GUL JAISINGHANI, Plaintiff, Respondent and Appellant,

v.

AMERICAN PRESIDENT LINES, LTD., INC., Defendant and Appellant.

Court of Appeal, Second District, California.

 

Filed 1/28/04

APPEALS from a judgment of the Superior Court of Los Angeles County. Tracy T. Moreno, Judge. Affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

John P. Goffin; Gallet Dreyer & Berkey and David T. Azrin for Plaintiff, Respondent and Appellant.

Cogswell Nakazawa & Chang, Christina L. Owen; Bingham McCutchen, John R. Reese, Mark O. Kasanin, Tyler B. Theis and Lee G. Sullivan for Defendant and Appellant.

Gul Jaisinghani, the former owner and operator of a Los Angeles company which produced industrial chemicals, was on probation for violations arising from the company’s handling and storage of hazardous materials. As required by his probation, Jaisinghani arranged to sell the materials to an Indian manufacturer. Jaisinghani arranged to have a shipping company move the materials from the company’s plant to American President Lines, Ltd. (APL), which would ship the materials to the Indian buyer.

After APL received the materials, but before they were shipped, the prosecutor who was monitoring Jaisinghani’s probation ordered the shipment halted because Jaisinghani had failed to give a required four-week export notice to the state agency which monitored hazardous materials disposal. The shipper contacted APL on Jaisinghani’s behalf and told them to hold the shipment. APL agreed to do so, but then shipped the materials anyway. The prosecutor contacted federal authorities, who stopped the shipment en route and returned it to Los Angeles. As a result, the Indian buyer cancelled the sale, Jaisinghani was investigated and ultimately prosecuted again, and the materials had to be disposed of at additional cost.

Jaisinghani sued APL for negligence and equitable indemnity. Earlier, the trial court sustained APL’s demurrer without leave and dismissed the case. We affirmed the dismissal of the equitable indemnity cause of action, but reversed the dismissal of the negligence claim. We remanded for trial of the negligence cause of action. (Jaisinghani v. American President Lines, Ltd., Inc. (Apr. 11, 2001) B140669 [non-pub. opn.].)

A jury found APL negligent, and apportioned fault at 85 percent for APL and 15 percent for Jaisinghani. The jury found Jaisinghani suffered $353,000 in economic damages and $4.5 million in non-economic damages, primarily based on stress-induced deterioration of his diabetes, high blood pressure, and heart disease.

The parties disputed whether Jaisinghani’s $200,00 payment from the land shipper to settle Jaisinghani’s case against the shipper constituted economic versus non-economic damages, and thus whether that money should be deducted, in whole or in part, from the verdict. The parties also disputed whether Jaisinghani’s $68,652.96 in attorney fees and costs incurred in that case should be included in any deduction. The trial court deducted the $200,000 settlement, minus the attorney fees and costs, for a net deduction of $131,347.04. [FN1]

FN1. Without citation to authority or discussion of the parties’ positions below, APL claims the trial court erred in not deducting the $68,652.96 in attorney fees and costs from the verdict, arguing in a single sentence that the court “required APL to pay Jaisinghani’s attorneys’ fees and costs in the [ ] case [against the shipper].” As noted, the parties disputed below whether any setoff was proper, and whether the fees and costs should be included in any setoff. Thus, APL’s unsupported conclusion is insufficient to raise this issue on appeal.

” ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, emphasis added; accord, In re Marriage of Areceneaux (1990) 51 Cal.3d 1130, 1133; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 349, p. 394.) We disregard appellate arguments not supported by authority. (9 Witkin, Cal. Procedure, supra, Appeal, § 594, pp. 627-629.) “[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]” (Id., § 594, p. 627.)

After reducing the award by Jaisinghani’s comparative negligence, the trial court entered a judgment for $188,405.01 in economic damages, $3,825,000 in non-economic damages, for a total judgment of $4,013,405.01. The trial court later amended the judgment to total $3,993,702.96. Thereafter, the trial court conditionally granted APL’s new trial motion, allowing Jaisinghani to consent to a $2 million reduction of the non-economic damages. Jaisinghani agreed. The court entered a final $1,868,702.90 judgment.

