Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, No. CV 050450 Barry T. LaBarbera, Judge
James R. Murphy, Jr., A Law Corporation, James R. Murphy, Jr., and Margaret A. Thurn for Plaintiff and Appellant.
Law Offices of Lloyd J. Michaelson, Lloyd J. Michaelson and Lindsay J. Michaelson for Defendant and Respondent.
PERREN, J.
Appellant Deborah Alvino injured her wrist in a three-car chaIn reaction collision. Prior to trial, she settled with the driver of the third car in the chain driven by Susan Miner, and proceeded to trial against respondent Brandon Merlo, the driver of the middle car. By a nine-to-three vote, the jury returned a verdict finding Merlo not negligent.
On appeal, Alvino contends that counsel for Merlo repeatedly violated the trial court's rulings on motions in limine by discussing in his opening statement and in his examination of witnesses areas of inquiry ruled off limits. In addition, Alvino asserts that the trial court abused its discretion in limiting her examination of experts and in its instructions to the jury on the issue of negligence.
We agree that respondent's counsel deliberately violated the instructions he received from the court concerning the scope of his opening statement, but conclude that the remedial action taken by the trial judge cured the error. In all other particulars, we find no abuse of discretion in the court's rulings. Accordingly, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Alvino was driving southbound in the fast lane of the 101 Freeway at approximately 65 miles per hour. She was followed by Brandon Merlo. Merlo was followed by Susan Miner.
When cars in front of Alvino unexpectedly slowed because of police activity on the side of the road, Alvino slowed to approximately 50 miles an hour. Merlo saw Alvino's brake lights and applied his brakes. Miner was distracted by the police activity and did not brake soon enough to avoid hitting Merlo's vehicle. Merlo, in turn, collided with the rear of Alvino's vehicle. Alvino injured her wrist in the collision.
Alvino filed a complaint for negligence against Miner. Several months later, Alvino amended her complaint to add Merlo and his mother, Terry Merlo, as defendants. The Merlos filed a cross-complaint against Miner. Miner entered into a good faith settlement with Alvino before trial. As a result, the Merlos' cross-complaint against Miner was dismissed. On the first day of trial, Alvino voluntarily dismissed Terry Merlo and proceeded to trial against Brandon Merlo. Her theory at trial was that Merlo was negligent because he was speeding and following too closely.
After opening statements, Alvino moved for mistrial on the ground that Merlo's attorney made several improper comments that violated the trial court's rulings on the parties' motions in limine. The trial court denied the motion. During trial, the court refused to permit the investigating police officer to give her opinion as to the cause of the accident. The trial court also limited the testimony of one of Alvino's expert witnesses to matters that were not covered in the testimony of a previous expert witness. The trial court also refused Alvino's request to instruct the jury on the standard of care for drivers contained in CACI No. 700 because it did instruct on negligence per se (CACI Nos. 401 & 418) setting forth the precise theories on which Alvino relied.
DISCUSSION
A. Denial of Motion for a Mistrial
Alvino contends the trial court erred in denying her motion for mistrial because Merlo's counsel made several prejudicial remarks during his opening statement concerning (1) Alvino's prior worker's compensation claim, (2) Alvino's failure to name the Merlos in the original complaint and dismissal of Terry Merlo prior to trial; and (3) Merlo's status as a high school student and Alvino's wish to be retrained as a teacher, which would take several years of college.
In reviewing a trial court's ruling on a motion for a mistrial, we use the deferential abuse of discretion standard. (People v. Bolden (2002) 29 Cal.4th 515, 555.) "A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged...." (Ibid.) "'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.]" (People v. Williams (2006) 40 Cal.4th 287, 323.)
1. Workers' Compensation Comment
Alvino made a motion in limine to preclude mention of her prior worker's compensation claim. The court ruled: "There's to be no reference to the reason a doctor was employed by the worker's comp[ensation] system, no evidence regarding settlement or amounts paid or anything about worker's comp[ensation] procedures or settlement."
In response, Merlo's counsel stated: "For clarification... I can certainly ask the witness and the doctor with regard to the fact that there was a prior claim related to the shoulder, knee and wrist[.] [¶]...[¶] I just want to stay out of the process. I wouldn't go there anyways. I won't go into it or the settlement or the amount of the settlement."
