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Westphal v. Wal-Mart Stores12/18/1998
t explain how this undermines the evidence that plaintiff suffers from chronic pain as a result of the accident. Defendant ignores the testimony of Dr. Abravanel, indicating that soft-tissue injuries can be very serious, not heal well, and be much worse than fractures.
At trial, defendant presented no expert testimony casting doubt on the existence of myofascial pain syndrome or the degree of impairment it can cause. Furthermore, defendant did not provide any evidence that plaintiff was malingering. Although such evidence would not provide a basis to reverse the judgment in light of the substantial evidence standard of review on appeal, it would at least demonstrate a basis for defendant's decision to pursue an appellate claim of excessive damages. Without such evidence, there is no arguable basis for finding the damages excessive, and sanctions are appropriate. (See Damele v. Mack Trucks, Inc., supra, 219 Cal.App.3d at p. 37, fn. 5.)
For the reasons stated above, we conclude this appeal is frivolous in that it "indisputably has no merit." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) Defendant is assessed sanctions in the amount of $11,000, payable to plaintiff within 15 days after issuance of the remittitur, to compensate her for the expense consumed in defending against this frivolous appeal. (Cf. Bach v. County of Butte, supra, 215 Cal.App.3d at p. 312.) We further assess defendant sanctions in the amount of $2,500, payable to the clerk of this court within 15 days after issuance of the remittitur, to compensate the court for the expense of processing, reviewing, and deciding a frivolous appeal. (Ibid.)
Our opinion constitutes a written statement of our reasons for imposing sanctions. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 654.)
DISPOSITION
The judgment is affirmed. Sanctions in the amount $13,500, to be paid as directed in this opinion, are imposed against defendant for prosecuting a frivolous appeal. In addition, defendant shall pay plaintiff's costs on appeal. (Cal. Rules of Court, rule 26(a).)
We concur: Blease , Acting P.J. Puglia , J.*
Puglia *Retired Presiding Justice, Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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