Opinion
2d Civil No. B157991.
10-22-2003
CYNTHIA L. GIFFORD, Plaintiff and Respondent, v. KEITH VERNON BERRY et al., Defendants and Appellants.
Declues & Burkett, Jeffrey A. Smith; B.E. Bergesen III for Defendants and Appellants Keith Vernon Berry and Jordanos, Inc. Hollister & Brace, Bradford F. Ginder; Thomas H. Griffin for Plaintiff and Respondent Cynthia L. Gifford.
Keith Vernon Berry and his employer, Jordanos, Inc. (hereafter Jordanos), appeal from a judgment, awarding respondent Cynthia Gifford $2,354,015 in damages for personal injuries sustained in an automobile accident and $80,957 in costs. Berry and Jordanos contend that (1) the trial court committed numerous instructional errors which either individually or cumulatively require reversal of the judgment; (2) the evidence does not support the jurys finding that Giffords negligence did not contribute to her injuries; and (3) they were prejudiced by the misconduct of Giffords counsel during closing arguments. We affirm.
Procedural Background
In April of 1998, Gifford was injured in an automobile accident that occurred as Berry, driving a van for Jordanos, turned into a driveway at a restaurant in Santa Barbara where he was making a delivery. Gifford was working as a parking control officer for the Santa Barbara Police Department at the time and was driving a Cushman parking control vehicle. A car owned by Dean and Linda Starlin (a Ford Thunderbird) was parked in a red zone adjacent to the driveway of the restaurant. Berry made an unsafe turning movement into the driveway in Giffords path, striking her vehicle. Gifford sustained injures resulting in four back surgeries and permanent disability.
Gifford filed a complaint against Berry, Jordanos, and the Starlins. Numerous responsive pleadings were filed. Berry and Jordanos filed an answer, alleging in part that Giffords own negligence caused or contributed to her injuries, and cross-complained for indemnification and equitable apportionment against Gifford, the City of Santa Barbara, and the Starlins. Prior to trial, Gifford reached a settlement with the Starlins for $2,500; Berry and Jordanos settled with the Starlins for $ 25,000. Their actions against the Starlins were then dismissed.
Following a 10-day jury trial, the jury found that Berry, acting as Jordanos agent, was negligent (10 jurors out of 12 finding negligence), his negligence had caused Gifford $ 1,454,015 in economic damages and $900,000 in noneconomic damages, and that neither Gifford nor the Starlins were negligent (10 jurors out of 12 finding neither of those parties negligent). Following the denial of defense motions for a new trial and judgment notwithstanding the verdict, a final judgment was entered.
Facts
On April 10, 1998, Officer John Stony of the Santa Barbara Police Department responded to the scene of a traffic collision on Chapala Street. At the accident site, there were four lanes of traffic: one southbound lane, one center lane for left-hand turns marked by double yellow lines, and two northbound lanes. The center turn lane permits a vehicle planning to turn left (in either direction) to leave its primary lane of travel and move into the turn lane to make a left turn across the lane of oncoming traffic. Officer Stony observed three vehicles: a 1994 Econoline van, the Cushman, and a Ford Thunderbird. The van and the Cushman had both been traveling southbound on Chapala prior to the accident.
Officer Stony interviewed eyewitness Romauldo Requejo. Requejo was driving southbound about 15 feet directly behind Jordanos van in the 700 block of Chapala. He saw the van "try to go quickly around the Cushman" just before the impact occurred in the 600 block. He believed the van was in the southbound lane of traffic at the time it initiated the turn, the Cushman was traveling slowly along the right-hand portion of the right lane prior to the collision, the van turned into the driveway in the path of the Cushman, and then collided with it.
Requejo told the officer that the vans turn signal was on prior to making the turn. At his deposition and at trial, however, Requejo testified that the signal was not on. Requejo testified that, after the accident, Berry approached him and asked Requejo to lie for him. Requejo stated that Berry asked him if he could possibly tell the officer the accident was not his fault because he was afraid he would lose his job.
