Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Imperial County, No. ECU03014 Jeffrey B. Jones, Judge.
McDONALD, J.
I
INTRODUCTION
In April 2004, Francisco Aldana (Aldana) and Angel H. Villanueva (Villanueva) were involved in a traffic accident with defendant Humberto Payan Castro while Castro was driving a vehicle in the course of his employment for a company owned by defendant Benjamin Douglas Davis. Aldana and Villanueva, 17 and 18 years old, respectively, died as a result of the accident. In April 2006, Aldana's parents, Francisco J. Aldana and Ana L. Aldana, and Villanueva's parents, Angel R. Villanueva and Nora Villanueva, as well as the decedents' respective estates (collectively plaintiffs), filed this action against Castro and Davis (together defendants). In their complaint, plaintiffs alleged Castro negligently caused his vehicle to collide with decedents' vehicle, resulting in their deaths. In January 2008, a jury returned a verdict finding Castro had not been negligent. The trial court entered a judgment in favor of defendants.
Plaintiffs' complaint refers to Davis as "Davis Benjamin Douglas." Davis testified at trial that his name is "Benjamin Douglas Davis." We refer to him as Davis throughout this opinion.
Mrs. Villanueva's first name is not provided in the complaint, but is contained in the reporter's transcript.
On appeal, plaintiffs claim the trial court erred in admitting the lay opinion testimony and hearsay statement of an eyewitness to the accident concerning the eyewitness's belief that his vehicle would have collided with decedents' vehicle if Castro's vehicle had not. Plaintiffs also claim the trial court erred by sustaining defense counsel's objection to a hypothetical question that plaintiffs' counsel posed to one of plaintiffs' expert witnesses regarding the cause of the accident. Finally, plaintiffs claim the trial court erred by denying their request to instruct the jury that Castro was negligent as a matter of law if he committed an unexcused violation of Vehicle Code section 21460, subdivision (b), and that violation was a substantial factor in causing plaintiffs harm. We affirm the judgment.
Subsequent statutory references are to the Vehicle Code unless otherwise specified.
Section 21460, subdivision (b), generally prohibits drivers from driving on the left side of the road except when passing other vehicles in a passing zone.
II
We set forth the factual background most favorably to the judgment. (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 642.) In reviewing plaintiffs' claim of instructional error (see pt. III.C., post), we review the evidence most favorably to the plaintiffs. (Alcala v. Vazmar Corp. (2008) 167 Cal.App.4th 747, 754 (Alcala).)
The accident occurred at the intersection of State Route 98 and Ferrell Road, in the westbound lane of State Route 98. State Route 98 is a two-lane highway with traffic traveling east and west; Ferrell Road is a two-lane road with traffic traveling north and south. Stop signs are posted on Ferrell Road for vehicles traveling both north and south at the intersection with State Route 98. There are no stop signs on State Route 98 at the intersection with Ferrell Road. There is a no passing zone on State Route 98 for vehicles traveling east beginning approximately 300 feet west of the intersection with Ferrell Road.
On April 29, 2004, in the early afternoon, Villanueva was driving a 1999 Volkswagen Beetle south on Ferrell Road, north of the intersection with State Route 98. Aldana was a passenger in the Volkswagen.
At the same time, Castro was driving a Ford F350 pickup truck east on State Route 98, west of the intersection with Ferrell Road, en route to pick up some of Davis's employees. Castro saw four or five vehicles driving east close together in front of him, and decided to pass them. Castro drove his vehicle into the westbound lane and passed them. The last vehicle Castro passed was a 2002 Chevrolet Suburban being driven by Jose Sandoval. Miguel Bernadino was a passenger in Sandoval's Suburban.
Castro estimated that after he passed the vehicles, he returned to the eastbound lane of State Route 98 approximately one quarter to one half-mile before its intersection with Ferrell Road. As Castro reentered the eastbound lane of traffic, he saw a Volkswagen traveling south on Ferrell Road, approximately one quarter to one-half mile north of the intersection. Castro removed his foot from the accelerator and prepared to brake because he believed the Volkswagen might not stop at the stop sign posted for southbound traffic on Ferrell Road at State Route 98. According to Castro, the Volkswagen stopped about four feet past the limit line for the stop sign for southbound traffic on Ferrell Road. Castro continued driving toward the intersection at approximately 60 to 65 miles an hour. As he did so, the Volkswagen proceeded into the intersection. Castro thought the Volkswagen was going to continue south on Ferrell Road past State Route 98, and believed the Volkswagen had time to cross the intersection before he reached it. The Volkswagen drove through the intersection as Castro continued to drive toward it.
Immediately after the Volkswagen crossed the intersection, it made a U turn. As it made this U-turn, the front of the Volkswagen was near the limit line for the stop sign for northbound vehicles on Ferrell Road at State Route 98. Castro believed that the Volkswagen would stop after it made the U-turn. Instead, the Volkswagen drove north back into the intersection. Castro veered to the left and applied his brakes, but collided with the Volkswagen in the intersection in the westbound lane of State Route 98. Aldana and Villanueva died as a result of injuries they suffered in the accident.
David Casteel, an automobile accident reconstruction expert, testified that in his opinion, Villanueva's violation of Castro's right of way was the sole cause of the accident. Casteel explained, "The Volkswagen pulls out in front of [Castro's] truck when the truck was so close as to be in a location where it could not physically avoid an impact."
