Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. CV255252. David R. Lampe, Judge.
Brown, Brown & Klass, Delos E. Brown and John J. Stumreiter for Defendants and Appellants.
Young & Nichols, Thomas A. Brill and Todd A. Gall for Plaintiffs and Respondents.
OPINION
DETJEN, J.
These consolidated appeals are from a judgment entered on a jury verdict and orders entered on post judgment motions. We will affirm the judgment and the post judgment orders. We conclude substantial evidence supports the verdict in favor of plaintiffs, Richard Toland, Deanna Summers and Jennifer Sanchez, and against defendant, Noel Arredondo. (Sanchez became married after the accident and before trial; at the time of trial, her name was Jennifer Ong.) We conclude the trial court did not abuse its discretion in denying defendant’s new trial motion. We further conclude the court did not err in awarding additional costs to plaintiffs based upon defendant’s failure to accept plaintiffs’ offer under Code of Civil Procedure section 998, nor in taxing costs against Noel’s Foods, Inc., an additional defendant in whose favor the court previously had entered a directed verdict. (All further section references are to the Code of Civil Procedure.)
Noel Arredondo and Noel’s Foods, Inc., have each appealed from the relevant rulings affecting each of them. For convenience, we will refer to Arredondo as “defendant” and Noel’s Foods, Inc., as “the corporate defendant.” Respondents Toland, Summers and Sanchez will be referred to collectively as “plaintiffs.”
FACTS AND PROCEDURAL HISTORY
The nature of defendant’s presentation of his substantial evidence argument on appeal requires that we discuss the evidence in some detail in analyzing his argument. In the interest of avoiding repetition, we will set forth only a brief summary of the facts.
Defendant operated a food stand at the Kern County Fair. Defendant used an electric utility cart to transport supplies from his truck in the parking lot to his food stand on the fairgrounds. Defendant bought the used golf cart in 1982; he removed the golf-bag racks from the rear and installed a deck upon which the supplies were carried.
On the night of September 24, 2004, defendant brought supplies to the food stand at about 8:00 p.m. and parked the cart nearby. The area near the food stand and the neighboring Basque Club was a popular gathering place at the fair. By about 9:30 p.m., there were 30 to 100 people standing in the area. The unattended utility cart started moving in reverse at a relatively high speed (that is, it was not merely coasting or creeping along) and entered the crowd. Plaintiffs were struck by the cart. Toland was the most seriously injured of the three plaintiffs. He was trapped under the cart when it came to a stop; he suffered, inter alia, a knee injury that required surgical repair. Summers and Sanchez suffered lesser injuries.
In broad summary, plaintiffs’ theory of the case was that the shift mechanism of the cart had been intentionally modified to make it possible to drive the cart in reverse without the key in the ignition. Defendant had driven the cart in this manner about 90 minutes before the accident and had failed to apply the hand brake when he left the cart unattended. Plaintiffs contended defendant’s failure to properly service the accelerator assembly resulted in a sticky accelerator pedal that, given the peculiarities of the accelerator assembly, allowed the cart to appear to be de-powered when, in reality, a small amount of electricity was flowing. After a sufficient period, this electricity would “arc” to create a fully powered electrical circuit, causing the cart, previously left in reverse, to move under full power. Defendant contended, by contrast, that the shift-lock mechanism and the accelerator assembly had both been in proper working order when defendant parked the cart, and that defendant had set the hand brake. Defendant suggested that unknown vandals had set the cart in motion, causing plaintiffs’ injuries.
The accelerator assembly in this electric utility cart consisted of a pedal that moved over a series of resistor plates; the plates apparently were connected in series so that as the pedal linkage moved down the assembly (as the pedal was depressed) fewer resistors were in the circuit and more current was delivered from the batteries to the electric motor. Each of the five resistors had an exposed plate or bar and the linkage moved up and down over the bars. A spring was intended to return the pedal to the top of its range of motion when the driver lifted his or her foot off the pedal. Over time, the resistor plates could become worn. In that condition, the pedal linkage could become hung on the edge of a resistor plate, inhibiting return of the pedal all the way to the “off” position. When the expert inspected the cart, about 18 months after the accident, he moved the pedal by hand. On one occasion when he did so, the linkage hung up on a resistor plate, causing the pedal to stick about halfway to the floor.
The case was tried to a jury. At the close of evidence, the court entered a directed verdict against the corporate defendant. The jury awarded damages against defendant: Toland was awarded $527,471; Summers was awarded $114,590; Sanchez was awarded $12,585. The court entered judgment accordingly.
The court denied defendant’s motions for judgment notwithstanding the verdict and for a new trial. The court awarded plaintiffs Summers and Sanchez expert witness fees pursuant section 998. It denied the corporate defendant’s request for costs as a prevailing party.
Both defendants filed timely notices of appeal. By order of January 27, 2010, this court granted defendants’ motion to consolidate the appeals.
DISCUSSION
I. Sufficiency of the Evidence
Defendant contends the plaintiffs’ evidence amounted to nothing more than speculation and was legally insufficient to support the verdict. This contention is based upon a misunderstanding of plaintiffs’ burden of proof and upon mischaracterization of the evidence. We first address the burden of proof.
