Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 37-2007-00065432- CU-PA-CTL, Linda B. Quinn, Judge.
McINTYRE, J.
Defendant Leonel Arellano appeals from a judgment on special verdict awarding plaintiff Bun Bun Tran damages of $23,370,747 for severe brain injuries he suffered in a collision between his car and Arellano's truck. The accident occurred when Arellano ran a stop sign while speeding and driving intoxicated and struck the driver's door of Tran's car. Arellano contends the jury's verdict was the result of passion and prejudice resulting from erroneous evidentiary rulings, erroneous jury instructions, and improper closing argument by Tran's counsel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 1:00 a.m. on the night of the accident, Arellano was driving his pickup truck southbound on Commonwealth Avenue in San Diego and Tran was driving eastbound on Juniper Street. There is a stop sign at the intersection of Commonwealth and Juniper that requires southbound traffic on Commonwealth to stop for vehicles travelling through the intersection on Juniper. Arellano failed to stop and collided with Tran's Honda Acura as Tran was driving through the intersection. Arellano's truck intruded about 20 inches into the driver's side of Tran's car, causing Tran to sustain severe and permanent brain injuries.
Tran's guardian ad litem filed a first amended complaint (the complaint) on behalf of Tran against Arellano; Arellano's employer Brinker International, Inc., doing business as Chili's Restaurant, Inc. (Chili's); the City of San Diego (the City); and Patricia Cole (Cole), the owner of the property on the northwest corner of Commonwealth and Juniper. The complaint alleges that as Tran approached the intersection where the accident occurred, he was prevented from seeing any southbound traffic on Commonwealth north of the intersection due to the existence of foliage higher than three feet that started on the northwest corner of the intersection "and continued uninterrupted northbound along the western edge of Commonwealth." The complaint includes causes of action for negligence against Arellano, Chili's, and Cole; negligence per se against Arellano and Cole, and causes of action for dangerous condition of public property (Gov. Code, § 835) and failure to provide a warning device (Gov. Code, § 830.8) against the City.
Arellano filed an amended cross-complaint for equitable indemnity, apportionment, contribution, and declaratory relief against Cole, the City, and American Honda Motor Company (Honda). Arellano alleged that a "producing cause" of Tran's injuries was a defective and dangerous air bag system in his Acura. At trial he claimed that the intersection where the accident occurred was a dangerous condition of public property because when he approached the intersection on the night of the accident, his view of the stop sign was obstructed by a row of oleander bushes just north of the stop sign. He also claimed the stop sign was difficult to see because it was backlit by a street light at the intersection.
The City filed a cross-complaint for equitable indemnity, apportionment, contribution, and declaratory relief against Arellano, Chili's, and Cole, and the record indicates that Cole filed a cross-complaint, presumably seeking indemnity, against Arellano. (The record contains a copy of Arellano's answer to Cole's cross-complaint, but not a copy of the cross-complaint.) Cole settled with Tran in the amount of $300,000, and Chili's successfully moved for summary judgment against Tran. The City entered into a "Mary Carter" settlement agreement with Tran whereby it paid him $1,000,000 but remained in the case as a cross-complainant against Arellano and to and defend against Arellano's claims, and Tran agreed to reimburse $250,000 of the settlement if he recovered over $10,000,000 against Arellano. Arellano accepted Honda's offer to compromise under Code of Civil Procedure section 998 in the amount of $35,000 and judgment was entered against Honda on Arellano's cross-complaint.
At trial, the jury returned a special verdict finding Tran suffered damages in the total amount $24,804,135 and that Arellano was 100 percent responsible for those damages. As a result of Tran's settlements with Cole and the City and the parties' stipulation concerning the total medical expenses paid for Tran, the court entered judgment in Tran's favor and against Arellano in the reduced amount of $23,370,747.
DISCUSSION
I. Evidentiary Rulings
We review any ruling by the trial court on the admissibility of evidence for abuse of discretion. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.) A trial court abuses its discretion only when its ruling exceeds the bounds of reason, all circumstances being considered. (Ibid.) However, even if we determine the trial court improperly admitted or excluded evidence, the error does not require reversal of the judgment unless it resulted in a miscarriage of justice. (Ibid. [exclusion]; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854 [admission].) The appellant bears the burden of showing the error was prejudicial—i.e., that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. (Saxena v. Goffney, supra, 159 Cal.App.4th at p. 332.)
A. Exclusion of witness Nathan Swett's observations of the accident scene
Arellano contends the court abused its discretion in excluding testimony by witness Nathan Swett about his personal observations at the scene of the accident shortly after it occurred. A declaration by Swett (prepared by Tran's counsel over two years before trial in opposition to the City's unsuccessful motion for summary judgment) indicates that Swett would have testified that he arrived at the scene of the accident about 15 minutes after the accident and observed that the stop sign Arellano ran was at least 40 percent obscured by oleander bushes north of the sign, and that because of the oleanders and poor lighting, the stop sign did not start to become visible until a car was within 30 feet of the intersection. Swett stated in his declaration that the oleander bushes "were approximately 12 to 14 feet tall and were growing over the sidewalk and stop sign" and "obscured the stop sign" on the night of the accident. Arellano's counsel argued that Swett's testimony was important to counter testimony of a police detective who investigated the accident scene and testified that the stop sign was visible from 180 to 200 feet north of the intersection when the overhead lights on police cars flashed on it.
