Opinion
A100632.
7-31-2003
SHAO MEI GUO, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.
The jury rendered a defense verdict, finding that San Francisco Municipal Railway (Muni) bus driver Christine Eglip did not drive negligently and that respondent City and County of San Francisco (City) was not vicariously liable for the injuries appellant Shao Mei Guo sustained after falling on the bus Eglip drove. Guo appeals, contending that the trial court (1) should have vacated the stipulation to bifurcate; (2) erred in excluding evidence of Guos surgery from the liability phase of the trial; (3) erred by not giving a special jury instruction based on Vehicle Code section 21703; (4) delivered inconsistent jury instructions on both the general definition of negligence and the standard of care
for common carriers; and (5) improperly prevented her from referring to a drivers handbook when questioning the bus driver. We find no prejudicial error and accordingly affirm the judgment.
I. FACTS
On February 24, 1999, approximately 1:00 p.m., Shao Mei Guo rode a Muni bus driven by Christine Eglip. As Eglip drove the bus down Fourth Street, a car cut across from the far left lane and made an illegal right turn onto Mission Street. As a result, the cars in front of the bus abruptly stopped; Eglip had to brake suddenly to avoid hitting the cars in front of her. After Eglip applied the brakes a second time, Guo fell. She was the only passenger on the crowded bus to fall as a result of the sudden braking. However, a seated child bumped his head during the abrupt stop.
Guo sued the City for negligence. She received a $ 357,000 verdict following a jury trial, but the court granted the Citys motion for a new trial. Specifically, the court found that the jury engaged in misconduct by arbitrarily awarding noneconomic damages, adding attorney fees to the award, considering evidence not presented at trial, and failing to disclose biases against Muni during voir dire. The court also found that the overwhelming weight of the evidence supported a finding that the City was not negligent.
The matter was set for retrial in June 3, 2002. On May 15, 2002, Marta Kempton, Guos counsel at the time, requested a two-month continuance. Counsel for the City agreed to the continuance provided that Kempton agree to bifurcate the liability and damages phases. Kempton agreed and signed a stipulation to that effect; the stipulation was filed on May 17, 2002. On May 21, 2002, Sara Colpitts informed the City that she had replaced Kempton as Guos counsel. On the same day, Colpitts attached the stipulation to a supplemental declaration she filed in support of a continuance. At the hearing the court indicated good cause did not exist for a continuance, but granted the continuance because there was no objection.
Thereafter, Guo moved to set aside the stipulation to bifurcate. The court denied the motion without prejudice and the matter proceeded to a jury trial.
The jury returned a verdict for the defense, concluding that the City was not vicariously liable through driver Eglip. The court denied Guos motion for a new trial.
II. TRIAL COURTS DECISION TO UPHOLD STIPULATION
TO BIFURCATE
Guo challenges the trial courts denial of her motion to set aside the bifurcation order. She claims (1) bifurcation deprived her of a substantial right; (2) the bifurcation was based on an attorney mistake; and (3) equity does not support bifurcation in a two-day trial.
A. The Bifurcation Did Not Deprive Guo of a Substantial Right
On appeal from a denial of a motion to set aside the bifurcation, we determine anew whether the bifurcation order should be vacated. We apply the abuse of discretion standard of review to the trial court ruling. (Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal. App. 3d 1072, 1086, 234 Cal. Rptr. 835.) The trial court abuses its discretion only when its ruling exceeds the bounds of reason. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal. Rptr. 65, 468 P.2d 193.)
Attorneys may bind their client in procedural matters arising in the course of an action. (Linsk v. Linsk (1969) 70 Cal.2d 272, 276, 74 Cal. Rptr. 544, 449 P.2d 760.) Attorneys may also limit issues or defenses to be tried. (Bemer v. Bemer (1957) 152 Cal. App. 2d 766, 771, 314 P.2d 114.) However, an attorney cannot waive a clients substantive rights without the clients permission. (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404-405, 212 Cal. Rptr. 151, 696 P.2d 645.) A lawyer violates the clients substantial rights if he or she, among other things, enters a contract, binds the client to arbitration, approves a settlement, or waives findings, without the clients permission. (Id. at p. 407; Linsk v. Linsk, supra, 70 Cal.2d at p. 278.)
Guo claims that the right to try liability and damages together is a substantial right and therefore the bifurcation stipulation accepted without her knowledge or permission is not binding. We disagree. Guos first attorney made a strategic and procedural decision to stipulate to bifurcation. With the stipulation counsel obtained a continuance. Further, if liability were established, the matter would likely settle, thereby serving the economy and convenience of the parties. The procedural decision to bifurcate is binding on Guo. The order upholding the validity of the bifurcation did not exceed the bounds of reason.
B.The Bifurcation Was Not Based on Attorney Mistake
An order or judgment may be vacated by the court when an attorney signs an affidavit attesting to his or her mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b).) The trial court must assess the credibility of the attorneys affidavit. (Ibid.; Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.) If the court finds that the attorneys mistake, inadvertence, surprise or neglect was not solely responsible for the judgment, the court will not vacate the judgment. (Johnson v. Pratt & Whitney Canada, Inc., supra, at p. 622.)
We conclude that the record does not support Guos contention that bifurcation was based on attorney mistake. But for Kemptons agreement to the stipulation to bifurcate, the City would have opposed Kemptons motion for a continuance. Additionally, the trial court only granted the motion because the City did not oppose it. Moreover, appellant fails to meet the statutory requirement that the attorney allegedly at fault must sign the affidavit. (Code Civ. Proc., § 473, subd. (b).)