APL appealed, and Jaisinghani cross-appealed from the new trial grant.

APL contends, as a matter of law: (I) Jaisinghani failed to prove causation; (II) the case was barred by the statute of limitations and a federal statute governing losses for items shipped by sea; (III) Jaisinghani was not entitled to emotional distress damages; (IV) the trial court erred in excluding impeachment of Jaisinghani’s expert; and (V) the economic damages were excessive.

Jaisinghani contends (VI) the trial court erred in reducing his damages.

We reject both parties’ contentions and affirm the judgment.

FACTS

Jaisinghani, a Pakistani immigrant and chemical engineer, started HJ Chemicals in the late 1970s. The company, located at 2423 E. 57th St., Los Angeles, manufactured and sold industrial lubricants.

In 1983, Jaisinghani was seriously injured in a car collision when he was hit by a drunk driver. His wife divorced him about the same time. HJ Chemicals failed. Jaisinghani’s distant cousin Inder Jaisinghani, who had a lien on the E. 57th St. facility based on loans to Jaisinghani, foreclosed on the property and gained title in an uncontested proceeding. Inder also acquired 400 drums of chemicals in the foreclosure. Inder set up a new company, International Plastics, which manufactured plastic bags at the E. 57th St. plant. Jaisinghani never owned any interest in or worked for International Plastics. Jaisinghani moved to Florida so his sisters could help take care of him.

In 1989, Jaisinghani learned that Inder had died. Inder’s daughter had inherited the E. 57th St. property. International Plastics had ceased doing business. Art Valles, one of Jaisinghani’s former employees, had established Artco Plastics, which manufactured plastic bags at the E. 57th St. property. Inder’s attorney told Jaisinghani that, on November 8, 1989, Los Angeles County had issued a hazardous waste violation notice to International Plastics and Jaisinghani, alleging illegal storage, management, and disposal of the chemicals, which remained at the E. 57th St. facility. With the County’s approval, Jaisinghani voluntarily returned to Los Angeles to assist Inder’s daughter in the proper testing, labeling, and resale or disposal of the chemicals.

Initially, the County denied Jaisinghani access to the chemicals; he had to hire a lawyer to gain access. Jaisinghani hired licensed chemical disposal companies who began testing, reformulating, and labeling the drums. Jaisinghani arranged to sell the chemicals to various buyers, domestic and foreign, for industrial use. Despite this activity, in February 1991, Deputy District Attorney Anthony Patchett filed felony charges against International Plastics and Jaisinghani, who was arrested and booked. The criminal filing upset Jaisinghani. Nonetheless, Jaisinghani continued the disposal process. Testing results in July 1991 disclosed that most of the drums were not hazardous. County authorities told Jaisinghani he could sell the chemicals for legitimate industrial uses, and that if he did so and complied with applicable rules, the material would be considered recyclable and not hazardous waste.

In 1994, Jaisinghani’s trial ended in a mistrial when the jury could not reach a verdict. Patchett refiled charges.

On April 3, 1995, Jaisinghani entered a plea agreement before Judge Stephen Czuleger. Jaisinghani pled guilty to illegal waste disposal and transportation. The agreement permitted Jaisinghani to sell or recycle the chemicals to legitimate buyers, domestic or foreign, so long as he used a licensed California waste management and disposal company. Patchett objected to letting Jaisinghani sell the chemicals abroad, but Judge Czuleger overruled the objection and ordered Patchett not to interfere with the sale. Once the chemicals were properly sold or recycled, the agreement promised that Jaisinghani’s conviction would be reduced to a misdemeanor and then expunged.

Inder’s widow, titleholder to the chemicals through Inder’s foreclosure, gave Jaisinghani permission to dispose of the chemicals as he saw fit and to keep the proceeds of any sale. An Indian manufacturer in Bombay agreed to buy 240 drums of the chemicals. Jaisinghani planned to transport the chemicals to Bombay in three 80-drum shipments.

