Opinion
C085070
07-27-2018
ALAN CRUZ, Plaintiff and Appellant, v. AUGUSTINA SANCHEZ SERRANO, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. STKCVUAT20140010772, 39201400317659CUPASTK)
Appellant Alan Cruz (Cruz) appeals from entry of judgment in his personal injury action following a jury's special verdict finding respondent Augustina Sanchez Serrano (Serrano) not negligent. Cruz argues the trial court prejudicially erred in its determination the testimony of Paulina Tapia Carrera did not fall within the excited utterance exception to the prohibition on hearsay. He asserts this testimony would have supported his evidence Serrano drove her truck into him and exclusion of this testimony resulted in a miscarriage of justice requiring reversal.
We conclude the trial court did not abuse its discretion in excluding this testimony. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
The Alleged Collision
The substance of the underlying case concerns whether Serrano negligently hit Cruz's body with her truck in an accident alleged to have occurred on October 29, 2012. Cruz offered three witnesses to support his version of events: himself, Manuela Palacios (Palacios), and Paulina Tapia Carrera (Carrera).
Cruz testified Serrano hit him with her moving truck, pushing him forward. He did not fall as a result of the collision, nor did he bleed. Cruz asked Serrano to take him to the hospital two times. Each time, she said yes, but then left the scene. He testified he did not want to call the police or ambulance because he knew it was not that serious. He called the sheriff's department later that day to report the collision because he "needed to be taken to the hospital." He went to the emergency room the day after the collision, where he was given medication for inflammation.
Palacios testified Cruz was struck by a truck moving approximately 20 miles per hour. She did not see him fall and did not offer him any assistance, nor did she see anyone else do so. Palacios did not see Cruz bleed and did not "think he was very, like banged up."
Carrera did not see the collision nor did she see any commotion "around [Cruz] and the truck following the collision." Her testimony concerning what she was told about the collision was excluded by the court upon the sustaining of a hearsay objection.
Contrary to Cruz's version of events, Serrano denied her truck hit him. She testified she was sitting in her truck eating lunch when Cruz leaned on her truck, and she told him to "get off of my truck." She felt the truck move as a result of his leaning on it while it was parked. Serrano testified Cruz asked her for a ride to the hospital and she said yes but then did not give him the ride because nothing happened.
Serrano's brother, Jesus Sanchez, testified he saw Cruz with tacos and a beer walking towards his sister's truck. Cruz appeared intoxicated, and Sanchez saw Cruz lose his balance, leaning back hard into the parked truck. Cruz did not fall down. Sanchez did not see Serrano hit Cruz with her truck.
The Hearsay Objection
As noted above, Carrera did not personally witness the alleged collision. Rather, Cruz sought to have her testify about the statement of a third person, allegedly made to her on the day of the collision about that collision. When asked how Carrera knew about the collision, Serrano's counsel objected on the basis of hearsay. Cruz's counsel then attempted to lay the foundation for an excited utterance in order to allow Carrera to testify to what she was told by her partner concerning the collision.
Carrera testified to hearing a statement from her partner Alvaro Morales after the truck struck Cruz. The statement was made "[t]hat same day." Carrera was asked: "Do you know how long after the collision the statement was made about the collision by [Morales] to you?" She responded: "At the moment at work." Carrera did not personally see any commotion "around [Cruz] and the truck following the collision." She testified Morales was "excited" when he made the statement about the collision. No further details concerning Morales's observation of the alleged collision or his mental state at the time he made the statement was offered.
Thereafter, Cruz's counsel asked Carrera what her partner said to her, and Serrano's counsel renewed the hearsay objection. The trial court sustained the objection for lack of foundation. After this ruling, Cruz's counsel did not ask any more questions or attempt to lay a foundation to establish a hearsay exception or make an offer of proof. Carrera was excused by the court.
The Verdict
On May 25, 2017, the jury unanimously determined in a special verdict that Serrano was not negligent. The trial court denied Cruz's motion for a new trial that included a challenge based upon the exclusion of Carrera's testimony. Judgment in favor of Serrano was entered on May 26, 2017, and Cruz timely filed this appeal.
