Opinion
F080947
06-15-2022
D.D., a Minor, etc., et al., Plaintiffs and Appellants, v. David PITCHER, Defendant and Respondent.
Rodriguez & Associates, Noah J. Moss, San Francisco, for Plaintiffs and Appellants. Law Offices of Raquel Birch and Tomas J. Ross; Dentons US, Michael Barnes and David Simonton, Oakland, for Defendant and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I.A., I.C., I.D., and II. of the Discussion.
Rodriguez & Associates, Noah J. Moss, San Francisco, for Plaintiffs and Appellants.
Law Offices of Raquel Birch and Tomas J. Ross; Dentons US, Michael Barnes and David Simonton, Oakland, for Defendant and Respondent.
DETJEN, J. Plaintiff D.D., a minor, by and through his guardian ad litem, Carlos M., appeals from a judgment entered after a jury trial, and from an order denying his motion for a new trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On April 5, 2017, D.D.'s guardian ad litem filed suit against David Pitcher and his spouse, Heather Kann, (collectively, defendants) for damages resulting from personal injuries suffered by D.D. in connection with a bicycle accident that occurred on February 22, 2016, at defendants' residence in Bakersfield, California. D.D. was six years old at the time of the incident.
In his complaint, D.D. alleged causes of action for general negligence and premises liability. D.D. alleged, in part: "As a result of [Pitcher]'s negligence, [D.D.] was struck and run over by a bicycle, thereby causing the injuries and damages complained of herein." On August 23, 2018, the cause of action for premises liability was "[r]emov[ed]" (italics omitted) from the complaint and Kann was "[r]emoved" as a defendant.
Trial commenced on November 18, 2019. During their respective trial testimonies, D.D. and Pitcher gave different accounts of how the bicycle accident occurred. D.D. testified he had been riding his neighbor's bicycle, became tired, and decided to rest on Pitcher's lawn. He was "sitting down at a tree," with his helmet on and his leg "sticking out." He had been sitting there for approximately five minutes when he saw Pitcher's son and then Pitcher approaching him. Pitcher was riding a bicycle. D.D. testified Pitcher rode across the grass and the wheel of his bike ran across D.D.'s left leg. As a result, D.D. suffered a broken leg.
On cross-examination, D.D. acknowledged that, at deposition, he originally testified he was "flat on [his] back with [his] head against the tree" and that, later in the deposition, he testified he was "sitting on [his] bottom with [his] back against the tree." At trial, he confirmed he was not lying on his back. D.D. also acknowledged that, at deposition, he testified he was facing his neighbor's house (i.e., that of Mayra A. ) situated to the east of Pitcher's home, and that he was not facing Pitcher's house. At trial, he clarified his body was facing north toward Pitcher's home but his head was turned towards Mayra's house.
Pursuant to California Rules of Court, rule 8.90, we refer to some persons by their first names. No disrespect is intended.
Defense counsel commented, "at your deposition you told me you didn't see ... Pitcher," to which D.D. responded, "No, because look, I was looking over there for a little while and then like facing forward. And then when I heard a noise before I didn't, I looked over there and I saw [Pitcher's] son and [Pitcher] racing." Defense counsel read from D.D.'s deposition testimony in which D.D. testified he heard Pitcher and his son laughing, concluded they were racing, thought they were on the street but did not know they were on the sidewalk, and did not see them.
Pitcher testified he, his wife, and their son had gone for a bike ride on the day in question. On their return home, Pitcher was riding on the sidewalk at approximately 10 miles per hour. His son was ahead of him and his wife was behind him. They were traveling east as they approached their home on the north side of the street. He testified his son cut across their grass to get to their driveway and he did the same. As he made the turn, he saw D.D. dart between two cars and ride onto defendants' property. Pitcher had only a split second to react. He grabbed his brakes but realized he was not going to be able to stop. He tried to "bail off" the bicycle but was still on it when he and D.D. collided. The majority of his weight was still on the bike when the collision occurred. He testified the collision occurred on his driveway approximately a foot off of his grass. D.D., still on his bike, fell to his right toward the remainder of the driveway. Pitcher was unsure if his bicycle hit D.D.'s leg or D.D.'s bicycle. His bicycle landed atop D.D.'s bicycle. Pitcher did not contest that the collision resulted in D.D.'s broken leg.
