Opinion
B222719
09-26-2011
JESSE ROSENBERGER, Plaintiff and Respondent, v. COUNTY OF LOS ANGELES et al., Defendants and Appellants.
Thomas Law Firm, Allen L. Thomas and Lori D. Galbreath for Defendants and Appellants. Gary M. Schneider for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC099924)
APPEAL from a judgment and orders of the Superior Court of Los Angeles County, Cesar C. Sarmiento, Judge. Affirmed.
Thomas Law Firm, Allen L. Thomas and Lori D. Galbreath for Defendants and Appellants.
Gary M. Schneider for Plaintiff and Respondent.
INTRODUCTION
This is a personal injury action. It arose from an accidental collision between a pedestrian and an automobile. The pedestrian was plaintiff Jesse Rosenberger. The automobile was driven by defendant Michael Zabielski, a reserve deputy sheriff employed by defendant County of Los Angeles (County). Rosenberger sued Zabielski and County for negligence, and obtained a judgment for nearly $1 million. Defendants appeal the judgment and two post-judgment orders. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Pre-Accident Events
At about 9:00 p.m. on February 9, 2008, Rosenberger and his friend Matt Anslich went to Molly Malone's, a bar in Los Angeles. There they met for the first time Morgan McFeeley and Kirsten Michelle McGowne. Rosenberger and his companions drank alcohol at Molly Malone's.
At some point in the evening McFeeley and McGowne invited Rosenberger and Anslich to another bar, Red Rocks. Rosenberger went to Red Rocks with the two women; it is unclear whether Anslich joined them. Rosenberger drank more alcohol at Red Rocks. At about 1:00 a.m. on February 10, 2008, Rosenberger, McFeeley and McGowne decided to take a taxi to Mel's Diner on Sunset Boulevard in West Hollywood to get something to eat.
At this point Rosenberger had consumed a considerable amount of alcohol. He claims he had about six drinks that evening. According to defendants' expert, Dr. Vina Spiehler, Rosenberger consumed about 10 or 11 drinks, and at the time of the accident his blood alcohol level was about 0.145 grams per deciliter.
2. The Accident
Rosenberger and his two new friends exited their taxi on the south side of Sunset, across the boulevard from Mel's Diner. They then walked northward toward the restaurant. There was no cross-walk at that location, though there was one half a block westward at the intersection of Sunset Boulevard and Sunset Plaza Drive.
Rosenberger walked in front, with McFeeley and McGowne following. The three of them walked briskly across the two lanes of eastbound Sunset Boulevard and approached the median lane. Rosenberger took two or three steps into the median lane when he was suddenly struck by the right front bumper of Zabielski's police car. The collision caused Rosenberger to fly into the air and land in front of Zabielski's vehicle. Rosenberger was rendered unconscious and suffered serious injuries, which we shall discuss post. The accident occurred at about 1:20 a.m.
Very shortly before the accident, Zabielski was driving westbound on Sunset Boulevard when he received a dispatch regarding a disturbance at the International House of Pancakes (IHOP) at Santa Monica Boulevard in West Hollywood. Zabielski made a U-turn in the middle of a block, and started driving eastbound on Sunset Boulevard. At the intersection of Sunset Plaza Drive Zabielski drove straight through a left hand turn lane and accelerated into the No. 1 lane of westbound Sunset Boulevard and the median lane. Zabielski was driving in the opposite direction of traffic. According to Zabielski, he did so in order to avoid gridlock traffic so that he could reach IHOP as soon as possible.
Zabielski saw Rosenberger only a fraction of a second before impact. Upon impact Zabielski immediately applied his brakes to stop the vehicle. When Zabielski's vehicle came to a stop it was facing east and was about two-thirds in the westbound No. 1 lane of Sunset Boulevard and one-third in the median lane.
Zabielski claims that he was driving 15-20 miles per hour when the accident occurred. An independent witness, Anthony Markarians, estimated that Zabielski's vehicle was traveling 40 miles per hour.
Zabielski testified that prior to the accident he activated the red lights on his vehicle and that he used a "burst of siren intermittently every one to two seconds." Immediately after the accident, however, Zabielski told Sam Young, the deputy sheriff assigned to investigate the incident, that he was only using his red lights. Zabielski did not mention using his siren. Rosenberger, McFeeley and McGowne testified that they did not see any red lights or hear a siren. Witnesses Kimberly Christensen and Anthony Markarians also stated that they did not see red lights or hear a siren. Another witness, Ruben Hernandez, testified that he saw red lights on the police car a split second before the accident but did not hear a siren.
3. The Nature of Zabielski's Response to the Dispatch
The parties dispute whether Zabielski was responding to an "emergency" call and whether Zabielski was undertaking a "Code 3" response. Code 3 is a term used in the Los Angeles County Sheriff's Department (LACSD) internal policies. LACSD policies provided the following examples of Code 3 situations: "Officer needs assistance," "Traffic accidents with injuries," "Baby/person choking," "Breathing ceased/heart stopped," "Blood runs," and "Felony in progress/just occurred, suspect in area."