Officer Delano Bond also responded to the scene of the traffic collision. He interviewed Berry who reported passing the Cushman in the 700 block of Chapala. Berry told the officer he intended to enter the driveway at 625 Chapala Street, Chads Restaurant, for a scheduled delivery. As he approached the restaurant, about 75 feet from the driveway, he signaled his intention to make a right turn. He stated that because the Thunderbird was parked in the red zone near the driveway, although signaling right, he moved left toward the center of the roadway about two to three feet from the center island marker. He told the officer that as he closed on the driveway, he checked his mirror, saw nothing, and began a right-hand turn into the driveway. He said that as he began the turning movement, his vehicle collided with the Cushman.
Berry was not present at trial and his deposition testimony was read to the jury. He testified at his deposition that he had seen the Cushman behind him. He testified that before making his turn, he looked in his mirror to make sure there were no cars in the way, saw Gifford, waived at her, turned his wheel, and collided into her. He stated he was going 10 miles per hour when he made the turn.
Berry testified that Requejo approached him and told him he saw the accident. Berry maintained that he asked Requejo for his name and address for his report because he did not want to get fired for not having the information. He asked Requejo to tell the officers what he saw because he needed to keep his job. He denied asking Requejo to lie for him.
Officer Bond interviewed Gifford at the hospital. Gifford told him that she was traveling southbound on Chapala in the 600 block at an estimated speed of 30 miles per hour. She stated she was not marking cars at the time, but was continuing down to Haley Street to pick up her last marks for the day. She stated that she approached the driveway at 625 Chapala Street and observed the delivery van traveling in front of her. She estimated the distance between her vehicle and the van at approximately one car length. She said the van moved to the center turn lane of the roadway, and she was under the impression it was going to make a left-hand turn across the northbound lanes of Chapala Street. She stated that she did not remember seeing any brake lights or turn signals on the van as it prepared to make the turn. As the van pulled into the center turn area, Gifford said she continued southbound on Chapala. As she came adjacent to the driveway at 625 Chapala Street, the van suddenly made a right-hand turn, striking the front of her vehicle. She said that after she was struck by the van, she intentionally veered her vehicle to the right up on the curb to its point of rest to avoid tipping over.
At trial, Gifford testified that she was traveling at a speed of about 20 to 25 miles per hour just prior to the accident and had a clear view of the street ahead. She testified that suddenly, without warning, she saw the van out of the corner of her left eye and the collision occurred. Contrary to her statement to the police, she maintained she had not seen the van until she hit it.
On cross-examination, Gifford acknowledged that two years earlier, at her deposition, she had testified that she saw the van about two seconds prior to impact. She maintained at trial that she had told the police officers at the hospital that she had not seen the van prior to impact. She explained that she was in a lot of pain at the hospital an hour after the accident and thought her leg was broken. She testified the officers were trying to "piece it together and figure out exactly how the accident would have happened." She agreed that one week later, after the accident, she was contacted by one of the officers and was asked if the van was in front of her just prior to the accident. At her deposition, she maintained that she "pretty much agreed because I did not know how it happened" and the officers had "came to that conclusion." At trial, she said her deposition answer was untrue, and that she reported seeing the van move to the left because she was very tired and in pain.
Troy Allen Hayes, an expert in accident reconstruction retained by Gifford, attempted to reconstruct the accident by using the Cushman vehicle and a van identical to the one driven by Berry. He had the police department block off the streets for his reconstruction analysis. He backed the van away from the point of impact to a point where it was going straight down the road before it had initiated its turn signal. Based on the angle and location of the impact, he opined that the van turned in front of the Cushman, leaving insufficient time for Gifford to react or avoid the collision, and that the van was entirely in the center turn lane before initiating its right hand turn signal. Contrary to Giffords deposition testimony, he believed she was driving on the right side of the southbound lane just before the impact. Based on standard perception-reaction times, he opined that even if Gifford was within 51 to 55 feet from the point of impact before the turning motion of the van began, she would not have had time to perceive and react to such motion. This was true even if the van had slowed to 10 miles per hour before making its turn.