Additional testimony was given by the orthopedic surgeon who treated D.D., Pitcher's biomechanical and bioengineering expert, and several percipient witnesses. To the extent relevant, their testimonies will be discussed in later sections of this opinion.
The jury determined, by special verdict, that Pitcher was not negligent. Judgment was entered in favor of Pitcher and D.D. took nothing by way of his complaint. DISCUSSION
D.D. challenges the trial court's rulings on three motions in limine. The first motion in limine sought permission for D.D.'s counsel to give a brief opening statement prior to voir dire questioning. The remaining two motions sought to exclude testimony from two witnesses. D.D. also challenges the court's denial of his motion for a new trial. We discuss those issues below.
I. MOTIONS IN LIMINE
See footnote *, ante .
B. Motion In Limine No. 1 (Brief Opening Statement)
1. The Hearing on Motion In Limine No. 1.
In his motion in limine No. 1, D.D.'s counsel requested permission to make a brief opening statement prior to voir dire questioning. Defense counsel opposed the motion as "unnecessary," "a waste of time," and argued it "might precondition the jury."
The trial court granted the motion on the following conditions: "It must be written verbatim, exchanged with counsel and filed with the Court. It must be less than 250 words and read to the jury verbatim.... [¶] ... [¶] ... Exchange it, give to me, and I'll consider it. But that's why I want it written out. Because I don't want the first thing that the jury hears is an objection and a sidebar." The court stated, "You can read it to the jury if it's approved, if I've approved it. But I'll hear any objections before either counsel read their [brief] opening." D.D.'s counsel submitted a brief opening statement to the trial court which read: "Brutal honesty. Brutal honesty is something I'm going to ask each one of you for when we get to talk to each other. So it's only fair that I start by being brutally honest with you. [¶] I'm here because of a lawsuit by one neighbor against another. My client, [D.D.], was on the Defendants' property at the time of his injuries. [D.D.] was six years old.... Pitcher ... was 42. [¶] There's a dispute about how [D.D.] was injured. [¶] We've sued [Pitcher] for negligence. We're going to ask you to sign off on a money verdict compensating [D.D.] for a broken leg after we prove our case. [¶] Brutal honesty. Does it turn you off, hearing about a lawsuit by one neighbor against another? Maybe you'd like to hear a little more. [¶] The impact broke both the tibia and fibula of [D.D.'s] left leg. He didn't need surgery. He missed some school. When he returned to school, [D.D.] went back in a wheelchair. The broken bones in his leg had to be reset, it took months to heal. [¶] We're blaming [Pitcher] for this. We're going to ask for money for physical pain, fear, physical impairment, and humiliation. [¶] Should I be afraid of having you as a juror on this case? [¶] I believe in a fair fight. I'm looking for twelve people who do as well. [¶] So thank you for listening. Please hold on to what you feel inside and ask yourselves with brutal honesty if you can give us a fair fight." (Italics omitted.)
The trial court did not approve the brief opening statement. The court explained: "I'm going to sustain the objection to this [brief] opening. It contains matters ... that are properly the subject of voir dire, but—for instance, it refers to brutal honesty about brutal honesty being something that counsel wants to hear from the jurors. That's all appropriate for voir dire but not for a [brief] opening statement. It tends to be argumentative. It says we're blaming [Pitcher] for this. This is all—tends toward argument, so I'm going to sustain the objection to this [brief] opening statement.... And I think the jury has heard the facts of the case from my statement."
