Opinion
B326152
04-26-2024
GEORGE E. SALEM, Plaintiff and Appellant, v. SHANNON SHIH, Defendant and Respondent.
The Salem Law Firm, Edmond E. Salem; Trial Lawyers for Justice, Brian J. Ward and Henry A. Peacor; Law Offices of Haytham Faraj and Haytham Faraj for Plaintiff and Appellant. Ford, Walker, Haggerty & Behar, John K. Paulson and David J. Mendoza for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC656422, Jessica A. Uzcategui, Judge. Reversed.
The Salem Law Firm, Edmond E. Salem; Trial Lawyers for Justice, Brian J. Ward and Henry A. Peacor; Law Offices of Haytham Faraj and Haytham Faraj for Plaintiff and Appellant.
Ford, Walker, Haggerty & Behar, John K. Paulson and David J. Mendoza for Defendant and Respondent.
BENDIX, J.
After a two-car motor vehicle collision, plaintiff and appellant George E. Salem sued defendant and respondent Shannon Shih for negligence. The jury found Shih was not negligent and did not make any other findings. Salem appealed after the trial court denied Salem's motion for a judgment notwithstanding the verdict and motion for a new trial.
Salem also identified Yichen Sharon Lin Shih, the owner of the car respondent was driving, as a defendant, but the parties later stipulated to dismiss her with prejudice.
During trial, the trial court directed a verdict finding that as a matter of law, Salem was not negligent. This ruling is not challenged on appeal.
We conclude the trial court erred in not granting Salem's motion for judgment notwithstanding the verdict. The undisputed facts demonstrate Shih was negligent as a matter of law, when, because of a double-parked vehicle, she could not see whether there was any oncoming traffic in the lane into which she was turning and she had an alternative lane into which she could have safely turned. We reverse the judgment in Shih's favor and the postjudgment order awarding her costs as the prevailing party. We remand the case to the trial court for a new trial on causation and damages.
PROCEDURAL BACKGROUND
The parties stipulated to the following description of the collision, which was read to the jury: "This lawsuit arises out of a motor vehicle collision which occurred on April 25, 2015 in the city of Santa Monica, California, at approximately 9:30 A.M.
"The plaintiff, George Salem, was traveling eastbound on Wilshire Boulevard, when his vehicle, a 1959 Mercedes Benz SL, was broadsided by the defendant's vehicle, a 2003 Lexus ES 300, when it exited northbound from an alleyway between 10th and 11th Street in Santa Monica, California."
1. Jury instructions
The court instructed the jury on the definition of negligence: "Negligence is the failure to use reasonable care to prevent harm to oneself or to others. [¶] A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. [¶] You must decide how a reasonably careful person would have acted in Shannon Shih's situation."
The court elaborated with an instruction on reasonable care: "A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles. Their failure to use reasonable care in driving a vehicle is negligence."
The court also instructed the jury on the obligation to yield the right-of-way in Vehicle Code section 21804: "(a) The driver of any vehicle about to enter or cross a highway from any public or private property, or from an alley, shall yield the right-of-way to all traffic . . . approaching on the highway close enough to constitute an immediate hazard, and shall continue to yield the right-of-way to that traffic until her [sic] or she can proceed with reasonable safety. [¶] (b) A driver having yielded as prescribed in subdivision (a) may proceed to enter or cross the highway, and the drivers of all other vehicles approaching on the highway shall yield the right-of-way to the vehicle entering or crossing the intersection." The court further defined "immediate hazard": "An immediate hazard exists if the approaching vehicle is so near or is approaching so fast that a reasonably careful person would realize that there is a danger of collision or accident."
Vehicle Code section 21804 provides: "(a) The driver of any vehicle about to enter or cross a highway from any public or private property, or from an alley, shall yield the right-of-way to all traffic, as defined in Section 620, approaching on the highway close enough to constitute an immediate hazard, and shall continue to yield the right-of-way to that traffic until he or she can proceed with reasonable safety. "(b) A driver having yielded as prescribed in subdivision (a) may proceed to enter or cross the highway, and the drivers of all other vehicles approaching on the highway shall yield the rightof-way to the vehicle entering or crossing the intersection." Vehicle Code section 620 provides: "The term 'traffic' includes pedestrians, ridden animals, vehicles, street cars, and other conveyances, either singly or together, while using any highway for purposes of travel."