Alvino's counsel responded: "I don't have any problem with anything except what he just said, he wants to raise [the] 'claim.' 'Claim' means bringing a formal document." The court responded: "No, it doesn't. It means she claimed she had an injury."
During opening statement, Merlo's counsel said: "And [Alvino] had difficulties performing that task.... It led to a worker's compensation claim. That worker's compensation claim started...." At that point, Alvino's counsel objected and the court sustained the objection. No further mention of worker's compensation was made during the trial.
At the hearing on Alvino's motion for mistrial, Alvino asserted that Merlo's mention of her worker's compensation claim in his opening statement after she had made no such reference was prejudicial error. She argued that this would "suggest to the jury that [she is] hiding the ball."
The court admonished the jury to disregard reference to worker's compensation. The court was sufficiently concerned over counsel's violation of its instruction that it also permitted Alvino's counsel to make a second opening statement. In its admonition, the court advised the jury: "I had made a ruling that there was not going to be a discussion of worker's compensation, and there was an objection when Mr. Michaelson mentioned the words. It relates to injuries that Ms. Alvino suffered when she was working. It is not for you to consider the workings of that system, the worker's comp[ensation] system, a whole different system, and there's no reason for it to impact you as to the nature of any worker's comp[ensation] in this case. That's why I excluded it. [¶] Part of the defense is to address the actual injuries that the plaintiff had suffered when she was working as they may or may not affect the plaintiff's claims of injuries suffered because of the car crash. Does that make sense to you all so far? Some of you aren't even nodding. I hope it makes sense to you. [¶] In any event, because Mr. Michaelson mentioned it and I had excluded the words, I'm going to let Mr. Murphy talk to you... because he did not get a chance to address it in his opening [statement.]... I'm going to let him talk to you about how it fits in, the injuries suffered during work, how it fits in the case...."
Alvino's counsel then again addressed the jury for approximately 10 minutes on the issue of Alvino's worker's compensation claim. He said in part: "I have a responsibility to explain that if somebody had preexisting problems, then the defendant would not be responsible for [them.]... My client's problems, as documented in the medical record only[,]... I have not found one... record that talks about any injury to her wrist, any pain in her wrist, any complaints of pain to her wrist, any x-rays of her wrist, any electro-diagnostic studies to her wrist. No MRI's... doctors visits, surgeries, hospitalizations, nada, nothing."
Alvino asserts that Merlo's counsel intentionally violated the court's ruling on the motion in limine and that the court's admonishment to the jury concerning the worker's compensation claim did not eliminate the prejudice. We disagree. It is misconduct for an attorney to intentionally mention to the jury any matter the court has ordered the attorney not to mention. It is not misconduct for an attorney to mention matter that the court neglected to order not be mentioned. (People v. Stanley (1995) 10 Cal.4th 764, 815.) The trial court's ruling on the motion in limine did not expressly exclude mention of the words "worker's compensation." Thus, Merlo's counsel did not violate the letter of the court's order. The court's instruction, however, should have been sufficient to inform counsel to limit his mention of the issue to the "claim."
The court's admonishment to the jury and the supplemental opening statement cured any prejudice created by the brief references to worker's compensation by Alvino's counsel in his opening statement. The law is well settled in this area. "'It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have.' [Citation.]" (Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 610; see also, NBC Subsidiary (KNBC-TV) Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1224 ["cautionary admonitions and instructions must be considered a presumptively reasonable alternative -- a presumption that can be overcome only in exceptional circumstances"].)
In a civil case, attorney misconduct is prejudicial only if it is reasonably probable the appellant would have received a more favorable result in the absence of the error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802.) "'No form of civil trial error justifies reversal or retrial,... where in light of the entire record, there was no actual prejudice to the appealing party. [Citation.]'" (Id. at p. 801.) Even if counsel's mention of "worker's compensation" during opening statement was wrong, and it was, Alvino's speculation that the comment caused the jury to believe her counsel was "hiding the ball," does not meet her burden of showing that she was prejudiced by the error. The trial court clearly explained that worker's compensation was not an issue and that the jury should disregard it. Alvino's counsel had ample opportunity to dispel any juror misapprehension in his supplemental opening statement. Moreover, the jury never reached the issue of damages. The asserted misconduct of counsel related to Alvino's prior worker's compensation claim and did not relate to Merlo's liability. Alvino has not met her burden of showing that the jury would have reached a different result had the alleged misconduct not occurred. (See, e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1250 [improper comment held harmless error because it was isolated and not repeated].)
