dr. Schiffman testified that the Hospital's bill of $94,289.45 for medical services was both necessary and reasonable. Estrada testified that he received the Hospital's bill several months after the surgery, and that he had arranged with a collection agency to pay the full bill over time, at the rate of $200 per month. It is reasonable to infer that the $94,289.45 hospital bill referred to as Exhibit 39 which Dr. Schiffman stated was reasonable was the same hospital bill referred to as "39" which Estrada said he received in the mail and was making payments on. Thus, there was substantial evidence for the jury to conclude that Estrada incurred medical expenses of $94,289.45 on account of his stay at the Hospital.

3. Estrada's new trial motion

Estrada maintains that the trial court erred in denying his motion for new trial, as "consideration of the entire record, including reasonable inference[s] therefrom, demonstrates that the jury clearly should have reached a different verdict or decision."

On a motion for new trial, the trial court is charged with reviewing the record and weighing the evidence admitted at trial to determine whether the "jury clearly should have reached a different verdict or decision." (Code Civ. Proc., § 657.) "A new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury . . . ." (Fountain Valley Chateau Blanc Homeowner's Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.) Upon review, while this court must review the record, a trial court's ruling will only be reversed if prejudice is found. (Nazari v. Ayrapetyan (2009) 171 Cal.App.4th 690, 694.)

Relying on Wilson v. R. D. Werner Co. (1980) 108 Cal.App.3d 878, Estrada asserts that the jury's award of $25,000 for his past pain and suffering and its failure to award any damages for his future pain and suffering are inadequate as a matter of law.

Estrada's reliance on this case is misplaced. The plaintiff in Wilson presented uncontroverted evidence of his pain and suffering: "[Plaintiff] required surgery and physical therapy, his arms were immobilized in casts for about three months, he suffered continued pain and numbness in his arms, he suffered interrupted sleep, and he was forced to curtail his recreational activities. The jury's award of $10,000, which approximately compensated [plaintiff] for his medical expenses and temporary loss of income due to inability to engage in gainful employment, failed to compensate him at all for his pain and suffering, and thus was inadequate as a matter of law." (108 Cal.App.3d at p. 883.)

Like the plaintiff in Wilson, Estrada presented evidence of the pain and suffering he had endured on account of the accident. Unlike the plaintiff in Wilson, the jury awarded Estrada $25,000 in damages for his past pain and suffering. Nothing in Wilson can be read as requiring a jury to award a plaintiff damages for future pain and suffering. Moreover, while Estrada characterizes evidence of his pain and suffering as "uncontroverted," TWC introduced evidence to controvert plaintiff's contention that he continued to experience pain on account of the accident, which evidence included a video of Estrada engaged in activities which he claimed he could not perform on account of his injuries.

In short, Estrada has failed to establish that the trial court abused its discretion in denying his motion for a new trial on the issue of non-economic damages.

4. The appeal is not moot

Finally, TWC asks this court to consider additional evidence on appeal — its cancelled check in payment of the judgment — in order to establish that the appeal is moot. TWC argues that, because it tendered payment of the reduced judgment entered by the trial court, and Estrada accepted that tender, he may not prosecute this appeal. The argument is frivolous, and the motion is accordingly denied.

"Ordinarily, a party cannot accept the benefits of a judgment, in whole or in part, and then attack it by appeal. The party's conduct in taking any of a judgment's advantages while seeking to reverse it is inconsistent, and the result is a waiver of the right." (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 67, p. 127, and cases cited therein.) The rule thus stated is subject to an important exception: If the judgment "clearly establishes the plaintiff's right to recover, but the amount awarded is less than the plaintiff demands, the plaintiff may accept it and nevertheless appeal, claiming a larger recovery." (9 Witkin, Cal. Procedure, supra, Appeal, § 71, p. 131, cases cited therein.)

Here, the judgment entered upon the jury's verdict clearly established Estrada's right to recover from TWC all of the damages he suffered as a result of the accident. Estrada's appeal is limited to the amount of the damages awarded, which he maintains were inadequate. Thus, by accepting TWC's tender of monies in satisfaction of the judgment, Estrada did not waive his right to appeal the judgment in an attempt to obtain a greater recovery.

DISPOSITION

The judgment is reversed; the order granting TWC's motion for judgment notwithstanding the verdict is vacated; and the trial court is directed to enter judgment on the verdict as rendered by the jury. Estrada is to recover his costs on appeal.

We concur:

TURNER, P.J.

MOSK, J.