The court then defined "right-of-way": "When the law requires a driver to 'yield the right-of-way' to another vehicle, this means that the driver must let the other vehicle go first. [¶] Even if someone has the right-of-way, that person must use reasonable care to avoid an accident."
The trial court did not instruct the jury on negligence per se or excuse to negligence per se. The parties do not raise any instructional error on appeal.
2. Verdict
In a special verdict form, the jury was asked, "Was Shannon Shih negligent?" The jury answered "[n]o" to that question. The jury did not answer any other questions on the special verdict form. 3. The trial court denies Salem's motions for a judgment notwithstanding the verdict and a new trial
Salem filed a motion for a judgment notwithstanding the verdict arguing the evidence showed as a matter of law, Shih was negligent. The trial court disagreed, finding that Shih's testimony was substantial evidence supporting the defense verdict. The court explained, "[I]t was permissible for the jury to find that because she [Shih] actually perceived that she could proceed safely her, perception was reasonable." The court also reasoned Shih's testimony was not "inherently unreasonable" because "there was no uncontradicted evidence to establish the exact speed and position of the vehicle leading up to the collision."
Salem filed a motion for a new trial, which the court also denied.
Because we grant the motion for judgment notwithstanding the verdict and remand for a new trial, we do not describe Salem's motion for new trial, the court's ruling denying it, or the parties' arguments on appeal concerning that ruling.
4. Judgment and cost award
The court entered judgment that Salem receive no recovery and that Shih recover her costs. The court later issued an order awarding Shih $251,672.12 as the prevailing party in costs and ordered that amount inserted into the judgment. Salem appealed from the judgment and the postjudgment cost order.
FACTUAL BACKGROUND
A. Shih's Description of the Collision
For purposes of this appeal, we accept Shih's description in her appellate brief of the collision, which follows.
"Defendant [Shih] testified that before she got into her car, she received a phone call. She put an earbud in her ear so she could hear the phone. She did not feel that was so distracting that she could not drive. Defendant was not in a hurry. Defendant was traveling northbound on Alley 10, and stopped at Wilshire Blvd., so that she could make a right turn onto Wilshire Blvd. Defendant had to pull out because a [double-parked] vehicle was stopped in the number two lane of Wilshire Blvd [the lane closest to the alley].
"Defendant came up to the limit line, and waited a minute before seeing a white double-parked vehicle to her left, on Wilshire Blvd. The double-parked vehicle was obstructing Defendant's view of oncoming traffic approaching from Defendant's left. Defendant slowly inched forward and stopped a couple of times.
"Defendant checked her right and her left, and tried to make a slow turn. She thought she did what was safe when she thought there was a clearing. Defendant looked to her left and to her right, and then pulled into Wilshire Blvd. to look for traffic to her left.
"Defendant believed it was clear and safe to pull out into Wilshire Blvd. based on traffic conditions. As Defendant was turning, she was trying to see past the Lincoln Navigator that was blocking the number 2 lane.
"Plaintiff [Salem] passed the Lincoln Navigator as Defendant was pulling out, and their vehicles collided. Defendant saw Plaintiff at the moment of impact. Defendant did not see Plaintiff prior to pulling out. Defendant did not hear anybody honk at her." (Record citations omitted.)
B. Additional Undisputed Evidence
Shih testified that her intent was to turn right from the alley onto Wilshire Boulevard and as she made a right turn, she collided with Salem. Shih testified she was required to stop and Salem was not required either to stop or yield. Shih answered affirmatively when asked, "Do you believe that you have an obligation to ensure that the roadway that you're able to make a turn into is clear before making that turn?"
Shih also told the jury that despite her efforts of inching forward a little bit at a time, none of her efforts "actually cleared the visual obstruction," i.e., the double-parked vehicle. Shih responded affirmatively when asked, "[A]s you're turning out, you're trying to see past the SUV that's blocking the number 2 lane to see if it's clear, and that's when the impact occurs?" Shih's expert testified Shih's "field of view" was blocked by the double-parked vehicle.