Contrary to defendant’s assertion, a plaintiff is not required to prove, in the abstract, that each of the facts supporting the plaintiff’s case “probably” occurred in order to sustain a verdict. Instead, the plaintiff is required to prove the elements of his or her case by a preponderance of the evidence. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482, 483.) That is, a plaintiff is required to establish that the “evidence … ‘“when weighed with that opposed to it, has more convincing force and the greater probability of truth.”’” (Id. at p. 483, quoting from 1 Witkin, Cal. Evidence (3d ed. 1986) Burden of Proof and Presumptions, § 157, p. 135; see 1 Witkin, Cal. Evidence (4th ed. 2000) § 35, p. 184.) Thus, when the jury is presented with a choice between possible factual scenarios, the question on appeal is whether a rational jury could conclude, based on the evidence and the inferences favorable to the prevailing party, that “the choice selected is more probable than the choice rejected.” (Norton v. Futrell (1957) 149 Cal.App.2d 586, 592; see Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 312.)
Here, the uncontradicted evidence was that the utility cart proceeded in reverse, with no one driving it, into a crowd of people, striking the three plaintiffs.
Plaintiffs’ evidence, if credited by the jury, showed the following: The parked cart, which had been unattended for approximately an hour and a half after defendant last used it, had no one near it when it started moving. The cart could be shifted into reverse (but not forward gear) while the “ignition” switch was in the “off” position and the key was removed. The accelerator assembly was worn and could stick in an open position. The cart would not move, even if in gear and even if the accelerator were depressed, if the parking brake was engaged. Despite defendant’s claim that he maintained the accelerator pedal in working order in accordance with the manufacturer’s instructions, he did not do so. Despite defendant’s claim that he “always” engaged the parking brake after he used the cart, the brake was not engaged the night of the accident and was not engaged the next day, despite a deputy’s direction to defendant to “secure” the cart after the accident.
On the other hand, defendant’s evidence, if credited by the jury, showed that the lock-out mechanism of the cart’s shift-lock mechanism was inoperable, not as a result of wear-and-tear, but as a result of intentional tampering with the mechanism. Defendant’s evidence was that the accelerator assembly was properly maintained and that, in the absence of a driver in the cart, the accelerator could only be depressed through the use of some external device, such as an object jammed under the edge of the pedal.
It may be useful at this point to address a collateral issue that resurfaces continually in defendant’s argument. The undisputed evidence showed that the “ignition” key on the utility cart functioned in a completely different way than the familiar key on a car or other vehicle. Thus, on a car, for example, the ignition key turns a switch that closes electrical circuits, thereby activating the electric starter motor and the electrical circuits of the gasoline engine. On the cart, by contrast, turning the key to “on” physically disengaged a metal bar that, when the key was in the “off” position, mechanically prevented the shift lever from moving from neutral into forward or reverse.
The question for the jury, then, was whether it was probable that the cart moved because of the condition in which defendant maintained the cart or, instead, it was more probable that the rather sophisticated vandalism required to cause the cart to move, in defendant’s theory, occurred without anyone noticing that the vandal was at work just prior to the cart’s movement. Viewed in this light, the evidence clearly was sufficient to permit a reasonable jury to conclude the cart probably moved as a result of defendant’s acts and his negligent failure to maintain the cart in a safe condition. (See Pfingsten v. Westenhaver (1952) 39 Cal.2d 12, 21 [inference based on condition of trailer immediately after accident where evidence did not establish that condition had changed between time of accident and later, observed condition].)
In an effort to undermine the sufficiency of the evidence, defendant labels as “speculation” many inferences that the jury was clearly entitled to draw from the evidence. For example, defendant contends there was no evidence that he left the cart in reverse gear. He contends, in fact, that the evidence established that “it was mechanically impossible for that to have occurred.” This argument has no merit.
Defendant’s argument is based on his conflation of the impossibility of removing the key from the off-on switch and moving the shift lever from neutral to reverse without the key-which was not only physically possible, but clearly happened under all versions of the evidence. This conflation of concepts is explained in footnote 3, ante.
The primary evidence that the cart was in reverse gear was, of course, the undisputed evidence that the cart moved, under power, backwards. The jury was entitled to infer that defendant left the shift lever in reverse based on the state of the evidence. First, the undisputed fact was that no witness saw anyone tampering with the shift mechanism after the time defendant parked the cart, despite the fact that the cart was sitting in plain sight at the edge of a large crowd of people. Further, immediately after the accident, according to the testimony of both defendant and an investigating deputy sheriff, defendant was asked to put the cart into reverse without the key in the lock and defendant did so. In the absence of any evidence at all of intervening vandalism, the jury was entitled to infer that the cart was in the same condition at 8:00 p.m., when defendant last used it, as it was at 9:30 p.m., when the accident occurred.