The court indicated it was excluding Swett's testimony about the visibility of the stop sign because Swett was a lay witness and not an expert on visibility. The court noted that it had earlier sustained Arellano's objection to testimony from lay witness Kelly Brennan about the visibility of the stop sign on the night before and day after the accident. Brennan would have testified that she looked at the stop sign the day after the accident and observed that it was not obstructed by the oleander bushes. Noting that a visibility expert had testified after Brennan, the court stated that "since we heard Ms. Brennan, we heard a whole lot more about how visibility is far more complex than getting into the testimony of a lay witness such as Mr. Swett." The court noted that Swett was a "lay witness who is not reconstructing the accident...."
We conclude the exclusion of Swett's percipient observations about the visibility of the stop sign on the night of the accident was erroneous because that testimony involved a matter within Swett's personal knowledge rather than one requiring expert opinion testimony. Evidence Code section 702 states the general rule that "the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter." (Italics added.) "Personal knowledge means a present recollection of an impression derived from the exercise of the witness's own senses." (Alvarez v. State of California (1999) 79 Cal.App.4th 720, 731, abrogated on another point in Cornette v. Department of Transportation (2001) 26 Cal.4th 63.) "[A]ny witness, whether a party to the action or not, is competent to give testimony as to any fact material and relevant to the issue of which he has obtained direct knowledge—that is, any fact which he has observed or acquired knowledge of through his own perception." (Ellis v. Central California Traction Co. (1918) 37 Cal.App. 390, 400.) "Expert testimony is required only for opinions 'related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.' " (Everett v. Superior Court (2002) 104 Cal.App.4th 388, 393; Evid. Code, § 801, subd. (a).) The requirement of expert testimony " 'applies only to such facts as are peculiarly within the knowledge of... experts and not to facts which may be ascertained by the ordinary use of the senses of a nonexpert.' " (Thomsen v. Burgeson (1938) 26 Cal.App.2d 235, 239.) Accordingly, the court erred in refusing to allow Swett to testify regarding his personal observations about the visibility of the stop sign.
However, we conclude the error was not prejudicial. Swett did not observe the stop sign under the same conditions as Arellano—i.e., from a truck with headlights on. Arellano's accident reconstruction expert Stephen Plourd testified that he brought artificial bushes to the accident scene at night and positioned them to replicate the condition of the oleander bushes on the night of the accident, based on police photographs of the bushes. He then drove a truck similar to Arellano's through the intersection of Commonwealth and Juniper multiple times with the headlights on, while Arellano's lighting expert, Scott Fraser, took light measurements. Based on that reconstruction, Plourd testified that the intersection was a dangerous condition of public property.
Fraser, a neurophysiologist specializing in human vision, testified that backlighting on the stop sign dominated over light from the truck's headlights on the front of the sign, making the front of the sign appear black. Fraser and Plourd determined the condition and position of the oleander bushes on the night of the accident from the police photographs of the scene. He testified that from the cab of the truck similar to Arellano's going southbound on Commonwealth into the intersection with Juniper, the "east leading edge" of the stop sign could be seen 60 feet from the "limit line" but the rest of the sign was blocked. Half the sign could be seen at 42 feet, measured from the nose of the truck, and the entire sign could be seen at 24 feet. Based on a photograph of the stop sign and oleanders taken from the center line of Commonwealth 80 feet from the stop sign, Fraser testified that view of the stop sign would be blocked by the oleanders if the photograph had been taken from a truck like Arellano's two to three feet to the west of the center line.
Despite the testimony from these two expert witnesses supporting Arellano's position that the stop sign was not visible to him on the night of the accident, the jury rejected Arellano's claim that the intersection was a dangerous condition of public property. We conclude it is not reasonably probable that Swett's testimony about the visibility of the stop sign would have resulted in a more favorable verdict.
B. Admission of witness Officer Stone's testimony regarding vehicle speed
Arellano contends the court erred in allowing police officer Michael Stone, who investigated the accident scene, to state his opinion that the speed of Arellano's truck at the time of the collision was 40 miles per hour. Arellano argues that Stone's opinion should have been excluded because Stone was not designated as an expert witness and did not establish a sufficient foundation for his opinion.
We agree that because Stone was not a designated expert witness, the court erred in allowing his opinion testimony regarding Arellano's speed. (Code Civ. Proc., §§ 2034.260, subdivision (c) & 2034.300, subds. (a) & (b); see Bonds v. Roy (1999) 20 Cal.4th 140, 146, 149 [statutory discovery scheme requires parties to give "fair notice of what an expert will say at trial"].) However, we conclude the error was not prejudicial. It is undisputed that Arellano ran the stop sign and collided with Tran's vehicle. Arellano's expert Plourd estimated that Arellano's speed was 28 miles per hour and testified that had Arellano been going the speed limit of 25 miles per hour, he would have collided with the rear bumper of Tran's car or missed him altogether. In light of that testimony, it is unlikely the jury's liability determination turned on the exact speed of Arellano's truck.
More importantly, Tran's designated accident reconstruction expert Timothy Long testified that Arellano's speed just before the collision was approximately 40 miles per hour and that Tran's speed was approximately 25 miles per hour. Long based his opinion on the intrusion of Arellano's truck into Tran's car and his inspection of the accident scene. Considering that Long's opinion about Arellano's speed was consistent with Stone's, we do not find it reasonably probable that Arellano would have obtained a more favorable verdict if the court had excluded Stone's opinion.
C. Testimony of Arellano's toxicologist regarding alcohol burn off and absorption
Arellano contends the court erred by excluding the testimony of Arellano's toxicology expert regarding alcohol burn off and absorption rates. During argument on motions in limine, Arellano's counsel stated that Arellano's toxicologist would testify that at the time of the accident Arellano's blood alcohol level was.11, based on the.13 level that a test showed two hours later. Tran's toxicologist would have testified that Arellano's blood alcohol level at the time of the accident was.16.
