Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SC098690 Richard A. Stone, Judge.
Novak & Ben-Cohen, Pejman Ben-Cohen and Sean M. Novak for Plaintiff and Appellant.
Mark R. Weiner & Associates and Kathryn Albarian for Defendant and Respondent.
EPSTEIN, P. J.
Appellant Josef Pourati challenges a jury verdict which apportioned 75 percent of the fault to him in this personal injury case arising from an automobile accident. He contends the verdict is inconsistent with the evidence and law; that respondent failed to provide expert testimony as to causation; that the trial court erred in allowing improper argument by respondent; and that the instruction on comparative negligence was erroneous.
We conclude the jury was properly instructed on the principles of comparative fault and that the question of causation was within the general knowledge of laymen so that expert testimony was not required. The jury’s apportionment of fault is supported by substantial evidence. Appellant failed to preserve his arguments regarding respondent’s closing argument and the adequacy of damages. The judgment is affirmed.
FACTUAL AND PROCEDURAL SUMMARY
The automobile accident giving rise to this action occurred when appellant was driving westbound on Pico Boulevard in Los Angeles at 8:45 in the morning. He was in the number 3 lane (closest to the curb) and was approaching an uncontrolled intersection with Oakhurst Drive. Appellant was driving 30 to 35 miles per hour. Respondent was stopped in her vehicle, eastbound on Pico, planning to turn left onto Oakhurst Drive. The cars in the number 1 and 2 lanes on westbound Pico were stopped. When respondent turned left appellant was unable to stop in time and collided with her.
In deposition, read to the jury, appellant testified that just before the collision he realized that the other two lanes of traffic traveling westbound (as he was) had come to a stop. Appellant testified that as he arrived at the intersection, respondent’s car appeared right in front of him. He hit his brakes, but could not avoid the collision. His car was towed from the scene.
Respondent testified that traffic was at a “complete standstill” at the time of the accident. She moved into the left turn lane on Pico to turn onto Oakhurst. There were two cars in front of her in the turn lane. When the cars in the westbound 1 and 2 lanes stopped, the two cars in front of her completed their left turns onto Oakhurst. She slowly began to make a left turn and was hit by appellant. Appellant arrived so fast she did not see him. Respondent described the impact as “very heavy” and both the front and side airbags in her car deployed.
Appellant sought medical treatment for neck, shoulder and back pain, dizziness, memory loss, and minor headaches. Later he experienced problems with his jaw which resolved with treatment. He received physical therapy for five to six months, and discontinued that treatment on advice of his doctors. Appellant continued to experience shoulder and neck pain and weakness a year and ten months after the accident; up to the trial.
Appellant sued respondent for personal injuries and property damage. The jury found both appellant and respondent negligent. It apportioned 25 percent of the responsibility to respondent and 75 percent to appellant. The jury found appellant’s total economic loss was $4,500 and awarded no damages for noneconomic loss. Appellant’s posttrial motions for new trial and judgment notwithstanding the verdict were denied. Appellant was awarded his costs prior to respondent’s Code of Civil Procedure section 998 offer, and defendant recovered her postoffer costs. Judgment was entered in favor of respondent and against appellant for $7,525.65. Appellant filed a timely appeal from the judgment.
DISCUSSION
I
Appellant argues the jury’s verdict should be set aside as inconsistent with the evidence, which established respondent was solely at fault. Based on this characterization of the evidence, he also contends the trial court erred in instructing the jury on principles of comparative negligence. The substantial evidence standard of review applies to a jury’s findings on causation and its allocation of fault. (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1234.) We may not substitute our judgment for that of the jury “‘if there is any evidence which under any reasonable view supports the jury’s apportionment. [Citation.]’” (Ibid., quoting Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 346.)
Appellant cites his testimony that he was traveling lawfully in the number 3 curb lane westbound on Pico at or under the posted speed limit of 35 miles per hour. According to him, respondent’s vehicle suddenly crossed into his lane without prior warning. Although he applied his brakes, appellant was unable to avoid a collision. He contends that respondent violated Vehicle Code section 21801, subdivision (a) by making an unsafe lane turn.
1 Vehicle Code section 21801, subdivision (a) provides: “The driver of a vehicle intending to turn to the left or to complete a U-turn upon a highway, or to turn left into public or private property, or an alley, shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn or U-turn can be made with reasonable safety.”
This recitation of the evidence omits the crucial testimony by respondent that the traffic in the two lanes next to appellant, also headed westbound, had stopped before the intersection. Appellant did not realize that these lanes of traffic had stopped until just before the collision. Two cars had successfully turned left ahead of respondent while the westbound traffic was stopped. Under these circumstances, the jury was entitled to conclude that both appellant and respondent acted negligently.