2. Comments Concerning Merlos' Status in the Lawsuit
Alvino brought a motion in limine to exclude mention of Alvino's settlement with Miner and of Brandon and Terry Merlo's cross complaint against Miner. The court granted the motion in part, stating: "Mr. Michaelson only wants to show that [Miner] had settled the claim... no money, no amounts nothing.... CACI 3926 directly deals with the problem, and there's going to be evidence about Ms. Miner's... complicity, and it is going to be for the jury to decide who's at fault and who's not, and I think the jury is entitled to know what happened to her and why she's not a defendant. I think it actually helps everyone because it deletes speculation."
During opening statement, Merlo's counsel said: "[T]hat's what this case is about with regard to liability, and there will be some issues. Mr. Murphy touched on the issue as to these admissions before he settled with Mrs. Miner, the one that started this chain reaction. His client, plaintiff, Mrs. Alvino, admitted that that person was at fault and was a cause of her injuries. Brandon Merlo wasn't even originally sued. He was brought into this lawsuit with his mother. His mother was dismissed on... Monday." At that point, Alvino's counsel objected, and the court said: "Mr. Michaelson,... don't go there please." Merlo's counsel continued: "We have a settlement with regard to one party who will still be testifying. She will not be here as a defendant. She will testify. Mrs. Miner is now a witness who will be testifying on the witness stand as to what occurred...." Alvino's counsel did not object to this statement.
Alvino asserts that these comments violated the court's ruling on the motion in limine, misstated the facts, and suggested to the jury that Alvino wanted to "lure in the next victim." We have found nothing in the record supporting these assertions. Alvino's motion in limine requesting that Alvino's settlement with Miner not be disclosed to the jury was properly denied by the court. (See Tobler v. Chapman (1973) 31 Cal.App.3d 568, 577 [fact that plaintiff chooses to proceed against one of several alleged tortfeasors cannot preclude defendant from contending that another's negligence was the sole proximate cause of the injuries to plaintiff].) The only mention of Brandon or Terry Merlo in Alvino's motion in limine related to Alvino's request not to disclose their cross-complaints against Miner. Thus, nothing in Alvino's motion in limine or the court's ruling on the motion precluded Merlo's counsel from mentioning Terry Merlo's dismissal from the lawsuit or the fact that Alvino failed to name the Merlos as defendants at the time the complaint was filed.
These comments did not misstate the facts. The record shows that Alvino initially named only Miner as a defendant in the complaint. She did not name the Merlos as defendants until several months later. The record also shows that Alvino dismissed Terry Merlo on the opening day of trial.
The comments were nonetheless inappropriate because the point at which the Merlos were named in the lawsuit and dismissal of Terry Merlo on the day of trial were not relevant to any issue in the case. Although improper, the comments were not instances of flagrant attorney misconduct, as Alvino contends. In addition, Alvino's argument that these comments led the jury to believe that Alvino wanted to "lure in the next victim" is speculation. This is insufficient to meet Alvino's burden of showing prejudicial error and we defer to the trial court's discretion in this regard. (People v. Williams, supra, 40 Cal.4th at p. 323.)
Furthermore, Alvino did not request that the trial court admonish the jury in this regard. During the hearing on Alvino's motion for mistrial, the court stated: "Certainly if Ms. Merlo is a witness we will have to have a motion in limine about whether we are going to talk about when her case was dismissed. Certainly if Mr. Murphy is troubled by the thing that Brandon was brought in late, we can tell them when he was brought in. It was a few months after the case was filed, but whenever it was, I can tell them they are not to consider when he was brought in."
Despite this invitation to move for a jury admonishment, and the court's willingness to permit Alvino's counsel to supplement his opening statement, Alvino's counsel did not request a jury admonishment and, in his supplemental opening statement, he spoke only on the worker's compensation issue. We are persuaded that an appropriate admonition would have cured any harm. Therefore, the error was waived. (People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Mincey (1992) 2 Cal.4th 408, 471.)
3. Comments Regarding Financial Condition of the Parties
Alvino asserts that comments that Merlo was a student at the time of the accident and that Alvino wanted him to pay for her college education were a direct violation of the trial court's ruling precluding mentioning the parties' financial condition. Alvino mischaracterizes the motion. Merlo made a motion in limine to preclude evidence of Alvino's past, present, or projected financial condition. The court granted the motion.
