Opinion
B220166 c/w B221256
11-30-2011
AMBER SCULL et al., Plaintiffs and Appellants, v. JOSE VENTURA HERNANDEZ, Defendant and Respondent.
Rehm & Rogari and Ralph Rogari for Plaintiffs and Appellants. Wilson Getty, William C. Wilson; Boudreau Williams, and Jon R. Williams for Defendant 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. BC391018, BC 394259)
APPEAL from a judgment and a minute order of the Superior Court of Los Angeles County, Michael L Stern, Judge. Affirmed, with instructions.
Rehm & Rogari and Ralph Rogari for Plaintiffs and Appellants.
Wilson Getty, William C. Wilson; Boudreau Williams, and Jon R. Williams for Defendant and Respondent.
INTRODUCTION
In this consolidated appeal, appellants Amber Scull and Christopher Herting contend the superior court erred (1) by denying their motion to vacate the judgment and to enter a partial judgment; (2) by denying their motion for a new trial; and (3) by denying their application for a waiver of jury and court reporter fees. We affirm the judgment on the jury's special verdict, but remand the matter to the superior court to rule on the application for waiver of jury and court reporter fees.
In addition, we grant appellants' motion to augment the record to include the special verdict in this case.
FACTUAL AND PROCEDURAL HISTORY
On September 26, 2006, decedent Denise Barteau was driving a Budget rental truck which collided with a tractor trailer, or big rig, being operated by Jose Hernandez. At the time of the accident, the weather was clear and sunny, and it was not windy. Decedent was driving the middle vehicle in a three-vehicle convoy that was going about 55 miles per hour (mph) in the rightmost lane on the highway.
Hernandez testified that when he came upon the convoy, he decided to pass the convoy on the left side. He completed the passing maneuver at about 58 mph. As Hernandez was driving by, he heard a loud noise that "sounded like three tires had blown out." He looked at both of his side mirrors, starting with his left side, but did not see anything. Because he "didn't feel anything different about the tire," he thought, "Well, I'll just go on to Barstow, and then I'll stop and check there."
Hernandez then decided to move the trailer back to the rightmost lane. As he checked his mirrors to begin the move, he saw a cut or hole on his trailer and noticed a large dust cloud on the road he had just passed. Hernandez pulled to the shoulder, stopped his trailer, and dialed 911. The 911 operator told him to wait by the road. California Highway Patrol (CHP) Officer Joshua Allen arrived and spoke with Hernandez. Officer Allen recorded Hernandez's vehicle and insurance information and allowed him to leave. Hernandez had his trailer repaired on October 20. He testified CHP Officer Brandon Vessels called him about a month and half after the accident, and asked to examine his trailer. He informed Officer Vessels that the trailer had been repaired. Officer Vessels later testified that prior to completing the police accident report on October 18, he spoke with Hernandez or his wife and was informed the trailer had been repaired.
Harold Mason, an emergency medical technician, and Greg Wooley, a paramedic, were in an ambulance about 50 to 75 yards behind decedent's truck. They noticed decedent's truck wobbling side to side several times before flipping over and resting on the driver's side. The two men did not see any contact between the tractor trailer and the rental truck. They passed by the accident scene, turned around, and drove back to assist any victims. Mason called his dispatch operator while Wooley helped extricate decedent from the vehicle. Wooley testified that he thought the injuries to decedent were "life threatening." William Barteau, decedent's husband, told the jury that "my wife . . . got in a horrible accident and eventually died as a result of it."
William Barteau settled with Hernandez, although the jury was not informed about this fact.
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As a result of the accident, decedent suffered a severe injury to her head and injuries to her left arm, which stripped the skin from the arm. She was airlifted to a nearby hospital. Four days later she was discharged from the hospital, and a couple of days thereafter, she suffered a cardiac arrest that left her in a coma. She died when the decision was made to take her off life support.
Appellants, decedent's children, sued in superior court, alleging that Hernandez caused their mother's death by negligently driving his tractor trailer. According to appellant's accident reconstruction expert, Dr. Voyko Banjac, the cause of the accident was Hernandez's changing lanes and encroaching into decedent's lane.
Hernandez's accident reconstruction expert, David Casteel, presented a different theory of events. He opined that decedent drifted off the roadway for unknown reasons. She then rapidly overcorrected back onto the roadway, precipitating a sudden weight shift of her truck's unsecured cargo contents which caused the truck to tip over, strike Hernandez's tractor trailer for a brief instant, and complete its tipping motion by coming to rest on the driver's side.
A video computer simulation showing Casteel's opinion about what had occurred during the accident was played for the jury. In addition, over objection, Casteel testified in rebuttal, using another video computer simulation to show the alleged physical impossibility of Banjac's theory of the accident.