DISCUSSION
Cruz argues the trial court prejudicially erred in its determination the testimony of Carrera did not fall within the excited utterance exception to the prohibition on hearsay. He asserts this testimony would have supported his evidence Serrano drove her truck into him and exclusion of this testimony resulted in a miscarriage of justice requiring reversal.
A.
Standard of Review
Hearsay is "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).) Nonetheless, Evidence Code section 1240 recognizes a "spontaneous statement" may be admissible under certain elineated circumstances. It provides, "[e]vidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception." (Evid. Code, § 1240.)
A proponent of admission of a spontaneous statement must establish the following requirements: " ' "(1) [T]here must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." [Citations.]' [Citation.] A statement meeting these requirements is 'considered trustworthy, and admissible at trial despite its hearsay character, because "in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief." [Citation.]' " (People v. Merriman (2014) 60 Cal.4th 1, 64 (Merriman), quoting People v. Clark (2011) 52 Cal.4th 856, 925.)
In determining whether the proposed statement was made "while the declarant was still under the stress and excitement of the startling event and before there was 'time to contrive and mispresent[,]' " the court may consider a number of factors, none of which is dispositive. (Merriman, supra, 60 Cal.4th at pp. 64-65, quoting People v. Poggi (1988) 45 Cal.3d 306, 318.) "Such factors include the passage of time between the startling event and the statement, whether the declarant blurted out the statement or made it in response to questioning, the declarant's emotional state and physical condition at the time of making the statement, and whether the content of the statement suggested an opportunity for reflection and fabrication." (Merriman, at p. 64.)
"Whether an out-of-court statement meets the statutory requirements for admission as a spontaneous statement is generally a question of fact for the trial court, the determination of which involves an exercise of the court's discretion. [Citation.]" (Merriman, supra, 60 Cal.4th at p. 65.) We will uphold the trial court's determination of facts when they are supported by substantial evidence and review for abuse of discretion " 'the ultimate decision whether to admit the evidence.' [Citations.]" (People v. Phillips (2000) 22 Cal.4th 226, 236.)
" 'Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, quoting Loomis v. Loomis (1960) 181 Cal.App.2d 345, 348-349.)
B.
Analysis
Cruz claims the trial court abused its discretion in refusing to allow Carrera to testify about the content of a statement made to her by Morales. On appeal, the parties argue over the exact timing of Morales's statement, which is unclear given the ambiguous nature of Carrera's testimony that the statement was made "[a]t the moment at work." Serrano also disputes whether there is sufficient evidence Morales actually witnessed the alleged collision, the determination of which is complicated by the fact Cruz's counsel did not make an offer of proof as to the content of the statement by Morales when attempting to lay the foundation for the admission of this evidence at trial.
Ultimately, we need not decide these issues because we agree with the trial court that Cruz's counsel did not lay the foundation for admission of an excited utterance. The accident was not of such a nature as to support the application of this hearsay exception merely because Carrera testified Morales was "excited" when he made it. As noted above, spontaneous statements are admissible despite their hearsay character " 'because "in the stress of nervous excitement, the reflective faculties may be stilled and the utterance may become the instinctive and uninhibited expression of the speaker's actual impressions and belief." [Citation.]' (People v. Clark, supra, 52 Cal.4th at p. 925.)" (Merriman, supra, 60 Cal.4th at p. 64.)
Here, even if one credits Cruz's version of events, his version does not establish there was "some occurrence startling enough to produce [the requisite] nervous excitement and render the utterance spontaneous and unreflecting." (Merriman, supra, 60 Cal.4th at p. 64.) Based on his version of events, he was hit by a truck that pushed him forward, he did not fall, there was no blood, and while he asked Serrano to drive him to the hospital, he did not seek medical attention until the next day. No one came to Cruz's aid. And Cruz's own witness did not think his injuries were serious.
Given the lack of indicia Morales's statement fell within the excited utterance exception, the trial court did not abuse its discretion in excluding this testimony.
DISPOSITION
The judgment is affirmed. Respondent Augustina Sanchez Serrano shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P. J. /s/_________
DUARTE, J.