With respect to driving, the LACSD policies stated: "It is the policy of this Department to perform all Code 3 responses in accordance with applicable laws, utilizing red light and sounding a siren, as may be reasonably necessary, with due regard for the safety of all persons using the highway." The LACSD policies further stated that the dispatcher shall designate Code 3 responses and that field personnel "should not normally initiate a Code 3 response based upon an emergency call received without Code 3 authorization, since desk personnel usually have better information upon which to determine the appropriate response."
According to Deputy Sheriff Young, if a deputy decides on his own to make an emergency Code 3 response with lights and siren, he or she is required to first notify the dispatcher over the radio that he is doing that. Zabielski testified that under LACSD policy, a deputy sheriff is required to comply with the rules of the road except when he or she activates the vehicle's lights and sirens in a Code 3 response.
The police radio dispatch Zabielski received shortly before the accident advised him that "a female, black, in her mid thirties" was "arguing with employees at IHOP[.]" There was no mention in the dispatch of a physical fight, a threat of violence, the use of a weapon, or an injury requiring medical attention.
Zabielski testified that the dispatch he received shortly before the accident was a "priority" call and that the dispatcher "did not give it an emergency classification[.]" He further testified that a priority call was not an emergency call.
Zabielski did not advise the dispatcher or anyone else that he was engaged in a Code 3 response. Moreover, prior to the accident, in his "own mind" Zabielski classified the dispatch as a "priority call" and not a Code 3. Nonetheless, Zabielski testified that "this was an emergency condition that required [him] to go" Code 3 because he
"believed" he was "responding to an emergency . . . ." Deputy Young, however, stated that immediately after the accident Zabielski did not inform him that he was responding to a Code 3 emergency.
Zabielski further stated: "What I decided was I'm not going to respond lights and sirens the entire way because I hadn't heard enough information that this warrants a [Code 3] response the full distance. I was using my discretion to split the difference to say let me get past the split traffic. If the traffic flow opens up and I can get there safely without lights and siren, I'll do that."
4. The Proceedings in the Trial Court
On September 25, 2008, Rosenberger filed the complaint in this action against Zabielski and County. The complaint set forth one cause of action for negligence.
In November 2009 the case was tried before a jury. On November 16, 2009, the jury rendered a special verdict finding defendants negligent. The jury found that Rosenberger sustained the following damages: $114,855 in past medical expenses, $150,000 in future medical expenses, $600,000 in past noneconomic loss (physical pain and mental suffering), and $400,000 in future noneconomic loss. The jury further found that defendants were 73 percent at fault, while Rosenberger was 27 percent at fault.
On December 2, 2009, the trial court entered a judgment on the special verdict in Rosenberger's favor in the amount of $923,344.15. Shortly thereafter, defendants filed three motions. The first was a motion for judgment notwithstanding verdict (JNOV), wherein defendants argued, inter alia, that there was a lack of substantial evidence to support the verdict. The second was a motion for a reduction of the judgment based on Government Code section 985. Finally, defendants filed a motion for a new trial. This motion was based in part on alleged jury misconduct.
This statute authorizes public entity defendants to move for a reduction of the judgment by the amount of collateral source payments made to the plaintiff. (Gov. Code, § 985.)
On February 3, 2010, the trial court denied all three post-trial motions. After the court and counsel conferred, however, the judgment was reduced to $879,738.24, plus costs, by nunc pro tunc order pursuant to Government Code section 985. Defendants filed a timely appeal of the judgment, the order denying their motion for JNOV, and the nunc pro tunc order modifying the judgment.
CONTENTIONS
Defendants argue that the trial court abused its discretion by admitting and excluding certain evidence. They contend that the trial court erroneously (1) permitted evidence of a 911 call placed from IHOP, (2) permitted questions regarding the traffic collision report, (3) prohibited defendants from presenting evidence of the custom and practice of deputy sheriffs responding to emergency calls, and (4) permitted evidence of the LACSD Code 3 policy.
Defendants further argue that trial court's decisions with respect to certain jury instructions deprived them of a fair trial. Specifically, they contend that the trial court erroneously refused to give (1) defendants' Special Jury Instruction No. 6 regarding Vehicle Code section 17004, (2) defendants' Special Jury Instruction No. 7 regarding Government Code section 820.2, (3) defendants' Special Jury Instruction No. 9 regarding Vehicle Code section 21954, and (4) California Civil Jury Instructions (CACI) No. 413 regarding custom and practice, and that (5) the trial court erroneously gave a series of negligent per se jury instructions.
In addition, defendants argue that the trial court erroneously denied them a new trial because there was jury misconduct. They contend that (1) Juror No. 11 wrongfully concealed that she was an attorney during voir dire, (2) comments made by Juror No. 11 reveal an undisclosed bias, (3) Juror No. 9 concealed having a neck injury and neck pain, (4) Juror No. 9 inappropriately expressed her opinion about the case before deliberations, and (5) Juror No. 9 conducted independent research.
Defendants also argue there was not substantial evidence to support the special verdict that defendants were negligent and that the trial court should have granted their motion for JNOV. Finally, defendants argue that the damages were excessive and not supported by substantial evidence. In particular, they challenge (1) the million dollar verdict of general damages, (2) the $150,000 award for future medical care, and (3) the percentage of fault attributed to Rosenberger.
In total, defendants assert no less than 18 arguments. We reject all of them.