The jury found Hernandez not negligent. Judgment on the jury's special verdict was entered August 26, 2009. On September 8, 2009, appellants moved for a new trial and moved to vacate the judgment entered August 26 and to enter a new judgment. The superior court denied appellants' motion.
Hernandez sought attorney fees and costs. Appellants filed a motion to tax costs, objecting to a majority of the requested costs and fees. The superior court granted the motion to tax costs except as to filing fees, jury fees, deposition fees, and witness fees. On December 9, 2009, appellants filed an ex parte application for an order waiving jury and court reporter fees in the amount of $2,537.58. The superior court denied the motion on the basis that appellants had "present[ed] no authority for a retroactive waiver."
DISCUSSION
Appellants contend (1) the trial court should have vacated the judgment and entered a partial judgment because Hernandez was negligent as a matter of law; (2) the court should have granted a new trial because the court admitted improper evidence and unfairly limited their case; and (3) the court should have granted their application for waiver of jury and court reporter fees because they were indigent at the time of trial. We review each contention in turn.
I. Motion to Vacate Judgment and Enter Partial Judgment
The jury was instructed as follows:
"No person may drive a tractor trailer . . . along any other vehicle on a highway at a speed in excess of 55 miles per hour.The other instructions referenced were instructions that a person is negligent if he fails to use reasonable care in driving a vehicle or if he operates a commercial vehicle without being alert.
"If you decide, one, that Jose Hernandez violated this law; and, two, that the violation was a substantial factor in bringing about the harm, then you must find that Jose Hernandez was negligent.
"If you decide that Jose Hernandez did not violate this law, or that the violation was not a substantial factor in bringing about the harm, then you must still decide whether Jose Hernandez was negligent in light of the other instructions."
The jury also was provided with a special verdict form, the first two parts of which consisted of the following questions:
"Question No. 1:
Was Jose Hernandez negligent?
___ Yes ___ No
"If you answered this question 'yes,' please proceed to the next question. If you answered 'no,' please stop here, answer no further questions, and have the foreperson sign and date this form.
"Question No. 2:
Was Jose Hernandez's negligence a substantial factor in causing the harm that resulted in Denise Barteau's death?
___ Yes ___ No
"If you answered this question 'yes,' please proceed to the next question. If you answered 'no,' please skip the next question and proceed to Question No. 4."
The jury marked "No" to the first question and, as instructed, gave no response to question No. 2 or to any other parts of the special verdict. Appellants contend the jury's special verdict on the first question was erroneous as a matter of law because Hernandez admitted he violated the 55 mph speed limit for the operation of a tractor trailer on the highway. They assert the trial court should have vacated the judgment on the special verdict, entered a partial judgment of "Yes" on question No. 1, and instructed the jury to make findings on question No. 2 and any other pertinent parts of the special verdict. We disagree.
Under Vehicle Code, section 40831, "[i]n any civil action[,] proof of speed in excess of any prima facie limit . . . at a particular time and place does not establish negligence as a matter of law but in all such actions it shall be necessary to establish as a fact that the operation of a vehicle at the excess speed constituted negligence." In other words, driving in excess of the speed limit does not, standing alone, establish negligence. In addition, appellants agreed to the jury instruction and the special verdict form on this issue. By answering "No" to question No. 1, which asked whether Hernandez was negligent, the jury necessarily determined, based upon the instructions it had been given, (1) that even if Hernandez violated the speed limit, the violation was not a substantial factor in bringing about the harm in this case, and (2) that there was no other basis for finding Hernandez negligent. Although the jury did not give a response to question No. 2, which asked whether Hernandez's negligence was a substantial factor in causing the harm that resulted in decedent's death, its failure to do so was in compliance with the instruction not to answer question No. 2 if it found Hernandez was not negligent.
In light of the instructions, the jury could have determined that Hernandez was not negligent despite the fact that he drove at 58 mph at the time of the accident because his speeding was not a substantial factor in the harm that resulted. There was substantial evidence in the record, such as Casteel's testimony, to support the jury's verdict. The jury was not required to explicitly find a lack of causation by answering question No. 2 of the special verdict because it was expressly instructed not to do so. Accordingly, the superior court did not err in denying appellants' motion to vacate the judgment and enter a new judgment on question No. 1 of the special verdict.
II. Motion for a New Trial
Appellants next contend that numerous evidentiary and trial rulings by the superior court denied them a fair trial. Their claims can be grouped into four areas: (1) Casteel's expert testimony; (2) exclusion of evidence; (3) restriction on case presentation; and (4) failure to give requested instructions. We address each group of alleged errors.
A. Casteel's Expert Testimony
Appellants contend (1) Hernandez introduced improperly withheld photographs during Casteel's testimony; (2) Casteel's direct testimony contradicted Hernandez's admission; and (3) Casteel's rebuttal testimony lacked foundation. We disagree.