Under California law, respondent had a duty to ascertain that it was safe to complete her turn even though two of the three lanes of traffic had stopped to allow the turn. (Gilmer v. Ellington (2008) 159 Cal.App.4th 190, 197-198 [duty of left-turning driver where some but not all lanes of oncoming traffic had yielded the right-of-way].) But the evidence that traffic in the other two westbound lanes had stopped at the uncontrolled intersection was sufficient to put appellant on notice that he should slow down as he came to the intersection. He failed to do so and continued into the intersection at between 30 and 35 miles per hour. This substantial evidence supports the jury’s verdict that appellant was negligent and that he bore 75 percent of the fault for the accident.
Appellant argues the jury’s verdict was inconsistent with the law, citing cases decided before the doctrine of pure comparative negligence was adopted by the California Supreme Court in the landmark case of Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 (Li). The Li court explained the fundamental purpose of pure comparative negligence is “to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties.” (Id. at p. 829.) Later, in Knight v. Jewett (1992) 3 Cal.4th 296, the Supreme Court explained “[p]ast California cases have made it clear that the ‘comparative fault’ doctrine is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury (whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an ‘equitable apportionment or allocation of loss.’ [Citations.]” (Id. at pp. 313-314.)
Comparative fault principles apply where a defendant’s liability for negligence is predicated upon a violation of a statute unless the Legislature expressly states to the contrary. (Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 1169 [holding trial court erred in denying defendants the benefits of an assessment of plaintiffs’ comparative negligence].) Any Vehicle Code violation by respondent therefore did not render the principles of comparative fault inapplicable.
Appellant cites Sesler v. Ghumman (1990) 219 Cal.App.3d 218 (Sesler). In that case, the plaintiff, on a motorcycle, intended to turn left across three lanes of traffic. As he turned, he was struck by defendant who was traveling in the opposite direction. The drivers in the first two lanes of opposing traffic motioned for the plaintiff to proceed with his turn in front of them. Plaintiff did not see the defendant in the third lane of traffic traveling within the speed limit and a collision followed. (Id. at p. 221.) The jury was instructed on the duty of a left-turning driver under the version of Vehicle Code section 21801 in effect at trial. The defendant argued the plaintiff’s negligence contributed to the accident and sought a special instruction on the duty of a left-turning vehicle when an oncoming vehicle has yielded the right-of-way. (Id. at p. 222.) The instruction was refused. The Court of Appeal held that refusal to give the instruction was error. (Id. at pp. 225-226.) The error was found prejudicial because it left the jury “without legal guidance as to [the plaintiff’s] contributory negligence.” (Id. at p. 227.)
In contrast, appellant’s argument here is that comparative negligence instructions were not warranted on these facts. We disagree. Sesler v. Ghumman, supra, 219 Cal.App.3d 218 sets out the duty of a left-turning driver in circumstances similar to those presented here. The court held that comparative negligence was applicable and that the jury should have been instructed on those principles. Here, the fact that respondent may have been negligent does not make comparative fault inapplicable. Sesler does not support appellant’s argument that the court erred in instructing on comparative fault and that the evidence did not support such an instruction. Respondent was entitled to instructions on comparative fault. (Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 208-209 [litigants are entitled to jury instructions that fairly and clearly state the essential legal principles applicable to the case].)
II
Appellant argues that respondent’s invocation of the doctrine of comparative negligence was particularly improper because she presented no expert testimony to support the application of the doctrine.
The general rule governing the use of expert testimony is: “‘If the fact sought to be proved is one within the general knowledge of laymen, expert testimony is not required; otherwise the fact can be proved only by the opinions of experts.’” (Lara v. Nevitt (2004) 123 Cal.App.4th 454, 459 (Lara), quoting Truman v. Vargas (1969) 275 Cal.App.2d 976, 982.) In Lara the question was whether the plaintiff’s failure to use a seat belt restraint while sleeping in the sleeper berth of a truck constituted a proximate cause of his injuries. The court in Lara acknowledged that ordinarily a defendant who asserts comparative negligence on the theory that plaintiff would have sustained specific, lesser injuries if he had worn a seat belt must offer expert testimony as an evidentiary basis for the jury to assign a percentage of negligence to plaintiff. (Lara, at p.459.)