The court expressed the view that the testimony of the toxicologists was unnecessary because Arellano admitted he was driving under the influence of alcohol and that his blood alcohol level was tested at.13 after the accident. The court stated, "[I]t sounds like a waste of time to have anybody testifying to the difference in driving ability between an 11... or 13 and 16, especially when you are talking about that fast action of stopping your car at a stop sign or stopping your car when another car is coming through the intersection." Accordingly, the court excluded testimony from both toxicologists regarding Arellano's blood alcohol level at the time of the accident and limited their opinion testimony to "the impact of a.13 blood alcohol level on driving." The court stated that "in the interest of justice, .13 is as good as it's going to get, " noting that the excluded testimony about Arellano's blood alcohol level at the time of the accident was "not short testimony." Regarding probative value, the court stated that the testimony "makes very little difference in this" and that a toxicologist probably did not "have the facts that are going to make it sufficiently credible for me to determine that it's important for the jury to hear."
We agree with the trial court's reasoning that whether Arellano's blood alcohol level was.11 versus.13 or.16 was unlikely to effect the jury's assessment of liability or damages in light of Arellano's admissions. The court acted well within its discretion in excluding the testimony on the ground its probative value was substantially outweighed by the probability that its admission would necessitate undue consumption of time. (Evid. Code, § 352.)
D. Exclusion of Fraser's and Plourd's testimony regarding their simulation of the accident scene
Arellano contends the court erroneously excluded testimony of Plourd (Arellano's accident reconstruction expert) and Fraser (Arellano's visibility expert) regarding their simulation at the accident scene. The court did not entirely exclude these experts' testimony about their replication of the accident scene. The court allowed Plourd to testify that he positioned artificial bushes on a step ladder to replicate the oleander bushes on the night of the accident, based on police photographs, and then drove through the intersection multiple times with Fraser, who took light measurements. The court allowed Plourd to testify that, based on the replication, the intersection was a dangerous condition of public property.
Out of the presence of the jury, the court stated that it would not allow Fraser to testify regarding his observations during the replication, stating there was "insufficient foundation for this whole replication exercise" because the exactness of the replication was insufficient. However, the court stated it would allow Fraser to testify about visibility based on his review of the photographs of the accident scene.
Despite those statements by the court, Fraser testified about the effect of backlighting on the visibility of the stop sign, based on the replication of light conditions at the accident scene at the time of the accident. As noted, Fraser and Plourd determined the condition and position of the oleander bushes on the night of the accident from the police photographs of the scene, and Fraser testified that from the cab of a truck like Arellano's going southbound on Commonwealth into the intersection where the accident occurred, the "east leading edge" of the stop sign could first be seen 60 feet from the "limit line;" half the sign could be seen at 42 feet; and the entire sign could be seen at 24 feet.
" 'It is the settled rule that evidence of the results of experiments as to a disputed fact is not admissible unless the conditions of the experiment are substantially identical to those out of which the dispute arises.' " (Ehrhardt v. Brunswick, Inc. (1986) 186 Cal.App.3d 734, 740.) "A court has considerable discretion when, after viewing all the evidence at trial, it is asked to determine whether the circumstances of a proffered experiment or demonstration are 'substantially identical' to the circumstances presented by the evidence." (Id. at p. 741.) Here, the court acted within its discretion in limiting Plourd's and Fraser's testimony about the replication based on its determination that the replication of the accident scene was not sufficiently identical to the scene at the time of the accident.
In any event, the court's limitation of testimony about the replication was not prejudicial. The court allowed the jury to hear that Plourd and Fraser had simulated the accident scene by positioning artificial bushes to replicate the oleander bushes on the night of the accident and by conducting visibility testing under light conditions similar to those at the time of the accident. Plourd testified that the subject intersection was a dangerous condition of public property based on the replication, and Fraser testified that visibility of the stop sign that Arellano ran was obstructed by both backlighting and the oleander bushes. It is not reasonably probable that additional testimony to the same effect from Plourd or Fraser based on their replication would have resulted in a verdict more favorable to Arellano.
E. Admission of evidence that Arellano fled the accident scene
Arellano contends the court erred in denying his motion in limine to exclude evidence that he fled the accident scene. He argues that evidence of his flight was irrelevant and prejudicial because he admitted negligence at trial and Tran did not seek punitive damages. We agree that the flight evidence was irrelevant and should not have been admitted.
"If an issue has been removed from a case by an admission... it is error to receive evidence which is material solely to the excluded matter." (Fuentes v. Tucker (1947) 31 Cal.2d 1, 5 (Fuentes).) An admission of liability by a defendant "precludes the introduction of evidence of liability unless it is relevant to some distinct issue remaining in the case. [Citation.] That is so even if... the party offering the evidence is deprived of an important tactical advantage. Indeed, where the evidence is not relevant to any real issue, the advantage sought to be gained by its presentation must be recognized as unfair. Each side takes the risk that the 'picture' of the case seen by the jury may be an unfavorable decisional context. But neither side is entitled to litigate a nonexistent issue for no purpose other than to alter the decisional context in his favor." (Albrecht v. Broughton (1970) 6 Cal.App.3d 173, 178.)
Tran argues the evidence of Arellano's flight was admissible to impeach Arellano's credibility because felony convictions are admissible for impeachment purposes (Evid. Code § 788), and Arellano pled guilty to violations of Vehicle Code sections 23153, subdivision (b) (driving under the influence of alcohol) and 20001, subdivision (a) (hit and run). Tran cites People v. Bautista (1990) 217 Cal.App.3d 1 for the proposition that a prior conviction of violating Vehicle Code section 20001, subdivision (a), is a crime of moral turpitude and is therefore admissible to impeach a witness's credibility. (People v. Bautista, at pp. 3, 7.)