When D.D.'s counsel asked for an opportunity to edit his brief opening statement, the trial court stated, "Not in the time available. I just think this can all be—... you're really going to have the opportunity to do exactly what's in that [brief] opening statement as soon as you stand up to conduct your voir dire." The court continued, "I'll announce you can begin your voir dire and you're going to tell the jury you want brutal honesty from them and that this is a case about suing for damages and—all that is properly the subject of voir dire. I just don't want to characterize it as an opening statement."
2. Issues Raised on Appeal.
D.D. contends the trial court violated the plain language, as well as the "purpose and spirit," of Code of Civil Procedure section 222.5 by not allowing his counsel to give a brief opening statement prior to voir dire questioning. D.D. also contends the court's restrictions on voir dire were arbitrary and unreasonable.
All statutory references are to the Code of Civil Procedure unless otherwise noted.
3. Section 222.5 and Its Legislative History.
"The ‘interpretation of governing statutes is decided de novo by the appellate court.’ [Citation.] ‘When we construe a statute, our " ‘ "fundamental task ..." ’ ... ‘ "is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute." ’ " ’ " ( Alcazar v. Los Angeles Unified School Dist. (2018) 29 Cal.App.5th 86, 94, 239 Cal.Rptr.3d 863.) Section 222.5 provides, in relevant part: "Upon the request of a party, the trial judge shall allow a brief opening statement by counsel for each party prior to the commencement of the oral questioning phase of the voir dire process." (Id. , subd. (d), italics added.) The provision was enacted as an amendment to section 222.5, and went into effect on January 1, 2018. (Sen. Bill No. 658 (2017–2018 Reg. Sess.) (Sen. Bill No. 658); Stats. 2017, ch. 337, § 1, approved Sept. 27, 2017.) Prior to that amendment, the relevant provision of section 222.5 read, "The trial judge should allow a brief opening statement by counsel for each party prior to the commencement of the oral questioning phase of the voir dire process." (Former section 222.5, italics added; Assem. Bill No. 1403 (2011–2012 Reg. Sess.); Stats. 2011, ch. 409, § 1, approved Oct. 2, 2011, eff. Jan. 1, 2012.)
"The word ‘shall’ is ordinarily ‘used in laws, regulations, or directives to express what is mandatory.’ " ( Hogya v. Superior Court (1977) 75 Cal.App.3d 122, 133, 142 Cal.Rptr. 325.) "However, justice is not the slave of grammar, and ‘shall’ has sometimes been judicially construed as directory or permissive." ( Id. at p. 134, 142 Cal.Rptr. 325.)
A "directory" provision is "[a] provision in a statute ... which is a mere direction or instruction of no obligatory force, and involving no invalidating consequence for its disregard, as opposed to an imperative or mandatory provision, which must be followed." (Black's Law Dict. (4th ed. 1968 rev.) p. 547, col. 2.)
In analyzing Senate Bill No. 658, the Senate Rules Committee described amendments to section 222.5, as follows: "This bill ... amends [s]ection 222.5 by adjusting a handful of advisory (‘should’) provisions and making them mandatory." (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 658 (2017–2018 Reg. Sess.) as amended Aug. 22, 2017, p. 5.) "[T]his bill seeks to find the proper balance in the courtroom for ideal voir dire practices. On one side of the balance, the court must be granted a certain level of discretion in guiding the proper questioning of prospective jurors in a civil trial and in controlling the judge's courtroom. On the other hand, counsel for the parties must be given the appropriate leeway to conduct thorough and meaningful voir dire." (Id. at p. 7.) The analysis provides several examples of how the amendments limit the trial court's discretion through the use of the term "shall" but makes no mention of the provision concerning brief opening statements. (Ibid. )
Another legislative summary of Senate Bill No. 658 stated the bill "[c]larifies that a trial judge should allow a brief opening statement by counsel for each party prior to the commencement of the oral questioning phase of the voir dire process upon the request of a party." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 658 (2017–2018 Reg. Sess.) as amended Aug. 21, 2017, p. 2, par. 11.) "After [the judge asks standard preliminary questions], counsel for each party may provide a brief opening statement (if allowed by the judge)." (Id. at p. 4.) These same statements were included in an earlier analysis provided by the Assembly Committee on the Judiciary, which added, "this bill clarifies that counsel has an affirmative duty to request the option of making an opening statement before a court will determine whether the opening statement will be allowed or not." (Assem. Com. on Judiciary, Analysis of Sen. Bill. No. 658 (2017–2018 Reg. Sess.) July 18, 2017, p. 8 [proposed amendment].)
