Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG07321314.
JONES, P.J.
This case arises out of a collision between a car driven by Alberto Mahani and skateboard-riding Gabriel Shalaby. Shalaby was injured in the collision and sued Mahani and Mahani’s parents (collectively, defendants). A jury concluded Mahani was not negligent. The court denied Shalaby’s new trial motion and entered judgment for defendants.
On appeal, Shalaby contends the court: (1) erred by denying his requests for judicial notice; (2) should have decided the issue of liability in his favor as a matter of law; and (3) erred by allowing defendants’ experts to testify. Shalaby also seeks sanctions against defendants and their counsel for misrepresenting facts in Mahani’s brief on appeal.
We affirm the judgment. We deny Shalaby’s motions for sanctions.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 5:00 p.m. on March 20, 2007, Mahani — then 16 — was driving on Washington Street toward the intersection with Evelyn Street in Albany. There was a stop sign on Evelyn Street, but not one on Washington Street. Mahani was traveling within the 25 mile-per-hour speed limit. It was a “quiet day” and Mahani did not “see any pedestrians anywhere on the streets.” There were trees along Washington Street and cars parked on the street.
Shalaby “has a duty to summarize the facts fairly in light of the judgment.” (Ajaxo, Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 50.) Shalaby’s “slanted presentation of the facts” in a light most favorable to himself “reads more like argument.” (Id. at p. 50.)
As Mahani drove toward Evelyn Street, he “noticed that the sun was... creating a problem.... So [he] reached with [his] left hand to put down the sun visor, and that’s when [he] felt [his] car go up and down.” The sun was “bright enough to cause... a problem” when Mahani was driving, but he could “see in front of [him] and [his] path of travel....” He was not blinded by the sun.
Mahani realized there had been an impact on the passenger side of the front bumper of his car because of the “up-and-down motion” of the car. Before the impact, he was looking straight ahead; he did not see Shalaby. After the impact, Mahani got out of the car and saw Shalaby on the street “with a broken leg.” There was a skateboard on the ground. Mahani went over to him and kneeled down. He held Shalaby’s hand and tried to comfort him and make him feel better until emergency personnel arrived.
Before the accident, Shalaby, who was then 15, was riding his skateboard along Evelyn Street, toward the stop sign at Washington Street. At his deposition, Shalaby testified that he was riding his skateboard on the sidewalk; on cross-examination at trial, however, he conceded he might have been riding on the street. He agreed that there was a portion of the sidewalk near the accident location that was not suitable for riding a skateboard because it “comes up and looks like a teepee[.]” At his deposition, Shalaby testified he had no idea how fast he was going on his skateboard before the accident and admitted that he did not remember anything after he approached the corner of Washington and Evelyn Streets.
Shalaby’s direct examination is not part of the record on appeal, nor is the testimony of Shalaby’s expert. Other portions of the trial transcript are also absent, including Shalaby’s cross-examination of the defense experts.
Thomas Ayres, Ph.D., a human factors expert, testified for the defense. He testified that “although glare from the sun can be a factor making it more difficult” for the driver “to see things, ” the sun did not “play[ ] a role” in the accident. Ayres explained that based on the sun’s position on the horizon on the day of the accident, it was “bright... but... certainly not incapacitating.” Ayres conducted an experiment at the accident location to “understand what sort of viewing conditions somebody would have” on the day of the accident and determined that the sun did not create a problem for “seeing ahead.” Ayres also testified that drivers respond to glare by putting their sun visors down, by pulling down their hats, or by putting on their sunglasses. Additionally, drivers facing glare typically maintain the same rate of speed — they do not slow down. According to Ayres, it would have been very difficult for Mahani to avoid the impact with Shalaby because Shalaby was traveling quickly and was wearing dark clothing, making him difficult to see. In addition, Shalaby could have emerged from behind a parked car, making it difficult for Mahani to see him until the moment of impact. Toby Gloekler, an accident reconstruction expert, also testified for the defense. He opined that in essence the accident was unavoidable.
By special verdict, the jury determined Mahani was not negligent. The court denied Shalaby’s new trial motion and entered judgment for defendants.