Evidence Code section 788 provides: "For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony...." However, the scope of inquiry when a criminal defendant is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense unless the defendant first seeks to mislead the jury or minimize the facts of the prior conviction. (People v. Shea (1995) 39 Cal.App.4th 1257, 1267; People v. Heckathorne (1988) 202 Cal.App.3d 458, 462.)
Here, in addition to being read Arellano's admissions regarding his criminal convictions arising from the accident, the jury heard testimony about the facts underlying his hit-and-run conviction from investigating police officers, from Brennan, who witnessed his flight, and from Arellano's own deposition testimony that was read to the jury. This evidence of Arellano's flight was not relevant to any issue remaining in the case after Arellano's admission of negligence and therefore should have been excluded.
In determining whether the admission of the flight evidence was prejudicial, we are guided by the prejudice analysis in Fuentes. The plaintiffs in Fuentes were parents of two children who were killed by an automobile driven by the defendant. Although the defendant admitted liability for the deaths on the day of trial, the plaintiffs were allowed to present evidence of the circumstances of the accident, including the facts that the defendant was intoxicated and the children were thrown 80 feet in the accident. (Fuentes, supra, 31 Cal.2d at p. 3.) The California Supreme Court held it was error to admit that evidence because the defendant admitted liability and the sole remaining issue to be tried was the amount of damages suffered by the parents. (Id. at p. 5.)
Turning to the question of whether the error was prejudicial, the Fuentes court stated, "It is true, as argued by defendant, that we cannot say with certainty to what extent the jury in arriving at the amount of the verdict may have been influenced by the admission of the immaterial evidence. If, however, the amount awarded plaintiffs is not disproportionate to the loss suffered the error has not resulted in a miscarriage of justice, and the judgment should be affirmed." (Fuentes, supra, 31 Cal.2d at pp. 8-9, italics added.)
We are confronted with a similar situation here. We note that Tran's rehabilitation expert, physiatrist Ronald Schilling, M.D. testified that based on a life expectancy of about 25 years, Tran's future life care plan would cost about $20 million if he received home care and about $17 million if he continued to be treated in his present care facility. In closing argument, Tran's counsel asked the jury to award Tran noneconomic damages of $10 million a year for the first five years after the accident or $50 million dollars, and an additional amount in the jury's judgment for the years he is expected to live beyond the first five years. The City's counsel told the jury the case was worth "a hundred million or more. $17 million to $20 million alone for the lifecare plan." The jury awarded Tran future medical expenses of $7,508,800, past noneconomic damages of $2,601,378, and future noneconomic damages of $12,281,103. Considering the catastrophic nature of Tran's injury and the fact that the amounts the jury awarded him are substantially lower than those he sought through his rehabilitation expert and argument to the jury, we do not view the amount awarded him as disproportionate to the loss he suffered. Accordingly, we conclude the court's erroneous admission of evidence of Arellano's flight from the accident scene did not result in a miscarriage of justice.
F. Admission of evidence of the City's traffic accident/location analysis report
Arellano contends the court erred by admitting a "Traffic Accident/Location Analysis Report" (TA/LA report) listing traffic accidents at the intersection of Commonwealth Avenue and Jupiter Street between July 1, 1998 and February 20, 2007, and by allowing City employee Mariano Castro to testify about the report. The TA/LA report specifies two accidents prior to the one involved in this case. Arellano complains that the TA/LA report is inadmissible hearsay and that Castro was a surprise witness because the City designated and Arellano deposed Carla Smith as the person most knowledgeable about prior accidents at the subject intersection. Although Arellano's counsel informed the trial court that he had told the City the substitution of Castro for Smith "in and of itself [was] not a problem, " he argued that Castro's testimony about the report was double hearsay.
The court asked Tran's counsel whether the TA/LA report was being offered for the truth of the matters stated in it or "just the notice that there was an accident at this intersection[.]" The City's counsel stated it was "just notice, " and the court ruled that Castro could be questioned about the document "for the purpose of showing what information... the street traffic department has in doing their work." The court stated, "My understanding is that Mr. Castro is going to testify that we get these reports, we take a look at them in the street division, and we use these reports to determine whether we have to go and investigate, number one; and following our investigation, do something, number two." Tran's counsel argued that Castro's reading of the primary cause of an accident from the TA/LA report would be "pure hearsay, because he's relying upon a – apparently an opinion from a police officer...." The court responded that such testimony was not being offered for the truth of how the accident actually occurred but to show notice—i.e., to show lack of notice of any prior similar accidents at the subject intersection.
Castro testified that he had been an assistant traffic engineer for the City for nine years six months and that the TA/LA report was something he relied on as part of his job. He confirmed that the information on the TA/LA report was from police traffic collision reports. The report showed an accident on August 1, 1998, in which a car making an improper right turn from Juniper onto Commonwealth hit a vehicle parked on Commonwealth, and an accident on February 10, 2001, in which a vehicle traveling south on Commonwealth made an improper start into the intersection with Juniper and hit a motorcycle traveling west on Juniper.
We find no abuse of discretion in the court's decision to admit the TA/LA report and Castro's testimony about the report for the nonhearsay purpose of showing notice or lack of notice. (Caro v. Smith (1997) 59 Cal.App.4th 725, 733 [out of court statement is properly admitted for a relevant nonhearsay purpose such as showing notice].) Nor do we find any abuse of discretion in the court's allowing Castro to testify about the report instead of Smith or prejudice to Arellano as a result of the substitution. As noted, Arellano's counsel admitted telling the City's counsel that he did not object to the substitution, and it is unlikely that Smith's testimony about the TA/LA report would have significantly differed from Castro's.
