Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVSS708629 Frank Gafkowski, Jr., Judge. (Retired judge of the former Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Law Offices of Mark G. Cunningham, Mark G. Cunningham and John B. Yu for Defendants and Appellants.
Law Office of Sandor C. Fuchs, Sandor C. Fuchs and Robert Philips for Plaintiff and Respondent.
OPINION
RICHLI, J.
Defendant Norma Ortiz parked her pickup truck on the southbound side of a two-way street. She then drove it forward and across the street, in an S shaped curve, intending to park it on the northbound side of the street, still facing south (i.e., the wrong way). During this maneuver, a motorcycle going north hit the pickup.
The motorcyclist — plaintiff Kiven C. Dawson — was severely injured; he was left with no memory of the accident. According to Ortiz’s expert witness, Dawson was at least partially at fault, because he continued to accelerate, eventually exceeding the speed limit, even though he saw or should have seen the pickup. A jury disagreed. It found Ortiz 100 percent at fault. It further found Ortiz’s husband, defendant Alfonso Torres, vicariously liable, because Ortiz had been in the process of unloading plants for her husband’s topiary business when the accident occurred. It awarded Dawson $556,371 against Ortiz and Torres.
Ortiz and Torres appeal. They contend:
1. The trial court erred by allowing the investigating officer to relate the hearsay statement of an eyewitness, to the effect that Dawson was going under the speed limit.
2. There was insufficient evidence that Ortiz was acting as Torres’s agent.
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
A. The Accident.
On July 20, 2007, around 2:00 p.m., Dawson’s motorcycle ran into Ortiz’s pickup.
The collision occurred on Meridian Avenue, a two-lane, north-south street. The speed limit on Meridian was 40 miles per hour.
Ortiz was driving her Ford F 150 pickup. First, she stopped at the west curb, facing south. She then went across the street in an S curve, intending to end up stopped again, still facing south, at the east curb.
Dawson was riding his Harley-Davidson north on Meridian. It hit the side of the pickup in the northbound lane, at a point 16 feet from the east curb. This point of impact was 360 feet north of the intersection of Meridian and Second Street. The pickup came to a stop three or four feet from the east curb, at a 45-degree angle. (See appendix A, post, p.20.)
B. Testimony of Dawson’s Sister.
Dawson’s sister, Rose Dawson, lived in an apartment complex at Meridian and Second. She testified that Dawson had just left her apartment. Looking out her window, she saw him on Second; he stopped at the intersection, then turned north on Meridian.
She was familiar with motorcycles and the sounds they make. She testified that, from the sound of Dawson’s motorcycle, he was accelerating slowly — “like an old geezer.”
C. Testimony of Ortiz.
Ortiz lived in a mobile home park on the east side of Meridian. Her husband, Torres, had a topiary business. On the day of the accident, a truck loaded with plants for Torres arrived. Ortiz went to unload the plants.
The delivery truck was parked, facing north, on the east side of Meridian. Ortiz’s plan was to park her pickup facing south on the east side of Meridian, back-to-back with the delivery truck.
She drove out of the driveway of the mobile home park and turned left (south) on Meridian; she then pulled over and stopped on the west (southbound) side. She waited a few seconds while some cars went by. Her left turn signal was on. She looked for traffic coming up from Second but did not see any.
She proceeded to cross from the west side to the east side of Meridian. She was going slowly, maybe 5 or 10 miles per hour. Just as she was crossing the center line, she saw the motorcycle. It was down by Second, coming up Meridian. She had no idea how fast it was going. She assumed that it would either slow down or go around and behind her. She turned her attention back to where she was going. She testified that she was about a foot and a half from the curb when she was hit.
This was inconsistent with the physical evidence that her pickup came to rest three or four feet from the curb, especially as it would have taken her some time to react — and her pickup would have continued to travel — after she was hit.
When the police interviewed Ortiz, she said she first saw the motorcycle “just as she was approaching the curb....” It was going “very, very fast.” She saw it “go up in the air” and then hit her pickup.
At her deposition, Ortiz testified, as at trial, that she first saw the motorcycle when it was down near Second. However, she claimed that she saw it again just before it hit her; at that point, it was “accelerat[ing] even more.”