C.Equity is Not the Proper Standard
of Review
Finally, Guo maintains that the equities of the case do not support enforcement of the bifurcation stipulation. She contends that the request for continuance was due to a change of counsel representing Guo, that bifurcation of the two-day trial did not result in substantial savings of judicial resources, and that despite bifurcation, there was not a complete separation of liability and damage issues.
The standard of review is abuse of discretion. (See Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co., supra, 189 Cal. App. 3d at p. 1086.) Therefore, Guo must identify a clear case of abuse leading to a miscarriage of justice. (See ibid.) She cannot do so. Again, the order upholding the validity of the bifurcation did not exceed the bounds of reason.
III. EXCLUSION OF EVIDENCE OF APPELLANTS POSTACCIDENT TREATMENT
Guo contends that the trial court erred in prohibiting her from testifying about her postaccident treatment during the liability portion of a bifurcated trial. Guo maintains that such testimony was relevant to the issue of liability in that it established that Eglip was following too close to the vehicle in front of her. The trial court observed that the first phase of the trial was about the accident. Accordingly, it concluded that there would be no medical expert testimony during that phase and Guo was not qualified to testify "about the medicals," in particular that the impact of the accident was so severe that a bone in her neck came loose. However, the court allowed Guo to describe her injuries and the injuries of another passenger, and to testify that she was taken by an ambulance to the hospital.
A trial court may exclude opinion testimony on a matter that is not a proper basis of the opinion. (Evid. Code, § 803.) We agree that Guos proffered testimony was improper opinion evidence under Evidence Code section 803. Moreover, we conclude that the proffered testimony was properly excluded under Evidence Code section 352 because its probative value was substantially outweighed by the potential to confuse the issues and consume undue time during the liability phase of the trial.
Evidence Code section 803 reads: "The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion. In such case, the witness may, if there remains a proper basis for his opinion, then state his opinion after excluding from consideration the matter determined to be improper."
IV. SPECIAL JURY INSTRUCTION BASED ON VEHICLE CODE SECTION 21703
Appellant further asserts that the trial court erred in not including her proposed jury instruction based on Vehicle Code section 21703. We disagree. The trial court must give jury instructions properly framing the plaintiffs theory of the case. (Freeze v. Lost Isle Partners (2002) 96 Cal.App.4th 45, 52-53.) A reviewing court examines the evidence most favorable to the proposition that the plaintiffs proposed instruction is applicable. (Id. at p. 53.)
This statute provides: "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."
A trial court may refuse to give an instruction based on Vehicle Code section 21703 if the other instructions cover the duties of vehicle operators. (Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 257, 66 Cal. Rptr. 20, 437 P.2d 508, disapproved on another ground in Privette v. Superior Court (1993) 5 Cal.4th 689, 702, fn. 4, 854 P.2d 721.) Here, the trial court gave instructions stating the duties of a Muni driver to the passengers, including the need to exercise care and diligence. Moreover, the court also included appellants instruction based on Vehicle Code section 22350, covering the duty of a driver to drive at a speed that does not endanger the safety of people and property. Since the existing jury instructions covered the duties of a Muni driver, Guos proposed jury instructions based on section 21703 of the Vehicle Code were redundant and the trial court properly declined to give them.
V. JURY INSTRUCTIONS FOR STANDARD OF CARE
We turn next to Guos contention that the jury instructions created an inconsistent standard of care by including the definition of the duty of a common carrier and the customary definition of negligence. We may only reverse a judgment for instructional error in a civil case if the error resulted in a miscarriage of justice. (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1423.) A miscarriage of justice occurs if it is probable that but for the instructional error, a different verdict would have been probable. (People v. Watson (1956) 46 Cal.2d 818, 836-837, 299 P.2d 243.)
Although Guo did not object to either set of jury instructions at the trial court level, she may do so on appeal. (See Lua v. Southern Pacific Transportation Co. (1992) 6 Cal.App.4th 1897, 1904-1905.)
The court first instructed the jury on the definition of negligence and then on the duty of a common carrier. Guos counsel referenced the common carrier heightened duty several times in closing arguments. While the standard of care for a common carrier is higher than for ordinary negligence, it is not inconsistent with the standard of care for ordinary negligence. Guos counsel reminded the jury on several occasions that utmost care is required of a common carrier. Therefore, we conclude that the inclusion of both the ordinary definition of negligence and the standard of care for a common carrier did not confuse the jury and did not constitute prejudicial error.
VI. JURY INSTRUCTION ON COMMERICAL DRIVING MANUAL
We turn finally to Guos contention that the trial court erred in prohibiting her from referring to the Department of Motor Vehicles commercial drivers handbook when questioning driver Eglip. The court may exclude evidence if that evidence poses a substantial danger of causing undue prejudice, confusing the issues, or misleading the jury. (Evid. Code, § 352.) A government handbook or manual may be admitted into evidence, but may not be used to establish the applicable standard of care or the presumption of negligence that otherwise would arise under Evidence Code section 669. (Evid. Code, § 669.1; Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 720-721; Colvin v. City of Gardena (1992) 11 Cal.App.4th 1270, 1280.) Although the trial court did not allow Guo to refer to the manual, she was permitted to ask the Muni driver about the rules set forth in the handbook. Guo had an opportunity to vigorously litigate the issue of the drivers negligence. It was reasonable for the trial court to exclude the name of the handbook to avoid causing undue prejudice, confusing the issues, misleading the jury, or running afoul of Evidence Code section 669.
"A rule, policy, manual, or guideline of state or local government setting forth standards of conduct or guidelines for its employees in the conduct of their public employment shall not be considered a statute, ordinance, or regulation of that public entity . . . unless the rule, manual, policy, or guideline has been formally adopted as a statute, as an ordinance . . . or as a regulation . . . ." (Evid. Code, § 669.1.)
The judgment is affirmed.
We concur: Kay, P.J., Sepulveda, J.