Shih further testified that at the time of the collision, she was not inching out, but instead, turning. Shih estimated she was traveling at 10 miles an hour at the time of impact. The front of Shih's vehicle hit the side towards the rear of Salem's vehicle.
The double-parked vehicle was blocking the number two lane of eastbound traffic (the lane closest to the alley). The collision occurred in the number one lane (the lane furthest from the alley). Both parties' experts agreed that nothing prevented Shih from turning into the number two lane (the lane closest to the alley) on Wilshire Boulevard.
Salem did not call his expert in his case-in-chief. Shih called both experts.
DISCUSSION
The trial court may grant a judgment notwithstanding the verdict only if, viewing the evidence in the light most favorable to the judgment, there is no substantial evidence to support the judgment. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) Our standard or review is "whether any substantial evidence-contradicted or uncontradicted-supports the jury's conclusion." (Ibid.)
1. As a Matter of Law, Shih Was Negligent When She Turned into a Lane Knowing that She Could Not See Whether There Was Traffic in That Lane
The parties dispute whether as a matter of law, Shih breached the duty to use reasonable care. Shih contends she made a nonnegligent mistake. According to her, she "exercised due care because she saw the double-parked car, checked her left and right, inched forward, and tried to make a slow turn." Shih "believed it was clear and safe to pull out into Wilshire Blvd. based on traffic conditions." Shih asserts that "once drivers see and believe it is safe, they can pull out."
Negligence "consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm." (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754.)" 'The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate [or legal] cause between the breach and (4) the plaintiff's injury. [Citation.]' [Citation.]" (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.)
Shih argues Minnegren v. Nozar (2016) 4 Cal.App.5th 500 (Minnegren) is dispositive. It is not.
Minnegren too involved a two-car motor vehicle collision and a defense verdict. Shih is correct that Minnegren elucidates the difference between a mistake and negligence and that the appellate court observed not all "mistakes . . . even in the exercise of ordinary care" are negligence. (Supra, 4 Cal.App.5th at p. 508.) Minnegren also involved the plaintiff's contention on appeal that as a matter of law, the defendant was negligent. Defendant Nozar testified at trial:" 'I mean, I looked. I looked at the car coming. I thought to myself is that far enough? Yes. I looked to the right. Looked at [the] car . . . coming, is that far enough for me to get through? Yeah. I think so.'" (Id. at p. 504.) Nozar testified, "I tried my best to make a judgment call. Unfortunately, it was . . . wrong." (Id. at p. 505.) Nozar's testimony was disputed by eyewitnesses who testified he either did not stop at, or" 'rolled fast'" through the stop sign and was traveling at a high rate of speed. (Id. at pp. 503-504.)
The crucial difference is that in Minnegren, defendant could see the intersection, which was controlled by a stop sign for him but not for the plaintiff, who therefore had the right of way. (Supra, 4 Cal.App.5th at p. 503.) In marked contrast, defendant Shih admitted that because of a parked car, she could not see whether there was traffic in the lane into which she turned at 10 miles per hour. In further contrast to Minnegren, the expert evidence was undisputed at trial that Shih had a safe alternate lane into which to turn.
Our colleagues in Division Two concluded substantial evidence supported the jury's verdict. It observed that the substantial evidence standard of review "obligated [the appellate court] to accept Nozar's testimony, and to disregard any conflicting testimony." (Minnegren, supra, 4 Cal.App.5th at p. 510.) Second, while conceding "objectively speaking," given the plaintiff's "actual speed and position," it was not "safe for Nozar to proceed into the intersection" (see id. at p. 511), the court focused on whether Nozar's belief that he could safely proceed was "physically impossible or inherently improbable" (ibid.).