In an effort to undermine the sufficiency of the evidence to support the jury’s inference, defendant seizes upon a portion of the testimony of plaintiff’s expert, Ronald Heavrin, a golf-cart mechanic. Heavrin was asked on cross-examination a lengthy hypothetical question that assumed, essentially, that the cart was in perfect working order; that defendant applied the parking brake when he parked the cart for the last time before the accident; and that the cart had been vandalized between its last use by defendant and the time of the accident. Defendant’s attorney then asked: “With all these assumptions, do you have an opinion as to whether the cart in question somehow put itself into motion on [the date of the accident], somehow unsetting the hand brake, depressing the accelerator pedal, and moving into reverse gear by itself such that this accident happened with no one having tampered with that locking bar mechanism beforehand?” Heavrin’s response, in effect, rejected all of the assumptions set forth in the hypothetical. He explained how each of the assumed facts “could have” been erroneous in light of other assumptions. He posited an alternative scenario involving defendant’s negligence. Defendant’s counsel then asked: “You don’t have any evidence that that actually happened, do you?” Heavrin answered: “Just due to the knowledge and experience I’ve had over the years with this particular type of golf carts, I have seen things like this happen with it more than once.” Question: “So it’s possible that could have happened; right?” Heavrin: “It’s very possible.” Question: “But you’re not saying that that actually happened?” Heavrin: “I wasn’t there. I couldn’t tell you exactly what happened.”
Standing alone, of course, Heavrin’s testimony does not establish plaintiff’s case by a preponderance of evidence. The testimony did not, however, stand alone. Heavrin’s testimony was presented in the context of other evidence that showed immediately after the accident the cart’s shifting mechanism was not in good repair and would not have prevented operation of the cart without the key. The evidence showed that in the 10 minutes before the cart moved, no one was seen around the cart. And, in addition to the exchange described above, Heavrin’s testimony, if believed, established that the damage to the shift linkage, if caused by vandalism from the top side with a screwdriver, would have required repeated “beating” on the screwdriver with a hammer, a circumstance inconsistent with the testimony that no one was around the cart prior to the accident. While the jury was not required to accept this evidence by plaintiffs’ witnesses, nor to draw from it the inferences most favorable to the plaintiffs, we are required to do so on substantial evidence review of the case. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660 [substantial evidence standard of review].)
It was this additional evidence that established what happened on the night of the accident. Heavrin merely provided an explanation of the mechanism by which that state of facts could have resulted in the cart springing into motion. He testified that he had seen a similar chain of events “more than once” in his career as a cart mechanic and that he knew of, and could think of, no other explanation for the known result (the powered movement of the cart).
Such testimony is wholly different from that in the “speculative” expert testimony cases upon which defendant relies. The first case, Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108 (Jennings), was a medical malpractice action. During abdominal surgery, a retractor clamp was accidentally left inside the plaintiff. After the surgery, the plaintiff developed an internal infection that caused the plaintiff’s injuries. (Id. at pp. 1119-1120.) The primary issue at trial was whether the retractor, even if negligently left in the plaintiff, could have caused the infection, in light of evidence that the retractor was sealed into a separate body cavity away from the location of the infection. The plaintiff’s medical expert proposed to testify that “‘[i]t just sort of makes sense’” that bacteria migrated from the retractor to the location of the infection. (Id. at p. 1115.) Although the expert suggested two mechanisms by which the retractor itself could have become contaminated, he offered no explanation whatsoever of the appearance of the infection in a different location. (Ibid.) The trial court excluded the testimony. Although the plaintiff recovered a judgment on other claims, he appealed, contending he was entitled to a new trial on the issue of damages. (Id. at p. 1116.)
The appellate court affirmed the judgment. The court concluded that the expert’s testimony was “too conclusory to support a jury verdict on causation.” (Jennings, supra, 114 Cal.App.4th at p. 1120.) The expert’s opinion “was not supported by a reasoned explanation illuminating the etiology connecting the infected subcutaneous tissue to the [site] inside the peritoneal cavity where the retractor was retained, and did not contain a reasoned explanation accounting for or reconciling his theory with the apparent lack of inflammation or infection along the theorized migratory route.” (Id. at pp. 1120-1121.) Accordingly, the evidence “could not assist the jury to perform its role of determining whether it was more probable than not that the retention of the retractor in the peritoneal cavity of the abdomen contributed to the infection in the subcutaneous tissue” and was, as a result, inadmissible. (Id. at p. 1121)
The next case upon which defendant relies is Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763. In that case, a delivery driver was assaulted on the grounds of an apartment complex. The evidence established that the complex was in a high-crime area and was, itself, home to a local street gang. The plaintiff contended the property owner was responsible for the assault because a security gate may have been propped open at the time of the assault, a condition that could have been avoided if the owner had exercised due care in providing security guards at the property. (Id. at pp. 766-767.) In support of her claim, the plaintiff proffered the declaration of a security expert. The expert stated that the attack “‘would not have occurred had there been daytime security and a more concerted effort to keep the gates repaired and closed.… It is my opinion that the premises were a haven for gangsters and hoodlums which further encouraged criminal activity’” on the premises. (Id. at p. 771.)