During his opening statement, Merlo's counsel said: "There's a concept in the law called 'mitigation of damages.' Mitigation of damages means that you need to get yourself--to mitigate your damages you need to try to get yourself back to work doing something else to try to mitigate your losses, and that's one of the problems in this case. What plaintiff has said is that she wants to go to work as a schoolteacher, so she's asking Mr. Merlo for five years, six years of education to get a teaching credential so she can go to work as a schoolteacher. At the time of this accident Brandon Merlo was just starting his senior year in high school. [¶]... At the time of the accident he was actually driving to basketball practice." Alvino's counsel objected on the ground that it violated the court's ruling on the motion in limine. The court overruled the objection.
Following opening statements, the court held a hearing out of the presence of the jury. The court stated: "I certainly didn't like the statements that she wants Mr. Merlo to pay for her education.... I don't know if it is a violation, but it certainly is the same issue that he had on his own motion in limine to prevent discussion of Ms. Alvino's financial situation...." Subsequently, the court stated: "There was not an objection on the college-student part, but, again, I don't think that's really significant in any event."
The record does not support Alvino's assertion that these comments violated the court's ruling on the motion in limine. Furthermore, Alvino failed to request that the jury be admonished. Alvino waived the issue by failing to make an objection and requesting a jury admonition. (People v. Gionis, supra, 9 Cal.4th at p. 1215; People v. Mince, supra,2 Cal.4th at p. 471.) We defer to the trial court's sound exercise of discretion in denying Alvino's motion for a mistrial. (See, e.g., People v. Williams, supra,40 Cal.4th at p. 323 ["trial court was in the best position to gauge the exact nature of [counsel's] conduct and its likely effect on the jury"].)
B. Exclusion of Evidence
Alvino contends the court committed prejudicial error in refusing to allow the investigating police officer, Pamela Munns, to give her opinion as to the cause of the crash and in limiting the testimony of one of Alvino's accident reconstruction experts, Ian Parkinson. "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) A trial court's ruling excluding evidence will not be overturned on appeal unless it can be shown that the trial court abused its discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.) Under the abuse of discretion standard applicable to evidentiary rulings, we will not disturb the trial court's ruling and reverse the judgment "unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]" (Employers Reinsurance Co. v. Superior Court (2008) 161 Cal.App.4th 906, 919.)
1. Exclusion of Officer Munn's Opinion as to the Cause of the Accident
Merlo made a motion in limine to preclude Munns from offering her opinion concerning the cause of the accident. The court ruled: "Officer Munns on causation is not an appropriate opinion. It is because her reason, if you said to her 'what caused the crash,' she would say, 'Merlo was following too closely.' That was one factor. 'And why do you think he caused the crash?' And there would be no further evidence of why she thinks he caused the crash other than the fact that the crash happened. ¶ Now, if she surprises me and has other reasons, it may be that she can support them.... [¶]... [¶]... If she tries to testify to causation and she's got a good reason, I may let her say it. I don't know."
Munns did testify about the speed of Merlo's vehicle, that he was following Alvino too closely, and the areas of impact. She also was permitted to give her opinion as to Merlo's violation of various Vehicle Code sections. When Alvino's counsel attempted to elicit her opinion as to causation, the court sustained an objection by Merlo's counsel on the ground that no foundation had been laid that Munns had the expertise to give such opinion.
"'It is for the trial court to determine, in the exercise of sound discretion, the competency and qualification of an expert witness to give his opinion in evidence,... and its ruling will not be disturbed upon appeal unless manifest abuse of that discretion is shown.... [Citation.]'" (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 701.)
The court was within it discretion in excluding Munn's opinion as to causation as she did not demonstrate she had the qualifications to render such an opinion. She was a California Highway Patrol (CHP) officer for several years. As part of her CHP training, she took a basic accident investigation course. She also took a three-day course in advanced accident investigation. She investigated thousands of traffic accidents during her career. She did not observe the accident, but relied on the statements of the three drivers in formulating her opinions.