D. Testimony of Dawson.
Dawson testified that, as a truck driver, he had developed the habit of not driving fast. People who rode with him regularly complained that he drove too slowly.
Since the accident, he suffered from memory problems. He also had unresolved physical injuries. As a result, he was no longer able to work as a truck driver. He had no memory of the accident.
Much of the evidence regarding Dawson’s physical injuries was presented by playing videos of two physicians’ depositions. It was stipulated that the court reporter did not have to transcribe the videos. The appellate record does not include either the videos or a transcript of them. (But see Cal. Rules of Court, rule 2.1040(a).)
E. Testimony of Officer Houser.
Officer Dennis Houser was the first officer on the scene of the accident, and he became the lead investigator. He was an expert in accident investigation.
Officer Houser found skid marks left by the motorcycle. The front skid mark was 18 feet long; the rear skid mark was 17 feet long. He also found two gouge marks, 16 and 18 feet long, respectively, made by the left side of the motorcycle.
Officer Houser concluded that Dawson braked, skidded, and either intentionally or unintentionally fell over sideways. He explained that falling over can be a “maneuver of last resort” to avoid a collision.
F. Testimony of Dr. Stroud.
Dr. Roderick Stroud testified as defendants’ accident reconstruction expert.
In Dr. Stroud’s opinion, based on the damage to the two vehicles, the “contact speed” of the motorcycle was between 30 and 40 miles an hour. Moreover, based on the skid marks and gouge marks, the motorcycle had been going 50 miles an hour when Dawson first started to brake. With “vigorous acceleration, ” the motorcycle could have gotten up to 50 miles an hour between Second Street and the point of impact. Thus, he concluded that Dawson was accelerating “the whole time.”
Dr. Stroud calculated that it would have taken Ortiz at least eight and a half seconds to move from her stopped position on the west side of the street to the point of impact. He concluded that Dawson could have avoided the accident by slowing down and going around behind the pickup. He conceded that the time it took Dawson to perceive, react, brake, and skid was consistent with a scenario in which he did not realize that Ortiz was coming into his lane until two seconds before she actually crossed the center line. In his opinion, however, Dawson should have realized that Ortiz was a threat “as soon as [she] started to move....”
II
ADMISSION OF THE HEARSAY STATEMENT OF AN EYEWITNESS
Defendants contend that the trial court erred by admitting a hearsay statement by a nontestifying eyewitness.
A. Additional Factual and Procedural Background.
1. Motions in limine.
Defense counsel moved in limine to preclude Officer Houser from testifying “as to the ultimate issue in this case, which is who is at fault....” The trial court ruled that Officer Houser could not “opine as to the cause or liability, ” but could “testify as to what he observed.”
Defense counsel also moved in limine to preclude Dawson’s counsel from referring to Officer Houser as an accident reconstruction expert, “until that foundation has been laid....” Dawson’s counsel agreed not to “refer to him as an accident reconstruction expert in opening statement.” He argued, however, that Officer Houser might eventually qualify as an accident reconstruction expert. The trial court agreed that, provided he was shown to be properly qualified, he might be able to “say[] I believe this is where the impact took place, I believe this is how it occurred.”
Finally, defense counsel moved in limine to preclude “lay witnesses” from testifying to “hearsay statements in the traffic collision report... until proper foundation has been laid.” The trial court ruled that that Officer Houser, as an expert, could testify that he relied on hearsay from “a percipient witness.” However, it observed: “I think you have to be very careful in your examination[, ] leaving it up to setting forth the foundation for relying on a particular witness’s statement without reading it.”
2. Officer Houser’s testimony.
Officer Houser was extensively qualified as an expert in accident investigation. He had been a police officer for 21 years; his primary assignment had been accident investigation for about 10 years. He had had some training in accident investigation while in the police academy. Since then, he had been trained by the Riverside Sheriff’s Department in basic collision investigation (40 hours), intermediate collision investigation (80 hours), advanced collision investigation (80 hours), and commercial vehicle collision investigation (40 hours). He had taken four or five classes at the University of California at Riverside, which had entitled him to receive an occupational training certificate in traffic collision investigation. His training “involve[d] questions of time, distance, and speed[.]” He was a member of the Southwestern Association of Technical Accident Investigators and the California Association of Accident Reconstruction Specialists. He had investigated approximately 1, 200 traffic collisions.