On the issue of the photographs, the trial court permitted Hernandez to introduce four of six photographs. The trial court excluded the last two photographs on the basis that they were produced too late for appellants to use during expert depositions. The other photographs, however, were produced sufficiently early for appellants to use during the depositions of Banjac and Casteel. The record also indicates that the photographs were produced on June 8, and trial did not start until August 17. On this record, we find no prejudice to appellants and no abuse of discretion by the trial court.
We also conclude the trial court did not err in determining that Casteel's expert opinion about the cause of the accident did not contradict a prior admission by Hernandez. In response to a request for admission, Hernandez had admitted that "[a]fter the collision between trailer [sic] of the big rig you were pulling and the Budget truck Denise Barteau was driving, the Budget truck tipped over, onto its left side, and skidded down the highway." The trial court has the discretion to determine the scope and effect of such admissions. (Fredericks v. Kontos Industries, Inc. (1987) 189 Cal.App.3d 272, 277; Milton v. Montgomery Ward & Co., Inc. (1973) 33 Cal.App.3d 133, 138.) Here, the trial court determined that Casteel's theory of the accident was consistent with the admission. We agree. Casteel opined that the rental truck tipped to the left, the collision occurred, and decedent's truck completed the tipping motion onto its left side. This opinion is consistent with Hernandez's admission because under Casteel's theory of the accident, decedent's truck tipped over completely after the collision.
Finally, we reject appellants' claim that the second video computer simulation used in rebuttal to challenge Banjac's testimony lacked foundation. First, Casteel was qualified as an accident reconstruction expert. Second, he explained the basis for the video computer simulation, including the fact that the simulation used in rebuttal was created by inputting the information from Banjac's opinions set forth in his deposition testimony. On cross-examination, Casteel agreed with appellants' counsel that "the quality of the input data will determine the quality of the reconstruction." Finally, the fact that the simulation did not and could not replicate what occurred in this case supported Casteel's rebuttal opinion by suggesting that Banjac's theory was physically impossible. Accordingly, the trial court did not err with respect to Casteel's testimony.
B. Exclusion of Evidence
Appellants contend the trial court erred (1) in excluding decedent's death certificate, (2) in precluding appellants' trucking expert, Lew Grill, from testifying about what Hernandez should have felt and heard during the accident, and (3) in precluding them from inquiring about documentation supporting Hernandez's claim that he complied with federal sleep and driving regulations. We find no abuse of discretion on any of these evidentiary rulings. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900 [standard of review].)
As to the death certificate, it is not in the appellate record and thus, we lack a sufficient record to determine whether the trial court abused its discretion. Moreover, even if, as appellants allege, the death certificate concluded that "a contributing cause of [decedent's] death was the injuries she sustained in [the] accident," any error was harmless. Wooley, a paramedic, testified that decedent suffered "life threatening" injuries from the accident. In addition, the jury heard from William Barteau that his wife "got in a horrible accident and eventually died as a result of it." The death certificate was thus cumulative of other admitted evidence.
We also conclude the trial court properly precluded Grill from testifying that "Hernandez's testimony about not feeling the impact and looking to his left because he thought tires had blown out was either false, or strong evidence that [he] was so inattentive and unalert, that he should not have been driving." The trial court permitted Grill to opine about industry standards for operating trailers, including passing lanes. It allowed Grill to opine about a hypothetical similar to the accident, and to testify that Hernandez did not follow industry standards when he passed decedent's truck. The trial court precluded the proffered testimony challenging Hernandez's account of what he perceived during the accident because Grill lacked expertise on the subject. He was not an accident reconstruction expert and was not qualified to opine on what Hernandez would have heard, felt or experienced during the incident. Nor could he testify to Hernandez's credibility. The court did not err in limiting Grill's testimony to the area of his expertise.
Finally, appellants contend the trial court erred when it precluded them from asking Hernandez why he did not produce driver's logs and supporting documentation for the eight days preceding the accident. Appellants concede that Hernandez produced driver's logs showing his activity over the 40 hours preceding the accident, and that such records supported his trial testimony that he slept the proper amount of time. The trial court informed the jury that the fact Hernandez was required to keep driver's logs was marginally relevant, and the fact he did not produce logs for a time period several days before the incident was not relevant. On this record, we conclude there was no error, as the evidence of recordkeeping prior to the 40-hour period before the accident was or little or no relevance. The trial court acted within its discretion to preclude that line of inquiry as the probative value of any evidence was substantially outweighed by the probability that the evidence would unduly waste time or confuse the jury. (Evid. Code, § 352; see In re Romeo C. (1995) 33 Cal.App.4th 1838, 1845 [upholding trial court's decision to restrict cross-examination notwithstanding failure to expressly cite Evid. Code, § 352].)