4. The Trial Court Had Discretion to Restrict the Content of the Proposed Brief Opening Statement.
" ‘[I]t is not "a function of the examination of prospective jurors to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law." ’ " ( Alcazar, supra , 29 Cal.App.5th at p. 97, 239 Cal.Rptr.3d 863, italics omitted.) A trial court has discretion "to limit the amount of case-specific facts the parties could put before the prospective jurors either through [brief ]opening statements and/or their questioning." ( Ibid. )
Alcazar was decided under the version of section 222.5 in effect immediately prior to 2018. ( Alcazar, supra , 29 Cal.App.5th at p. 96, fn. 3, 239 Cal.Rptr.3d 863.) It determined a trial court's discretion to restrict content in brief opening statements was preserved by language of the statute which provided the " ‘scope of the examination conducted by counsel shall be within reasonable limits prescribed by the trial judge in the judge's sound discretion.’ " ( Id. at p. 98, 239 Cal.Rptr.3d 863, italics omitted.) Notably, the current version of section 222.5 retains nearly identical language. ( § 222.5, subd. (b)(1) ["The scope of the examination conducted by counsel shall be within reasonable limits prescribed by the trial judge in the judge's sound discretion subject to the provisions of this chapter."].) We conclude a trial court has discretion to restrict the content of a brief opening statement. Our conclusion is consistent with the legislative history of section 222.5 which, despite use of the phrase "shall allow a brief opening statement" (id. , subd. (d)), indicates the trial judge retains the discretion to allow or disallow a brief opening statement if it contains objectionable matter. In so concluding, we also observe the maxim that statutes should be "construed so as to avoid absurd or unreasonable results." ( Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 846, 125 Cal.Rptr.2d 829.) Were we to conclude a trial court lacks such discretion, we would open the door to abuse of the litigation process and potentially jeopardize parties' rights to a fair trial.
D.D. does not challenge or address the trial court's evidentiary ruling that the brief opening statement was argumentative. Accordingly, we accept the trial court's determination. ( Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074, 129 Cal.Rptr.3d 690 ( Salas ) [failure to challenge evidentiary ruling and to support challenge "with reasoned argument and citations to authority" results in a forfeiture].) Because a court retains discretion to reject improper content in a brief opening statement, the proper exercise of such discretion does not violate either the spirit or purpose of section 222.5.
5. Additional Claims of Error as to Motion In Limine No. 1 are Rejected.
D.D. makes a number of additional claims of error concerning the trial court's ruling on motion in limine No. 1. Specifically, D.D. contends the trial court's procedures violated subdivision (b)(1) of section 222.5, which provides a court shall permit voir dire examination "without requiring prior submission of the questions unless a particular counsel engages in improper questioning." The record does not show the court required counsel to submit voir dire questions before examining the jury panel and D.D. provides no cogent argument as to why this provision applies to brief opening statements. Accordingly, we reject this claim of error.