Hayes explained that at the point of impact, the van was at a 45-degree angle to the Cushman, which was traveling straight down the southbound lane. The left front corner of the Cushman collided with the right front quarter panel of the van, behind the front wheel well. There were no skid marks before the point of impact. The momentum of the van caused a sliding scrub mark from the front tire of the Cushman in a 45-degree angle parallel to the van. The scrub mark demonstrated that, upon impact, the front tire of the Cushman was directed in a southbound direction straight down the street and was then pushed sideways. The impact caused the Cushman to rotate in the direction the van was angled.
Hayes evaluated the damage to the van. He explained how accident reconstruction experts use crush analysis, together with skid marks, to calculate the speed of vehicles at the moment of impact. Based on physical evidence, he calculated the speed of the van to be between 24 and 26 miles per hour at impact and the speed of the Cushman to be between 23 and 25 miles per hour.
Hayes determined the van, which was seven and one-half feet wide, was 10 feet within the center left-turn lane before it initiated the turn. He made this determination by using the angle of the van, the point of impact, the location of the diagonal scrub mark from the Cushmans front tire, the turning radius of the van, and the dimensions of the southbound and center left-turn lanes.
According to Hayes, the physical evidence showed that the van was to the left and in front of the Cushman at least 0.5 to 1.1 seconds before the collision, leaving Gifford insufficient time to react and avoid the accident. Hayes further opined that the location of the Thunderbird in the red zone did not physically require the van to move to the left more than one or two feet before making a right turn into the driveway, but Berry had driven his van entirely into the center turn lane, an additional eight feet more than was necessary. In his opinion, the physical evidence was incompatible with Berrys deposition testimony as to where the van was when he began his turning maneuver.
Charles Plemons, the reconstruction expert retained by Berry and Jordanos, testified that he reviewed the police reports and the deposition testimony of Gifford, Berry, the officers, the eyewitness, and Hayes. He did not physically reconstruct the accident scene, but sent a surveyor to the site to take measurements and inspected both the van and the Cushman. Plemons opined that Berry made his turn at about six to eight miles per hour, while the Cushman was following the van at about 25 to 30 miles per hour. He opined that because the Thunderbird encroached into the red zone, the van was required to move at least three feet into the center turn lane in order to turn into the driveway. Plemons testified that "[t]he Delta V, or the change of velocity of the Cushman from the van impact is something on the order of five miles per hour, and that the Cushman is behind the van leading up to the impact."
During cross-examination, Plemons admitted that he had not attempted to locate the actual position of the van before it initiated its right turn. The diagram he relied upon, exhibit 77, showed his opinion of the arc of the vans turning radius required by the presence of the Thunderbird. He presented no evidence showing that if the van had simply come to a stop, Gifford would have struck the rear-end of the van.
In response to hypothetical questions posed by Giffords counsel, Plemons conceded that if the Cushman was one car length behind the van, both vehicles were going 25 miles per hour, and the van slowed to 10 miles per hour before making its turn, the Cushman would have rear-ended the van. Plemons also conceded that under the same facts, if the van had moved to the left and then slowed to 10 miles per hour before making the turn, the Cushman would have passed the van and no accident would have occurred. Through this questioning, Giffords counsel attempted to show that because the Cushman had neither rear-ended nor passed the van, the Cushman could not have been behind the van prior to the impact.
Discussion
I. Alleged Instructional Errors
The trial court instructed the jury, among other things, on the concepts of negligence, ordinary care, negligence per se (see BAJI No. 3.45), and contributory negligence (see BAJI No. 3.50). The jury also received instructions on three Vehicle Code sections that Gifford claimed Berry had violated. Berry and Jordanos asked the trial court to also give the jury two Vehicle Code sections and two rules of the road taken from California cases. They claimed that Gifford had violated these laws and hence was liable for a substantial percentage of fault. The trial court refused to give the defense special instructions. Berry and Jordanos challenge these instructional rulings.