Under California law, hazardous materials may be resold for legitimate industrial use. If resold under those conditions, the material is considered recyclable, and is no longer classified as hazardous. The material then is exempted from rules governing the labeling, transport, and disposal of hazardous waste. If sold domestically, the seller need not give any notice of the transport of the materials. If exported abroad, however, the seller must give 4 weeks’ notice of the sale to the supervising state regulatory agency.

Jaisinghani then hired several people and firms to properly prepare, package, and transport the chemicals to Bombay. The chemicals were to be shipped under the name International Plastics, with Valles listed as the responsible person. Jack Rust, an environmental consultant hired by Jaisinghani, arranged the shipment with APL. When APL learned that International Plastics was no longer in business, Rust told APL to list Jaisinghani as the responsible party. At APL’s recommendation, Rust hired AMT Freight to arrange transport of the chemicals from the E. 57th St. facility to APL’s port facilities. Valles signed all the applicable paperwork and sent it to AMT. APL also received copies of all the documents. AMT hired a trucking company.

On May 2, 1995, Patchett, the prosecutor, contacted AMT and Jaisinghani’s attorney and told them he objected to the sale because Jaisinghani had failed to give the 4-week export notice. AMT notified the trucking company not to truck the first 80-drum shipment from the E. 57th St. facility, but the trucking company nonetheless trucked that shipment to APL. AMT contacted APL the same day, and again on May 5, and told them to hold the shipment because of the prosecutor’s objection. Both times, APL agreed to hold the shipment. However, APL erroneously loaded the chemicals on May 8, and shipped them on May 9.

Had the shipment been held, Jaisinghani had several options that could have permitted the sale to proceed. First, since Judge Czuleger had approved the sale as part of Jaisinghani’s plea bargain, Jaisinghani could have obtained a court order permitting the sale after giving the required notice. Second, Jaisinghani could have had the chemicals returned to the E. 57th St. plant and sold them domestically; if so, no notice would be required and the chemicals would be considered recyclable. Third, Jaisinghani could have given the notice, held the shipment for the four week period, and then exported them. Fourth, he could have applied to the state agency for a variance. Under all these scenarios, the chemicals would have been considered recyclable, and could have been properly and legally sold, ending Jaisinghani’s legal obligation and criminal case.

Once the chemicals were exported without the notice, however, they lost their recyclable classification and became illegally shipped hazardous waste. Patchett notified federal authorities, who stopped the shipment at sea and returned it to APL’s port facilities. The chemicals remained there because Jaisinghani could not find buyers willing to take the chemicals because of the law enforcement involvement. APL repeatedly tried to bill Jaisinghani for their storage and removal. Eventually, APL disposed of the material at its own expense.

Federal authorities conducted an investigation and convened a grand jury, but eventually declined to seek any charges. Patchett sought to rescind Jaisinghani’s plea agreement, but Judge Czuleger overruled the objection and reduced the charge to a misdemeanor. In 1996, the court expunged the misdemeanor charge.

However, in 1997, a different deputy Los Angeles district attorney charged Jaisinghani and others with four felony counts: knowing hazardous waste disposal and storage at an unlicensed facility between May 2, 1995, and October 24, 1997; illegal treatment of hazardous waste at an unlicensed facility from April 12-May 1, 1995; and knowing transportation of hazardous waste to an unlicensed facility from May 2-June 18, 1995. All these charges related to the chemicals shipped abroad by APL. None of the charges related to the other 160 drums which remained at the E. 57th St. facility, which Jaisinghani eventually sold or disposed of as hazardous waste. The prosecution’s theory was that the attempt to export the chemicals without the export notice changed the chemicals’ classification from recyclable, which did not have to meet the hazardous waste standards, to hazardous waste, which did. Jaisinghani was arrested, booked, and released with continuing restriction on his movements. In April 1998, after nearly three years of being subjected to constant federal and state investigations, disputes with APL over disposal of the drums stored at APL’s port facilities, and eventual disposal of the rest of the chemicals, the other defendants entered negotiated plea agreements. All charges against Jaisinghani were dismissed.