III
DISCUSSION
A. Sandoval's Lay Opinion Testimony Concerning the Accident
Plaintiffs claim the trial court erred by admitting Sandoval's testimony that he believed his vehicle could have collided with decedents' vehicle if Castro's vehicle had not. Plaintiffs also claim the trial court erred by admitting a hearsay statement that Sandoval made to others relating to the same issue.
1. Factual and Procedural Background
Prior to trial, plaintiffs filed a motion in limine in which they requested the trial court exclude "[a]ny and all inadmissible lay opinion testimony from Jose Sandoval... to the effect that had Defendant Castro's truck not hit Villanueva's Volkswagen, he -Sandoval -would surely have struck Villanueva's Volkswagen." Plaintiffs argued this testimony constituted inadmissible lay opinion and, pursuant to Evidence Code section 352, should be excluded as irrelevant or as unduly prejudicial.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Defendants filed an opposition to the motion in limine, claiming Sandoval's testimony was admissible as a lay opinion. Defendants argued that lay witnesses are commonly permitted to express opinions based on their personal observation of an event related to factors like speed, time, and distance. They contended Sandoval's opinion was based on his observation of the accident and his knowledge of these factors.
During a hearing on the motion, plaintiffs' counsel conceded Sandoval should be allowed to testify as to speeds, distances and times pertaining to the accident. However, plaintiffs' counsel argued Sandoval should not be permitted to testify that his vehicle would have collided with decedents' vehicle if Castro's vehicle had not. Plaintiffs' counsel also contended the court should exclude this testimony pursuant to Evidence Code section 352 because all of the experts in the case agreed that Sandoval's vehicle would not have hit the decedents' vehicle, irrespective of the collision that actually occurred.
The trial court denied plaintiffs' motion in limine, noting Sandoval's proposed testimony was proper lay testimony. The court reasoned, "Sandoval is going to testify that based upon his perception of the events as they unfolded and he can see where the [decedents'] vehicle is, he knows where his vehicle is, he has some sense of his speed, and no doubt some experience with... braking..., and [his] opinion [is] had X, Y, Z not happened, [he] would have been at the point that was then occupied by the Volkswagen had something else not intervened. He can testify to that, for what its worth."
With respect to plaintiffs' Evidence Code section 352 argument, the trial court stated:
"[Y]ou're assuming that the experts' testimony will be accepted by the jurors, but driving a car is such a common experience, and people are remarkably adept. People put their foot on a brake. They come to a stop generally right about the limit line. They are pretty good at estimating how long it's going to take them to get to a place and how long it will take them to brake to get to a stop by a certain point. [¶] Yeah. I think it's fair testimony. If it's contradicted, it's contradicted. But I suppose it will cut both ways, then if [the defense expert] was also of the opinion that Mr. Sandoval is wrong. It may cut against the defense on that."
On cross-examination, defense counsel asked Sandoval, "[Y]our memory was at the time right after this accident that if the truck didn't hit the Volkswagen, you would have hit it?" Sandoval replied, "That was one of the options. I could have--you know, he could have been going slower or moved to the other side like I did." Later during cross-examination, defense counsel asked Sandoval to review his deposition testimony regarding this issue. Defense counsel asked Sandoval, "Mr. Sandoval, does that refresh your recollection that when you spoke to [plaintiffs' counsel] and he asked you questions,... you told him that you thought that if the Castro vehicle had not struck the Volkswagen you would have hit it?" Sandoval responded, "Yeah. That could have been one of the options, yes."
Later during cross-examination, defense counsel asked Sandoval whether he had a conversation after the accident with the father of one of the decedents in which Sandoval told the father that he could not help him. After Sandoval stated he was not sure whether he had made such a statement, defense counsel read a portion of Sandoval's deposition testimony to the jury concerning this conversation. In the portion of the deposition that counsel read to the jury, Sandoval stated, "I told him it could have been me because we're so close together, the truck and the car I was driving...."
At trial, defense counsel asked Castro whether one of the people who had been in the truck behind him had said something to him at the scene of the accident. After Castro responded in the affirmative, defense counsel asked, "What did he say?" Plaintiffs' counsel raised a hearsay objection. Defense counsel stated, "Spontaneous declaration, your Honor." The court then held an unreported sidebar conference with counsel. After the sidebar conference, the court instructed defense counsel to proceed. Defense counsel asked Castro, "Mr. Castro I need you to answer this with a yes or no. After the accident, did the person from the other vehicle come up to you and say if you had not struck the Volkswagen their vehicle would have struck the Volkswagen?" Castro responded, "Yes."
Later that morning, while defense counsel was cross-examining Davis, the owner of the company for which Castro worked, the following colloquy occurred:
"[Defense counsel]: Now, while you were at the scene right after the accident happened, did you speak to any other persons other than Mr. Castro?"
"[Davis]: Yes. There was another gentleman that came to talk to me. I didn't get a name. All I can tell you is he spoke real good English, real clear English. He said he was in the vehicle behind Mr. Castro.
Sandoval testified at trial without an interpreter. His passenger, Bernadino, testified through an interpreter. Sandoval testified that he is bilingual, but he speaks Spanish better than he does English.
"[Defense counsel]: And you can answer this with a yes or no. Did that person tell you what he saw?