DISCUSSION
1. The Trial Court Did Not Commit Reversible Error With Respect to the Admission or Exclusion of Evidence
We review a trial court's ruling on the admissibility of evidence for abuse of discretion. (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419 (San Lorenzo).) A trial court does not abuse its discretion unless it acts in an arbitrary, capricious or patently absurd manner. (Ibid.)
A judgment or order cannot be reversed based on the erroneous admission of evidence unless the appellant shows that there was a miscarriage of justice. (Evid. Code, § 353, subd. (b); Cal. Const., art. VI, § 13.) "In civil cases, a miscarriage of justice should be declared only when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 692.)
The burden is on the appellant to establish both an abuse of discretion and a miscarriage of justice. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmative shown. This not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Id. at p. 564.)
a. The 911 Call
Defendants stated in their opening statement that the evidence would show Zabielski is "not supposed to sit in traffic gridlock on Sunset Boulevard while somebody beats up somebody at the IHOP." After opening statements, Rosenberger argued he should be allowed to introduce the tape of the 911 call to IHOP to impeach defendants' opening statement. The tape indicates that a customer at IHOP called 911 because the restaurant refused to serve her, and does not mention any physical altercation. The trial court delayed a ruling on this request. It stated: "Let's see how the evidence goes, how the questioning is on this issue."
During the trial Zabielski testified that he had been to IHOP in West Hollywood on previous occasions and that he knew the manger, Robert. He also stated that Robert would only call 911 when things "got real out of control . . . ." Zabielski further elaborated: "If [Robert is] calling 911 it means something is really going on, so this call stuck out to me, especially the fact it was related to a previous call. So that meant someone was coming back a second time, and he's calling 911. Something is going on at IHOP and I have to get there fast."
On cross-examination Zabielski admitted that before the accident he did not hear the call from Robert requesting for assistance and that he did not know whether Robert called the sheriff's station or 911. It appears that Robert called the station.
Subsequently, Rosenberger requested permission to play the 911 tape to impeach Zabielski's statement about Robert's alleged 911 call. Over defendants' objections, the court allowed the tape to be played to the jury.
Defendants contend that the tape of the 911 call was erroneously admitted into evidence because the information was unknown to Zabielski at the time he was heading toward IHOP. We agree that this evidence was generally inadmissible for the purpose of proving Zabielski's state of mind prior to the accident. (See Head v. Wilson (1939) 36 Cal.App.2d 244, 252 [after acquired information cannot be used to determine whether an ambulance was responding to an emergency call].) When Zabielski testified about Robert's alleged 911 call and the nature of conflict at IHOP, however, he opened the door for the admission of the 911 tape. The trial court did not abuse its discretion by allowing the 911 tape into evidence as impeachment of Zabielski's credibility. (Evid. Code, § 785.)
Perhaps another reasonable court would have ruled differently. But that is irrelevant to our analysis. The trial court's evidentiary ruling was not arbitrary, capricious or patently absurd. We therefore must affirm it.
b. Traffic Collision Report
Shortly before the trial, the court granted Rosenberger's motion in limine to exclude the traffic collision report regarding the accident at issue. As stated ante, during the trial Zabielski testified that he had used his siren prior to the accident. Zabielski was asked on cross-examination whether he told Deputy Sheriff Young he had used his siren. Zabielski replied that he did not recall.
Rosenberger's counsel then read portions of the traffic collision report which indicated that Zabielski had not informed Deputy Young about activating the siren. Defendants objected on the ground that the traffic collision report had been excluded pursuant to Rosenberger's own motion in limine. The trial court overruled the objection.
Defendants contend that this ruling was an abuse of discretion. We disagree. The traffic collision report was admissible for the purpose of impeaching Zabielski's credibility on the issue of the siren. (Evid. Code, § 785.)
c. Custom and Practice
Defendants argue that the trial court erroneously "refused to allow defendants' attorney to question Sergeant Belinda Johnson about the custom and practice of deputy sheriffs responding to emergency calls within the City of West Hollywood and about the Sheriff's Department 'Code 3' policy." The evidence cited by defendants indicates that Johnson was asked numerous questions regarding the Code 3 policy. The trial court sustained some objections to the questions and overruled others. Some questions were not objected to at all. None of the questions referred to "custom and practice."
Defendants fail to identify or analyze particular questions, objections, or rulings. They also fail to specify precisely which rulings they contend were erroneous, much less provide a coherent legal argument relevant to any particular ruling. We thus hold that defendants forfeited their argument regarding the exclusion of custom and practice evidence on appeal. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie) ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].) Moreover, even assuming the trial erroneously excluded evidence regarding custom and practice, defendants do not make any arguments whatsoever regarding the prejudice, if any, this purported error caused. Defendants therefore did not meet their burden of showing that there was a miscarriage of justice resulting from the trial court's evidentiary rulings related to Johnson's testimony.
d. Code 3 Policy
Defendants contend that the trial court abused its discretion by admitting evidence of the LACSD's Code 3 policy over their objection because the County Board of Supervisors has not adopted the policy as an ordinance. The only authority cited by defendants in support of their position is Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 720 (Lugtu).