The Supreme Court affirmed the grant of summary judgment against the plaintiff because the plaintiff’s assailants were never identified and apprehended and, accordingly, the plaintiff was unable to establish that the assailants “would not have succeeded in assaulting her if defendants had provided additional security precautions.” (Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 767.) In particular, in light of the evidence of the presence of gang headquarters on the premises, the assailants might well have been lawfully on the premises and could not have been excluded by functioning perimeter security. (Id. at p. 776.) The testimony of the plaintiff’s security expert did not establish causality because there was no factual basis for the assertion that a generalized enhancement of security on the premises would have prevented the present assault. (Id. at p. 775.) The court recognized that in some cases eyewitnesses, security cameras, fingerprints, or other evidence “may show what likely transpired at the scene. In the present case no such evidence was presented ….” (Id. at p. 779.) The absence of such evidence, however, could not be counterbalanced by the testimony of a security expert: “Because he was equally unaware of the assailants’ identities, his opinion regarding causation is simply too tenuous to create a triable issue whether the absence of security guards or functioning gates was a substantial factor in plaintiff’s assault.” (Id. at p. 781.)
Finally, defendant relies upon the recent case of Bowman v. Wyatt, supra, 186 Cal.App.4th 286. Bowman involves the same issues as Jennings, supra, 114 Cal.App.4th 1108, namely, the requirement of proof that negligence caused plaintiff’s injury. In Bowman, there was ample evidence that the brakes on a truck were in defective condition. (Bowman v. Wyatt, supra, 186 Cal.App.4th 286 at pp. 310-311.) All of the evidence indicated, however, that the driver of the truck was able to, and did, stop the truck at an intersection before he pulled into the path of a motorcyclist crossing into the intersection. (Id. at p. 313.) The plaintiff’s “expert witness did not testify that defective brakes caused the accident; to the contrary, while he testified to a host of defects [with the braking system], he was unwilling to say that brake failure caused the accident or even that a brake defect affected [the truck driver’s] ability to stop.” (Ibid.) Thus, as in Jennings, there was no evidence of causation and any imposition of liability based on negligent failure to maintain the brakes was impermissibly speculative.
In contrast to Saelzler, Bowman and Jennings, there was ample evidence before the jury in this case from which it could determine a probable mechanism by which the accident occurred. In Saelzler, there was no evidence to negate the other sources of third-party criminal conduct (causes not attributable to the defendant’s negligence) that actually caused the plaintiff’s injury. In Bowman and Jennings, there was no evidence of a nexus between the defendant’s negligence and the plaintiff’s injury. Thus, in all three cases, the negligence remained only a possible, not a probable cause, of the injury. In the present case, the physically “possible” cause, when viewed in the light of both the affirmative evidence and the absence of other reasonable causal explanations, was reasonably accepted by the jury as the probable cause of plaintiffs’ injuries. (See Bowman v. Wyatt, supra, 189 Cal.App.4th at p. 313; Jennings, supra, 114 Cal.App.4th at p. 1117.)
Defendant identifies the key evidence that negated any other “reasonable causal explanations” apart from the explanation provided by Heavrin; evidence, that is, that provided the basis for the jury to infer that Heavrin’s physically “possible” sequence of facts was probably what happened. Accordingly, defendant seeks to undermine that evidence as “self-contradictory” and insubstantial.
First, defendant addresses the testimony of Alex Shaw. He notes that Shaw only observed the cart during the last 10 minutes before it went into motion. Defendant postulates that this left open a gap of 60 to 80 minutes between the last time defendant operated the cart and the time of the accident, and during that gap someone could have vandalized the cart in a manner that caused it to move at the time of the accident. The inference of such vandalism could readily have been rejected by the jury for a simple reason: there was no explanation whatsoever of a mechanism that would have delayed the movement of the cart until it had been unattended for 10 or more minutes. In other words, while it is theoretically possible a vandal with sufficient knowledge could have bent the shift linkage, put the cart in gear, and locked the accelerator down, there was not even a theoretical possibility that those actions would not have caused the cart to immediately accelerate-except for the “arcing” theory arising from inadequate maintenance of the resistor plates. Thus, even under defendant’s view of the evidence, Shaw’s and Heavrin’s testimony was sufficient to establish defendant’s negligent maintenance of the accelerator assembly as a substantial factor in causing plaintiffs’ injuries. More importantly, however, the jury was entitled to reject defendant’s theory of intervening vandalism as completely implausible, as discussed next.
Second, defendant says Shaw’s testimony left open the possibility that a very small person could have mounted and vandalized the cart, since Shaw’s view of the floorboard was blocked, presumably by the seat of the cart. However, Shaw testified that he saw no one on the cart, around the cart, running or walking away from the cart as it began to move, and that his attention was drawn to this fact because he thought to himself, “when [he] saw it moving, I thought who was driving that thing, and then I kind of scanned it quickly just wondering, why is no one on that cart? Or at least no one visible.” Shaw said he was looking directly at the cart because it was “right beyond” the person he was talking to at the time. The idea that the vandal who knew how to set the cart in motion was also a person small enough to hide while he worked on the cart was substantially negated by Heavrin’s testimony that the damage to the shift linkage, if done by a person crouched in the floorboard, would have required repeated hammering on a screwdriver to bend the linkage. The jury reasonably could have inferred from Shaw’s testimony that he would not have missed such a commotion during the time he was observing the cart.