"[Davis]: Yes.
"[Defense counsel]: Did that person tell you that in his opinion if Mr. Castro hadn't hit the Volkswagen he would have hit it?
"[Davis]: Yes."
After the court released the jury for lunch, outside the presence of the jury, the court stated:
"I think the other issue that we need to discuss is we did have a sidebar with regard to a spontaneous statement or alleged spontaneous statement it would be either... Mr. Sandoval and Mr. Bernadino. Could have been either one of them. [¶] But the testimony related to the person who spoke to Mr. Castro said, 'I was behind you,' which would either be Mr. Sandoval or Mr. Bernadino and said, 'If you hadn't hit them, I would have' or something to that effect. [¶] And the Court ruled that testimony would be allowed as a spontaneous exclamation or excited utterance, exception to the hearsay rule, but that the statement just preceding it, which is, 'It wasn't your fault,' would not be admissible because it wouldn't be admissible even if the witness were testifying in court. [¶] I wanted to make a record of that in the event of appell[ate] review."
During closing argument, defense counsel stated, "If you recall, Mr. Sandoval told Mr. Castro and told Mr. Davis right after the accident, 'If you didn't hit him, I think I would have.' And when [Sandoval] spoke with Mr. Aldana's father later, he told him the same thing."
2. Governing law
a. Lay Opinion Testimony
Evidence Code section 800 provides:
"If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony."
In People v. Chapple (2006) 138 Cal.App.4th 540, 547, the court described the admissibility of lay opinion testimony under Evidence Code section 800:
" ' "Lay opinion testimony is admissible where no particular scientific knowledge is required, or as 'a matter of practical necessity when the matters... observed are too complex or too subtle to enable [the witness] accurately to convey them to court or jury in any other manner.' [Citations.]" [Citation.]' [Citation.] It must be rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony. [Citations.] For example, testimony that another person was intoxicated [citation] or angry [citation] or driving a motor vehicle at an excessive speed (Jordan v. Great Western Motorways (1931) 213 Cal. 606, 612) conveys information to the jury more conveniently and more accurately than would a detailed recital of the underlying facts."
In Jordan v. Great Western Motorways, supra, 213 Cal. 606, a car in which the plaintiff was a passenger collided with a bus. The plaintiff filed an action against the driver of the bus as well as the driver of the car in which he was riding. (Id. at p. 607.) At trial, the plaintiff was permitted to testify as to the speed of both vehicles. (Id. at p. 612.) The Supreme Court concluded the trial court had not erred in admitting this testimony, reasoning, "A person having the opportunity to observe the speed of a moving vehicle is qualified to give his opinion as to such speed, and his previous experience or lack of experience goes to the weight rather than to the competency of the testimony." (Ibid.)
Similarly, in Dean v. Feld (1946) 77 Cal.App.2d 327, 330-331, the Court of Appeal concluded a trial court had not erred in admitting the testimony of a witness to an accident involving a car and a young child, to the effect that the child had been "pretty close" to the car when the witness yelled at the girl. The court reasoned:
" 'Impressions or sensations caused by external objects are not susceptible of exact reproduction or description in words, nor do they affect every individual alike, and the judgment or opinion of the witnesses, by whom they have been experienced is the only mode by which they can be presented to a jury.' [Citation.] A witness is not required to testify with that degree of certainty which excludes all doubt from his mind. [Citation.] Speed, distance, size, weight and the like are properly described by such comparative expressions." (Ibid.)
We review a trial court's decision to admit lay opinion testimony pursuant to the abuse of discretion standard of review. (People v. Maglaya (2003) 112 Cal.App.4th 1604, 1609.)
b. The Hearsay Rule and the Spontaneous Statement Exception
" 'Hearsay evidence,' is evidence of a statement... made other than by a witness while testifying at the hearing and... offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) "Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subd. (b).)
Evidence Code section 1240 outlines an exception to the hearsay rule for spontaneous statements made under certain specified circumstances. That section provides:
"Evidence of a statement is not made inadmissible by the hearsay rule if the statement:
"(a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and
"(b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."
In People v. Gutierrez (2009) 45 Cal.4th 789, the Supreme Court outlined the necessary prerequisites for admitting a hearsay statement pursuant to this exception:
" ' "To render [statements] admissible [under the spontaneous declaration exception] it is required that (1) there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting; (2) the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance; and (3) the utterance must relate to the circumstance of the occurrence preceding it." [Citations.]' [Citation.] Spontaneous statements are deemed sufficiently trustworthy to be admitted into evidence because ' " 'in the stress of nervous excitement the reflective faculties may be stilled and the utterance may become the unreflecting and sincere expression of one's actual impressions and belief.' " [Citation.]' [Citation.]" (Id. at pp. 809-810.)
"The crucial element in determining whether an out-of-court statement is admissible as a spontaneous statement is the mental state of the speaker. [Citation.]" (People v. Gutierrez, supra, 45 Cal.4th at p. 811.)
" 'Whether the requirements of the spontaneous statement exception are satisfied in any given case is, in general, largely a question of fact. [Citation.] The determination of the question is vested in the court, not the jury. [Citation.]' [Citation.] The trial court's determination of preliminary facts will be upheld if supported by substantial evidence. [Citation.] However, '[w]e review for abuse of discretion the ultimate decision whether to admit the evidence.' [Citation.]" (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1523.)