G. Exclusion of evidence that the City trimmed the oleander bushes after the accident
Arellano contends the court erred in granting the City's motion in limine under Evidence Code section 1151 to exclude evidence that after the accident occurred, the City trimmed the oleander bushes back away from the stop sign that Arellano ran. Evidence Code section 1151 provides: "When, after occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event."
Arellano argues that the evidence of this remedial measure by the City should have been admitted to show that the City controlled the intersection. (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1169 [Evidence Code section 1151 does not apply when evidence of remedial measures is offered to show defendant's control over property rather than to prove negligence.].) He notes the jury was instructed that to establish his claim of a dangerous condition of public property against the City, he was required to prove, among other things, that the City owned or controlled the property.
Tran and the City argue there was no issue as to the City's control because the City stipulated that it had the power to trim the oleander bushes or order the homeowner to do so. With the acquiescence of all parties, the court instructed the jury: "All parties stipulate and agree that for purpose of these instructions, the City of San Diego had the power to prevent, fix or guard against any obstruction of the stop sign at the northwest corner of Commonwealth and Juniper by oleanders at the time of this accident." Arellano contends this stipulation did not establish the City's control because the court removed the word "control" from the stipulation.
Despite the deletion of the word "control, " the instruction regarding the stipulation sufficiently conveyed to the jury that the City had the necessary control over the intersection to be held liable for a dangerous condition of public property if the jury found the other elements of that claim were satisfied. Jurors " 'are presumed to possess ordinary intelligence and to understand the meaning and use of words in their common and ordinary application.' " (Davis v. Franson (1956) 141 Cal.App.2d 263, 273.) Accordingly, the jury here presumably possessed the intelligence and understanding to equate the City's "power to prevent, fix or guard against any obstruction of the stop sign at the northwest corner of Commonwealth and Juniper by oleanders" with "control" of the intersection.
In any event, to the extent the court erred in removing the word "control" from the stipulation, the error was invited by Arellano because his counsel suggested removing the word "control" and acquiesced in the stipulation that was ultimately read to the jury. "[W]here a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal. [Citations.] Similarly, an appellant waives his right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal. [Citations.]" (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.)
In discussing the instruction to be given the jury regarding the stipulation, Arellano's counsel stated, "If we take... the stipulation as to control, change the title, and all parties stipulate and agree for purposes of these jury instructions the City of San Diego, rather than using the word 'controlled the oleanders and the stop sign, ' [we say the City] had the power to prevent, fix or trim the oleanders, and—I'm trying to come up with something that we can provide to the jury, [Y]our Honor." The court adopted counsel's proposed language and read the stipulation without objection. The court did not abuse its discretion in excluding evidence of the City's remedial trimming of the oleander bushes under Evidence Code section 1151 and refusing to admit that evidence to show the City controlled the subject intersection.
H. Admission of "Day in the Life" and independent medical examination videos
Arellano contends the court erred by admitting both a 25-minute video entitled "A Day in the Life of Bun Bun Tran" showing Tran being cared for in the hospital by his mother and a 30-minute video of an independent medical examination (IME) performed by Arellano's expert neurosurgeon Howard Tung, M.D. Arellano argues that admitting both videos was prejudicial because they were duplicative, and their admission into evidence was cumulative because the jury had already viewed them and heard expert testimony regarding them.
A "Day in the Life" video like the one at issue here is relevant to the issue of damages because it shows a severely injured plaintiff's need for medical treatment and helps the jury understand the plaintiff's daily life for purposes of awarding appropriate compensation for pain and suffering. (Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436, 442 (Jones).) Only when a "Day in the Life" video has little probative value, is cumulative of other testimony, and is calculated to inflame a jury can an appellate court conclude that its admission was an abuse of discretion under Evidence Code section 352. (Jones, at p. 443.) In determining whether the probative value of such a video outweighs the possibility of prejudice when the video, a key factor is whether the video "fairly represents the facts with respect to the impact of injuries on the plaintiff's daily activities." (Id. at p. 444, citing Bannister v. Town of Noble (10th Cir.1987) 812 F.2d 1265, 1270.)
Here, Arellano does not argue that the video does not fairly represent the impact of Tran's injuries on his daily life. In Jones, the Court of Appeal found no abuse of discretion in the admission of a "Day in the Life" video offered by the plaintiff, who was rendered paraplegic in an automobile accident involving a truck owned by the defendant. The Jones court stated: "The videotape best describes the problems [plaintiff] encounters on a daily basis in a way mere oral testimony may not convey to the jurors. The videotape also best demonstrates the everyday problems a person with paraplegia encounters as a result of an injury of this kind. Moreover, the videotape is the most effective way to explain to the jury the extent of the assistance and medical attention required as a result of being rendered a paraplegic." (Jones, supra, 20 Cal.App.4th at p. 446.)
The same analysis applies here. The video portrayed the problems Tran and his caretakers encounter on a daily basis in a way mere oral testimony could not convey to the jurors, and the video was the most effective way to show the jury the extent of the assistance and medical attention Tran will require for the rest of his life. The court acted well within its discretion in admitting the "Day in the Life" video.
Regarding the IME video, we note that during argument on Arellano's motion in limine, Arellano's counsel initially informed the court that he wanted to show that video to the jury but objected to showing the "Day in the Life" video. Tran's counsel stated he was willing to have the jury see both videos. Arellano's counsel then said he wanted neither video to be shown and the court responded that the "Day in the Life" video "is going to... the jury." Given that ruling, Arellano's counsel asked that the IME video be shown as well.