The jury received instructions reciting the following Vehicle Code sections:
Section 22107 provides: "No person shall turn a vehicle from a direct course . . . until such movement can be made with reasonable safety and then only after the giving of an appropriate signal . . . in the event any other vehicle may be affected by the movement."
Section 22108 provides: "Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning."
Section 22100, subdivision (a) provides: ". . . the driver of any vehicle intending to turn upon a highway shall do so as follows: [& para;] (a) Right Turns. Both the approach for a right-hand turn and a right-hand turn shall be made as close as practicable to the right-hand curb or edge of the roadway . . . ."
"A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the partys theory to the particular case." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) Where an instruction properly states the law, and there is evidence to support it, a trial court commits error if it refuses to give it. (Id. at pp. 573-574.)
Where a trial court has erred in refusing to give one or more requested jury instructions, reversal is required only if that refusal was prejudicial. "[T]here is no rule of automatic reversal or inherent prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case `unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. [Citation.]" (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580; Cal. Const., art. VI, § 13.)
Instructional error in a civil case is prejudicial "`where it seems probable" that the error "prejudicially affected the verdict." (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 580.) In determining whether an error of instructional omission was prejudicial, we consider "(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsels arguments, and (4) any indications by the jury itself that it was misled." (Id. at pp. 580-581; Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1156.)
A. Special Instruction No. 6: Vehicle Code section 21703
Berry and Jordanos requested that the trial court give the jury special instruction No. 6, based on Vehicle Code section 21703, which provides: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon, and the condition of, the roadway."
Gifford opposed the special instruction, arguing that BAJI No. 5.00 (given to the jury), addressed the duty of a driver on a public highway. Gifford further argued that the expert testimony showed that tailgating was "physically impossible," given the speeds of the two vehicles, or she would have rear-ended Berry. She argued, therefore, that the instruction was not supported by the evidence. The trial court agreed, stating: "Yeah. I dont . . . think it applied to the evidence I heard in the case."
BAJI No. 5.00 provides: "It is the duty of the driver of any vehicle using a public street or highway to exercise ordinary care at all times to avoid placing the driver or others in danger; to use like care to avoid an accident; to keep a proper lookout for traffic and other conditions to be reasonably anticipated, and to maintain a proper control of the vehicle."
Berry and Jordanos contend the court erred in refusing this instruction. They argue there was evidence that Gifford was traveling only one car length behind Berry at a speed which would not have permitted her to stop in time to avoid the accident. They argue they were prejudiced by the courts ruling because they were deprived of an instruction that would have led to a mandatory inference of negligence if the jury had found that Gifford violated Vehicle Code section 21703. They also argue their counsel was unable to forcefully argue comparative negligence in the absence of this instruction in the same manner as Giffords counsel.
Having reviewed the record, we conclude the trial court did not err in refusing the special instruction. A jury instruction based on a statute coupled with a negligence per se instruction is warranted only where the propounding party can show that the purpose of the statute was intended to avoid the type of injury that occurred. (Evid. Code, § 669, subd. (a)(3).) The purpose of Vehicle Code section 21703 is to avoid rear-end collisions. There was no evidence that Gifford hit the rear area or a rear section of the van. Rather, she hit the front quarter panel of the van behind the front wheel well, indicating that Berry cut in front of her. Although there was evidence that Gifford was following the van minutes before the accident, it was undisputed that Berry moved the van into the left-turn lane, either completely or partially, prior to making his right turn into the driveway. There was no substantial evidence that Gifford violated section 21703 at that moment.
The jury was instructed that Gifford had a duty to avoid the accident and "to keep a proper lookout for traffic and other conditions to be reasonably anticipated . . . ." (BAJI No. 5.00.) This general concept of negligence was the appropriate instruction under the evidence presented here. That instruction permitted the jury to find Gifford negligent if it found that she did not maintain a proper lookout for the van or anticipate the turning motion. The court did not err.