DISCUSSION
Shalaby raises three arguments on appeal. First, he contends the court erred by denying his requests for judicial notice. Second, he argues the court should have determined Mahani was negligent as a matter of law. Third, he claims the court erred by admitting the expert testimony of Ayres and Gloekler. He also seeks sanctions against defendants and their attorney.
The Court Properly Denied Shalaby’s Requests for Judicial Notice
Before trial, Shalaby submitted 43 requests for judicial notice. Many of the requests concerned disputed facts. For example, Request for Judicial Notice No. 26 asked the court to take judicial notice that “[a]t the time of the accident, [Mahani] was driving at a rate of speed which was unreasonably dangerous, and endangered the safety of [Shalaby].” Request for Judicial Notice No. 28 stated, “[h]ad [Mahani] been driving at an appropriate speed given his visual impairment, [he] would have either been able to avoid the accident entirely, or greatly mitigated [Shalaby’]s injuries.” Mahani apparently submitted these requests for judicial notice in connection with a motion for summary adjudication, but neither the motion, nor the court’s ruling, is part of the record on appeal. After the close of evidence, Shalaby urged the court to take judicial notice of the following: (1) there was no evidence that he “dart[ed] out” into the street at the time of the accident; and (2) Mahani was blinded by the sun at the time of the accident. The court denied the requests, concluding it would not take judicial notice “of anything, that’s argument.”
On appeal, Shalaby contends the court erred by denying his requests for judicial notice or by declining to rule on them. Shalaby apparently contends the court should have taken judicial notice of various unspecified requests for judicial notice pursuant to Evidence Code sections 452 and 453 because they established Mahani’s “duty as a driver, violation of the [V]ehicle [C]ode sections, negligence, and liability as a matter of law....”
Unless otherwise noted, all further statutory references are to the Evidence Code.
Judicial notice “is a method of introducing evidence of a matter of law or fact without resorting to formal proof. ‘The purpose of judicial notice is to expedite the production and introduction of otherwise admissible evidence.’ [Citation.]” Within the confines of [section] 450, which requires some statutory or decisional basis for each instance of judicial notice, virtually any matter of law or fact not reasonably subject to dispute can be noticed, if the opposing party is given an adequate opportunity to show that the matter is not free from dispute.” (Simons, Cal. Evidence Manual (2011 ed.) § 7:1, p. 528.) A trial judge’s decision not to take judicial notice “will be upheld on appeal unless the reviewing court determines that the party furnished information to the judge that was so persuasive that no reasonable judge would have refused to take judicial notice of the matter.” (Willis v. State of California (1994) 22 Cal.App.4th 287, 291 (Willis).)
Shalaby’s argument fails for several reasons. First, he does not identify which requests for judicial notice the court either denied or purportedly ignored. It is the appellant’s burden to “affirmatively show error by an adequate record.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 628, p. 704.) This court “is not required to search the record on its own seeking error.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th, 761, 768.) Second, Shalaby cites no authority to support the proposition that the court’s denial of his requests for judicial notice “was erroneous and prejudicial.” Such a conclusory statement — without any citation to authority — does not establish error. Shalaby has simply not established the information he furnished to the trial court “was so persuasive that no reasonable judge would have refused to take judicial notice of the matter.” (Willis, supra, 22 Cal.App.4th at p. 291.)
Moreover, and perhaps most importantly, Shalaby’s argument fails for the additional reason that most of the 43 requests were not the proper subject of judicial notice because they concerned disputed facts. (Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1699.) In the trial court Shalaby did not demonstrate that the requests for judicial notice concerned “universally known, ” indisputable facts (§ 451, subd. (f)) or that the requests concerned “[f]acts and propositions that are of such common knowledge... that they cannot reasonably the subject of dispute.” (§ 452, subd. (g); Comings v. State Bd. of Education (1972) 23 Cal.App.3d 94, 101-102.) The court did not abuse its discretion by declining to take judicial notice of disputed facts upon which liability hinged.