3. Application
a. Sandoval's Testimony As a Lay Opinion
Sandoval's testimony was "[r]ationally based on [his] perception" (Evid. Code, § 800), because it was directly based on his observing the accident. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1307 ["The cases allowing lay opinion testimony uniformly note that it was based on the witness's personal observation"].) Further, a witness's opinion as to whether the witness could have stopped his vehicle before striking another object is the type of issue the trial court could have reasonable determined was too subtle to enable the witness to accurately convey to court or jury in any other manner. (People v. Chapple, supra, 138 Cal.App.4th at p. 547.) As the trial court's comments in ruling on the issue suggest, an experienced driver attempting to bring his or her car to a stop at a particular point in the road might well be able to successfully judge, for any given speed, when to apply the brake and how much pressure to apply to successfully make the stop. However, that same driver might not be able to describe the precise location and amount of braking pressure required to stop. Allowing the witness to testify regarding whether or not, in that witness's lay opinion, the witness could have stopped his or her vehicle before striking the other object would be "[h]elpful to a clear understanding of his testimony." (Evid. Code, § 800; see Jordan v. Great Western Motorways, supra, 213 Cal. at p. 612; Dean v. Feld, supra, 77 Cal.App.2d at pp. 330-331.)
Plaintiffs suggest Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104 (Osborn) supports their argument that the trial court erred in admitting Sandoval's testimony. However, Osborn supports the trial court's ruling. In Osborn, the plaintiff was injured after falling over some concrete pieces on the defendant's property. (Id. at p. 110.) The Osborn court concluded the trial court had properly admitted the plaintiff's testimony regarding "whether the nature of the potential danger was obvious or not," because this "was a matter which could best be described to the jury by way of opinion testimony." (Id. at p. 113.) The Osborn court reasoned, "A recitation of the size of the area, the depth and quality of the dirt, the size of the concrete pieces and whether and in what proportion they were totally exposed, completely hidden, or partially embedded in the dirt could be made, but, in our opinion, such facts alone would not make the obviousness of the risk involved so palpable to the jury that its means of forming an opinion would be practically equal to those of the witness." (Ibid.) The Osborn court did conclude the plaintiff's testimony as to the "as to the 'reasonableness' of the condition of defendant's premises was not helpful to a clear understanding of his testimony, and invaded the province of the jury" (id. at p. 114), reasoning this testimony called for a legal conclusion as to the ultimate issue in the case, namely, whether the property had been kept in a " 'reasonably safe condition.' " (Id. at p. 113.)
In this case, although it may have been possible for Sandoval to describe in greater factual detail the bases for his opinion regarding the likelihood his vehicle would have collided with decedents' vehicle if Castro's had not, the trial court could have reasonably determined Sandoval's opinion was admissible, given the subtle and complex factors on which that opinion was necessarily based. (See Osborn, supra, 224 Cal.App.3d at p. 114 [plaintiff could provide lay opinion testimony concerning open and obvious danger because describing reasons for opinion would insufficiently convey opinion to the jury].)
We are not persuaded by plaintiffs' argument that Sandoval's testimony was inadmissible because it constituted a conclusion as to the ultimate fact in the case. (Citing Osborn, supra, 224 Cal.App.3d at pp.113-114, and People v. Hurlic (1971) 14 Cal.App.3d 122, 127-128.) Whether Sandoval's vehicle would have struck decedents' vehicle but for Castro's intervening act was not the ultimate question for the jury to decide. Rather, the jury was required to determine whether Castro was negligent in colliding with decedents' vehicle. We conclude the trial court did not abuse its discretion in admitting Sandoval's lay opinion testimony.
b. The Hearsay Statement Sandoval Made at the Scene of the Accident
Plaintiffs claim the trial court erred by admitting Castro's testimony regarding Sandoval's hearsay statementat the scene of the accident that Sandoval's vehicle would have hit decedents' vehicle if Castro's vehicle had not.
Although Castro testified he was not certain whether it had been Sandoval or the passenger in Sandoval's vehicle who spoke to him, plaintiffs claim in their brief that "Castro was permitted to testify that Sandoval told him...." Accordingly, we assume for purposes of this decision that Sandoval made the hearsay statement at issue.
The trial court considered the issue of the spontaneity of the statement during an unreported sidebar conference. Although Sandoval apparently made the statement shortly after a horrific traffic accident, and the statement related to that event, the record does not show precisely when the statement was made in relation to the time of the accident, or the context in which Sandoval made it. (People v. Gutierrez, supra, 45 Cal.4th at p. 811 [to qualify as spontaneous statement, statement must relate to startling occurrence and have been made before there was time to contrive].) Further, the record contains no direct evidence of Sandoval's mental state at the time he made the statement, the "crucial element" in determining the admissibility of a spontaneous statement. (Ibid.) We therefore assume for purposes of this decision that the record does not contain sufficient evidence to support the trial court's implicit finding of sufficient preliminary facts to establish that Sandoval's statement was within the spontaneous statement exception to the hearsay rule.