The appellate concluded it was not: "There is no basis for us to conclude that it was inherently improbable because the evidence did not establish Minnegren's exact speed and position at the time Nozar allegedly stopped at the stop sign and saw her car proceeding eastbound on Broadway. As a result, Nozar's testimony must be indulged on appeal. Based on Nozar's testimony, it was permissible for the jury to find that because Nozar actually perceived that he could proceed safely, his perception was reasonable. Alternatively, the jury may well have concluded that the evidence was insufficient to establish whether or not Nozar's perception was reasonable, and Minnegren therefore did not meet her burden of proof." (Minnegren, supra, 4 Cal.App.5th at p. 511.)
The trial court here indicated Shih's testimony was not "inherently unreasonable" because there was no uncontradicted evidence to establish the exact speed and position of the vehicle leading up to the collision." We fail to discern the import of the speed and position of Salem's vehicle because it is undisputed that Shih did not clear the vision obstruction and did not see Salem. This is not a case of Shih misjudging Salem's speed and position, in further contrast to Minnegren.
Shih testified she looked in both directions and believed it was safe to turn even though the parked car obstructed her view of the lane into which she turned. We conclude Shih's belief was, to quote Minnegren, "inherently improbable."
It was physically impossible for Shih to assess whether she could proceed safely because she could not see whether traffic was approaching. (See Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492 [" 'To warrant the rejection of the statements given by a witness who has been believed by a trial court [or jury], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.' "]) In sum, the undisputed evidence demonstrated because of a double-parked vehicle, Shih could not observe whether traffic was approaching and therefore her perception it was safe to turn was inherently unreasonable. A reasonably careful person would not have turned blindly into potential traffic.
In Gray v. Brinkerhoff (1953) 41 Cal.2d 180, our high court reversed a defense verdict where, like here, the "evidence [was] without substantial conflict" (id. at p. 182) and demonstrated the defendant was negligent as a matter of law. The plaintiff in Gray was walking in a marked pedestrian crosswalk. (Ibid.) The defendant, who was turning left, drove into the crosswalk and hit plaintiff with a rack attached to his truck. (Ibid.) Our high court acknowledged that negligence is generally a question of fact, but not inviolately so. Negligence may be considered a question of law if only "one conclusion" is viable from the evidence. (Id. at p. 183.) That was our high court's conclusion in ruling: The defendant "had no right to assume that the crosswalk was clear [citation]; it was his duty in starting up and driving his vehicle into and through the crosswalk to ascertain whether plainly visible pedestrians were using such crosswalk and it was his obligation to yield the right of way to them [citation]." (Id. at pp. 184-185; see also Novak v. Dewar (1961) 55 Cal.2d 749, 752753 [following Gray]; Schmitt v. Henderson (1969) 1 Cal.3d 460, 463 [following Gray].) Similarly here, Shih could not assume traffic in the lane where the collision occurred was clear; instead she had to ascertain whether there was oncoming traffic before turning into the lane. The undisputed evidence was that she never made that determination because her obstructed view prevented her from doing so.
In reversing a jury verdict and judgment in the defendant's favor in Huetter v. Andrews (1949) 91 Cal.App.2d 142, we held the defendant was negligent as a matter of law. (Id. at pp. 146147.) Huetter involved a two-vehicle automobile collision when the defendant hit the plaintiffs' vehicle as it was turning at a crossover to enter the opposite lane in a divided highway; the facts were undisputed. (Id. at p. 143.) The defendant, who had 850 feet of unobstructed view in clear weather and was looking straight ahead, hit the plaintiff's vehicle, which the defendant did not see until he was 75 to 100 feet away from it. (Id. at p. 144.) We reasoned:" 'All drivers of vehicles on a public highway are required by law to keep a vigilant lookout ahead so as to avoid, if reasonably possible, a collision with any other vehicle or person lawfully upon such highway. Failure to keep such lookout, or failure to see that which may be readily seen, if the driver is looking, would constitute negligence as a matter of law.' [Citation.]" (Id. at p. 146.) Similar to Huetter, here, the collision occurred because Shih did not see Salem's vehicle until the collision was unavoidable. Like the defendant in Huetter, Shih could have avoided the accident by not driving negligently, in Shih's case, by not entering into a lane of traffic when she knew a double-parked vehicle prevented her from determining whether there was traffic in that lane.
Shih relies on Dickison v. La Thorpe (1954) 124 Cal.App.2d 190 (Dickison), also involving a two-car collision. Dickison does not assist Shih.