On direct, Officer Houser testified that “a witness [who] is following another vehicle and going at the same speed as the other vehicle” is able to provide a “very reliable” estimate of the other vehicle’s speed. He also testified that three eyewitnesses were interviewed, and that one of these eyewitnesses — James Soreno — had been following the motorcycle. He was then asked:
“Q... And did [Soreno] give you an estimate of the speed of the motorcycle?
“A Yes, he did.
“Q What was that?
“[Counsel for defendants]: Objection, your Honor, as the Court already ordered, this is all hearsay. I wish he was here so we could cross-examine him.
“THE COURT: Well, Counsel, that may be, but if the officer is using it to rely upon, as he would in completing his report and making recommendations and so forth, he may rely upon such.
“And I’ll overrule the objection.”
Officer Houser then testified that Soreno “estimated [Dawson’s] speed to be at 30 to 35 miles per hour.”
Later on direct, Officer Houser was also asked:
“Q Now, based on the witness statements and the physical evidence that you observed — that is the skid marks, the damage to the motorcycle, the damage to the truck, the gouge marks, and the statements of the witnesses — were you able to determine or approximate, at least, the speed of the motorcycle at the time that it started to brake? [¶]... [¶]
“A Yes, sir.
“[Counsel for defendants]: Objection, your Honor. Foundation; speculation. He’s not an accident reconstruction expert.
“THE COURT: I’ll sustain the objection because we haven’t included many of the factors that might be necessary, that is, in the question itself.”
On cross-examination, Officer Houser testified:
“Q... Now, in this particular case, you were not asked to do an accident reconstruction, were you?
“A No, I was not. [¶]... [¶]
“Q And, by the way, have you ever testified in court like you are today in the capacity as an accident reconstruction expert?
“A No, I have not.
“Q Okay. Do you hold yourself out as an accident reconstruction expert?
“A No, sir, I don’t.
“Q What your expertise is — and it’s very apparent — is accident investigation?
“A That’s correct.
“Q All right. And the idea of an accident reconstruction expert is somebody who can look at the physical evidence... and can then draw conclusions or opinions from that physical evidence to arrive at things such as speed and times and distances and things like that?
“A Among other things, yes. [¶]... [¶]
“Q... And they can look at crush damage to the vehicles. They do that, don’t they?
“A Yes, sir.
“Q And they have calculations that they do so that they can take measurements of the vehicles and look at the metal damage and then arrive at conclusions regarding vehicle speeds, is that right?
“A Yes, that’s correct.
“Q And often that kind of evidence is reliable. You’ve found that, haven’t you?
“A Yes, sir, I have.”
3. Closing argument.
In closing, Dawson’s counsel argued: “Now, I would like to address the issue of [Dawson’s] speed. We have a contrast.... There is an independent witness who was following in tandem to the motorcyclist and according to Officer Houser this person gave it, he is an independent, he is not [a] hired expert or anything like that and according to Officer Houser, ... the most reliable in terms of a civilian witness on question of speed is somebody who is going in tandem with the motorcycle, can look at his own speedometer, is judging his own speed and from that can estimate the speed of the motorcycle. And this witness is estimating the speed at 30 to 35 miles an hour. That is a very credible, credible estimate of the speed....” He also argued that Soreno was more credible than Dr. Stroud, because the latter was “paid by the defense.”
Defendants’ counsel responded: “He talks a lot about this 30 to 45 [sic] miles per hour estimate. Where is this witness? How do we know the witness says what he says? How do we know the witness doesn’t happen to be somehow related to the [p]laintiff? We don’t know any of that. How do we know the witness had the ability to perceive what he saw? How do we know anything about this witness? We don’t. This witness isn’t here, that witness isn’t under oath....”
4. Motion for new trial.
Defendants filed a motion for new trial, on the ground that the trial court had erred by admitting the hearsay statement.
In opposition to the motion, Dawson argued, among other things, that “an expert, such as [O]fficer Houser, giving an opinion about the speed of the plaintiff, can rely on the statement of another, whether or not admissible, if it is the kind of information experts reasonably rely upon....”
The trial court denied the motion. It conceded: “I should not have permitted that statement by the officer reciting what a bystander said about the speed of 35 miles an hour [sic], that was a hearsay statement. I don’t know what... possessed me to permit that to come in;... I know I have made mistakes in the past, but that is the first one I have ever done anything like that [sic].”