To determine whether the assumed evidentiary error requires the judgment be reversed, we must consider whether the plaintiffs have established a "reasonable probability that a result more favorable to [them] would have been reached in the absence of the error." (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 815.) In considering whether the plaintiffs have established prejudice from the error, we note plaintiffs raised no claim in their opening brief with respect to Davis's testimony that Sandoval made a nearly identical statement to him at the scene of the accident. Although plaintiffs claim in their reply brief that the trial court erred in admitting Davis's testimony on this issue as well, they offer no explanation for not raising this contention in their opening brief. Plaintiffs have forfeited any contention with respect to Davis's testimony. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10, [" ' "points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before" ' "].) Because Davis's testimony regarding Sandoval's hearsay statement was nearly identical to Castro's testimony, we conclude any error in admitting Castro's testimony was harmless.
Castro responded in the affirmative to defense counsel's question, "After the accident, did the person from the other vehicle come up to you and say if you had not struck the Volkswagen their vehicle would wave struck the Volkswagen?" Defense counsel asked Davis, "Did that person [with whom Davis spoke at the scene of the accident] tell you that in his opinion if Mr. Castro hadn't hit the Volkswagen he would have hit it?" Davis responded in the affirmative. Although Davis stated he did not know whether it had been the driver or passenger of Sandoval's vehicle who made the statement, it is likely the jury inferred that Sandoval made the statement, considering Davis's testimony that the person spoke in clear English. (See fn. 7, ante.)
Plaintiffs did not raise any objection to Davis's testimony at trial. The trial court thus did not have occasion to consider whether the spontaneous statement exception applied with respect to Davis's testimony.
Even assuming the trial court erred in admitting both Castro's and Davis's testimony, the trial court properly admitted Sandoval's testimony that immediately after the accident occurred, he believed his vehicle could have struck decedents' car if Castro's truck had not. Further, the court properly admitted evidence that Sandoval made similar statements during his deposition and during a conversation after the accident with the father of one of the decedents. The jury properly learned of the gist of Sandoval's postaccident lay opinion through his own testimony. Any erroneous admission of Sandoval's hearsay statements to the same effect was not prejudicial.
We are not persuaded by plaintiffs' claim that they are entitled to reversal of the judgment on the ground that Sandoval testified only to his belief at the time of the accident that he could have hit the decedents' vehicle, while Castro and Davis testified Sandoval stated at the scene of accident that he would have hit it. We conclude there is not a reasonable probability the jury would have reached a more favorable result for plaintiffs based on this marginal difference in the wording of Sandoval's opinion. During closing argument, even defense counsel characterized Castro's and Davis's testimonies as stating Sandoval told them that he thought he would have hit decedents' vehicle, but for their collision with Castro's vehicle. We conclude any error in admitting the hearsay statements was harmless.
During his closing argument, defense counsel stated, "If you recall, Mr. Sandoval told Mr. Castro and told Mr. Davis right after the accident, 'If you didn't hit him, I think I would have."
Considering our conclusion, we need not consider the defendants' arguments, offered for the first time on appeal, that the hearsay statements were purportedly admissible to explain Sandoval's state of mind (Evid. Code, § 1250, subd. (a)(2)) or conduct (Evid. Code, § 1241).
B. Requiring Plaintiffs' Counsel to Rephrase a Hypothetical Question Posed to One of Plaintiffs' Expert Witnesses
Plaintiffs claim the trial court erred by sustaining defense counsel's objection to a hypothetical question plaintiffs' counsel posed to one of plaintiffs' expert witnesses. We review the trial court's exclusion of evidence for an abuse of discretion. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467 ["A court's decision to exclude expert testimony is reviewed for abuse of discretion"].)
1. Factual and Procedural Background
Plaintiffs' counsel asked William Haight, an automobile accident reconstruction expert, a series of hypothetical questions about the accident, based on the evidence presented in this case. Plaintiffs' counsel asked Haight to assume Castro attempted to pass five vehicles before the intersection where the accident occurred, Castro had been unable to complete the pass prior to reaching a no passing zone, and Castro was in the no passing zone when he completed the pass, approximately 270 to 280 feet before the intersection. After counsel posited these facts, the following colloquy occurred:
"[Plaintiffs' counsel]: Okay. Now let's further assume that the rest of this hypothetical we've looked at there, that we've got a Volkswagen, okay, approaching the intersection. Mr. Castro sees it. [¶] Here's my question: Okay. Do you believe that Mr. Castro passing the last car and passing in the no pass zone is a factor that contributed to the accident that occurred here?
"[Defense counsel]: Objection. The question lacks foundation and calls for an improper opinion and conclusion.
"The Court: Did you say passing in a no pass zone?
"[Plaintiffs' counsel]: Yes. That he's done exactly what I've just described.
"The Court: I'll sustain the objection on the grounds that it's argumentative to the extent that Castro being there, wherever he was for whatever reason, certainly would be a factor if he hadn't been on the road or anywhere in the vicinity of what happened. [¶] I don't think it's a fair question to ask the witness. I'll sustain the objection.
"[Plaintiffs' counsel]: I'd like to be heard at sidebar.
"The court: [Plaintiffs' counsel], rephrase the question.
"[Plaintiffs' counsel]: Okay. Here's my question:.... Under these circumstances, let's put... Castro in these circumstances. He's getting ready to pass where he knows that he's passing in this no pass zone. And he also perceives, at the same time, this Volkswagen up ahead.... Let's just assume that you're driving defensively.... What should Castro do?
"[Defense counsel]: Objection. Calls for improper opinion and conclusion. Lacks foundation.