The shift-lock mechanism was under the seat of the cart. The easiest way to access the mechanism was by tilting the seat forward on its hinges. Plaintiffs’ expert testified that it appeared the lock mechanism had been bent out of position using pliers or a similar tool, which would have required accessing the mechanism in this manner. Defendant’s expert testified that the mechanism could have been accessed with the seat in its normal place by sticking a screwdriver through the shift-lever hole in the floorboard. The question to Shaw assumed the seat was in place, because he would have seen anyone leaning into the cart behind the seat, if it had been tilted forward. Plaintiffs’ expert testified that the locking mechanism was made of hard steel and that bending it out of shape through the hole in the floorboard would have required repeated beating on the screwdriver with a hammer. Defendant’s expert said the bar was “relatively thin metal” that could have been bent using a screwdriver and “just jamming it hard with a fist.” He testified the bar had not been bent using pliers, because there were no marks on the back side of the bar to indicate it had been clamped in the jaws of such a tool. Neither side suggested the shift-lock was bent due to ordinary wear and tear. While plaintiffs’ evidence permitted an inference that no one had bent the lock bar on the night of the accident, there was no evidence whether defendant or some other person had been responsible for bending the bar on an earlier occasion.
Defendant’s remaining contentions are directed merely to the weight of the evidence. He insists, for example, that the jury was required to accept at face value the testimony of a witness who said he jerked the accelerator pedal from a fully depressed position in order to stop the cart motor after the accident. Having done so, according to defendant, the jury would be required to reject Heavrin’s testimony that when he examined the accelerator and the resistor plates during his investigation of the condition of the cart, the pedal became stuck at a place where the pedal would have been only halfway down, not fully depressed. Further, defendant contends, the testimony concerning the fully depressed accelerator meant, of necessity, that defendant was not the last person to drive the cart, because “[t]his would have required [defendant] to have stepped on the pedal to reach full speed at the same time as parking, which is inherently not credible.” The jury, however, was entitled to view the evidence differently, and to make, in effect, the opposite inference from the testimony. Thus, the jury was entitled to conclude that because defendant was unlikely to have fully depressed the pedal to travel the short distance involved in parking the cart and because the excessive wear on the pedal caused it to become stuck in the halfway position, the witness was simply mistaken when he thought he was pulling the pedal up from the fully depressed position after the accident.
Taking a somewhat contradictory view of the evidence, defendant next contends the accelerator pedal could not have been sticking in any position because a sheriff’s deputy who examined the cart the day after the accident was not able to re-create the sticking action. This testimony, however, even if viewed in the light most favorable to defendant, did not contradict Heavrin’s testimony concerning the sticking resistor plate. Heavrin said the pedal would tend to become stuck only if the driver slowly eased off on the pedal when the roller was at a particular place on the resistor plate. He indicated that, in his experience, when the accelerator pedal was released quickly, the return-spring acted with sufficient force to overcome the tendency for the roller to catch on the resistor bars. The deputy was not asked, and did not testify, concerning the way he pressed and released the pedal. His testimony indicated the point of his examination of the cart was to determine whether it could be moved without the key in the off-on switch. (It could.) He was not attempting to determine whether the pedal stuck under some circumstances. The jury was entitled to harmonize this testimony by inferring that the deputy’s pedal action differed from defendant’s pedal action on the night of the accident.
The deputy sheriff did not, in fact, testify that the pedal did not stick when he drove the cart the next day. Instead, he testified that he did not remember it sticking and that he would have put it in his report if it had stuck.
Defendant acknowledges that the evidence showed he was the last person known to have been on the cart before the accident, and he acknowledges that both plaintiffs’ expert and his own expert agreed the “arcing” phenomenon provided an explanation for the movement of the cart an hour and a half later, even without intervention by another person. Defendant contends, however, that the jury was not entitled to infer that no one else had tampered with the cart in the interval: “To say that [defendant] is responsible because he is the last known person is, in effect, to impose strict liability on a cart owner for any accident, even if someone tampered with the cart. That is nothing more than an improper deep-pocket theory, imposed because [defendant] was the only pocket that anyone could identify.”
This argument ignores the abundance of evidence the jury could have credited, evidence that makes defendant’s argument totally implausible. We have set forth above, in some detail, the evidence that makes it wholly unlikely that a phantom vandal would have been able to rig the cart so that it started on its own accord when no driver was on the cart. We will not lengthen this opinion by repeating that evidence here. It is sufficient at this point to state that there was absolutely no evidence of an intervening vandal against which the jury could balance all of the evidence that such vandalism did not occur. The evidence before the jury was sufficient to impose liability upon defendant based on his actions and his failure to maintain the cart in a safe condition.
Similarly, defendant says there was only weak evidence that (1) he drove the cart in reverse, (2) he was aware that the cart had been moved without the key on a previous occasion, (3) he knew the cart could be shifted into reverse without the key, and (4) he did not engage the parking brake on the night of the accident. Although this evidence conflicted in some instances with plausible evidence from defendant, no single piece of plaintiffs’ evidence was offered as proof, standing alone, of defendant’s negligence. Each piece was, however, in light of all of the other evidence, worthy of belief and contributed to plaintiffs’ required showing of defendant’s negligence by a preponderance of the evidence.