The issue on appeal in that case was whether the trial court abused its discretion in acting as a 13th juror in granting a motion for new trial because, inter alia, substantial evidence did not support the jury's verdict against the plaintiffs on their complaint and against the defendant on his cross-complaint. Thus, the standard of review there was whether there was "any evidence that would legally substantiate and uphold the verdict for the moving party had the jury decided for him." (Dickison, supra, 124 Cal.App.2d at p. 195.)
The defendant argued the plaintiff driver was contributorily negligent as a matter of law. Given defendant's high rate of speed and limited visibility, defendant did not contend he was not negligent. (Dickison, supra, 124 Cal.App.2d at p. 194.) The appellate court acknowledged the principles that contributory negligence is generally an issue of fact, and that not all mistakes are negligent. (Ibid). The appellate court, however, found no abuse of discretion in granting a new trial where the plaintiff stopped before entering the highway, looked to the right before starting across the northbound traffic lanes, and upon seeing no car approaching, proceeded across, "looking to her right until approximately half way across the northbound traffic lane" where defendant collided with her vehicle. (Ibid., italics added.) Under these facts, the trial court could find the plaintiff a reasonable belief that she could proceed safely. (Ibid.) Although Shih testified she believed that she could turn safely, the undisputed evidence shows her belief was not reasonable because she blindly turned into a lane of traffic at 10 miles per hour.
In sum, Shih's conduct was not a mere mistake, but negligent as a matter of law.
2. The Principle That Violating a Negligence Per Se Statute May Be Excused Is Inapplicable Because That Theory Was Not Presented at Trial and Is Unsupported by the Evidence
Shih relies on authority discussing an excuse for violating a statute, which violation would be negligence per se. (Cade v. Mid-City Hospital Corp. (1975) 45 Cal.App.3d 589, 596-597.) Specifically, Shih relies on the following authority describing an excuse: If when the driver entered traffic, "it was, so far as visibility from his point observation was concerned, entirely clear-i.e., if the jury accepted his account of what happened. To have held him guilty of an unexcused violation of the section under the circumstances, the jury would have had to find that no one could possibly nonnegligently enter that road from that driveway at least without having first posted a lookout sufficiently far down the road to warn of the possibility of approaching . . . traffic beyond any entrant's range of vision." (Wilkins v. Sawyer (1965) 232 Cal.App.2d 458, 462-463; see also Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, 266 [quoting Wilkins].)
Shih claims that under this authority, she cannot be "held to such a stringent standard" where she would have to "post[ ] a lookout" on Wilshire Boulevard before turning. Shih's argument is inconsistent with the undisputed evidence. Both experts testified Shih could have turned safely into the number two lane. Salem's expert testified, "[T]here was nothing in the roadway that would obstruct her being able to make a right turn into the No. 2 lane." Shih's expert testified Shih could have made a safe right turn into the number two lane. According to Shih's expert, "There was nothing impeding her from pulling into that lane [the number two lane]." Although we must interpret the evidence in the light most favorable to Shih, she identifies no evidence contrary to both experts' testimony to support her argument that her failure to yield the right of way could only have been prevented by posting a lookout on Wilshire Boulevard.
More fundamentally, Shih fails to explain the relevance of authority dealing with negligence per se and excuse to negligence per se where the jury was not instructed on that theory.
3. The Cost Order Must Be Reversed Because Shih Is Not the Prevailing Party
For the reasons set forth above, we reverse the judgment in respondent's favor, which included an award of costs to respondent. We also reverse the postjudgment order awarding costs because it was based on Shih's status as the prevailing party. (Gilman v. Dalby (2009) 176 Cal.App.4th 606, 620 [prevailing party loses that status after judgment reversed]; Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284 ["After reversal of a judgment 'the matter of trial costs [is] set at large.' "].)
DISPOSITION
The judgment is reversed. The postjudgment order awarding Shannon Shih costs is reversed. The case is remanded for a new trial on causation and damages. George E. Salem is awarded his costs on appeal.
We concur: ROTHSCHILD, P. J., WEINGART, J.