"The court: Overruled. [¶] You may answer.
"[Haight]: Well, approaching the no passing zone, it's his obligation to pull back into his lane between the cars he's passing, not to finish passing five cars and be on the wrong side of the road. [¶] The reason for that yellow line as we're approaching the intersection is, for example, the Volkswagen instead of continuing straight to allow for it to make its right turn. Now it would be going head on into Castro's truck. [¶] The idea was before we get to the intersection, as he's approaching, he would have seen he didn't have enough time to finish the pass, should have pulled into the line of traffic."
2. Governing Law
a. The Element of Proximate Cause in Negligence Actions
To prove their negligence cause of action, plaintiffs were required to demonstrate, among other elements, that Castro's breach of a legal duty was the proximate or legal cause of their injury. (See Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-918.) " ' " 'Legal cause' exists if the actor's conduct is a 'substantial factor' in bringing about the harm and there is no rule of law relieving the actor from liability. [Citations.]" ' [Citation.]" (Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 665-666.) The trial court instructed the jury that to prove their negligence cause of action, plaintiffs were required to demonstrate "defendant Humberto Castro's negligence was a substantial factor in causing the deaths of Francisco Aldana and Angel Villanueva." The court also instructed the jury, "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of harm. [¶] Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct."
b. Argumentative Questions
A trial court may preclude a party from asking argumentative questions at trial. (See People v. Chatman (2006) 38 Cal.4th 344, 384.) "An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all." (Ibid.)
3. Analysis
Plaintiffs' counsel asked Haight whether, assuming certain facts, Castro's action in passing in a no passing zone was a factor that contributed to the accident. This question was not likely to elicit relevant testimony, because plaintiffs were required to demonstrate that Castro's actions were a substantial factor in causing the accident, not merely a factor. In sustaining defense counsel's objection to the question, the trial court pointed out Castro's actions prior to the accident were obviously a factor in causing the accident, since the accident would not have occurred if Castro had not been on the road or in the vicinity of the accident.
The court's comment alerted plaintiffs' counsel to the need to clarify the question as it related to the issue of causation. The court suggested counsel could rephrase the question to attempt to elicit relevant testimony. Although plaintiffs' counsel chose to rephrase the question to focus on the issue of Castro's duty of care, the court's ruling did not preclude counsel from asking a properly phrased question pertaining to proximate cause. We conclude the trial court did not abuse its discretion in requiring plaintiffs' counsel to rephrase the hypothetical question he posed to Haight.
C. Not Instructing the Jury Concerning Whether Castro Was Negligent Per Se for Violating Section 21460, Subdivision (b)
Plaintiffs claim the trial court erred by denying their request to instruct the jury to consider whether Castro was negligent per se for violating section 21460, subdivision (b). Section 21460, subdivision (b), generally prohibits driving on the left side of the road except when passing other vehicles in a passing zone.
1. Standard of Review
"Challenges to jury instructions are subject to a de novo standard of review." (Sander/Moses Productions, Inc. v. NBC Studios, Inc. (2006) 142 Cal.App.4th 1086, 1094.) In reviewing a claim that the trial court improperly refused a requested jury instruction, we consider the evidence most favorably to the party requesting the instruction. (See fn. 5, ante; Alcala, supra, 167 Cal.App.4th at p. 754.) "[W]e assume that the jury might have believed the evidence upon which the instruction favorable to the [party who requested the instruction] was predicated." (Alcala, at p. 754.)
2. Factual and Procedural Background
Sandoval testified Castro was approximately "[seven] to 10 car lengths" west of the intersection where the accident occurred when Castro passed Sandoval. Sandoval also marked on a photograph shown to the jury that Castro returned to the eastbound or right lane of traffic within the no passing zone. Sandoval also agreed during his trial testimony that, at his deposition, he had been asked to draw on a photograph the location of Castro's vehicle as it returned to the eastbound lane after passing Sandoval's vehicle. The photograph, which plaintiffs offered in evidence as exhibit 118, contains a square that Sandoval drew in ink in the eastbound lane, within the no passing zone.
At another point during the trial, one of plaintiffs' accident reconstruction experts, Ronald Carr, testified that six car lengths is approximately 100 to 120 feet.
Plaintiffs' expert Carr examined exhibit 118. Based on Sandoval's drawing on the exhibit, Carr estimated that after passing Sandoval, Castro re-entered the eastbound lane approximately 260 feet before the intersection, and approximately 270 feet from the point of impact. Carr testified the "solid yellow line" began approximately 300 feet before the intersection.
Haight explained the term "perception-reaction time" is used to refer to the amount of time it takes a driver to perceive and react to a situation the driver observes while driving. Haight stated various experiments have demonstrated that, on average, perception-reaction time is approximately one and one-half second. Haight further explained that a hypothetical vehicle traveling at 65 miles per hour moves 143 feet during this one and one-half second of perception-reaction time. Haight also stated a hypothetical vehicle traveling at 65 miles per hour would take approximately 200 feet to stop if the driver "stomp[s] [on] the brakes."
The plaintiffs requested the trial court instruct the jury with a modified version of CACI No. 418, as follows:
"California Vehicle Code § 21460 provides:
"When the double parallel lines, one of which is broken, are in place, no person driving a vehicle shall drive to the left thereof, except that the driver on that side of the roadway in which the broken line is in place may cross over the double line or drive to the left thereof when overtaking or passing other vehicles.