It concluded, however, that the hearsay statement was not prejudicial. It noted that Dawson’s sister had testified that Dawson was “taking off in a normal fashion without any extra acceleration....” It added that Ortiz “said she saw Mr. Dawson at the corner and then she did not keep him in her sight, she then concentrated on a routine turn to the curb in front of Mr. Dawson and that is where there is substantial evidence that she did not exercise care about someone who was obviously approaching, whether fast or slow.”
B. Analysis.
“‘[A]n appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion.’ [Citation.]” (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078.) This includes rulings on hearsay issues. (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008.)
“‘[A]n expert may generally base his opinion on any “matter” known to him, including hearsay not otherwise admissible, which may “reasonably... be relied upon” for that purpose. [Citations.] On direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them. However, prejudice may arise if, “‘under the guise of reasons, ’” the expert’s detailed explanation “‘[brings] before the jury incompetent hearsay evidence.’”’ [Citations.] In this context, the court may ‘“exclude from an expert’s testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.”’ [Citation.]” (People v. Catlin (2001) 26 Cal.4th 81, 137.)
Here, Officer Houser was amply qualified as an expert in accident investigation. Thus, the trial court properly ruled, in limine, that he could testify to hearsay from percipient witnesses as the basis of his opinions. It appears that he had, in fact, formed an opinion as to how fast Dawson’s motorcycle was going and that that opinion was based, in part, on Soreno’s hearsay statement. The hearsay statement was not particularly irrelevant, unreliable, or prejudicial. Thus, when defendants’ counsel objected again during trial, the trial court properly overruled the objection.
Admittedly, Officer Houser’s opinion as to how fast Dawson’s motorcycle was going did not actually come in. When he was asked for this opinion, defendants’ counsel objected, and the trial court sustained the objection. The stated grounds for that objection, however, were not well founded. They were: “Foundation; speculation. He’s not an accident reconstruction expert.” Officer Houser freely conceded that he was not an accident reconstruction expert. Nevertheless, in the words of defendants’ own counsel, it was “very apparent” that he was an accident investigation expert.
“A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) “It is generally established that traffic officers whose duties include investigations of automobile accidents are qualified experts and may properly testify concerning their opinions as to the various factors involved in such accidents, based upon their own observations. [Citations.]” (Hart v. Wielt (1970) 4 Cal.App.3d 224, 229.) For example, in Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, the Supreme Court held that a police officer with training and experience in investigating traffic accidents could give an opinion regarding the point of impact. (Id. at pp. 56-59; accord, People v. Haeussler (1953) 41 Cal.2d 252, 260-261.)
Officer Houser had investigated approximately 1, 200 accidents. His training “involve[d] questions of time, distance, and speed[.]” Even though he was not an accident reconstruction expert himself, he was familiar with the types of physical evidence they considered, and he himself had found that kind of evidence to be “reliable.” He had personally investigated the accident in this case; he had personally observed the damage to both vehicles, as well as the skid marks and the gouge marks. Thus, both his qualifications and his foundation to render an opinion regarding the speed of Dawson’s motorcycle were more than sufficient.
We also note that the trial court did not sustain the objection to Officer Houser’s opinion on the ground that he was unqualified. Rather — while its explanation is not entirely clear — its ruling appears to have been based on the form of the question; it stated: “I’ll sustain the objection because we haven’t included many of the factors that might be necessary, that is, in the question itself.” Thus, if Dawson’s counsel had asked the question in a different way, presumably the opinion could have come in.
Our main point is that, for these reasons, when Officer Houser testified to the hearsay statement, there was no way of knowing that his opinion regarding the speed of the motorcycle was not going to come in. To the contrary, there was every reason to think that it would come in. Thus, the trial court did not err in overruling the hearsay objection, at least at the time it was made. And even after defendants’ counsel fortuitously managed to keep the actual opinion out, he never moved to strike the otherwise admissible hearsay statement.
The trial court expressly admitted the hearsay statement as something on which Officer Houser relied. On request (Evid. Code, § 355), it would have been required to instruct that the hearsay statement was admitted solely for that purpose and not for its truth. (People v. Montiel (1993) 5 Cal.4th 877, 919; Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1525.) As far as the record reflects, however, defendants’ counsel never requested such an instruction.