Having acquiesced to showing of both videos, Arellano cannot be heard to complain on appeal that both were shown. (In re Marriage of Broderick, supra, 209 Cal.App.3d at p. 501.) In any event, the IME video was material to the issue of whether Tran is minimally conscious or in a persistent vegetative state and, accordingly, was relevant to the issue of Tran's future economic and noneconomic damages. Considering the relevance of both the "Day in the Life" video and the IME video to the issue of damages, and the fact that the parties agreed to show both videos to the jury, we conclude the court did not abuse its discretion in showing both videos and admitting them into evidence.
I. Admission of Schilling's expert testimony regarding Tran's brain injury and life expectancy
Dr. Schilling testified that Tran was minimally conscious rather than in a persistent vegetative state and that his life expectancy was 80 to 85 percent of his normal life span or 24-25 more years. Arellano contends the court abused its discretion in allowing that testimony because Schilling failed to establish a proper foundation for his opinions regarding Tran's life expectancy or the nature and extent of Tran's brain injury. Arellano argues Schilling was not qualified to give those opinions because, among other things, he is not a neurologist or a neurosurgeon; he does not treat severely brain injured patients; his practice mainly involves workers' compensation injuries; he did not review all of Tran's medical records or brain scans; and he did not identify any statistic, study, or report supporting his opinion regarding life expectancy.
The determination of whether an expert is competent and qualified to give an opinion on a particular topic is within the sound discretion of the trial court (Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 701), and a question about the degree of an expert's knowledge generally goes to the weight rather than admissibility of the expert's testimony. (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 658.)
The foundation for Schilling's opinions regarding Tran's life expectancy and whether Tran is minimally conscious versus being in a persistent vegetative state was weak. As Arellano notes, Schilling acknowledged that his life expectancy opinion was not based on any specific study, documentation, or statistics regarding severely brain injured patients, and he did not recall reading any specific article addressing the shortened life expectancy of a brain injured patient. Schilling's qualifications to testify about the extent of Tran's brain injury were marginal at best because he is not a neurologist or a neurosurgeon and his practice does not involve treating severely brain injured patients. The only time he would see a severely brain injured patient was when he was hired as an expert in litigation. He had been hired as an expert on behalf of severely brain injured plaintiffs in only two prior cases, and he saw each of those patients only once. He relied on reports of Tran's brain scans but did not review any films of those brain scans. He briefly examined Tran once but did not treat him.
However, based on the jury's verdict, we conclude that to the extent the court erred in admitting Schilling's opinions, the error was not prejudicial. Arellano's expert neurosurgeon, Dr. Tung, testified that the life expectancy of a person with Tran's injuries is two to five years and 10 years at the outside. Tung opined that because of the care Tran had received, Tran would live beyond five years but not past ten. As noted, Schilling testified that based on a life expectancy of about 25 years, Tran's life care plan would cost between $17 million and $20 million, depending on where he received his care. The jury's award of the substantially lower amount of $7,508,800 for future medical expenses reflects an assessment of Tran's life expectancy and condition more in line with Tung's opinions than Schilling's, indicating the jury either did not accept Schilling's opinion regarding Tran's life expectancy or did not accept his opinion that Tran was minimally conscious. Arellano has not shown he was prejudiced by Schilling's testimony about Tran's condition and life expectancy.
II. Jury Instructions
A. Life expectancy instruction
The court instructed the jury in accordance with CACI No. 3932 as follows: "If you decide Bun Bun Tran has suffered damages that will continue for the rest of his life, you must determine how long he will probably live. According to the National Center for Health Statistics, a 41-year-old male is expected to live another 37.3 years. This is the average life expectancy. Some people live longer and others die sooner. [¶] This published information is evidence of how long a person is likely to live but is not conclusive. In deciding a person's life expectancy, you should also consider, among other factors, that person's health, habits, activities, lifestyle, and occupation." Noting that Tran's life expectancy was a key component in the jury's determination of future damages, Arellano argues the standard life-expectancy instruction was misleading and had a material effect on the jury's computation of damages.
It has been long settled that mortality tables are admissible to assist the jury although, as the jury was instructed here, they are not conclusive. (Allen v. Toledo (1980) 109 Cal.App.3d 415, 424; Francis v. Sauve (1963) 222 Cal.App.2d 102, 121; see BAJI No. 14.69.) How long Tran would have been expected to live but for the accident was relevant to the jury's assessment of his damages. The instruction made it clear that the average life expectancy figure was not conclusive and that the jury was to consider other factors in determining life expectancy. The jury's award of future damages indicates they did not misunderstand the instruction and base its award of damages on a finding that Tran would live another 37.3 years. The court did not commit prejudicial error by giving the standard CACI instruction regarding life expectancy.
B. Burden of proof instruction
Arellano contends the court erred by using CACI No. 200 to instruct the jury as to burden of proof instead of using BAJI No. 2.60. The court instructed the jury with a modified version of CACI No. 200 as follows: "A party must persuade you by the evidence presented in court that what he or she is required to prove is more likely to be true than not, and that's called the burden of proof. [¶] After weighing all of the evidence, if you cannot decide that something is more likely to be true than not true, you must conclude that the party did not prove it. You should consider all the evidence, no matter which party produced that evidence. [¶] A distinction... is in criminal trials the prosecution must prove the defendant is guilty beyond a reasonable doubt. In civil trials, such as this one, the party who is required to prove something need prove only that it is more likely to be true than not true."