In Lugtu, the California Supreme Court addressed whether provisions of a California Highway Patrol (CHP) safety manual were admissible under Evidence Code section 669.1 in a case involving the alleged negligence of a CHP officer. The court held that the provisions of the manual "may not properly be viewed as establishing the applicable standard of care, but they may be considered by the trier of fact in determining whether or not an officer was negligent in a particular case. The manual cannot be read to establish the standard of care, because there is no indication that the manual was adopted pursuant to the state (or federal) Administrative Procedure Act. Absent such adoption, Evidence Code section 669.1 forbids the use of the manual to establish the presumption of negligence that otherwise would arise under Evidence Code section 669. At the same time, Evidence Code section 669.1 specifies that this statute is not intended to affect the admissibility of such a manual into evidence, and thus it is clear that the manual may be considered as evidence on the question of negligence." (Lugtu, supra, 26 Cal.4th at p. 720-721.)
Here, the Code 3 policy was not used to establish the standard of care for Zabielski. It was instead presented to the jury for their consideration in determining whether Zabielski was negligent. Its admission into evidence therefore was consistent with Lugtu and Evidence Code section 669.1. The trial court did not abuse its discretion in overruling defendants' objection to the admission of the Code 3 policy.
2 The Trial Court Did Not Commit Reversible Error With Respect to Jury Instructions
"A party has the right to have the jury instructed on the law applicable to all theories of the case supported by the evidence." (Estate of Mann (1986) 184 Cal.App.3d 593, 612.) It is axiomatic, however, that a trial court may refuse a jury instruction if it incorrectly states the law. A trial court can also refuse a proffered jury instruction if it is duplicative, confusing or not helpful to the deliberate process (Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 528), or if it is argumentative. (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1109.)
"We independently review a claim of instructional error, as the underlying question is one of law, involving the determination of applicable legal principles." (Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 163; accord Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.) "In reviewing a challenge to jury instructions, we must consider the instructions as a whole. [Citations.] We assume that the jurors are capable of understanding and correlating all the instructions which are given to them. [Citation.]" (People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1294.)
When a trial court erroneously refuses to give a jury instruction or provides an erroneous jury instruction, we do not necessarily reverse the judgment. We can only reverse the judgment if the error was prejudicial. (Oxford v. Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 707.) "Instructional error in a civil case is prejudicial 'where it seems probable' that the error 'prejudicially affected the verdict.' [Citations.] Of course, that determination depends heavily on the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule)) "[W]hen deciding whether an error of instructional omission was prejudicial, the court must also evaluate (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Id. at pp. 580-581.)
a. Special Jury Instruction No. 6 Regarding Vehicle Code Section 17004
Vehicle Code section 17004 provides: "A public employee is not liable for civil damages on account of personal injury to or death of any person . . . resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call . . . ." (Italics added.) Defendants' Special Jury Instruction No. 6 stated: "Defendant, Scott Michael Zabielski is not liable for civil damages on account of personal injury to plaintiff, Jesse Rosenberger resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call, even if you find that he was negligent." The trial court refused this instruction. Defendants contend this was error. We disagree.
This statute only provides immunity to public employees and not to public entities. (Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 885.)
Instead of using Special Jury Instruction No. 6, the trial court gave CACI No. 730. Although CACI No. 730 is expressly based on Vehicle Code section 21055, the official directions for use of the instruction notes the language of Vehicle Code section 17004 and refers to a case applying that latter statute. CACI No. 730 thus appears to incorporate Vehicle Code section 17004.
The instruction stated: "Defendants, County of Los Angeles and Scott Zabielski, claim that Scott Zabielski was not required to comply with Vehicle Code sections 21650, 21651, 21460.5, 22350, and 21461 because he was operating an authorized emergency vehicle and was responding to an emergency at the time of the accident. [¶] To establish that Scott Zabielski was not required to comply with the sections just read to you, defendants must prove all of the following: [¶] 1. That Scott Zabielski was operating an authorized emergency vehicle; [¶] 2. That Scott Zabielski was responding to an emergency situation at the time of the accident; and [¶] 3. That Scott Zabielski sounded a siren when reasonably necessary and displayed front red warning lights. [¶] If you decide that [defendants] proved all of these things, then you cannot find it negligent for a violation of sections read to you. However, even if you decide that defendants proved all of these things, you may find it negligent if Scott Zabielski failed to operate his vehicle with reasonable care, taking into account the emergency situation."
Special Jury Instruction No. 6 refers to an emergency "call"; CACI No. 730 does not. The trial court's decision to use CACI No. 730 instead of Special Jury Instruction No. 6 was correct because there was no substantial evidence of an emergency call. Zabielski admitted he received a priority call, not an emergency call, and that in his own mind he never classified the call as a Code 3 response. While Zabielski may have "believed" there was an "emergency" situation at IHOP (without telling the dispatcher or investigator Young), the "call" he received was a priority call, not an emergency call.
The trial court gave defendants' Special Jury Instruction No. 8, which stated: "Whether a vehicle is driven in response to an emergency call depends on the nature of the call received and the situation as presented to the mind of the driver and not upon whether there is an emergency in fact. The driver should have reasonable grounds to believe that there is an emergency." Notwithstanding this instruction the jury found Zabielski was negligent.