Her extensive experience with traffic accident investigations qualified her to testify as to whether Merlo violated the Vehicle Code. There is nothing in her qualifications showing an expertise in determining whether Merlo was a substantial factor in causing Alvino's injuries. As stated in Francis v. Sauve (1963)222 Cal.App.2d 102, 115: "We think that the general tenor of the precedents in this state indicates a disapproval of expert testimony designed to reconstruct what occurred in a traffic accident. In our view, the principle thus evolved is not changed by the fact that the accident involves a three-car collision. No California case has been found, nor has any been cited, involving the use of expert testimony to establish the order of impact in such type of accident. Nevertheless, we feel that in a situation involving more than two cars the problem of giving an opinion as to what happened is rendered even more complicated by additional 'varying' and 'indefinite' factors." (See also Crooks v. Pirrone (1968) 228 Cal.App.2d 549, 553 [trial court has wide discretion in rejecting traffic officer's testimony as to speed, where counsel failed to establish officer's qualifications].)
The case relied on by Alvino to support her contention that a police officer is qualified to opine as to the cause of an accident does not do so. In Hart v. Wielt (1970) 4 Cal.App.3d 224, the court held that a police officer with experience investigating traffic accidents was qualified to testify as to a reasonable speed given the particular conditions at the time of the accident. He was not called upon to opine as to the cause of the accident. Like the officer in Hart,Munns was permitted to and did opine that Merlo was traveling too fast at the time of the accident. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775-776 [expert testimony positing a "mere possibility of such causation is not enough; and when the matter remains one of mere speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant"].)
Moreover, any prejudice in excluding this testimony was cured by the testimony of Steven Walker who was permitted to opine that Merlo was a substantial factor in causing the accident. Walker is a former police officer, mechanical engineer and reconstruction expert. He testified that both Miner and Merlo were driving too fast and following the vehicle in front of them at an unsafe distance. He opined that the collision between the Miner and Merlo vehicles caused the Merlo vehicle to collide with the Alvino vehicle and that Miner was primarily at fault for the accident. He testified that the damage pattern on Alvino's vehicle showed that Merlo was following Alvino too closely. He opined that Merlo was primarily responsible for the collision between his vehicle and Alvino's vehicle. He said: "[W]hen Mr. Merlo allowed his space cushion between his vehicle and the Alvino vehicle to diminish to nothing or to very small, he set up the circumstance to where Ms. Alvino was drawn into the accident. And if he had maintained an adequate space cushion, there would have been no accident, no second accident in this case."
The trial court did not abuse its discretion in excluding Munns's opinion as to the cause of the accident. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1487; see also, Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 57 ["Necessarily, in this field [accident investigation] much must be left to the common sense and discretion of the trial court"].)
2. Limitation on the Testimony of Ian Parkinson
Alvino asserts that the court erred by limiting the testimony of her accident reconstruction expert, Ian Parkinson. Parkinson is a police captain and has been a police officer for 24 years. He is a faculty member at Alan Hancock College and has taught courses in basic and intermediate accident investigation to police officers from around the state. Alvino contends that Parkinson was precluded from "rendering an opinion on testimony elicited from [Merlo's] expert or Officer Munns" and that he was precluded from testifying whether Merlo's tailgating was a substantial factor in causing the crash. This argument is not supported by the record.
Contrary to Alvino's contention, Parkinson was permitted to comment on the testimony of Merlo's expert, Thomas Fugger. Parkinson testified he disagreed with Fugger that the collision between Merlo and Alvino was an in-line collision. He opined that it was an offset collision. He agreed with Fugger's opinion that the areas of impact were 46 feet apart. He testified that he disagreed with Merlo's expert that a space of 15 feet between vehicles at 35 miles per hour was a safe distance - he said it was "way too close." He opined that Merlo was not following Alvino at a safe distance at the time of the accident.
"The court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party." (Evid. Code, § 723.) Cumulative evidence may be excluded as taking an undue consumption of time. (Id. at § 352, subd. (a); Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371.) The trial court did not abuse its discretion in limiting Parkinson's testimony to matters not included in the testimony of Walker and Munns.
C. Refusal to Instruct Jury with CACI No. 700
"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." (Soule v. General Motors Co. (1994) 8 Cal.4th 548, 572.) "'... "A reviewing court must review the evidence most favorable to the contention that the requested instruction is applicable since the parties are entitled to an instruction thereon if the evidence so viewed could establish the elements of the theory presented.... "...' [Citation.]" (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1157.) A judgment may not be reversed on the basis of instructional error unless the error caused a miscarriage of justice and there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. (Soule, supra,at pp. 573-574.)