In relevant part, BAJI No. 2.60 explains the burden of proof in a civil case as follows: "Plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish: [¶] [The essential elements of [any] claim.... In addition to these essential elements, plaintiff has the burden of proving by a preponderance of the evidence all of the facts necessary to establish the nature and extent of the [damages] claimed to have been suffered, the elements of plaintiff's damage and the amount thereof.] [¶]... [¶] 'Preponderance of the evidence' means evidence that has more convincing force than that opposed to it. If the evidence is so evenly balanced that you are unable to say that the evidence on either side of an issue preponderates, your finding on that issue must be against the party who had the burden of proving it."
Arellano contends that CACI No. 200's changing of the burden of proof from "preponderance of the evidence" to "more likely to be true than not true" constitutes an improper change in the law by the Judicial Council that is unsupported by any statutory or case law. To exemplify the difference between the two standards, Arellano submits that a jury could find an expert witness to be extremely credible and truthful in his testimony while finding opposing experts to be less truthful, but the jury could nevertheless find that the weight of the testimony of the less truthful experts, along with testimony of other witnesses, outweighs or preponderates over the testimony of the more truthful expert. In such a case, Arellano surmises, the jury could find in favor of the party calling the first expert because his testimony was "more likely to be true than not true" even though the first expert's testimony did not preponderate overall.
Arellano's analysis confuses quantity of evidence with quality of evidence. In his hypothetical scenario, if the jury found the first expert's testimony was more likely than not to be true and the testimony of the other witnesses (expert and lay) did not persuade the jury otherwise, the first expert's testimony would properly be characterized as "preponderating" over the contrary testimony of the less truthful experts and other witnesses.
The distinction between CACI No. 200 and BAJI No. 2.60 is one without a difference. As the Court of Appeal noted in People ex rel. Brown v. Tri-Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567: "A party required to prove something by a preponderance of the evidence 'need prove only that it is more likely to be true than not true.' " (See also Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851 ["[I]f a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not...." (Italics added.)]; Sandoval v. Bank of America (2002) 94 Cal.App.4th 1378, 1387 [In a wrongful death action "the jury should have been told that if a preponderance of the evidence showed it was more likely than not that proper security by the Bank would have prevented the harm to... decedent, the Bank's negligence in not providing such security would constitute a substantial factor in bringing about [plaintiff's] harm."].) CALCRIM No. 1191 similarly instructs that "[a] fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true." CACI No. 200 and BAJI No. 2.60 explain the same burden of proof in different words. The court did not err in instructing the jury with CACI No. 200 instead of BAJI No. 2.60.
III. Closing Argument
A. "Golden Rule" argument
Arellano contends he was prejudiced when Tran's counsel twice made a prohibited "golden rule" argument during his closing statement. Prohibited golden rule argument is argument "by which counsel asks the jurors to place themselves in the plaintiff's shoes and to award such damages as they would 'charge' to undergo equivalent pain and suffering." (Beagle v. Vasold (1966) 65 Cal.2d 166, 182, fn. 11; Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 305 (Nishihama).)
Arellano claims Tran's counsel first violated the prohibition against golden rule argument by stating the following: "I think we've all heard this passage. [¶] First they came for the Jews, and I did not speak out because I was not a Jew. Then they came for the Communists, and I did not speak out because I was not a Communist. Then they came for the trade unions, and I did not speak out because I was not a trade union. Then they came for me, and there was no one left to speak out for me. [¶] If you accept that this man is vegetative, and no work should be done to teach him how to communicate again, the same insensitivity some day will be visited upon you and your loved ones, because our society accepts what we tolerate."
This portion of counsel's closing argument is not a ground for reversal because Arellano's counsel did not object to it or request an admonition. "Generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished.... In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice." (Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 610; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 860 [golden rule argument was not preserved for appeal because counsel failed to object to the argument or request an admonition].) "Only misconduct so prejudicial that an admonishment would be ineffective excuses the failure to request such admonishment." (Whitfield v. Roth (1974) 10 Cal.3d 874, 892.) Curing misconduct error by admonishing a jury is possible when the " 'error is isolated and unemphasized, [but] an attempt to rectify repeated and resounding misconduct by admonition is... like trying to unring a bell.' " (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 469, fn. 5, quoting Love v. Wolf (1964) 226 Cal.App.2d 378, 392.)
Counsel's warning that if the jury found Tran to be in a vegetative state a similar "insensitivity" would someday be visited upon the them and their loved ones did not constitute misconduct so prejudicial that an admonition would have been ineffective. Counsel's warning articulated an implausible threat and, in our view, the analogy between a vegetative-state finding in a personal injury trial and the Nazi's persecution of Jews and other citizens of the Third Reich was too far-fetched to have had prejudicially affected the jury's evaluation of the evidence regarding the extent of Tran's brain injury. Accordingly, we conclude that Tran failed to preserve his first claim of attorney misconduct for appeal.
Arellano contends that Tran's counsel committed a second golden rule violation by stating: "Would anyone, anyone put—exchange life with Bun Tran?" Arellano's counsel immediately objected stating, "Golden Rule" as the ground for the objection. The court sustained the objection and Arellano's counsel immediately moved to strike the improper argument. The court granted the motion to strike. Arellano's counsel did not request an admonition.
Counsel's rhetorical question whether anyone would exchange life with Tran was a single isolated and unemphasized remark; it was not repeated and was not sufficiently egregious to constitute "resounding misconduct" as to which an admonishment would have been ineffective. (Neumann v. Bishop, supra, 59 Cal.App.3d at p. 469, fn. 5.) In any event, assuming Arellano's objection to the remark without a request for an admonition was sufficient to preserve the misconduct issue for appeal, we conclude that Tran's counsel's remark was not prejudicial. In determining whether improper argument by counsel constitutes reversible error, we consider " ' "the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge's control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances." ' " (Nishihama, supra, 93 Cal.App.4th at p. 305.)