"If you decide:
"1. Humberto Castro violated this law and
"2. That the violation was a substantial factor in bringing about the harm, then you must find that Humberto Castro was negligent unless you also find that the violation was excused.
"If you find that Humberto Castro did not violate this law or that the violation was not a substantial factor in bringing about the harm or if you find the violation was excused, then you must still decide whether Humberto Castro was negligent in light of the other instructions."
During a conference concerning proposed jury instructions, outside the presence of the jury, plaintiffs' counsel argued plaintiffs had presented evidence that Castro violated section 21460, subdivision (b), which, counsel maintained, was designed to prevent people from passing too close to an intersection. Counsel further argued Haight had testified that on determining a pass could not be completed in a passing zone, a reasonable driver would not attempt to complete the pass. In addition, counsel argued a jury could conclude that, but for Castro's violation of section 21460, subdivision (b), the accident would not have occurred.
The trial court agreed a jury could find Castro had violated section 21460, subdivision (b). However, the court stated there was no evidence from which a jury could find that such a violation, if it occurred, had been the cause of the accident.
Plaintiffs' counsel requested clarification regarding whether counsel would be permitted to argue Castro had been negligent in passing Sandoval's vehicle. After a discussion between plaintiffs' counsel and the court regarding whether plaintiffs had presented sufficient evidence on this issue, the court summarized the plaintiffs' position as follows:
"[A]lthough you're saying the passing is the most important thing, really the most important thing is you're inherently saying Castro should have slowed down when he saw all these shenanigans going on. Whether he's in one lane or another, that's the only reason he should slow down whether he's illegally passing or not."
Plaintiffs' counsel agreed with the court's summary of plaintiffs' position.
The court continued:
"You're saying the reason... he didn't slow down..., which would have been a prudent thing to do, [is] because he had to get around Sandoval. And so it was unsafe for him to be doing that at that time. He should have pulled in behind him."
After further agreement from plaintiffs' counsel, the trial court ruled:
"If you want to argue that Castro should have perceived the danger, would have been reasonable for him to perceive it at the same time Sandoval did and just fade back in behind Sandoval, it's unsafe for him to pass him, I think that's fair argument."
After plaintiffs' counsel stated he had made his point with respect to section 21460, subdivision (b), the court responded, "That has nothing to do with his position on the road. It has to [do] with decision making. How fast he's going to go or whether he's going to slow down."
The court partially instructed the jury prior to closing arguments. The court's instructions did not include the plaintiffs' requested modified version of CACI No. 418 concerning section 21460, subdivision (b). After the court provided the instructions, plaintiffs' counsel gave his closing argument.
The trial court explained it was instructing the jury regarding some of the applicable law prior to counsel's closing arguments because counsel would refer to the instructions in their arguments.
The following day, outside the presence of the jury, the trial court held further discussions with both counsel concerning plaintiffs' requested jury instruction. The court stated its view that although the jury could find Castro's passing maneuver was causally related to the accident, no reasonable juror could find Castro's being in the left lane, in violation of section 21460, subdivision (b), was causally related to the accident. The court reasoned in part:
The trial court said it had considered the issue overnight because the court realized it still had the opportunity to instruct the jury on the issue.
"In this case, I thought about it. I researched it, and I still cannot see any connection in the evidence or in my notes to the placement of the vehicle in the left lane. The passing maneuver, yes. [Plaintiffs' counsel] argued that. [Castro's] execution of the pass prevented him or created an incentive for him not to slow down, which would be reasonable and prudent. But his placement of his vehicle in the left hand--and, frankly, if he passed on the right, which would have also been illegal, he would have the same incentive to get past the cars and get back in the lane prior to the intersection. [¶] Same problem. He would have slowed down. The placement left is not the proximate cause. It's the decision to go faster or not go slower from the plaintiffs' position that is the problem."
After hearing further argument from counsel, the court reiterated its view that Castro's alleged violation of section 21460, subdivision (b), was not causally related to the accident. Defense counsel then gave his closing argument, plaintiffs' counsel gave a rebuttal argument, and the court provided a final set of instructions before the jury began its deliberations.
3. Governing Law
a. General Principles of Law Concerning Jury Instructions
" '[A] party is entitled to have the jury instructed as to his theory of the case provided (1) that he requests and submits legally correct instructions, and (2) that there is sufficient evidence to support the theory.' [Citation.]" (Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 547.)
b. Negligence Per Se
Evidence Code section 669 codifies the common law doctrine of negligence per se. That section provides:
"(a) The failure of a person to exercise due care is presumed if:
"(1) He violated a statute, ordinance, or regulation of a public entity;
"(2) The violation proximately caused death or injury to person or property;
"(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and
"(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.
"(b) This presumption may be rebutted by proof that:
"(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or
"(2) The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications."
Whether a person violated a statute, and whether the violation proximately caused injury, are normally questions for the trier of fact. (Daum v. SpineCare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1306 (Daum).) Whether the injury resulted from an occurrence the statute was designed to prevent, and whether the injured person was among the class of persons the statute was intended to protect, are questions of law. (Ibid.)
CACI No. 418 is a standard jury instruction regarding the negligence per se doctrine. That instruction provides as follows:
"[Insert citation to statute, regulation, or ordinance] states: _____.