The Court Properly Denied Shalaby’s Motion to Find Mahani Negligent as a Matter of Law
Before trial, Shalaby moved in limine to have the court determine as a matter of law that Mahani was negligent per se. The court denied the motion. On appeal, Shalaby contends this ruling was erroneous because “accelerating while blinded by the sun is negligence as a matter of law.” According to Shalaby, Mahani violated Vehicle Code section 22350.
Vehicle Code section 22350 provides: “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.”
“Negligence per se ‘is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.’ [Citation.]” (Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 555.) Section 669 codifies the doctrine of negligence per se. (6 Witkin, Summary of Cal. Law (10th ed. 2005), Torts, § 873, p. 102; Daum v. SpineCare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1306 (Daum).) Pursuant to section 669, the defendant’s failure to exercise due care is presumed if the plaintiff establishes four elements: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation caused the plaintiff’s injury; (3) the injury resulted from an occurrence the statute or regulation was designed to prevent; and (4) the plaintiff was one of the class of persons the statute or regulation was designed to protect. (Daum, supra, at p. 1306; § 669, subds. (a)(1)-(4).) The presumption of negligence “may be rebutted by proof that: [¶]... [t]he person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law....” (§ 669, subd. (b).)
The first two elements of section 669, subdivision (a) are typically decided by the trier of fact, while the last two elements are questions of law for the court. (Cade v. Mid-City Hosp. Corp. (1975) 45 Cal.App.3d 589, 597.) Where there are no factual disputes, however, the first two elements may be decided “as questions of law.” (Padilla v. Pomona College (2008) 166 Cal.App.4th 661, 675.) Shalaby was not entitled to a court determination of liability on a negligence per se theory because there was a factual dispute regarding whether Mahani violated a statute, ordinance, or regulation of a public entity. (§ 669, subd. (a).) Moreover, Shalaby did not establish the final two elements of the negligence per se theory of liability — that his injury resulted from an occurrence the statute or regulation was designed to prevent; and that he was one of the class of persons the statute or regulation was designed to protect. As a result, the court properly denied his motion in limine to have the court determine liability in his favor as a matter of law.
Shalaby’s reference to Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 394 (Onciano) does not assist him. In that case, a customer sued a restaurant for negligence after she was robbed and assaulted in the restaurant’s parking lot late at night. (Id. at pp. 390-391.) The trial court granted the restaurant’s summary judgment motion but the Court of Appeal reversed, concluding there were triable issues of fact regarding the restaurant’s duty to protect its customers in the parking lot and the breach of that duty. (Id. at pp. 395-396.) Onciano has no relevance here because that case concerned the foreseeability of the harm to the plaintiff and whether the security measures employed by the restaurant were sufficient. In addition, the precedential value of the case “is questionable in light of [a] subsequent Supreme Court decision....” (Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 721, fn. 5.)
In any event, substantial evidence supports the jury’s determination that Mahani was not negligent. There was ample evidence at trial that Mahani acted reasonably under the circumstances. (§ 669, subd. (b).) Witnesses testified that there were visual obstructions other than solar glare — such as parked cars and trees — that may have contributed to the accident. Both defense experts testified it was unlikely Mahani could have avoided the accident. Additionally, there was evidence that Shalaby may have been riding his skateboard in the street, and evidence that Shalaby may not have stopped at the stop sign before entering the intersection. Shalaby remembers nothing after getting “[a]lmost to the corner.” From this evidence, a jury could reasonably conclude that Mahani acted reasonably under the circumstances and was not negligent per se.
The Court Did Not Abuse its Discretion by Admitting Defendants’ Expert Testimony
Before trial, Shalaby moved in limine to exclude expert testimony as to the “extent of visual impairment” experienced by Mahani and expert testimony regarding the speed Mahani “should have been driving” at the time of the accident “on grounds that the layperson juror can make that determination based on common experience....” The court denied the motion and allowed the defense experts, Ayres and Gloekler, to testify.