B. Special Instruction No. 5
Berry and Jordanos requested special instruction No. 5, which is taken from language in Coyne v. Whiffen (1933) 132 Cal.App. 699, 703: "[W]here two vehicles are traveling in the same direction on the same street, one in the rear of the other, it is the duty of the driver of the rear car to exercise reasonable care with respect to the forward car, and if the driver of the forward car indicates by the proper signal as defined by the statute, his intention of turning to the left, it is the duty of the driver of the rear car to yield him that right." They argued that Berrys deposition testimony and Requejos statement to police provided evidence showing that Berry had activated his turn signal within the last 100 feet prior to his turning movement, and that, therefore, Gifford had a duty to observe and react to the turn signal.
Gifford opposed the instruction on two grounds: (1) it was not based on a Vehicle Code section, but "very old case law"; and (2) because BAJI No. 5.00 covered the subject, "it would be improper to give a specific instruction tailored from a case to try to fit the facts of a particular case." The trial court agreed and rejected the instruction.
Berry and Jordanos contend the courts ruling was erroneous because the special instruction was a correct statement of the law. They argue they were prejudiced by the ruling because there was a complete failure to instruct on the duty of a driver following a driver who activated the turn signal, and a juror expressed confusion on the issue.
On the last day of trial, prior to the jury receiving its instructions, a juror submitted a note to the court asking, "Right of way? Does a driver that made a right light signal to indicate intent to turn right automatically [have] the right of way to turn right? In traffic laws, I understand that making the signal to change lane, turn right or left does not automatically give the driver the right of way. Should we ignore this law because it was not brought up in our evaluation in determining who [was] at fault?" The trial court stated that the note pertained to "strictly, you know, what is the law, which theyre going to get." At that point, defense counsel pointed out that with his two proposed instructions on turn signal rights and duties refused, the question would not be answered for the jury. The trial court did not respond to the jurors question.
Here, as Gifford observes, even if Berry had activated his right-turn signal prior to turning, the proposed instruction suggested that Gifford had a duty to yield the right of way to Berry who had left the right lane and entered, either partially or completely, the center left-turn lane. The defense cited no authority (either below or on appeal) that would give Berry the right of way to cut across the southbound lane on Chapala to make a right turn after he entered the center left-turn lane either wholly or partially. Thus, the instruction misstates the law under the facts of this case.
In any event, we conclude that BAJI No. 5.00, which was given to the jury, essentially covered the principles expressed in the proposed instruction. It is well settled that the jury instructions are to be read as a whole in determining whether the jury has been fully and fairly instructed. The trial court does not err in refusing an instruction that is adequately covered by a different instruction given to the jury. (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343.) Moreover, the jury expressed no confusion after receiving the courts instructions.
C. Special Instruction No. 1
Citing Burr v. Damarel (1938) 24 Cal.App.2d 622, the defense asked the court to instruct the jury that "[a] motorist making a right hand turn from a highway has a right to proceed and to assume that the driver of any vehicle approaching from behind will decrease its speed if necessary to yield to him right of way." The trial court rejected the proposed instruction, ruling that the case cited was not on point.
Berry and Jordanos concede that Burr v. Damarel is inapposite, but contend the proposed instruction is a correct statement of the law and the trial court erred in refusing it. (See Hanson v. Cordoza (1930) 106 Cal.App. 500, 505 [the law "contemplates that a driver in making his decision to turn to the left is entitled to assume that the drivers of other cars upon the highway will obey the law and exercise reasonable care"].) For the reasons expressed in part B above, we conclude the court did not err in refusing the instruction.
The instruction is misleading on the facts of this case. A motorist in Berrys position, who is turning right while either partially or entirely in the center left-turn lane, does not have the right of way to cut across the right lane he has either partially or entirely vacated. Motorists, such as Gifford, proceeding straight in the lane partially vacated by the turning vehicle have the duty to exercise due care under the circumstances as the jury was properly instructed, but there is no authority for imposing a duty on that motorist to yield a right of way to the vehicle that has moved to the left and opened the lane for through traffic.