Even assuming the trial court erroneously refused Special Jury Instruction No. 6, we cannot reverse the judgment unless defendants show that this error resulted in a miscarriage of justice. In their reply brief defendants make the conclusionary statement that the trial court's refusal to give Special Jury Instruction No. 6 was "prejudicial to Deputy Zabielski and resulted in a miscarriage of justice." Defendants do not, however, discuss the four factors set forth in Soule or provide any analysis of prejudice in their briefs. Accordingly, defendants did not meet their burden of showing that the trial court's purported erroneous refusal of Special Jury Instruction No. 6 resulted in a miscarriage of justice.
b. Special Jury Instruction No. 7 Regarding Government Code Section 820.2
Government Code section 820.2 provides: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." Defendants' Special Jury Instruction No. 7 repeats the language of this statute beginning with the phrase "[a] public employee is not liable . . . ." The trial court refused this instruction. Defendants contend that this was error. They are wrong.
The sole authority defendants cite to support their position is Bratt v. City and County of San Francisco (1975) 50 Cal.App.3d 550 (Bratt). There, the court held that a police officer's "decision to pursue" a fleeing suspect "was a discretionary act . . . protected by Government Code section 820.2." (Bratt, at p. 553.) The Bratt court distinguished its case from cases involving the "execution" of a decision by a police officer. (Id. at p. 554.)
In Gibson v. City of Pasadena (1978) 83 Cal.App.3d 651 (Gibson), the plaintiff alleged that the defendant police officer negligently pursued a suspect. The Gibson court distinguished its case from Bratt on the grounds that in Bratt "the sole allegation of negligence was in the police officers' decision to pursue not the actual pursuit." (Gibson, at p. 661.) The Gibson court thus held that the defendant police officer was not entitled to immunity pursuant to Government Code section 820.2. (Gibson, at p. 659.)
The present case is similar to Gibson and distinguishable from Bratt. Rosenberger does not allege that Zabielski's decision to respond to the priority call regarding the disturbance at IHOP was a negligent act. Rather, he contends that Zabielski's execution of that decision, his driving of a police vehicle, was negligent conduct. Government Code section 820.2 therefore is not applicable. Accordingly, the trial court correctly refused Special Jury Instruction No. 7.
c. Special Jury Instruction No. 9 Regarding Vehicle Code Section 21954
Vehicle Code section 21954 provides: "(a) Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard. [¶] (b) The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway." Defendants' Special Jury Instruction No. 9 repeated the substantive provisions of this statute.
The trial court refused to give this instruction. It instead gave a jury instruction based on Vehicle Code section 21806, which the trial court found "specifically addresses the situation that we have in this case . . . ."
This instruction stated: "Upon the immediate approach of an authorized emergency vehicle which is sounding a siren and which has at least one lighted lamp exhibiting red light that is visible, under normal atmospheric conditions, from a distance of 1,000 feet to the front of the vehicle, all pedestrians upon the highway shall proceed to the nearest curb or place of safety and remain there until the authorized emergency vehicle has passed. [¶] This does not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway."
We do not reach the issue of whether the trial court erroneously refused Special Jury Instruction No. 9 because defendants did not show a miscarriage of justice. As stated ante, we determine whether the denial of proposed jury instruction is prejudicial by analyzing "(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Soule, supra, 8 Cal.4th at pp. 580-581.) Defendants did not set forth or analyze any of these factors. Accordingly, defendants did not meet their burden of showing a miscarriage of justice resulted from the trial court's refusal of Special Jury Instruction No. 9.
d. CACI No. 413
The trial court refused defendants' request for CACI No. 413 to be given to the jury. This instruction describes the use of custom and practice. We find no error in the trial court's decision. As the directions for use for CACI No. 413 recognize, the instruction is "inappropriate in cases . . . involving negligence in the use of public roads."
The directions cite Shuff v. Irwindale Trucking Co. (1976) 62 Cal.App.3d 180 (Shuff). In Shuff, the Court of Appeal held that the trial court erroneously provided a jury an instruction regarding the custom in a negligence action against a truck driver. (Id. at p. 187.) The court held: "[A]ny unique driving custom that may exist in the trucking industry would, on the public highway, have to yield to the basic speed law that limits the speed of any vehicle to that which is safe under the circumstances. When truckers share the public road with other motorists they are subject to the same standard of care as all motorists. That standard of care is not judged according to custom in the trucking business." (Id. at p. 188.)
Likewise, in this case, any alleged custom and practice of West Hollywood Sheriff's Station must yield to the provisions of the Vehicle Code that specifically apply to the facts of this case. The trial court thus correctly refused CACI No. 413. Moreover, even assuming the trial court erroneously refused CACI No. 413, defendants failed to meet their burden of showing that a miscarriage of justice occurred.
e. Negligent Per Se Jury Instructions
At Rosenberger's request and over defendants' objections, the trial court gave five jury instructions regarding negligence per se. These instructions were based on Vehicle Code sections 21650 (right side of roadway), 21651 (divided highway) 21460.5 (two-way left-turn lanes), 21461 (obedience by driver to official traffic control devices) and 22350 (basic speed law).
Although defendants objected to these instructions, they conceded that if the jury found Zabielski was not exempt as the driver of an authorized emergency vehicle pursuant to Vehicle Code section 21055, the trial court was "bound" to give the negligence per se instructions.
Defendants contend that these instructions were erroneous. Their argument regarding this issue in the opening brief consists of two sentences: "Under the evidence presented at trial, none of these Vehicle Code provisions were violated by Deputy Zabielski nor, even if they were violated, did a violation have a causal connection to the accident. Thus, the court committed an error in law by giving these instructions."
