Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV441174
Reardon, J.
Appellant Linda U. McKinley suffered serious injuries when knocked down a flight of stairs at respondent San Francisco Bay Area Rapid Transit District’s (BART) Millbrae station by defendant Anthony White. This is McKinley’s second appeal. The first time we reversed summary judgment in BART’s favor, concluding, among other points, that the trial court erred in foreclosing her negligence cause of action premised on BART’s vicarious liability for its employee’s negligent acts or omissions within the scope of employment. (McKinley v. San Francisco Bay Area Rapid Transit District (Dec. 7, 2006, A111579 [nonpub. opn.].)
On remand, the jury returned a defense verdict. McKinley now attacks the trial court’s decision to exclude evidence of White’s substantial contacts with BART police. There being no error, we affirm the judgment.
I. FACTS
A. The Incident
Shortly after 7:00 a.m. on November 3, 2003, BART train operator Kelly Diaz (formerly Kennedy) pulled into the Millbrae station after announcing that the train was going out of service. She began “sweeping” the train, proceeding from one end to the other and off-boarding any remaining patrons. During the sweep she came across four or five patrons who were sleeping.
We take judicial notice that the Millbrae station is the last stop on the Richmond-Millbrae BART line.
Anthony White was sitting up, asleep, in one of the cars. He was the only person in the car. Upon opening the door to the car where White was sleeping, Diaz noticed “a strong odor of alcohol.” Standing approximately five to 10 feet from White, she could smell the strong odor on “[t]he car and Mr. White.” There was an empty, oversized can of what Diaz thought was “malt liquor or beer” at the opposite end of the car.
It took Diaz about a minute to rouse White and get him off the train. As White stood to exit, he walked slowly and did not have perfect balance. According to statements attributed to Diaz by a BART investigating officer, as reflected in his BART police report, Diaz said it took about a minute to awaken White, and she believed he was intoxicated. Diaz had never encountered White prior to the incident in question.
The police report was provided to the jury as an exhibit.
That morning station agent Brian Cutillo saw White coming up to the concourse level. This was not the first time Cutillo had seen White. He looked “like a regular,” and Cutillo assumed he had seen him various times before. He did not remember a specific instance of kicking White out of a BART station, but it seemed to Cutillo that had happened on one occasion.
Cutillo thought that White was heading for the emergency gate and there was a possibility he might leave through that gate. Cutillo walked approximately 60 feet from his booth to confront White because he thought he was going to attempt to evade fare. Standing approximately three feet from each other, they spoke for about 10 seconds. White asked how to get to San Francisco. Cutillo pointed toward the direction of the stairway, but never asked him if he had a ticket. Cutillo watched White walk a little ways then returned to his booth. Within two to 10 minutes, Cutillo learned that White had fallen on McKinley.
McKinley was on her way to work around 7:00 that morning. As she approached the stairs, McKinley saw a large man walking “so slow.” She described this person as “disheveled,” a “homeless person.” McKinley walked around White and began descending the stairs to BART platform three, staying to the right. According to McKinley, “[S]uddenly somebody fell on my back. And the next thing I knew, I was flying down the steps with the guy behind me, face first. And I hit the bottom of the stairs, chin first.” Her chin hit the concrete; teeth were missing; her mouth was bleeding onto her clothes. White was motionless and looked “passed out.”
Officer Lorente responded to the accident report. McKinley was bleeding profusely from her mouth. She asked the officer, “Where are my teeth?” After briefly tending to McKinley, Officer Lorente turned his attention to White. White was unresponsive. Officer Lorente smelled a “strong odor of alcohol’’ on White. He also noticed that White smelled of urine, feces and extreme body odor, as if he had not showered within a month. Officer Lorente characterized the smell as “typical of a homeless person.” As well, he was “kind of unkempt.” White’s leg appeared to be broken.