The Indian buyer refused to complete the sale because of the law enforcement involvement. Jaisinghani could not find other buyers for the same reason. Thus, Jaisinghani lost all the $271,500 revenue from the sale, and had to dispose of the rest of the materials as hazardous wastes, at a net loss of $31,500. Jaisinghani also paid his criminal defense attorney $50,000 in fees. Thus, Jaisinghani incurred $353,000 in economic losses.

Jaisinghani had diabetes before the 1991 charges, but it was under control. He had no heart disease and his weight was normal. The 1991 charges increased his stress. In 1994, Jaisinghani’s diabetes, stress, and heart condition were under control. The 1995 plea agreement and the imminent disposal of the chemicals led Jaisinghani to believe he was about to conclude the process of disposing of all the materials. Patchett’s order stopping the shipment tremendously increased Jaisinghani’s stress. Medical exams disclosed that, from 1996 to 2001, Jaisinghani’s diabetes went out of control and he developed high blood pressure and coronary heart disease. By 2001 he had 80 percent blockage in some arteries and required major surgery. His physicians opined that the increased stress following the 1995 stopping of the export shipment significantly exacerbated his deteriorating health.

In its demurrer to Jaisinghani’s first complaint, APL raised the statute of limitations and the federal statute as defenses. In our first opinion, we held those defenses did not apply at the pleading stage to defeat Jaisinghani’s negligence cause of action. We noted that Jaisinghani’s original complaint alleged his damages began with the filing of the 1997 charges, and that if his amended complaint later alleged his damages began with Patchett’s 1995 stopping of the export shipment, ADL could raise a limitations or federal statute defense to those new allegations. Thereafter, Jaisinghani filed an amended complaint so alleging. APL filed a new answer alleging several affirmative defenses. However, APL did not allege the statute of limitations or the federal statute in its answer, any other court documents, or before the jury. APL raised that issue for the first time in its new trial motion.

DISCUSSION

Standard of Review

Although APL does not challenge the sufficiency of the evidence, many of its arguments hinge on factual assertions based on selective reading of some facts favorable to APL, while ignoring contrary evidence. Thus, we set out the standard governing review of evidentiary sufficiency on appeal.

In determining the sufficiency of the evidence, “a ‘reviewing court is without power to substitute its deductions for those of the trial court.’ … ‘In resolving the issue of the sufficiency of the evidence, we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment…. “In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing.” [Citation.] All conflicts, therefore, must be resolved in favor of the respondent.’ [Citations.]” (Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60.) The testimony of a single witness, even a party, can be sufficient. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Likewise, a lay witness’ testimony can be sufficient even if contradicted by expert testimony. “Provided the trier of the facts does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]” (Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 171.) In applying this standard, we look at the whole record in the light most favorable to the judgment. “However, … substantial … implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with any evidence. It must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials which the law requires in a particular case.” (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336, internal quotes and citations omitted.)

I

APL contends Jaisinghani failed to prove causation. APL argues its May 1995 negligent shipping did not cause Jaisinghani’s damages because the 1997 charges were not based on the negligent shipping, but on the illegal storage, treatment, and land shipment of the chemicals. APL also argues the prosecutor’s independent investigation and prosecution constituted a superseding cause. The contention lacks merit.

To recover on a negligence cause of action, the plaintiff must prove the defendant’s negligence caused the plaintiff’s harm or damages. (BAJI No. 3.00 (9th ed.2002); all further BAJI references are to the 9th ed.) The defendant’s negligence must be a “substantial factor” in causing the plaintiff’s harm or damages. (BAJI No. 3.76.)

“We are reviewing the trial court’s finding of fact on the causation issue, so we must proceed in accordance with the substantial evidence rule, with all presumptions and inferences to be drawn in favor of the judgment. [Citations.]…. [¶] Causation requires proof that the defendant’s conduct was a ‘ “substantial factor” ‘ in bringing about the harm to the plaintiff. [Citations.]” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132.)