Because defendants failed to apply the facts of this case to the particular Vehicle Code sections at issue, they have forfeited their argument regarding negligence per se jury instructions. (Badie, supra, 67 Cal.App.4th at pp. 784-785.) Further, even a cursory review of defendants' argument indicates that it is demonstrably wrong on the merits. For example, one witness testified that Zabielski was driving 40 miles per hour in the median lane in an area with heavy traffic congestion. Assuming, as we must, that this testimony was true, the trial court's instruction regarding the basic speed law was appropriate.
3. The Alleged Jury Misconduct Did Not Warrant a New Trial
In defendants' motion for a new trial they alleged that there was juror misconduct. The sole evidence defendants filed to support their contention that there was juror misconduct was a declaration by Donna J. Falcon, who was Juror No. 5. Rosenberger filed the declarations of eight jurors in opposition to defendants' motion.
"[N]o appeal lies from an order denying a motion for new trial. Such proceedings are reviewable on the appeal from the judgment." (Sumpter v. Matteson (2008) 158 Cal.App.4th 928, 930, fn. 1.)
The trial court can vacate a verdict and grant a new trial on the ground that there was "[m]isconduct of the jury[.]" (Code Civ. Proc., § 657.) " 'In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial.' " (Sierra View Local Health Care Dist. v. Sierra View Medical Plaza Associates (2005) 126 Cal.App.4th 478, 484.)
We review the trial court's rulings on admissibility of evidence under the abuse of discretion standard of review. (San Lorenzo, supra, 139 Cal.App.4th at p. 1419.) Although Rosenberger asserted objections to Falcon's declaration, the trial court did not rule on them. Accordingly, we review Rosenberger's objections de novo. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535.)
In considering the second stage of the analysis—whether the facts in Falcon's declaration establish misconduct—" '[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence.' " (People v. Collins (2010) 49 Cal.4th 175, 242 (Collins).) If the historical facts regarding jury deliberations are undisputed, we decide de novo whether those facts constitute jury misconduct. (Ibid). However, when an issue is tried on affidavits, as it was in this case, " 'and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed.' " (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 108; accord Young v. Brunicardi (1986) 187 Cal.App.3d 1344, 1350-1351 ["The determination by a trial court of a motion for a new trial submitted on affidavits which present conflicting facts is a determination of those controverted facts in favor of the prevailing party"].) Where there is conflicting evidence and the trial court does not expressly make findings regarding the evidence, we must assume the trial court impliedly resolved those conflicts in favor of the prevailing party. (Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 957, disapproved on other grounds in People v. Nesler (1997) 16 Cal.4th 561, 582, fn. 5.)
We do not reach the issue of the correct standard of review of a trial court's ruling on the element of prejudice because we conclude, for reasons we shall explain, that there was substantial evidence supporting the trial court's implied finding that no jury misconduct occurred. (Collins, supra, 49 Cal.4th at p. 242 [only if the court finds juror misconduct does the court "consider whether the conduct was prejudicial"].)
a. Juror No. ll's Alleged Concealment of Her Status as an Attorney
During voir dire each juror was asked to answer six background questions. One question required each prospective juror to state their "occupation." The jurors were not asked their educational background or whether they held any professional licenses.
In response, Annette (Freinhon) O'Donnelly—who would later be designated as Juror No. 11—stated that she was a special agent with the United States Environmental Protection Agency, and that her previous job was with the Federal Bureau of Investigations.
After the trial defendants discovered that O'Donnelly was a licensed attorney. Defendants contend O'Donnelly "concealed" she was an attorney and that had they known this fact they might have exercised a peremptory challenge.
O'Donnelly stated in a declaration that she has never practiced law and that her status with the California bar has been "inactive" since 1995. She further stated she did not disclose she was an attorney during voir dire because she was not asked about her educational background.
We find no juror misconduct here. O'Donnelly was never asked a question requiring her to disclose that she was an attorney. Further, the case did not involve parties who were attorneys or the practice of law. Accordingly, contrary to defendants' contention, O'Donnelly's status as an attorney was not a material fact that needed to be disclosed.
b. Juror No. ll's Comments
During deliberations O'Donnelly referred to Zabielski as a "cop" and a "cowboy." Falcon stated in her declaration that O'Donnelly "seemed to try and belittle" Zabielski with these characterizations, and that "other jurors began to follow her lead by changing their leanings toward Mr. Rosenberger . . . ." Defendants objected to these statements in Falcon's declaration on the ground that they related to the mental processes of the jurors during deliberations. We find this objection meritorious. (Evid. Code, § 1150, subd. (a).)
Falcon also stated in her declaration that O'Donnelly said she wanted to "send a message" to the County. O'Donnelly denied that she ever made this statement. Three other jurors also stated in their declarations that O'Donnelly did not say she wanted to "send a message." Although the trial court did not expressly rule on this factual dispute, we must assume the trial court found against defendants on the matter. Clearly there was substantial evidence supporting the implied finding that O'Donnelly did not say she wanted to "send a message," namely four juror declarations.