Distinguishing other cases requiring expert testimony in more complex factual settings, the Court of Appeal held that “expert testimony was not necessary since the jury was not required to distinguish among injuries in terms of cause without a factual basis.” (Lara v. Nevitt, supra, 123 Cal.App.4th at p. 460.) In Lara, the plaintiff’s layperson son testified that a sleeping passenger cannot move at all when strapped in the seat belt. The court concluded that based on this testimony, “[t]he jury could infer using common sense that if he could not have moved at all, Lara would not have rolled around and hit the cabinets.” (Ibid.) In a footnote, the court observed: “On the other hand, of course, if Nevitt had not collided with Lara’s truck, Lara would not have rolled around either. Thus, it made perfect sense for the jury to apportion liability 50/50 between Lara and Nevitt.” (Id. at p. 460, fn. 2.) The court in Lara reasoned: “In this day and age in southern California, where virtually every citizen either drives or rides in a vehicle, no expert testimony is necessary to support the reasonable inference that Lara would have suffered less injury if he had been wearing a seat belt.” (Id. at p. 458.)
Here, as in Lara, the factors contributing to appellant’s injuries were within the common knowledge of the jurors so that expert testimony was not required. It did not require an expert witness to testify that appellant was negligent in approaching an uncontrolled intersection at 30 to 35 miles per hour while the other lanes traveling in his direction were at a standstill and two cars had just completed left turns across his path.
III
Appellant also cites respondent’s closing argument as a basis for reversal. He contends respondent argued that he was a cause of the accident because he is a young male, and that this violated his rights to a trial free from discrimination under the Fourteenth Amendment to the United States Constitution, and California Constitution, article 1.
Counsel for respondent argued that appellant should have known there was a reason that the other two lanes of traffic traveling in his direction had stopped before the intersection, and that it was “folly to go blasting into an intersection at 30 to 35 miles an hour when you don’t know what’s in there. And there are cars all backed up and stopped.” He continued: “Now, I chalk this up to being--to Josef Pourati being a young male. I mean--.” At that point, counsel for appellant objected, but the trial court overruled him. Counsel for respondent continued: “I got to say, you know, driving is a responsibility, and cars are dangerous. And it always seems that the young males are the last ones to grasp the significance.” Counsel for appellant renewed his objection. This time, the trial court sustained the objection, stating “That’s not a proper argument.” Counsel for appellant did not request an admonition. Counsel for respondent apologized.
Appellant also asserts: “Respondent further stated that ‘young males’ are often the cause of traffic accidents” but provides no citation to the record. We have reviewed the closing argument by counsel for respondent and found no such statement other than the passage we have quoted.
In order to preserve the claim that argument by opposing counsel was improper, appellant was required not only to object, but to request that the jury be admonished to disregard the argument. Failure to do so waives the contention unless the court has immediately overruled an objection to the alleged consequence and therefore there is no opportunity to make such a request. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795 (Cassim); Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1679.) In Cassim, an objection to allegedly improper argument was summarily overruled and there was no opportunity to request a curative admonition. Here, instead, the trial court sustained the second objection by counsel for appellant, providing an opportunity to request the jury be admonished to disregard the argument concerning young male drivers. But counsel failed to make such a request which would have cured any resulting prejudice. (Cassim, supra, 33 Cal.4th at pp. 794-795.) Appellant has failed to preserve the issue for appeal. In any event, the trial court sustained the second objection by counsel for appellant. The brief reference to young male drivers does not merit reversal.
IV
Appellant argues the jury’s apportionment of liability and minimal damage award must have been the result of passion, prejudice, or “corruption engendered by Respondent.” He complains that the jury’s damage award was substantially lower than the $18,970.54 in medical bills submitted into evidence. He also challenges the jury’s failure to award an amount for future medical care or for pain and suffering.
Respondent argues appellant may not challenge the damages on appeal because he did not do so in a motion for new trial. We agree. “Failure to move for a new trial on the ground of excessive or inadequate damages precludes a challenge on appeal to the amount of damages if the challenge turns on the credibility of witnesses, conflicting evidence, or other factual questions. [Citations.] A trial court ruling on a new trial motion on the ground of excessive or inadequate damages must weigh the evidence and acts as an independent trier of fact. [Citations.] Thus, the trial court is in a far better position than the Court of Appeal to evaluate the amount of damages awarded in light of the evidence presented at trial. [Citations.]” (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1121.)
Appellant’s new trial motion did not address the inadequacy of the damages award, focusing instead on his argument that the principles of comparative fault did not apply and that closing argument by respondent’s counsel was improper. His argument on appeal asks us to reweigh conflicting evidence. He may not now challenge the adequacy of the jury’s damage award for the first time on appeal.
DISPOSITION
The judgment is affirmed. Respondent is to have her costs on appeal.
We concur: WILLHITE, J., MANELLA, J.