Diaz found out about the incident while still at the Millbrae BART station. She went to the scene and approached Officer Barrera, the investigating officer, because she wanted him to know that “Mr. White smelled of alcohol”; she had just kicked him off the train; and White had not come through the paid gates. Diaz had testified in deposition to her opinion that patrons who are kicked off one train and head for another are usually “taking the system for a ride.”
B. McKinley’s Injuries
McKinley was hospitalized for eight days, during which time she underwent surgery and spent about three days in intensive care. She was discharged on November 11, 2003. Her jaw was wired shut, she had a drain intact, and was in constant pain. McKinley underwent physical therapy from the end of December 2003 through April 2004.
McKinley still experienced jaw pain and migraine headaches as of January 2008. She wears a partial denture to replace teeth lost in the accident. McKinley’s teeth are misaligned and she cannot eat solid food larger than the size of a pea; she cannot bite into food, often chews the inside of her cheeks and sometimes she cannot control food dribbling out of her mouth.
McKinley said she was “a bit disfigured” with a shortened face due to collapsed muscle and the bone and tooth loss in her upper jaw. She has difficulty pronouncing some words. Her injuries have affected how she interacts with people on a professional and personal level. She does not feel good about herself and experiences sadness and depression.
C. White’s Condition
White was treated at San Francisco General Hospital. According to the summary of Dr. Tania Esakoff, the physician who cared for him, White was a daily crack user; he had used crack at 10:00 p.m. the night before the incident. When withdrawing from crack, White “usually [became] very somnolent.” Her report described White as “very lethargic.” Dr. Esakoff explained that somnolence is “a depressed state of arousal. [¶]... [¶]... It’s basically sleepiness, so sleep-like behavior. [¶]... [¶]... So somnolence is in the spectrum of complete arousal to being completely awake, and coma is being completely unresponsive. So somnolence would be closer to coma than arousal.” It took several days into White’s admission for the somnolence to clear. Dr. Esakoff’s summary stated that White “usually becomes very somnolent when coming off of crack and on dissipation fell asleep and tumbled down the stairs at a BART station.”
White died of unrelated causes prior to trial.
D. BART Policies
BART train operators are trained to sweep a train when it is taken out of service. If a sleeping patron is unresponsive after specific attempts to get the patron’s attention, the operator must notify the Operations Control Center which in turn immediately notifies BART police.
BART employees, including train operators and station agents, are instructed to notify the BART Police Department of criminal activity.
Officer Lorente testified that if he received a call regarding an intoxicated patron, he would first observe the patron’s behaviors to discern if the person were intoxicated and unable to care for him or her self. If so, he would arrest the person and take him or her to jail or a “detox” center.
E. White’s Prior Contacts with BART
Each time a patron or BART worker makes a call for service to BART police, a record of the contact is generated unless the call is cancelled. The record indicates the reason for the officer’s dispatch, the person contacted, the location of the contact, the results of investigation and how the contact was resolved. BART police can find out how many prior police contacts an individual has had by calling dispatch.
Between 1989 and the time of trial, White had 115 documented contacts with BART police; 89 occurred prior to his fall on McKinley. Of the 89 contacts prior to the incident in question, he was cited 14 times. Eight of the contacts were occasioned by White being found sick on BART. The remainder were criminal contacts, as follows: panhandling (22 contacts, 3 citations); willfully disturbing others (11 contacts); suspicious behavior (10 contacts); lodging (6 contacts, one citation); loitering, willfully ing the movement of others, smoking, aggressive begging and unlawful selling (16 combined contacts, one citation); fare evasion (6 contacts, 4 citations); suspicion of perpetrating violent crimes (battery and stabbing) (2 contacts); and drug-related offenses (5 contacts, 2 citations). White was picked up several times with an outstanding warrant and cited once for possession of burglary tools. During the above contacts, White was found passed out on seven occasions.
Thirty of the 89 contacts prior to the accident transpired in 2003. Only one occurred at the Millbrae station for possible fare evasion. Most of the 2003 contacts were at the Civic Center station and none involved Cutillo or Diaz.