Defendants' argument is thus reduced to two simple facts: (1) O'Donnelly referred to Zabielski as a "cop"; and (2) O'Donnelly referred to Zabielski as a "cowboy." Contrary to defendants' contention, these two facts by themselves do not necessarily show bias, and certainly do not constitute juror misconduct. "If transient comments made in the heat of discussion during deliberations become a potential vehicle for attacking the verdict of the jury, freedom of discussion in the jury room is chilled, and the free exchange of ideas is inhibited. Random phrases suspended in thin air, taken out of context, should not be the subject of a successful attack on the propriety of the verdict." (Tillery v. Richland (1984) 158 Cal.App.3d 957, 977.)
c. Juror No. 9's Alleged Concealment of Having Neck Injury and Neck Pain
During voir dire defense counsel asked the jury, as a whole, the following question: "I would just like to ask everybody, in general, has anybody ever had any type of rib fractures or head injuries such as a skull fracture or anybody near and dear to them?" Juror No. 9, June M. Anselmo, did not indicate in response to this question that she had neck pain or a neck injury. Defendants contend that Anselmo "concealed" this information, and that this concealment constitutes juror misconduct. This argument is frivolous. Anselmo was not asked whether she had neck pain or a neck injury. She concealed nothing. There was no juror misconduct.
d. Juror No. 9's Comments
Prior to deliberations Anselmo stated that the parties should "just settle." Defendants apparently learned about this comment from a note from another juror. They then asked the trial court to dismiss Anselmo in light of her pre-deliberation statement. The trial court denied this motion and admonished Anselmo not to discuss the case until deliberations started. We find no error in this decision. Moreover, Anselmo's statement did not justify a new trial. While inappropriate, Anselmo's statement does not rise to the level of juror misconduct within the meaning of Code of Civil Procedure section 657.
e. Juror No. 9's "Independent Research"
During deliberations Anselmo referred to a newspaper article about one of the drinks Rosenberger had consumed—vodka and Red Bull. Anselmo stated that the "drink was not that strong since it had coffee in it."
Defendants argue that Anselmo's "independent research" was juror misconduct sufficient to warrant a new trial. We disagree. Jurors of course should not refer to information not presented in court. But every minor mistake by a juror does not constitute juror misconduct within the meaning of Code of Civil Procedure section 657. Indeed, " '[t]o demand theoretical perfection from every juror during the course of a trial is unrealistic.' " (Bandana Trading Co., Inc. v. Quality Infusion Care, Inc. (2008) 164 Cal.App.4th 1440, 1446.) The trial court correctly denied defendants' motion for a new trial based on Anselmo's reference to a newspaper article.
Anselmo's statement was regarding a relatively inconsequential issue. Whether one of the many drinks Rosenberger had on the evening of the accident "was not that strong" is of no great importance in determining liability or damages.
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4. There Was Substantial Evidence Supporting the Jury's Finding That Defendants Were Negligent
a. Standard of Review
Defendants' 15th argument is that there was not substantial evidence to support the verdict with respect to liability, and thus the trial court erroneously denied their motion for JNOV. "The trial court has limited discretion to grant a motion for judgment notwithstanding the verdict. It may grant it only when there is no substantial evidence to support the verdict." (Campbell v. Cal-Gard Surety Services, Inc. (1998) 62 Cal.App.4th 563, 570.) "On appeal we resolve conflicts in the evidence and draw all reasonable inferences in favor of the verdict." (Ibid.) We do not reweigh the evidence. (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 849, fn. 11.) If there is substantial evidence to support the verdict, it is of no consequence that the trier of fact believing other contradicting evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.)
b. Defendants Forfeited Their Substantial Evidence Argument
We must presume that the record contains evidence to support the jury's findings unless the appellant proves otherwise. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737 (Schmidlin).) "A party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable." (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218 (Doe).) Further, a party who challenges the sufficiency of the evidence must present the facts in a light most favorable to the prevailing party. (Schmidlin, at pp. 737-738.) When an appellant fails to fully analyze the evidence with specific citations to the record, or only presents facts and inferences favorable to his or her position, the contention that the findings are not supported by substantial evidence is deemed forfeited. (see id. at p. 738; Doe, at p. 218.)
Defendants did not comply with rules set forth above. They did not set forth, discuss, and analyze "all" the evidence regarding liability, both favorable and unfavorable. Moreover, they did not present the facts in a light most favorable to the prevailing party. To the contrary, they continued to re-litigate facts as if they were still before the trial court.
For example, defendants claim that Zabielski "was traveling at a speed probably not in excess of 20 miles an hour when the accident occurred . . . ." As we stated ante, however, one witness estimated that Zabielski was driving 40 mile per hour. Defendants were obligated to assume the higher speed in their substantial evidence argument. This they did not do.
Defendants also claim that Zabielski was traveling westbound on Sunset Boulevard and "needed to change his direction to take a route to the IHOP[.]" This too was a matter of controversy during the trial. Defendants nevertheless assume the version of facts most favorable do them.
A third example is that defendants claim that "there were emergency lights visible on top of the sheriffs vehicle" prior to the accident. Some witnesses, however, did not see such lights. Defendants inappropriately assume the jury believed their version of the facts.