First, Shalaby contends the court erred by admitting this testimony because the experts were retained by Mahani’s insurer, who was not a party to the litigation. Shalaby reasons that the insurer “was not a party to this litigation[;] therefore it had no standing to challenge the testimony of its own insured by expert witness testimony.” This argument is unsupported by authority. As such, we reject it. “‘[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.]’ [Citations.]” (People v. Stanley (1995) 10 Cal.4th 764, 793, quoting 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 479, p. 469; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”].)
Next, Shalaby claims that section 801, subdivision (a) precluded the admission of this testimony because the experts testified “as to matters of common experience.” A person with “special knowledge, skill, experience, training, or education” in a particular field may qualify as an expert witness and offer testimony in the form of an opinion. (§§ 720, 801.) Pursuant to section 801, subdivision (a), such expert opinion testimony is admissible only if the subject matter of the proposed testimony is “sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” We review the trial court’s ruling for abuse of discretion. (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599.)
According to Shalaby, section 801 “precludes the use of expert testimony as to matters of common experience, such as driving while the sun is in one’s eyes.” Shalaby’s reliance on Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 567 (Soule), is misplaced. There, the California Supreme court considered the role of expert testimony to prove a design defect using the consumer expectations test. Soule, therefore, has no application here because this case does not concern a design defect. Moreover, “experts may testify even when jurors are not ‘wholly ignorant’ about the subject of the testimony. [Citation.]... [¶] Rather the pertinent question is whether, even if jurors have some knowledge of the subject matter, expert opinion testimony would assist the jury. [Citations.] ” (People v. Prince (2007) 40 Cal.4th 1179, 1222.) The answer to this inquiry is yes. The defense expert testimony certainly assisted the jury. Ayers explained how drivers react to glare from the sun and described the visibility conditions on the day of the accident. Gloekler reconstructed the accident and explained how the accident may have happened. Testimony from these experts helped the jury understand the circumstances surrounding the accident and enabled the jurors to determine whether Mahani acted as a reasonably prudent person would under those circumstances.
We cannot, as Shalaby urges, conclude the expert testimony was somehow inadmissible because it contradicted Mahani’s testimony. First, Shalaby cites no authority for the proposition that expert testimony is inadmissible when it contradicts other testimony. Moreover, we have carefully reviewed the portions of the trial transcripts in the record and conclude that neither expert contradicted Mahani. Mahani testified “the sun was... creating a problem.... So [he] reached with [his] left hand to put down the sun visor, and that’s when [he] felt [his] car go up and down.” Mahani explained that the sun was “bright enough to cause... a problem” when he was driving, but that he could “see in front of [him] and [his] path of travel....” Mahani also testified he was not blinded by the sun.
Ayres testified “although glare from the sun can be a factor making it more difficult” for the driver “to see things, ” the sun did not “play[ ] a role” in the accident. Ayres explained that the sun on the day of the accident was “bright... but... certainly not incapacitating.” Ayres’ testimony does not contradict Mahani’s testimony. Mahani specifically testified he was not blinded by the sun; Ayres concluded the sun, while bright, did not incapacitate Mahani.
Comments made by the court after the close of evidence do not alter our conclusion. Before the court instructed the jury, it asked defense counsel a question about “the testimony regarding the sunlight.” The court asked, “Did Mr. Mahani state at the scene that the sun was in his eyes and blinded--” and the following colloquy occurred:
“[PLAINTIFF’S COUNSEL]: Absolutely. It’s [i]n the police report.
“THE COURT: Did he say at his deposition that the sun was in his eyes?
“[PLAINTIFF’S COUNSEL]: Unequivocally.
“[DEFENSE COUNSEL]: He said it was a problem, and he said that he couldn’t see the pedestrian.
“THE COURT: Did he state on the stand that the sun was in his eye[s], that he couldn’t see?
“[DEFENSE COUNSEL]: On the stand he said, I could see in front of me, but I had a hard time seeing to the side.
“THE COURT: He said the sun was in his eyes?
“[PLAINTIFF’S COUNSEL]: He did. He also said he couldn’t even see the Toyota.
“[DEFENSE COUNSEL]: The defendant’s testimony was that the sun – he did notice the sun up in the windshield, he moved to block it.