F. Procedural History
1. First Appeal
BART initially moved successfully for summary judgment; we reversed. (McKinley v. San Francisco Bay Area Rapid Transit District, supra, A111579.) We concluded that “there [was] a triable issue of fact as to whether [Diaz] had knowledge—or reasonably should have had knowledge—that White was under the influence of an intoxicating liquor and/or drugs, and whether his condition was such that he was unable to care for his safety or the safety of others.... [¶]... [T]he papers submitted raise a question of fact whether [Diaz] failed to exercise ordinary care by negligently off-boarding White thereby creating a situation of peril that increased the risk of harm to BART patrons with whom he would mingle within the restricted paying area of the station.” We remanded for further proceedings; jury trial was set for January 2008.
2. Order Excluding Evidence of Contacts
Back in the trial court, BART moved to exclude evidence of White’s contacts with BART police. Denying the motion with exceptions not pertinent here, the trial court first concluded under Evidence Code section 352 that their admission on the question of whether the prior contacts “showed a pattern or a habit on [BART’s part] of not dealing appropriately with Mr. White” would consume an “undue waste of time,” requiring 115 mini-trials on whether he should have been cited. Additionally, the court concluded that the probative value of the evidence was outweighed by the prejudicial effect. Further, the court ruled that BART’s knowledge of the contacts was not imputed to employees such as Diaz and Cutillo under Civil Code section 2332 (section 2332).
Section 2332 states: “As against a principal, both principal and agent are deemed to have notice of whatever either has notice of, and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other.”
3. Verdict
Special verdict forms were submitted to the jury asking, as to Diaz and Cutillo, whether each was negligent, and, if so, whether such negligence was a substantial factor in causing harm to McKinley. The jury found neither was negligent.
II. DISCUSSION
A. The Prior Contacts, Offered as Evidence of Habit and Custom, Were Properly Excluded
McKinley is adamant that evidence of the contacts should have been admitted under Evidence Code section 1105 to show White’s habit of “conspicuous criminal activity within BART, and his habit of drug use, intoxication, and possession on BART premises, which are relevant evidence of his physical condition at the time of the incident.” As well, she posits that the contacts illustrate BART’s “custom of inaction regarding WHITE,” which in turn is “competent evidence that Diaz and Cutillo took no further action because of BART’s custom, despite WHITE’s clearly dangerous condition and behavior.”
Evidence Code section 1105 provides: “Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.”
Evidence Code section 352 vests discretion in the trial court to 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.” The trial court must reasonably exercise this discretion in accord with the facts before the court. (Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 674.) Assuming for purposes of argument only that the proffered evidence is properly categorized as habit and custom, there was no error here.
First, there was direct evidence of White’s physical condition based on descriptions provided by Diaz, Cutillo and Officer Lorente, as well as Dr. Esakoff, White’s treating physician. Thus, circumstantial “habit” evidence in the form of these prior contacts was cumulative on this issue and properly excluded under Evidence Code section 352 as, in the trial court’s words, “an undue waste of time.” McKinley contends nonetheless that the prior contacts evidence was necessary to counteract the self-serving testimony of Diaz and Cutillo regarding White’s conduct on the day in question, particularly in light of the fact that the court excluded Dr. Esakoff’s testimony regarding the characteristics of somnolent individuals. We disagree. As can be seen from the fact statement in part I.C., ante, Dr. Esakoff defined somnolence as sleep-like behavior and placed the condition on a spectrum from coma to complete arousal. She indicated that White smoked crack daily and last used it at 10:00 p.m. the night before the accident. Additionally, the doctor explained that White’s usual condition coming off crack was to become “very somnolent,” and described him as “very lethargic.” BART objected on relevancy grounds to the question, “What sort of behaviors would someone exhibit if they were somnolent?” Sustaining the objection, the court prompted McKinley’s attorney to ask what behaviors were observed in this patient. Thereafter the attorney asked Dr. Esakoff to read the part of her report regarding White’s somnolence. Clearly, the medical facts concerning White’s drug usage and condition were presented to the jury.