The jury was correctly instructed on the obligations and rights of a turning motorist with Vehicle Code section 22107 (see fn. 1, supra) and BAJI No. 5.20, and the obligations of motorists in the vicinity of the turning vehicle with BAJI No. 5.00. Additionally, as for both motorists, the jury was correctly instructed with BAJI No. 3.12 (amount of caution varies), BAJI No. 3.14 (right to assume others normal faculties), and BAJI No. 3.13 (right to assume others good conduct). These instructions adequately covered the principle expressed in the proposed instruction No. 1.
D. Special Instruction No. 9: Vehicle Code section 21755
Defense counsel requested the court to instruct the jury on Vehicle Code section 21755, which provides: "The driver of a motor vehicle may overtake and pass another vehicle upon the right only under conditions permitting such movement in safety. In no event shall such movement be made by driving off the paved or main-traveled portion of the roadway." The trial court rejected this instruction without giving a reason.
Berry and Jordanos contend the courts ruling was erroneous because the evidence demonstrated that Gifford had followed the van prior to the accident and was in the process of passing it when the collision occurred. For the same reasons expressed in parts B and C above, we reject this contention.
We conclude that the Vehicle Code section 21755 was not intended to apply to the facts of this case. Undisputed evidence established that Berry vacated the right lane either partially or completely prior to making his turn. When a driver yields the lane to through traffic, as Berry did, the through traffic does not "overtake and pass" the driver vacating the lane within the meaning of section 21755. There was no evidence that Gifford swerved or changed the course of the Cushman to go around or pass the van. Without such evidence, section 21755 does not apply.
The purpose of Vehicle Code section 21755 is to regulate traffic sharing the same lane. The statute does not prohibit cars in the right lane of a multi-lane roadway from driving faster than cars to the left going in the same direction in an adjacent lane. (See, e.g., People v. Wattier (1996) 51 Cal.App.4th 948, 951 [driver followed a car into the right lane and then proceeded further onto the right shoulder, accelerated, and tried to pass the front vehicle on the right].)
Under the facts of this case, BAJI No. 5.00 more appropriately defined Giffords duty. The court did not err in refusing the proposed instruction.
E. Cumulative Effect of Instructional Errors
In light of our conclusion above that the trial court did not commit instructional error, we reject the contention of Berry and Jordanos that reversal of the judgment is required by the cumulative effect of the courts errors.
II. The Jury Instruction on Vehicle Code Section 21460.5
Over defense objection, the trial court gave the following instruction reciting portions of Vehicle Code section 21460.5, as follows: "Section 21460.5, subdivision (c) states in part: A vehicle shall not be driven in a designated two-way left turn lane except when preparing for or making a left turn from or into a highway or when preparing for or making a U-turn when otherwise permitted by law . . . Section 21460.5, subsection (a) states as follows: A two-way left-turn lane is a lane near the center of the highway set aside for use by vehicles making left turns in both directions from or into the highway."
Gifford contended below that merely driving into a left-turn lane, while in the process of turning right, violated the statute. Berry and Jordanos contended, on the other hand, that the statute prohibits driving in a left-turn lane for any appreciable distance, rather than prohibiting a brief passage through that lane by a large van which otherwise could not make the turn at all. The trial court adopted Giffords position, concluding that if a vehicle moves into part of a left-turn lane, even with its right turn signal on, it violates the statute.
Berry and Jordanos contend the trial court erred in giving the instruction because Gifford was not in the class of persons the statute was intended to protect. We disagree.
The question whether a statute was designed to prevent the type of accident that occurred in a personal injury action is a question of law for the court to decide. In construing Vehicle Code section 21460.5, our fundamental task is to determine the Legislatures intent so as to effectuate the laws purpose. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) "We begin by examining the statutory language, giving the words their usual and ordinary meaning. . . . If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. . . . If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. . . . In such circumstances, we `"select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.". . ." (Ibid., citations omitted.)