Substantial evidence supports the jury’s causation finding. Had the shipment been held, Jaisinghani would have been able to comply with the notice requirement which applied only to the chemicals exported abroad. The chemicals which were to be sold domestically did not require the notice. Had the shipment been held until the notice provision was satisfied, the chemicals could have been shipped, and their storage, treatment, land transportation, and resale would have been legal. The prosecution’s theory supporting the 1997 charges was that shipping them without the export notice changed the chemicals from legal recyclable materials to illegal hazardous waste. All the 1997 charges related to the negligently shipped materials, and not to the chemicals remaining at the E. 57th St. facility. Thus, APL’s negligent shipment was the reason for the investigation and later criminal charges. APL asks us to consider a few facts out of context while ignoring the contrary evidence. APL’s argument amounts to no more than a request to reweigh the evidence and substitute our judgment of it for that of the jury. We cannot do so.

Moreover, Jaisinghani’s damages began in 1995, when the chemicals were negligently shipped despite APL’s agreement to hold them, not with the 1997 criminal charges. The continuing investigation happened only because the chemicals were negligently shipped before Jaisinghani satisfied the export notice requirement. Thus, the investigation and eventual 1997 charges were not superseding, independent acts; rather, they were foreseeable consequences of APL’s negligence. (See Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1030- 1035.)

II

APL contends Jaisinghani’s case was barred by the statute of limitations and the federal statute governing the loss of shipped sea cargo. We need not address the merits of this claim, however, because we agree with Jaisinghani that APL waived the issue.

“[O]nce sued, if a defendant does not timely raise a limitations defense, it is waived regardless of how long the plaintiff has delayed. [Citation.]” (Hambrecht & Quist Venture Partners v. American Medical Internat., Inc. (1995) 38 Cal.App.4th 1532, 1548.) When a demurrer is overruled, the defendant must specifically plead the statute of limitations in its subsequent answer or it waives the issue. (DeCelle v. City of Alameda (1963) 221 Cal.App.2d 528, 533.) A defendant is required to request and present jury instructions on the limitations defense to the jury. Failure to do so waives the issue. (Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1232.) Moreover, raising a defense for the first time in a post-verdict new trial motion generally is insufficient to preserve the issue. (See Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96-100.)

Here, after our first opinion, Jaisinghani filed an amended complaint alleging his damages began after the negligent 1995 shipping. APL did not plead a limitations defense or the related federal statute in its answer to the amended complaint. APL also did not raise the claims in any pretrial or trial briefs. APL also failed to present evidence or request instructions on the issue. APL only raised the issue in its post-verdict new trial motion. This omission prevented Jaisinghani from addressing or defending against the defense with evidence and argument. APL waived the issue.

In addition, as Jaisinghani notes, our earlier opinion rejected the applicability of the federal statute to the limitations defense: “We [ ] reject [APL]’s claim that the federal Carriage of Goods by Sea Act controls the statute of limitations in this case. The Act relieves a shipper of all liability for loss or damage unless the action is filed within one year after the goods are delivered or should have been delivered. [APL] offers no authority for the proposition that the Act applies to our circumstances, as opposed to being limited to damage to the cargo.” (Jaisinghani v. American President Lines, Ltd., Inc., supra, B140669, p. 6.) Particularly where APL failed to litigate the issues below until the new trial motion, permitting them to do so now would unfairly prejudice Jaisinghani’s ability to present rebutting evidence and argument.

III

APL contends Jaisinghani was not entitled to recover for emotional distress caused by APL’s negligent shipping of the chemicals after being told to hold the shipment on the prosecutor’s order. APL argues it had no special relationship with Jaisinghani, and that the only foreseeable injury was financial, not emotional. APL also argues that Jaisinghani had no physical injuries, and that any resulting emotional distress is nonrecoverable. We disagree.

Where the defendant’s negligence foreseeably results in the plaintiff’s arrest, being charged with crimes, or conviction, the plaintiff may recover for resulting emotional distress, even absent physical injury. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1059-1073; Holliday v. Jones (1989) 215 Cal.App.3d 102, 106-120.) As discussed in section I, we reject APL’s argument that these cases somehow are inapplicable, based on its erroneous argument that it was only the 1997 criminal charges that exposed Jaisinghani to any stress, and those charges were not related to its conduct.