Finally, it was improper for Dawson’s counsel to argue, in closing, that the jury should accept the hearsay statement as true. Defendants’ counsel, however, did not object to this line of argument. Thus, no objection has been preserved for appeal.
In sum, then, the trial court properly admitted the hearsay statement, both in ruling on the motion in limine and at trial. Although the statement arguably became subject to a motion to strike, defense counsel never made such a motion. We therefore need not consider whether its admission was prejudicial.
III
THE SUFFICIENCY OF THE EVIDENCE THAT ORTIZ WAS ACTING AS TORRES’S AGENT
Torres contends that there was insufficient evidence that Ortiz was acting as his agent to support the judgment against him.
A. Additional Factual and Procedural Background.
As mentioned earlier, Torres had a topiary business. Ortiz testified that she was not employed outside the home and did not work in Torres’s business.
On the day of the accident, when the plants arrived, Torres was not home. According to Ortiz, she decided to unload them as “a favor” to her husband, so he would not lose the job for which he needed the plants.
The pickup belonged to Torres, but Ortiz was its usual driver. She admitted that she “sometimes” drove the pickup for her husband’s business, “as a favor.” She also admitted that she had “[s]ometimes” “assisted in picking up topiary” at other locations.
Dawson’s sister had seen the pickup back up to another truck to unload plants “on previous occasions[.]”
B. Analysis.
On this record, the only way Torres could be held jointly and severally liable for Ortiz’s negligence was if she was acting as his agent. The jury found, by special verdict, that Ortiz was Torres’s agent and that she was acting within the scope of her agency when Dawson was injured.
As owner of the pickup, Torres was derivatively liable for Ortiz’s negligence (Veh. Code, § 17150) but only up to a statutory cap of $15,000 (Veh. Code, § 17151, subd. (a)).
“The existence of an agency relationship is a factual question for the trier of fact, whose determination must be affirmed on appeal if supported by substantial evidence. [Citations.]” (Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 965.)
“Civil Code section 2295 defines an agent as ‘one who represents another, called the principal, in dealings with third persons.’ An agent acts on behalf of the principal and subject to the principal’s control. [Citation.] ‘“In the absence of the essential characteristic of the right of control, there is no true agency....”’ [Citation.]” (Korean Air Lines Co., Ltd. v. County of Los Angeles (2008) 162 Cal.App.4th 552, 562.) In this case, there was no evidence that Torres directed or controlled Ortiz’s activities in connection with his business.
However, an agency relationship can also be established by “a subsequent ratification.” (Civ. Code, § 2307.) Ratification, in turn, can be established by acceptance of the benefits of the agent’s acts. (Civ. Code, § 2310.)
“It is well established in California that a husband or a wife may act as agent for the other; that the agency may be proved by circumstantial as well as by direct evidence [citations]; that it requires less evidence to establish agency in a case of this kind than in other cases [citations]; that such an agency may be established by proof of ratification of acts already performed without previous authority. [Citation.]” (Stegeman v. Vandeventer (1943) 57 Cal.App.2d 753, 759.)
Ortiz admitted that she had picked up plants for her husband’s business on more than one previous occasion. Dawson’s sister corroborated this, testifying that she lived in the neighborhood and that she had seen the red pickup being used to unload plants “on previous occasions[.]” Ortiz further admitted that she had driven the pickup for her husband’s business on more than one previous occasion. It was fairly inferable that Torres had accepted the benefit of these transactions. Indeed, it was inferable that on the day of the accident, he was willing to be away from home, even though a delivery was being made, precisely because he knew he could rely on Ortiz to unload the plants for him. Finally, this evidence showed a repeated course of conduct, not “an apparently isolated transaction.” (Cf. Flores v. Brown (1952) 39 Cal.2d 622, 629.) Thus, Torres could not disclaim an agency relationship when Ortiz once again acted in conformity with this established course of conduct.
We therefore conclude that there was sufficient evidence of agency to support the judgment against Torres.
IV
DISPOSITION
The judgment is affirmed. Dawson is awarded costs on appeal against defendants.
We concur: HOLLENHORST, Acting P.J., McKINSTER J.