“THE COURT: That it was in his eyes.
“[DEFENSE COUNSEL]: Your Honor, the statement ‘in his eyes, ’ that’s a loaded statement, that’s not a neutral statement, because as we – as Dr. Ayers testified
“THE COURT: Let me say this: One thing we don’t get to do in court is to come in and change the facts of the accident.
“[DEFENSE COUNSEL]: Exactly.
“THE COURT: So we don’t get to come in and say that the sun wasn’t a factor, or that the sun wasn’t in his eyes. If he’s testified, if he stated at the scene, if he stated in deposition, and if he stated it on the stand, the experts don’t get to come in and change the facts of the accident. [¶] I just say that to you at the outset, and we’ll deal with it later on. [¶] But you don’t get to come in and use the court system to change the accident.... [Y]ou don’t get to change the facts, either by expert opinion or by changing testimony.
“[DEFENSE COUNSEL]: That’s... correct, Your Honor. That’s why we have the impeachment process, which was not used.
“THE COURT: You impeached your own witness. Your client has stated that the sun was a factor.
“[DEFENSE COUNSEL]: Yes, a factor.
“THE COURT: And that he couldn’t see. And that he could not see the pedestrians.
“[DEFENSE COUNSEL]: Yes.
“THE COURT: So you don’t get to say that the sun was not a factor, which is what your experts testified to.
“[DEFENSE COUNSEL]: What my experts have testified to is that
“THE COURT: The sun was not a factor.
“[DEFENSE COUNSEL]: – in an unusual situation, people focus on one thing.
“THE COURT: No. As I said, I’ll deal with it later on.
“[DEFENSE COUNSEL]: Okay. Thank you, Your Honor.
“THE COURT: We’ll see what the jury does with it. But you don’t get to change the facts of the case.” At the hearing on Shalaby’s new trial motion, the court mentioned that it was “troubled by the fact that the experts sort of did undo – change the facts, rather, of Mr. Mahani’s testimony.” The court denied the new trial motion.
Shalaby relies heavily on these statements in an attempt to demonstrate the court should not have admitted the defense expert testimony. We are not persuaded. Comments the court made after the close of evidence or before it denied the new trial motion are simply not relevant to the issue of whether the court erred by admitting the expert testimony. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 640 [we “review the trial court’s ruling, not its rationale, [and] we are not bound by the explanation the lower court gave in support of its decision”].) As we concluded above, the admission of the defense expert testimony did not contravene section 801 and Shalaby has not established the trial court abused its discretion by admitting the testimony.
Shalaby’s Motions for Sanctions are Denied
Shalaby filed two motions for sanctions, one on February 2, 2011, and another on February 22, 2011. In his February 2, 2011 “request for sanctions post-decision, ” Shalaby sought an unspecified amount of sanctions on the grounds that defendants and their attorney misrepresented material facts in their opposition brief. We deny Shalaby’s February 2, 2011 request for sanctions. First, it does not identify the alleged misrepresentations made by defendants and their attorney. (Cal. Rules of Court, rule 8.54(a)(1).) Second, it does not identify the amount of sanctions sought and is unsupported by a declaration required by California Rules of Court, rule 8.276(b)(1).
In his February 22, 2011 motion, Shalaby contends defendants’ brief erroneously claims: (1) Mahani was not blinded by the sun at the time of the accident; (2) Shalaby was riding his skateboard in the street; and (3) Shalaby hit Mahani’s car as a result of his failure to stop at the intersection of Washington and Evelyn Streets. Shalaby seeks sanctions in the amount of $30,000 against defendants and their attorney. Shalaby’s arguments have no merit. Additionally, they rely on documents that are not part of the appellate record. We therefore deny Shalaby’s February 22, 2011 motion for sanctions. (Cal. Rules of Court, rule 8.276(a).)
DISPOSITION
The judgment is affirmed. Shalaby’s motions for sanctions dated February 2 and February 22, 2011 are denied. Defendants shall recover their costs on appeal.
We concur: Simons, J.Bruiniers, J.