Here, the statute provides that a vehicle "shall not be driven in a designated two-way left-turn lane except when preparing for or making a left turn . . . or when preparing for or making a U-turn when otherwise permitted by law, and shall not be driven in that lane for more than 200 feet while preparing for and making the turn or while preparing to merge into the adjacent lanes of travel." (Veh. Code, § 21460.5, subd. (c).) The plain language of the statute permits motorists to drive for no more than 200 feet in a center turn lane for three purposes: to make a left turn, to make a U-turn where permitted, and to merge into adjacent lanes of travel. The plain language of the statute cannot be construed to permit a vehicle to make a right turn from a designated center two-way, left-turn lane. Nor can it be construed to permit a motorist to encroach into such a lane to facilitate a right turn. Nothing in the legislative history of section 21460.5 indicates otherwise.
The obvious purpose of the statute is to prevent accidents from occurring through misuse of the center turn lane especially given that cars from both directions travel in that lane. Giffords expert witness, Hayes, presented evidence that Berry made a right turn while driving entirely within the center left-turn lane, a violation of section 21460.5. Based on this evidence, the trial court appropriately gave the instruction.
III. Substantial Evidence in Support of the Verdict that Gifford was Not Negligent
Berry and Jordanos next challenge the sufficiency of the evidence to support the jurys verdict that Gifford was not at least partially at fault for the collision. They argue that Gifford offered no explanation for failing to see the large and distinctly colored van prior to the impact. (See, e.g., Beck v. Kessler (1965) 235 Cal.App.2d 331, 337-338, italics omitted ["one who does not see that which is clearly visible and would have been seen by one exercising ordinary care, as a result of which a collision occurs, is guilty of negligence as a matter of law"].) This contention is without merit.
Under the substantial evidence standard, we review the entire record to determine whether there is evidence that is reasonable, credible, and of solid value to support the verdict. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) We resolve all conflicts and draw all reasonable inferences in favor of the prevailing party. As a reviewing court, our power "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 . . . . If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) The testimony of an expert witness alone is substantial evidence. (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 17.)
Here, Giffords expert witness testified that Berry was entirely within the center turn lane when he made his right turn, he was driving 24 to 26 miles per hour, and he left Gifford an insufficient amount of time to avoid the collision. Other evidence showed that Gifford never swerved or changed direction prior to the impact and she was not speeding. Although there was conflicting evidence presented as to whether Berry had even activated his turn signal, at trial both Gifford and Requejo testified that they never saw one. The evidence supports a reasonable inference that Gifford acted with due care by proceeding straight in the right lane at a lawful speed, and that she had a right to assume that Berry would not turn directly into her path from the center turn lane. (BAJI No. 3.13.) The jury determines matters of credibility and, on appeal, we must resolve all evidentiary conflicts in support of the judgment. Substantial evidence supports the jurys verdict that Gifford was not negligent.
IV. Error Relating to the Alleged Misconduct of Giffords Counsel
Finally, Berry and Jordanos contend that the judgment should be reversed because they were prejudiced by two acts of misconduct committed by Giffords counsel during closing arguments. Having reviewed the record, for the reasons expressed below, we conclude that counsels comments to the jury were improper, but reversal of the judgment is not warranted.
A. Comments Concerning Berrys Absence at Trial
The first incident occurred when Giffords counsel commented twice on Berrys absence at trial. The jury had already been informed, by stipulation of the parties, that Berrys deposition testimony would be read at trial because he had not been employed by Jordanos since July of 2001, and he was away traveling. Defense counsel had advised the court that Berry was out of the country, outside the subpoena range of the court. The trial court had previously refused a defense request for a special instruction advising the jury that deposition testimony should be given the same weight and effect as if the party had testified. The court opted instead to use BAJI No. 2.06, which defines a deposition and tells the jury "[y]ou must consider that testimony as if it had been given here in court."