Second, the theory that the limited response of Diaz and Cutillo was driven by BART’s custom of inaction simply does not make sense. For this theory to be relevant, McKinley would need to show that Diaz and Cutillo were aware of the purported custom and adopted it as part of their code of behavior. However, there was no evidence that any of the prior contacts involved either employee or that BART management somehow conveyed to them that they need not report White—or persons such as White—to BART police.
B. The Prior Contacts Were Properly Excluded to Prove that BART’s Agents Had Actual and Constructive Knowledge of White’s Dangerous Presence
McKinley also maintains that the prior contacts were relevant to show that “White’s presence in BART was ubiquitous,” thus tending to prove that Diaz and Cutillo had “actual and constructive knowledge” of his dangerous presence within the BART station. The prior contacts do not establish constructive or actual knowledge on the part of Diaz and Cutillo and therefore are irrelevant for that purpose. Of the 30 contacts that occurred in 2003 prior to McKinley’s fall in November of that year, only one—for suspected fare evasion—occurred at the Millbrae station. Moreover, none of the contacts involved Diaz or Cutillo. The premise of White’s ubiquity in the BART system for purposes of establishing actual or constructive knowledge on the part of Diaz and Cutillo is not sustained.
In a related vein, McKinley also protests that, contrary to the trial court’s ruling, section 2332 does apply to impute constructive knowledge of the prior contacts from BART to Diaz and Cutillo. Not so.
Section 2332’s lead-in phrase—“[a]s against a principal”—signals the intent that knowledge is imputed from the bottom up; that is, from agent to principal, but not vice versa. This phrase is the condition upon which the statutory provision rests.
We have found only one published opinion on point, Godwin v. City of Bellflower (1992) 5 Cal.App.4th 1625 (Godwin). There, the plaintiff argued that his statutory 90-days’ notice of intention to commence a medical malpractice action, which was sent to the hospital, should suffice as notice to the targeted doctors. He reasoned that the hospital was the doctors’ principal, and as such the hospital’s knowledge was imputed to them. (Id. at p. 1631.) The reviewing court found the plaintiff’s reliance on section 2332 unpersuasive: “By its very terms, Civil Code section 2332 speaks to imputation of knowledge ‘[a]s against a principal’; it says nothing about imputing a principal entity’s knowledge to its agents.... We find no principle in the law of agency to support a holding that an agent must be charged with knowledge of facts given to a principal business entity.” (Ibid.)
McKinley attempts to distinguish Godwin, asserting that there, the purpose of the notice statute could only be effectuated if the health care provider received actual notice. Here, she argues, constructive notice will do. Notwithstanding this distinction, the Godwin court’s construction of the plain language of section 2332 is on point.
The Restatement Third of Agency supports our analysis that facts known to a principal are not imputed downward to an agent. Section 5.03, page 359 states the general rule: “For purposes of determining a principal’s legal relations with a third party, notice of a fact that an agent knows or has reason to know is imputed to the principal if knowledge of the fact is material to the agent’s duties to the principal....” Comment g makes it clear that “[n]otice of facts that a principal knows or has reason to know is not imputed downward to an agent. A principal does not owe a duty of disclosure to an agent that is a full counterpart of the duty owed by an agent to relay material facts....” (Rest.3d Agency, § 5.03, com. g, p. 375.) The commentary goes on to explain that most codifications of agency law provide that principal and agent are each deemed to have notice of what the other has notice, but that these provisions also state that “such deeming shall be operative only ‘as against the principal.’ ” (Id., com. g, illus. 23, p. 376.) Such is the case with section 2332.
III. DISPOSITION
The judgment is affirmed.
We concur: Ruvolo, P.J., Sepulveda, J.