Finally, defendant contends that plaintiffs failed to establish a mandatory maintenance schedule that defendant failed to heed, and did not establish that defendant knew maintenance was necessary. To the contrary, defendant himself testified that he knew periodic maintenance of the resistor plates was necessary and that, in fact, he did this maintenance himself. The jury was entitled to take him at his word concerning his knowledge. It was entitled to credit the ample evidence that impeached his claim that he had actually performed such maintenance.
In summary, the properly admitted evidence, viewed most favorably to the verdict, was ample to support the jury’s imposition of liability on defendant. (Jessup Farms v. Baldwin, supra, 33 Cal.3d at p. 660.)
II. Denial of New Trial Motion
Defendant contends the court erred in denying defendant’s motion for a new trial. He contends the evidence was “so intrinsically weak” that the trial court abused its discretion in denying the motion.
“Section 657 of the Code of Civil Procedure provides in relevant part: ‘A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.’ … Section 657 by its terms requires the trial court to weigh the evidence and consider the entire record. [Citation.] The court is ‘vested with the authority... to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact.’ [Citation.]” (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1159-1160, italics omitted.)
The trial court in the present case considered the entire record and set forth in a detailed written order its resolution of defendant’s contentions. Defendant merely disagrees with the court’s analysis of the evidence; he has not begun to show that the court abused its discretion in resolving issues involving the weight of the evidence.
The issues defendant identifies are the same issues discussed in the previous section. As with defendant’s sufficiency of evidence discussion, defendant simply insists the court and the jury drew the wrong inferences from the evidence.
Although defendant’s discussion of the merits of the new trial motion is unconvincing, even more important is his omission altogether of a discussion of the relevant standard of appellate review of the denial of such a motion. Thus, defendant fails to acknowledge that a trial court’s findings upon denying a new trial motion are entitled to the same deference normally accorded a jury verdict on appeal. (See Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 411.) A new trial motion “is addressed to the judge’s sound discretion; [the judge] is vested with the authority, for example, to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact; on appeal, all presumptions are in favor of the order … and the reviewing court will not disturb the ruling unless a manifest and unmistakable abuse of discretion is made to appear.” (Mercer v. Perez (1968) 68 Cal.2d 104, 112.) “‘It is only where it can be said as a matter of law that there is no substantial evidence to support a contrary judgment that an appellate court will reverse the order of the trial court.’” (Ballard v. Pacific Greyhound Lines (1946) 28 Cal.2d 357, 358.) Defendant has not even begun to establish that the trial court abused its discretion in denying the motion for new trial.
III. Issues Involving the Corporate Defendant
The corporate defendant filed a memorandum of costs as the prevailing party. (See § 1032, subd. (b).) Plaintiffs moved to strike or tax costs on the basis that the corporate defendant was represented by the same attorney and had a unity of interests with the individual defendant, who was not a prevailing party. Relying on Wakefield v. Bohlin (2006) 145 Cal.App.4th 963, 983-985, plaintiffs contended the award of costs in those circumstances was discretionary, and the court should exercise its discretion to disallow costs. The court determined it had discretion with respect to the award of costs; it exercised its discretion to strike the corporate defendant’s claimed costs. We conclude the court was correct that it had discretion to disallow costs to the corporate defendant and that it did not abuse that discretion.
A. Background
Plaintiffs sued “Noel Arredondo dba Noel’s Food Concession.” An answer was filed on behalf of “Defendant, Noel’s Food, Inc., erroneously sued herein as Noel Arrendondo, Noel Arredondo -dba- Noel’s Food Concession.”
Plaintiffs also named various fair entities as defendants. Claims against those defendants were not involved in the trial and are not involved in this appeal.
When defendant was called as a witness by the plaintiffs, plaintiffs’ counsel asked if defendant is the “majority shareholder and president of Noel Foods Inc.” Defendant answered, “Noel’s Mexican Food.” Question: “Inc.; correct?” Answer: “Yes.” Defendant then was asked whether “you” had a food concession at the Kern County Fair in 2004. He answered: “I did.” Defendant testified he owned the cart, kept the key in his pocket, and controlled who used the cart.
Thereafter, the case proceeded without any particular differentiation between the defendant and the corporate defendant. When defendant’s wife, Teresa Arredondo, was called as a witness, she testified briefly that she and other members of the family were part owners of “the corporation,” but her remaining testimony simply spoke about her and her husband operating the food stand.
After plaintiffs rested their case, defense counsel moved for a directed verdict. The first portion of the motion was for a directed verdict on behalf of both defendants, premised on plaintiffs’ failure to prove negligence. That portion of the motion was denied. The second portion of the motion was on behalf of the corporate defendant. Counsel pointed out that there had been no evidence that the corporate defendant owned the cart, ratified or authorized any of the actions of the individual defendant, or even that it operated the food concession. The court took that portion of the motion under submission and adjourned court for the day.