Jaisinghani was APL’s customer, and APL knew the request to stop the shipment was on a prosecutor’s orders. The stop request was not based simply on business concerns, such as payment or delivery disputes or readiness. Here, it was foreseeable that the negligent failure to stop the shipment on a criminal prosecutor’s orders would result in investigation, a request to revoke probation for one on probation, and charging. Thus, the damages were properly awarded.

Moreover, the stress significantly exacerbated Jaisinghani’s diabetes, high blood pressure, and heart disease. Thus, APL’s negligence did cause Jaisinghani physical injury.

IV

Jaisinghani’s expert testified that had APL held the shipment until Jaisinghani complied with the export notice requirement, he would have been in full compliance and the shipment would have been proper. In Jaisinghani’s earlier case against the freight forwarder, the same expert testified in his deposition that shipping without the export notice was equivalent to a death sentence for Jaisinghani. The trial court refused to permit APL to impeach the expert with the earlier testimony. APL claims the ruling was error. The contention lacks merit.

The statements were not inconsistent. The expert made clear that shipping without the export notice was what caused Jaisinghani to be subjected to criminal investigation and charging. Had the shipment been held until the notice was obtained, the shipment would have been proper. There was no abuse of discretion in excluding the statement, which was consistent with the expert’s trial testimony. (Evid.Code §§ 770, 1235; People v. Luvesque (1995) 35 Cal.App.4th 530, 544-545.)

V

APL contends the portion of the economic damages attributed to the lost revenue from the cancelled sale to the Indian manufacturer were excessive. APL points to Jaisinghani’s statements before Judge Czuleger that he did not own the chemicals as conclusive proof of Jaisinghani’s lack of entitlement to any revenue from the sale. APL argues Jaisinghani thus would not have received the revenue had the sale been completed.

Jaisinghani testified Inder’s widow, the owner of the chemicals, gave them to Jaisinghani and permitted him to retain any revenues from their sale. This agreement was part of Jaisinghani’s efforts to properly dispose of the chemicals to assist Inder’s family in wrapping up the business, complying with applicable codes, disposing of the materials, and using all available revenue to defer the costs, as well as, if possible, provide Jaisinghani with some payment for his efforts. This testimony was uncontradicted. Moreover, Jaisinghani’s statements to Judge Czuleger, in context, were consistent with his position that he no longer owned or was involved in Inder’s business and was not responsible for the chemicals. APL’s argument, taking one bit of evidence out of context while ignoring contrary evidence, asks us to ignore the substantial evidence rule. We cannot do so.

Alternatively, APL argues Jaisinghani would have been limited under the federal statute to $500 per drum, and that the damages should be reduced to that amount. We disagree. As discussed above, APL waived any argument regarding the applicability of the federal statute.

VI

Jaisinghani contends the trial court erred in partially granting APL’s new trial motion, specifically in reducing his non-economic damage award by $2 million. Jaisinghani argues the trial court’s stated reasons for doing so were not supported by the evidence. Jaisinghani also claims the trial court’s earlier involvement in settlement discussions between the parties was improper, wrongly influencing the trial court’s decision. The contention lacks merit.

Before trial, the parties objected to the trial court conducting settlement discussions because it also would be hearing the trial. The trial court did not participate in any pretrial settlement discussions. After the jury returned its liability verdict, but before the damages phase of the trial, the trial court, concerned about the trial’s length, asked the parties to discuss settlement. Jaisinghani objected, expressing concern that the court might become a fact-finder on a later new trial motion. The court stated it never had reduced a damage award. Based on that statement, Jaisinghani stated his settlement position then was $3 million. No agreement was reached, and the case proceeded to the damages phase.