Because defendants failed in their obligations concerning the discussion and analysis of the evidence relied upon by the jury, we deem the claim of error that there was no substantial evidence to support the judgment forfeited. (Doe, supra, 177 Cal.App.4th at p. 218; Schmidlin, supra, 157 Cal.App.4th at p. 737.)
c. There Was Substantial Evidence to Support the Verdict With Respect to Liability
Assuming defendants did not forfeit this argument, we reject it on the merits. Contrary to defendants' assertion, there was substantial evidence that they "acted negligently." There was evidence that Zabielski, while acting in the course and scope of his employment with County, drove eastward on westbound Sunset Boulevard and the median lane, at an excessive speed in congested traffic, without operating his siren, in response to a non-emergency call. The jury acted well within its discretion in finding defendants negligent.
5. There Was Substantial Evidence Supporting the Damages Awarded
Defendants' 16th, 17th and 18th arguments relate to damages. They contend that the jury awarded excessive damages because there was no substantial evidence to support (1) the $1 million award of general damages, (2) the $150,000 award of future medical expenses, and (3) the "small" percentage of fault attributed to Rosenberger.
Defendants again fail to present all of the evidence in a light most favorable to Rosenberger. We thus hold that defendants forfeited these three arguments. For the reasons we shall explain, we also reject them on the merits.
When an appellant challenges a trier of fact's determination of damages our review is severely circumscribed. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.) " 'An appellate court may interfere with that determination only where the sum awarded is so disproportionate to the evidence as to suggest that the verdict was the result of passion, prejudice or corruption [citations] or where the award is so out of proportion to the evidence that it shocks the conscience of the appellate court.' " (Ibid.)
a. General Damages
There was substantial evidence that Rosenberger suffered considerable physical pain and mental suffering and would continue to do so as a result of the accident. When Rosenberger was struck by Zabielski's vehicle he was knocked into the air and rendered unconscious. He was taken to Cedars-Sinai Medical Center where he stayed from February 10 through 15, 2008, and February 21 through 23, 2008. Rosenberger suffered from a fracture of the occipital condyle, multiple rib fractures, a collapsed lung, a deep bruise of the femur, and damage to the hypoglossal nerve, which caused a tongue deviation.
In order to prevent neck movement, Rosenberger wore a "halo" mechanism for about six or seven weeks. The halo was attached to his head with four screws. Attaching the halo caused Rosenberger to endure the "most excruciating" pain he ever felt. He could feel his skull "cracking" when the halo was attacked. The halo caused continuous pain and needed to be adjusted every two weeks, which was also "extremely painful." When the halo was removed, Rosenberger was left with four scars on his skull.
After taking off the halo Rosenberger's physicians fitted him with a hard neck brace, which he wore for about eight to 10 weeks. For the first six weeks he wore the brace 24 hours a day.
Upon being released from his second stay at Cedars-Sinai Medical Center, Rosenberger convalesced on a rented hospital bed in the living room of his friends' home for about four months. During this time Rosenberger struggled with sleep and was in "a lot of pain." He was required to take pain medication, which caused him severe constipation.
Although Rosenberger has for the most part recovered from his injuries, the accident has left him with more than just four scars on his skull. The damage to his hypoglossal nerve continues to cause him discomfort and speaking problems. It also causes him to drool when he sleeps.
Rosenberger, who was 24 years old at the time of the accident, lifted weights before his injuries. Although he has resumed this activity, Rosenberger testified that the "aftereffects of it are definitely more painful. I feel more pain in my body, bones, aches and pains after I work out than I did prior to the accident." As a result of the accident, Rosenberger also suffers from intermittent back pain and from headaches a couple of times a week.
Dr. Brian Perri, one of Rosenberger's physicians, testified that the joint between the base of Rosenberger's skull and the first cervical vertebra has fused. He further testified that although Rosenberger has normal range of motion, the motion is coming from adjacent disk levels, which places additional stress on the C-2, C-3 and C-4 vertebras.
Dr. Perri opined that as a result of additional stress, there is a risk that the C-2, C-3 and C-4 vertebras would develop degenerative arthritis in the next five, 10 or 15 years. He could not, however, state with certainty the percentage of that risk. According to Dr. Perri, if Rosenberger indeed developed degenerative changes to his vertebras, the treatment could range from anti-inflammatory medications, to physical therapy, to surgery.
Reviewing this evidence the jury awarded Rosenberger $600,000 for past general damages and $400,000 for future general damages. This does not shock our conscience. We therefore affirm the judgment with respect to general damages.
b. Future Medical Expenses
Defendants argue that the jury's award of $150,000 for future medical expenses was not supported by substantial evidence and shocks the conscience. We disagree. The testimony of Dr. Perri and Rosenberger about Rosenberger's injuries constituted substantial evidence from which the jury could conclude that Rosenberger would incur future medical expenses. The award of $150,000 for such expenses does not shock our conscience.
c. Percentage of Fault
Finally, defendants argue that "[t]here was no substantial evidence to support the jury's decision to only assess 27% comparative fault on Rosenberger . . . ." This is not really an issue of damages; it concerns liability. We may not substitute our judgment for that of the jury " 'if there is any evidence which under any reasonable view supports the jury's apportionment. [Citation.]' " (Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1234.) Clearly there was sufficient evidence in this case to meet that standard.
DISPOSITION
The judgment and orders dated February 3, 2010, are affirmed. Respondent Jesse Rosenberger is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J. We concur:
KLEIN, P. J.
ALDRICH, J.