The next day, the court entertained further argument of counsel on the directed verdict motion. Plaintiffs proffered defendants’ pretrial-discovery admission that the corporate defendant “operated” the food concession. Plaintiffs’ counsel requested leave to reopen his case to publish that admission to the jury. Defense counsel indicated that the cart was not owned by the corporation, but by the individual defendant, and argued that it would be unfair to permit plaintiffs to reopen. Defense counsel stated that the individual defendant was a named insured under the insurance policy that covered the accident. He contended that it would be “patently unfair” to permit plaintiffs to reopen their case, since they had every opportunity to prove any liability on the part of the corporate defendant. He stated that plaintiffs’ mistake in failing to introduce evidence of corporate liability “does not have any practical effect, at least at this point and at least potentially if there is a verdict against Mr. Arredondo, in any circumstance as to whether or not money be paid or collected. There’s no evidence to that effect whatsoever, and I’ve made a representation to this court as an officer of the court that that would not be true.”
The court granted the directed verdict motion as to the corporate defendant, stating: “But for that stipulation [concerning insurance coverage of the individual defendant], I would grant the motion to reopen for the limited purpose of simply reading the request for admission and to reopen to allow the Defense to meet that one piece of evidence ….”
Subsequently, judgment was entered against the individual defendant on the jury verdict and in favor of the corporate defendant on the basis of the motion for directed verdict.
B. Judicial Estoppel
“‘“The doctrine of judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, is invoked to prevent a party from changing its position over the course of judicial proceedings when such positional changes have an adverse impact on the judicial process.… ‘The policies underlying preclusion of inconsistent positions are “general consideration[s] of the orderly administration of justice and regard for the dignity of judicial proceedings.”’”’” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181, quoting from Russell v. Rolfs (9th Cir. 1990) 893 F.2d 1033, 1037.)
In the present case, defendants asserted in their answer that, in effect, there was only one defendant. When they subsequently attempted to distinguish between the individual defendant and the corporate defendant for purposes of the directed verdict motion-and the court indicated it would permit plaintiffs to reopen their case to resolve the confusion-defense counsel represented to the court that, if matters proceeded only with respect to the individual defendant, there “would be no practical effect” to a verdict against him alone. The trial court did not abuse its discretion in prohibiting the defendants from taking a contrary position in later seeking to establish the corporate defendant as the prevailing party. (Jackson v. County of Los Angeles, supra, 60 Cal.App.4th at p. 183; see generally 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, §339, pp. 944-946.)
C. Wakefield v. Bohlin
Even if the corporate defendant was not barred from claiming costs by principles of judicial estoppel arising from the proceedings on the directed verdict motion, the court had discretion to strike costs pursuant to Wakefield v. Bohlin, supra, 145 Cal.App.4th at pp. 984-985, disapproved on another ground in Goodman v. Lozano (2010) 47 Cal.4th 1327, 1338. In Wakefield, as relevant here, the plaintiff sued a husband and wife over construction defects. The jury returned a verdict for the plaintiff against the husband and a verdict against the plaintiff and in favor of the wife. (145 Cal.App.4th at p. 970.) The trial court awarded costs to the defendants. The court of appeal reversed as to the husband (on a basis that resulted in disapproval in Goodman v. Lozano, supra, 47 Cal.4th at p. 1338). (See 145 Cal.App.4th at p. 983.) The court then turned to the question of whether the wife, in whose favor there was a verdict, was a prevailing party entitled to a mandatory award of costs. (Id. at p. 984.)
The appellate court noted that as a general matter a prevailing party is entitled as a matter of right to recover costs under the language of section 1032, subdivision (b). (Wakefield v. Bohlin, supra, 145 Cal.App.4th at p. 975.) However, in some circumstances, two defendants are united in interest, raise the same defenses in the same answer, and are represented by the same attorneys, yet the jury returns a verdict for one defendant and against the other. In that event, pursuant to longstanding judicial interpretation of section 1032, the defendant who receives a favorable verdict is not considered a “prevailing party” under section 1032, subdivision (a)(4) and is not, as a result, entitled to costs as of right under section 1032, subdivision (b). (145 Cal.App.4th at pp. 984-985; see also 7 Witkin, Cal. Procedure, supra, Judgment, § 94, pp. 633-634.) Such costs are to be awarded only in the discretion of the trial court. (145 Cal.App.4th at p. 985.) Accordingly, the court reversed the award of costs and remanded the matter for the trial court to exercise its discretion to grant or deny costs. (Id. at p. 990.)
Defendants contend we should not follow Wakefield v. Bohlin, supra, 145 Cal.App.4th at p. 984 and the cases that preceded it (see Slavin v. Fink (1994) 25 Cal.App.4th 722) because those cases do not properly account for changes in section 1032, subdivision (b) occurring after the “unity of interest” doctrine was first articulated. To the contrary, the cases expressly note the change in the language of subdivision (b). (See e.g., 145 Cal.App.4th at p. 984 & fn. 6.) The “unity of interest” doctrine, however, involves interpretation of the statutory requirement of “prevailing party” under subdivision (a)(4), not the requirement that such party be awarded costs as a matter of right under subdivision (b). Defendants have not articulated any sound reason why we should revisit the settled case law in this area.
Defendant does not contend the trial court abused its discretion in striking the corporate defendant’s costs. Because we conclude the trial court had discretion to strike the costs, we affirm the posttrial order of August 17, 2009, striking such costs.
