Facts

On April 10, 2008, plaintiff Edwin Barbosa, a 60-year-old postman, was on his day off. He parked his car and walked across the parking lot towards the entrance of Gardena post office and noticed a stopped black Nissan to his right and ahead of him driven by defendant Toshiro Iso. As plaintiff passed the driver's side corner of Nissan, it accelerated. Plaintiff braced for the impact with his hands. His body went onto the hood and was propelled back, he landed on his rear and fell on his back. The driver did not stop but then drove to the exit of the parking lot, where cars were lined up in traffic. At this point, a witness, Edgar Soto who saw the accident was able to write down the license plate number of the car.

An ambulance took plaintiff to Little Company of Mary Hospital, where he was x-rayed and found no broken bones. Plaintiff was diagnosed with soft tissue injuries, was given pain pills and released.

An investigating officer Edward Wenke was given the license plate and proceeded to Iso's house, where he viewed the vehicle and took photos of smear marks in the dust on the Nissan's hood. These marks appear to have been created by plaintiff's hands when the car struck him. Plaintiff declined to press charges for "hit and run," and decided to handle the case in a civil action.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that Iso negligently struck him with his Nissan, causing soft tissue injuries.

DEFENDANT'S CONTENTIONS:
Iso contended that plaintiff was not struck by Nissan; that plaintiff was running through the parking lot and was able to stop himself from hitting the car by placing his hands on the vehicle to stop himself. Iso also contended that plaintiff did not fall to the ground but remained standing and put his hands up in the air after touching defendant's vehicle. Iso stated that he did not stop at the scene as it was clear to him that plaintiff was not injured.

Iso claimed that a month after the accident, plaintiff stated he was in his mail truck when John Bleim struck him on the rear of the vehicle in a white Ford pick-up truck, which then fled the scene and was chased by plaintiff in his mail truck. Defense took the deposition of Bleim, who stated that he did not hit plaintiff's vehicle, but that he was in the vicinity on that date. Based on this, defendant contended that plaintiff had a habit of making up accidents that did not happen and alleging persons had committed hit and run.

Settlement Discussions

Plaintiff made a CCP 998 demand of $9,999.99. Iso made a CCP 998 offer for waiver of costs.

Specials in Evidence

$2,911 (Little Company of Mary Hospital); $1,055 (Dr. David Nicol, DC).

Injuries

Plaintiff suffered soft tissue injuries to neck and back and lower extremities.

Result

$16,725 ($6,725 economic; $10,000 non-economic). Following the verdict, State Farm agreed to pay the verdict plus plaintiff's expert and other costs in the amount of $5,899.32.

Other Information

At trial, plaintiff presented testimony of witness Edgar Soto, who, through a Spanish translator, testified that plaintiff was struck by Nissan and thrown backwards, and that Iso failed to stop but appeared to try to flee. Expert Thomas Fugger, testified that the marks in the dust on the hood of Nissan were caused by plaintiff's hands when he stopped himself by touching the hood, and that plaintiff's body was not struck, and that he did not fall backward to the ground. INSURER: State Farm insured Iso. FILING DATE: April 7, 2010.

Deliberation

one hour

Poll

12-0 (liability), 12-0 (damages), 10-2 (comparative negligence)

Length

three days