In support of its conditional new trial order, the trial court listed nine factors: (1) other stressful events affected Jaisinghani during the same period, including the earlier mistrial, the divorce, geographic relocation, and providing assistance to his relatives in properly disposing of the materials and wrapping up their business; (2) Jaisinghani presented no evidence of past or future medical expenses; (3) Jaisinghani’s psychiatrist never opened a formal client file, had no records of how many times they spoke or for how long, and many of their “sessions” were conducted by telephone; (4) the evidence disclosed that many factors besides stress contribute to diabetes, hypertension, and heart disease, including aging, heredity, poor diet, and insufficient exercise; (5) Jaisinghani admitted he had diabetes 8 years before the negligent shipping; (6) Jaisinghani’s primary physician/expert did not see him from 1997-2001; (7) that witness did not know about Jaisinghani’s exercise or medication compliance during that period; (8) Jaisinghani did not get later tests to confirm that he definitely would need heart surgery; and (9) the evidence disclosed that APL’s negligence was not the sole or chief cause of Jaisinghani’s deteriorating health.

“The verdict may be 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 any of the following causes, materially affecting the substantial rights of such party: [¶] … [¶] 5. Excessive or inadequate damages. [¶] … [¶] A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict …, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the … jury clearly should have reached a different verdict…. [¶] … [¶] On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons, except that (a) the order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the verdict …, or upon the ground of excessive or inadequate damages, unless such ground is stated in the order granting the motion and (b) on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the verdict …, or upon the ground of excessive or inadequate damages, it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons.” (Code Civ. Proc., § 657.)

“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.” (Code Civ. Proc., § 662.5, subd. (b).)

“In reviewing the order granting a new trial, we apply the following rule: ‘The determination of a motion for a new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside. [Citations.]’ [Citation.]” (Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 1495, 1506.)

In reviewing the grant of a new trial motion, “[t]he correctness of the trial court’s order is presumed. Abuse of discretion must be manifest and unmistakable and will be found only if it plainly appears that the trial court’s reasons are without any substantial support in the record [citations]. In ruling on a motion for a new trial, the trial court is an independent trier of fact. ‘[T]he trial court may disbelieve witnesses, reweigh evidence and draw reasonable inferences that are contrary to those drawn by the jury.’ [Citation.]” (Sanchez v. Hasencamp (1980) 107 Cal.App.3d 935, 944, fn. omitted.) ” ‘ “The burden is on the party complaining to establish an abuse of discretion…. ” ‘ [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.)

“Moreover, [a]n abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached…. In other words, the presumption of correctness normally accorded on appeal to the jury’s verdict is replaced by a presumption in favor of the [new trial] order.

“The reason for this deference is that the trial court, in ruling on [a new trial] motion, sits … as an independent trier of fact. Therefore, the trial court’s factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury’s factual determinations.

“The trial court sits much closer to the evidence than an appellate court. Even the most comprehensive study of a trial court record cannot replace the immediacy of being present at the trial, watching and hearing as the evidence unfolds. The trial court, therefore, is in the best position to assess the reliability of a jury’s verdict and, to this end, the Legislature has granted trial courts broad discretion to order new trials. The only relevant limitation on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial evidence in the record to support those reasons.” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412, internal quotations and citations omitted.)

These rules also apply to a trial court’s decision to grant a new trial regarding only the amount of damages. (Resort Video, Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1684-1685, 1690-1691.) We reject Jasinghani’s erroneous argument that the order is subject to a higher level of scrutiny.

First, the trial judge’s participation in the abbreviated settlement negotiations was not a ground for disqualification. (Roth v. Parker (1997) 57 Cal.App.4th 542, 549.) Moreover, Jaisinghani did not later move to disqualify the judge because of those discussions. (Horton v. Superior Court (1987) 194 Cal.App.3d 727, 733-734.) Finally, Jaisinghani does not argue any specific acts suggesting prejudice. Thus, the trial court’s participation in the brief settlement discussions was not improper.

Second, the trial court’s stated reasons are supported by substantial evidence and provide adequate support for the trial court’s conclusion that the emotional distress damages awarded by the jury were excessive. All of the trial court’s findings are supported by record evidence. Jaisinghani’s attacks on them, based on some contrary evidence, amounts to nothing more than a request that we reweigh the damages evidence and substitute our evaluation of it for that of the trial court. We cannot do so.

DISPOSITION

We affirm the judgment. Jaisinghani is entitled to his costs on appeal.

ORTEGA, J.

We concur:

SPENCER, P.J.

MALLANO, J.