IV. Award of Costs to Plaintiffs Summers and Sanchez
Defendant contends the trial court abused its discretion in awarding expert witness fees to plaintiffs Summers and Sanchez. Defendant has not demonstrated that the court abused its discretion and we will discuss his contentions only briefly.
Defendant contends the claimed costs were not “substantiated.” However, as defendant acknowledges, a plaintiff is only required to provide detailed documentation of expert witness fees if the claims are not facially reasonable. (See 7 Witkin, Cal. Procedure, supra, Judgment, § 146, pp. 679-680.) In the present case, the court expressly found, “based upon the court’s knowledge of the specialties of the expert witnesses who testified,” that the fees were “reasonable and customary.”
Similarly, the court stated reasons for rejecting defendant’s other objections to the costs memorandum and those reasons are well within the scope of judicial discretion. Under the circumstances of this case, as described above in the section captioned “Judicial Estoppel,” plaintiffs did not create ambiguity by directing their settlement offers to “Noel Arrendondo dba Noel’s Food, Inc.” Further, the court’s implied finding that there was good cause to permit plaintiffs to amend their costs memorandum is not shown to be an abuse of discretion.
Finally, defendant contends that the section 998 offers were not made in good faith. Defendant recognizes that a settlement offer that is less than the ultimate judgment is presumed reasonable. (See Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1025.) He says, however, that the offers here-“more than twice the special damages for one defendant and almost three times the special damages of another”-constituted “a demand for what they could hope for at trial with complete success.” The facts belie this claim, however: Plaintiff Summers’s settlement offer was for $29,000, while the jury verdict in her favor (a much better indication of “complete success”) was for $114,590. Plaintiff Sanchez had a similar disparity between her offer and the verdict. There has been no showing on the present record that the settlement offers were merely tactical, made not for true settlement purposes but merely to lay the foundation for an award of expert fees. (See Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1263.)
We affirm the portion of the August 17, 2009, order awarding expert witness fees to plaintiffs Summers and Sanchez.
DISPOSITION
The judgment and postjudgment orders are affirmed. Respondents are awarded costs on appeal.
WE CONCUR: KANE, Acting P.J., POOCHIGIAN, J.
A specialized lubricant was required by the manufacturer to be applied to the face of the resistor panel to insure smooth movement of the linkage over the resistor bars and to enhance the electrical conductivity of the connection between the linkage and the resistor plates. This lubricant was sold only through licensed cart dealers. Defendant testified that he was aware of the requirement for applying the lubricant and that he had maintained the cart himself. He testified that he purchased the lubricant directly from the manufacturer in Orange County when he, defendant, was operating a food booth at a fair in the area. Plaintiffs presented rebuttal testimony that the factory did not sell lubricant to the public and there were not any dealers who sold the lubricant in Orange County. Other evidence established that when the cart was inspected approximately 18 months after the accident, the plate was not well-lubricated.
Plaintiffs’ expert testified that, in his experience, the linkage could become stuck at the edge of a resistor plate in such a manner that the linkage and the plate were not in full contact. Instead, only a small amount of electricity traveled across the connection. The connection was insufficient to transmit enough amperage to cause the cart to move but, over the amount of time between defendant’s last use of the cart and the time of the accident, the small amount of electrical flow could arc across the connection so as to create full contact. At that point, sufficient amperage would flow to permit the cart to move, if the cart was in gear and the parking brake was not set. The parties refer to this as the “arcing theory.” Although defendant’s expert testified that he thought an undiscovered object had been wedged into the pedal assembly at the time of the accident, he acknowledged that if that had not happened the arcing theory proposed by plaintiffs’ expert provided a “plausible”-and, indeed, the only-explanation for the cart’s movement.
Movement of the shift lever into the forward or reverse position, not turning the key to the “on” position, completed the necessary electrical circuit that permitted activation of the cart’s electric motor. Thus, if the blocking mechanism on the cart was bent in such a manner as to prevent the key device from mechanically blocking movement of the shift lever, the cart could be put into forward or reverse without use of the key; at that point the cart could be moved under electric power by pressing down the accelerator pedal. By contrast, a manual transmission automobile can be put in gear even without the key inserted in the ignition switch, but putting the car in gear does not permit the car to move under power, because the ignition switch has not completed the electrical circuit that permits the engine to function.
Like a modern automobile “ignition” switch, however, the off-on switch on this cart is designed so that the key cannot be removed from the switch when the switch is in the “on” position. That feature of the switch mechanism on the cart in this case was not shown to be disabled. That is, the switch had to be in the “off” position to remove the key.
What was broken on the cart was the functionality of the mechanical block that would be locked into the shift-lever when the switch was in the “off” position on a properly functioning cart. The uncontroverted evidence showed that, immediately after the accident, the shift lever could be moved into and out of reverse position without the key in the switch and therefore, inferentially, even though the switch was in the “off” position.
When defendant repeatedly claims that the evidence showed that the key could not be removed while the cart was “on,” this does not lead to the conclusion that the cart could not, therefore, have been moved under its own power: The condition of the cart was such that it could be moved in reverse regardless of the presence or absence of the key, and regardless of whether the switch was in the “on” or “off” position.