During closing argument, Giffords counsel referred to Berry as a "man whos disinterested enough to be in the courtroom to explain his conduct that day." Defense counsel objected, but the trial court overruled him, reasoning that it was permissible argument. The second comment occurred during rebuttal when Giffords counsel stated:
"Mr. Smith talked about his experiences. Well, Ill tell you, I have never, never had the experience of a party to a lawsuit not coming in to testify when hes around. Just all we know is hes traveling. I dont have any further information on that. And I accepted it, that explanation. [¶] Where is Jordanos to come in, or a family member, or anyone, to say, `Well, its really tough for him not to come up from San Diego, or wherever the heck hes traveling. We dont know where hes traveling. [& para;] Ive never had a case where a client didnt come in if the lawyer asked him to testify. Everything submitted through the deposition, because he wasnt here, should be viewed with distrust, because thats the law. They have the ability to produce stronger evidence, but they didnt [referring to BAJI No. 2.02, which was given]."
Giffords counsel added that the defense had the burden to justify Berrys violation of the Vehicle Code statutes, "[a]nd without him coming in to explain it, they cant meet it."
Berry and Jordanos contend that counsels arguments misinformed the jury that they were required to distrust Berrys deposition testimony "because thats the law" and the defense could not meet its burden of proof because Berry was not there. We agree that the comments contained misstatements of the law. Additionally, the various references to Berrys absence by Giffords counsel arguably transcended the reason proffered by Jordanos counsel for his absence. We conclude, however, that the defense case was not prejudiced by the comments.
The physical evidence, eyewitness testimony, and expert testimony in support of Giffords case were strong. The defense evidence and expert testimony were weak. During closing arguments, counsel for Berry and Jordanos was able to argue to the jury that Berry was no longer employed by Jordanos and they were to consider his deposition testimony as if it was given in court. He told the jury, "Its binding on you. You cant throw it out because hes not here." In light of the strength of the plaintiffs case and the responsive arguments of Jordanos and Berrys counsel, it is not reasonably probable the jury would have reached a different verdict in the absence of the remarks of Giffords counsel.
B. Comments Concerning the Starlins
As noted above, both Gifford and the defense sued the Starlins. Gifford settled with the Starlins prior to trial, and Berry and Jordanos settled with them a few days after trial began. During closing arguments, Giffords counsel told the jury there were three cases in front of them. He identified the first as Gifford v. Jordanos; the second case as Jordanos v. Gifford (i.e., comparative negligence); and the third as Jordanos v. Starlin, noting that the remedy for finding negligence on the part of Gifford or the Starlins would be a reduction in damages for Gifford. Giffords counsel then added:
"Now, the third case is Jordanos versus Starlin. Now, I sense that theres a double standard in the civil justice system. If I had stood before you in opening and told you that my client was suing the person who parked this car, I would have heard 14 tongues clicking, heads wagging. The image of McDonalds would have arisen. . . . [¶] I wouldnt dare stand in front of you and say that the person who parked that car has responsibility. But you have a corporate defendant. . . . [¶] And we sit upright and listened to the corporate defendant suing someone, who has no business being in this case, and we get some sense of dignity, and dont laugh about it, I tell you, its wrong. Its just wrong."
The defense did not make any objection to these remarks or request an admonition to the jury.
Berry and Jordanos contend that the above comments were patently misleading and indefensible. We agree the comments were improper. The failure to object to the comment below and request an appropriate admonition, however, waives the issue for appeal. "Misconduct of counsel in argument may not be raised on appeal absent a timely objection and request for admonition during trial unless the misconduct was too serious to be cured." (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 130; Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174, 178.) We conclude that any prejudice from counsels remarks could have been cured by an appropriate admonition and decline to excuse the failure to object.
The judgment is affirmed. Costs on appeal are awarded to respondent.
We concur: GILBERT, P.J., and PERREN, J.