Alvino initially requested that the trial court give CACI No. 401, which states the basic standard of care, as follows: "Negligence is the failure to use reasonable care to prevent harm to oneself or to others. ¶ A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation...."
At the conclusion of the trial, Alvino requested that the jury be instructed with CACI No. 700 in addition to, or instead of, CACI No. 401, as follows: "A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence."
The court denied the request to instruct the jury with CACI No. 700, and gave CACI No. 401, because it would also instruct on violation of certain Vehicle Code sections as negligence per se, and there was no evidence that Merlo was negligent other than being in violation of the Vehicle Code sections. Thus, the jury was instructed with CACI No. 401 and, as also requested by Alvino, CACI No. 418 (presumption of negligence per se), as follows:
"Vehicle Code section 22349 [maximum speed limit] states: [¶]...[¶] (a) Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour."
"Vehicle section 22350 [basic speed law] states: [¶]...[¶] 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."
"Vehicle Code section 21703 [following too closely] states: [¶]...[¶] 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."
After reading each statute, the court instructed: " If you decide... [t]hat DEFENDANT violated this law and... the violation was a substantial factor in bringing about the harm, then you must find that DEFENDANT was negligent unless you also find that the violation was excused.... If you find that DEFENDANT did not violate this law or that the violation was not a substantial factor in bringing about the harm or if you find the violation was excused, then you must still decide whether DEFENDANT was negligent in light of the other instructions."
Alvino asserts the trial court committed prejudicial error in refusing to give CACI No. 700 in addition to CACI Nos. 401 and 418 because the common law duty enunciated in CACI No. 700 supplements statutory driving regulations and the jury found that Merlo was not negligent. From this, Alvino reasons: "It appears... given the facts and arguments presented, when the jury somehow found that Merlo did not violate the referenced [V]ehicle [C]ode section, they impliedly turned to CACI 401 on basic, general negligence, as they were not instructed on the accepted duty of care for driving conduct not covered by the provisions of the Vehicle Code. With[]... CACI 700, it is reasonably probable that the jury would have reached a different result."
Alvino's argument is without merit. The directions for use accompanying CACI No. 700 states that it "applies to negligent conduct that is not covered by provisions of the Vehicle Code." Under the doctrine of negligence per se, the trial court adopts conduct prescribed by a statute as the standard of care for a reasonable person under the circumstances so that a violation of the statute is presumed to be negligence. (Evid. Cod, § 669; Alcala v. Vazmar Corp. (2008) 167 Cal.App.4th 747, 755.) "When a legislative body has generalized a standard... and prohibits conduct that is likely to cause harm, the court accepts the formulated standards and applies them [citations], except where they would serve to impose liability without fault. [Citations.]' [Citations.]'" (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546-547.) Our review of the record indicates that Alvino presented no evidence of negligence on Merlo's part other than the testimony of Alvino's experts that Merlo was negligent because he was speeding and not maintaining a safe distance between vehicles. These elements of her case were specifically covered by CACI No. 418, the negligence per se instruction.
The court does not err where, as here, it refuses to give a requested instruction that is covered adequately by other instructions. (See, e.g., Major v. Western Home Insurance Co. (2009) 169 Cal.App.4th 1197, 1217 ["[e]rror cannot be predicated on the trial court's refusal to give a requested instruction if the subject matter is substantially covered by the instructions given"]; see also, Kraft v. Nemeth (1952) 115 Cal.App.2d 50, 54 ["[i]t is not error to refuse instructions which are repetitious in substance and would serve only to emphasize unduly a party's theory of the case and which so far as they contain correct statements of the law are adequately covered by the instructions given"].)
Alvino contends cumulative error requires reversal. For the reasons stated above, the comments in the opening statement of Merlo's counsel had no possibility of affecting the jury verdict. (See, e.g., Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 214 [jury's allocation of fault to only one defendant not an indication that jury was influenced by counsel's alleged misconduct or disregarded the court's admonitions].) The trial court did not err in limiting the testimony of Alvino's experts or instructing the jury. We therefore reject her claim of cumulative error.
The judgment is affirmed. Respondent shall recover costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.