D.D. also contends the trial court's voir dire procedure was arbitrary and unreasonable. He argues the court's procedure was not contained in a standing trial order or Rule of Court and that the time limits imposed by the court were arbitrary. D.D. points to no authority suggesting the court's procedure in managing the voir dire process must be set forth in writing. Accordingly, we reject the contention. (See Salas, supra , 198 Cal.App.4th at p. 1074, 129 Cal.Rptr.3d 690 [claim of error forfeited upon failure to cite authority].) We likewise reject the contention the time limits set by the court were arbitrary. The jury panel was assembled and the voir dire process was underway. The court was within its authority to ensure the process continued without unnecessary delay and undue inconvenience to the jury panel. (See Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746, 766, 283 Cal.Rptr.3d 846 ["[C]ourts have inherent authority to manage litigation with the aim of protecting the parties' rights and the courts' ability to function."].)
6. D.D. Was Not Prejudiced By The Trial Court's Decision Not to Allow the Brief Opening Statement.
"No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." ( Cal. Const., art. VI, § 13.) In order to obtain a reversal of the judgment, an appellant bears the burden of demonstrating not only that the trial court committed error but also that the error was prejudicial. ( Christ v. Schwartz (2016) 2 Cal.App.5th 440, 455, 205 Cal.Rptr.3d 858 ( Schwartz ).) "Prejudice is not presumed." ( Ibid. )
In determining whether D.D. was prejudiced by the trial court's ruling, we ask whether it " ‘is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ " ( Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800, 16 Cal.Rptr.3d 374, 94 P.3d 513.) Reasonable probability " ‘does not mean more likely than not, but merely a reasonable chance , more than an abstract possibility. ’ " ( Ibid. )
D.D. claims he was prejudiced because "[t]he end result [of the trial court's ruling] was a cumbersome voir dire wherein the trial judge, due to juror confusion, had to read and re-read the neutral [s]tatement of the [c]ase on several occasions during attorney questioning" and "several of the [prospective] jurors expressed confusion over the process and an unwillingness to participate until hearing something about the facts of the case." He goes on to state that "these errors of law and irregularities compromised jury selection to such an extent as to result in a miscarriage of justice."
D.D. cites to only a single instance where the trial court reread portions of the neutral statement of case to the jury panel in response to a prospective juror's question: "Is this an adult that hit or the child [sic ] or child that hit a child supposedly?" We cannot attribute this single instance to the trial court's ruling.
Moreover, we disagree with the characterization that prospective jurors were unwilling to participate in the hearing until they heard facts about the case. What the record shows is that they were unwilling to commit to any particular outcome or determination until all the facts were before them. That outlook is proper for a prospective juror. We also reject the characterization that prospective jurors expressed confusion over the process. It is not uncommon for prospective jurors to have uncertainty as to trial practice and process. We cannot attribute that uncertainty to the trial court's ruling on D.D.'s motion in limine No. 1.
Notably, the trial court permitted D.D.'s counsel to reference the information contained in his brief opening statement when examining the jury panel. D.D. does not contend he was denied the opportunity to do so. Moreover, the court read the following neutral statement of the case to the panel, which was approved by D.D.'s counsel and contained much of the same information as the brief opening statement: "This case involves an incident that took place in a residential neighborhood in Bakersfield on Monday, February 22, 2016[,] at approximately 4:00 P.M. Plaintiff [D.D.] was six years old at the time of the incident. Plaintiff [D.D.] claims that Defendant ... Pitcher is responsible because Defendant Pitcher while riding his bicycle ran over Plaintiff [D.D.]'s leg. Defendant Pitcher claims that he did not run over Plaintiff [D.D.]'s leg. Plaintiff [D.D.]'s left leg was broken. Plaintiff [D.D.] is also claiming damages, general damages, for the injuries he suffered. Defendant ... Pitcher denies any responsibility for these damages."
On the record before us, we are unable to conclude it is reasonably probable D.D. would have received a more favorable result had the court unconditionally granted his motion in limine No. 1.
See footnote *, ante .
II. THE TRIAL COURT DID NOT ERR IN DENYING D.D.'S MOTION FOR A NEW TRIAL
See footnote *, ante .
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded in favor of respondent David Pitcher.
WE CONCUR:
POOCHIGIAN, Acting P. J.
SNAUFFER, J.
* See footnote, ante , page 1.