Counsel's golden rule remark was brief and fleeting, and Arellano objected to it before counsel had an opportunity to develop it into a full-fledged golden rule argument. Tran's counsel did not ask jurors how much they would "charge" to endure Tran's suffering; he merely suggested that the jurors would not want to trade places with Tran. The court immediately sustained Arellano's golden rule objection and granted his motion to strike the remark. The court instructed the jury at the beginning of trial and just before closing arguments to disregard and treat as nonexistent any testimony as to which the court granted a motion to strike." We presume the jury understood and followed that instruction (People v. Hovarter (2008) 44 Cal.4th 983, 1005) and applied it equally to stricken argument of counsel. We also presume the jury understood and followed the court's instruction that the statements and argument of counsel were not evidence. (McCullough v. Langer (1937) 23 Cal.App.2d 510, 522.) We conclude it is not reasonably probable that counsel's fleeting golden rule violation materially affected the jury's verdict.
B. Insurance reference
Finally, Arellano contends that Tran's counsel committed prejudicial misconduct by implying in closing argument that Arellano was financially able to pay a multimillion dollar verdict through insurance. Tran's counsel stated: "My client needs compensation for the rest of his dear human life. Arellano is the most appropriate and the best source. [¶] You cannot speculate, as the Court said, on funding. But we are here, I am here, because I know who the real cause is, and I know my client needs compensation." Arellano did not object to these statements at the time Tran's counsel made them. However, the next day, outside of the jury's presence, he moved for a mistrial based Tran's counsel's reference to "funding." The court denied the motion.
Putting aside Arellano's failure to immediately object to the statements in question and request an admonition, we conclude that the statements by Tran's counsel, although ill-advised, were not prejudicial. Counsel did not expressly state that Arellano had insurance coverage that would cover the jury's award of damages; he merely hinted at the existence of such coverage. (See Neumann v. Bishop, supra, 59 Cal.App.3d at p. 473 [no demonstrable prejudicial misconduct in counsel's hinting at the existence of insurance].)
In Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108 (Bell), the Court of Appeal reversed an order granting a new trial that was based in part on the trial court's conclusion that defense counsel committed prejudicial misconduct by asking a witness whose van was hit by plaintiff's car whether the witness asked the plaintiff if he had insurance. In concluding the new trial order could not be affirmed based an attorney misconduct, the Bell court noted: "It is common knowledge today that most drivers in California carry automobile insurance protecting them from liability. [Citation.] We believe that jurors ordinarily would assume that a driver with the financial means to pay for insurance... is insured even if there is no explicit mention of insurance at trial. Absent aggravating circumstances, the brief mention of the plaintiff's insurance in an action against an automobile manufacturer and distributor for negligence and products liability is very unlikely to cause the jury to conclude either that the plaintiff will be fully compensated for his injuries by insurance or that the defendant should be relieved of liability for any reason. Moreover, the trial court instructed the jury not to consider insurance on two occasions—at the commencement of trial, and after the close of evidence—and promptly admonished the jury to disregard the question regarding insurance on cross-examination. Such admonitions ordinarily are effective except in cases of extreme misconduct [citation], and we presume that the jury followed the instructions absent some indication to the contrary [citation]. We believe that the trial court could not reasonably conclude, despite the repeated instructions and admonition, that the brief mention of insurance in these circumstances was prejudicial." (Id. at p. 1123, fns omitted.)
Here, there were no aggravating circumstances that would lead us to conclude that Tran's counsel's brief reference to funding, which merely suggested that Arellano had insurance, materially affected the jury's verdict. Counsel's funding reference did not constitute extreme misconduct and the trial court instructed the jury with CACI No. 105 as follows: "In this case you must not consider whether any of the parties in this case has insurance. The presence or absence of insurance is totally irrelevant, as is the funding of any verdict you may render. You must decide this case based only on the law and the evidence." (Italics added.) We presume the jury followed that instruction absent some indication to the contrary. (Bell, supra, 181 Cal.App.4th at p. 1123.)
Considering the evidence of the permanency and extent of Tran's injury, we conclude it is not reasonably probable that Arellano would have obtained a more favorable verdict absent the alleged misconduct of Tran's counsel.
IV. Conclusion
Arellano contends that the court's erroneous rulings and the misconduct of Tran's counsel culminated in a "runaway verdict" based on passion and prejudice. " 'To say that a verdict has been influenced by passion and prejudice is but another way of saying that the verdict exceeds any amount justified by the evidence." (Taylor v. Pacific Container Co. (1957) 148 Cal.App.2d 505, 513.) "The mere fact that the judgment is large does not validate an appellant's claim that the verdict is the result of passion or prejudice of the jury. Each case must be determined on its own facts." (DiRosario v. Havens (1987) 196 Cal.App.3d 1224, 1241.) An appellate court may not interfere with the jury's determination of damages unless the award is so disproportionate to the evidence that it shocks the conscience of the appellate court or suggests the verdict was the result of passion, prejudice or corruption. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.)
Here, the jury's award is sufficiently supported by the evidence and is not disproportionate to the catastrophic injuries that Tran suffered. The jury awarded substantially less in future economic and noneconomic damages than the amounts sought on behalf of Tran, and the total amount of the award does not shock the conscience of this court or suggest that the verdict was the result of passion or prejudice. Accordingly, we will not interfere with the jury's determination of damages.
DISPOSITION
The judgment is affirmed. Tran is awarded his costs on appeal.
WE CONCUR: BENKE, Acting P. J., AARON, J.