C. Restriction on Case Presentation
Appellants also contend the trial court erred in restricting opening statements to half an hour for each side. We find no abuse of discretion. The time limitation on opening statements applied to both parties, and after reviewing the entire record, we are satisfied that appellants had adequate time to summarize their case; we are not persuaded that a longer opening statement would have been necessary or helpful to appellants.
D. Failure to Give Requested Instructions
Appellants contend the trial court erred when it refused to instruct the jury on four additional theories that would show or suggest Hernandez was liable. We examine de novo the validity and impact of a jury instruction. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 831.) A verdict will be reversed only if the instructional error is prejudicial. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581.) We address each proposed instruction in turn.
Appellants sought an instruction that Hernandez was negligent per se because he failed to maintain driver's logs and supporting documentation for some of the days preceding the accident. The failure to maintain records, however, does not show that Hernandez was negligent. In any event, any error was harmless as (1) there was no evidence that Hernandez was fatigued from lack of sleep, and (2) the jury was instructed that a driver who was not alert when driving was negligent.
Appellants also sought a res ipsa loquitur instruction on the ground that there was sufficient evidence to exclude decedent as a responsible cause of the accident. We disagree. It is undisputed that percipient noninterested parties saw decedent drive erratically. Neither Hernandez's testimony that he did not see decedent driving erratically prior to the accident nor Banjac's expert testimony opining that Hernandez caused the accident was sufficient to show that decedent could not have caused the accident. Decedent's erratic driving could have begun after Hernandez started to pass her and would thus not have been seen by him. Banjac's opinion testimony was contradicted by Casteel's.
Appellants also sought a special instruction on consciousness of liability. According to appellants, if the jury credited Officer Vessels' testimony, Hernandez lied when he told the officer the trailer had been repaired. Appellants sought an instruction that the jury could infer Hernandez was liable for the accident based upon his allegedly false statements to Officer Vessels. The trial court rejected the special instruction on the ground that it was already covered by other instructions. We agree and find no prejudicial error. The trial court instructed the jury that it "may consider whether one party intentionally concealed or destroyed evidence. If you find that a party did so, you may decide that the evidence would have been unfavorable to that party." The jury was also instructed that it "may consider whether a party failed to explain or deny some unfavorable evidence. Failure to explain or deny unfavorable evidence may suggest that the evidence is true." In addition, appellants were able to argue in closing that Hernandez lied to Officer Vessels about his trailer being repaired.
Finally, appellants sought a special instruction that Hernandez was required to exercise extreme care because he was operating a "dangerous instrumentality." We find no error in the trial court's refusal to give such an instruction. A tractor trailer being operated in inclement weather or other hazardous conditions is a dangerous instrumentality, and under California law, the operator of a dangerous instrumentality must exercise extreme care. (Weaver v. Chavez (2005) 133 Cal.App.4th 1350, 1354-1356.) On appeal, appellants concede that neither the federal government nor the State of California requires that an operator of a tractor trailer exercise extreme care when driving in clear and calm conditions on public highways. We decline appellants' request to impose such a requirement. In short, we find no legal basis for giving a dangerous instrumentality instruction and no error in the trial court's declining to give one.
E. Cumulative Error
In their reply brief, appellants contend they were denied a fair trial based upon each claim of error singly and in combination. We have rejected each claim of error or have determined that any error was harmless. After reviewing the record, we conclude that any errors, even viewed cumulatively, were harmless. III. Application for Waiver of Jury and Court Reporter Fees
Appellants contend the superior court erred in denying their application for a waiver of jury and court reporter fees. In the minute order denying the request, the court stated that appellants had "present[ed] no authority for a retroactive waiver." We construe the court's comment to indicate it believed it lacked authority to grant the requested waiver. We conclude the court did have authority to grant a retroactive waiver of fees under certain circumstances, and that appellants cited such authority in their application for a waiver. (See, e.g., Gov. Code, § 68631 ["An initial fee waiver shall be granted by the court at any stage of the proceedings at both the appellate and trial court levels if an applicant meets the standards of eligibility and application"]; Cal. Rules of Court, rules 3.50(b) ["'[I]nitial fee waiver' means the initial waiver of court fees and costs that may be granted at any stage of the proceedings"], 3.56 ["Necessary court fees and costs that may be waived upon granting an application for an initial fee waiver, either at the outset or upon later application, include . . . ."], italics added.)
Appellants claim they filed their application on the same day they received the bill for jury and court reporter fees. There is no evidence to contradict their assertion. On this record, there is prima facie evidence that appellants' application was timely filed. Accordingly, we conclude the matter should be remanded to the superior court to determine whether the application for waiver of jury and court reporter fees should be granted.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal. The matter is remanded to the superior court to rule on appellants' application for a waiver of jury and court reporter fees.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.