"If you decide
"1 That [name of plaintiff/defendant] violated this law and
"2 That the violation was a substantial factor in bringing about the harm, then you must find that [name of plaintiff/defendant] was negligent [unless you also find that the violation was excused].
"If you find that [name of plaintiff/defendant] did not violate this law or that the violation was not a substantial factor in bringing about the harm [or if you find the violation was excused], then you must still decide whether [name of plaintiff/defendant] was negligent in light of the other instructions."
CACI No. 418 addresses only the first two elements of the negligence per se doctrine; the remaining two elements present questions of law for the trial court. (See Daum, supra, 52 Cal.App.4th at p. 1306 [discussing BAJI No. 3.45, the standard jury instruction on negligence per se in the BAJI series of jury instructions].)
c. Section 21460, Subdivision (b)
Section 21460, subdivision (b), provides in relevant part:
"When the double parallel lines, one of which is broken, are in place, no person driving a vehicle shall drive to the left thereof, except as follows:
"(1) That the driver on that side of the roadway in which the broken line is in place may cross over the double line or drive to the left thereof when overtaking or passing other vehicles."
4. Instructing the Jury to Consider Whether Castro Was Negligent Per Se for Violating Section 21460, Subdivision (b)
Plaintiffs presented evidence of each of the four elements of Evidence Code section 669 to support their request that the court instruct the jury to consider whether Castro was negligent per se for violating section 21460, subdivision (b). Section 21460, subdivision (b), provides for the creation of passing zones in which drivers may safely drive on the left side of the road to pass other vehicles, and prohibits driving on the left side of the road in all other locations. The statute prohibits driving on the left side of the road except where passing on the left may be completed safely, to prevent accidents from occurring in no passing zones caused by unsafe driving on the left side of the road.
Section 21460, subdivisions (b)(2) and (c), permit driving on the left side of the road in a no passing zone under certain conditions not relevant to this case, including turning left into an intersection or driveway.
Although the primary purpose of section 21460, subdivision (b), is undoubtedly the prevention of collisions between vehicles traveling in opposite directions, construing the intent of the statute broadly as being to foster safe driving, we conclude section 21460, subdivision (b), also is intended to prevent accidents between vehicles driving in the left lane in a no passing zone while approaching an intersection and vehicles crossing the intersection. We therefore conclude (1) "[t]he death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent," and (2) decedents were among the "the class of persons for whose protection the statute, ordinance, or regulation was adopted." (Evid. Code, § 669, subd. (a)(3), (4).)
Sandoval's testimony regarding the location at which Castro reentered the eastbound or right lane of the highway (i.e. in a no passing zone) constituted substantial evidence from which a jury could find Castro "violated a statute, ordinance, or regulation of a public entity." (Evid. Code, § 669, subd. (a)(1).) With respect to the issue of proximate cause, the trial court refused plaintiffs' requested instruction primarily on the ground that no reasonable juror could find Castro's violation of section 21460, subdivision (b), "proximately caused death or injury to person or property." (Evid. Code, § 669, subd. (a)(2).)
Although plaintiffs' evidence on this point was far from overwhelming, plaintiffs did present evidence that, if believed by the jury, would be sufficient to establish this element. A reasonable juror could have found Castro reentered the eastbound lane inside the 300 foot, no passing zone that existed for eastbound cars on State Route 98 before the intersection where the accident occurred. Further, based on Haight's testimony, a reasonable juror could have concluded that a driver traveling at 65 miles per hour would need approximately 343 feet to stop his or her vehicle from the moment the driver first perceived a dangerous condition on the road. A reasonable juror also could have believed Sandoval's testimony that Castro was traveling at approximately 70 to 75 miles per hour at the time he passed Sandoval. Thus, a reasonable juror could have concluded Castro had not completed his passing maneuver at the moment in time when he would have had to perceive the dangerous condition in the intersection and begin to apply the brakes to avoid the collision. A reasonable juror could have concluded Castro's violation of section 21460, subdivision (b), was a proximate cause of the accident.
A juror could reach this conclusion by accepting Haight's testimony that a car going 65 miles per hour travels 143 feet during the driver's perception-reaction time, and travels an additional 200 feet after the driver applies the brakes.
The court appears to have agreed that a reasonable juror could have found Castro passed Sandoval in a no passing zone, and a reasonable juror could have found this act was a proximate cause of the accident. However, the trial court theorized that the requested instruction was not appropriate for two reasons. First, the court suggested that an instruction was not warranted because "there's no evidence from which a jury could conclude that Castro was precluded from moving into the eastbound lane." We disagree that such evidence was required. Section 21460, subdivision (b), generally prohibits a driver from driving his vehicle in the left lane while in a no passing zone, irrespective of whether another vehicle is impeding the driver's return to the right lane.
The trial court also seemed to draw a distinction between the act of passing in a no passing zone, which the court believed a reasonable juror could conclude was causally related to the accident, and driving in the left lane in a no passing zone not in the act of passing, which the trial court believed no reasonable juror could conclude was causally related to the accident. A reasonable juror could have concluded Castro's driving his vehicle in the left lane in a no passing zone--whether passing or not--decreased Castro's ability to react to dangerous occurrences on the road. A reasonable juror could have believed that if Castro was traveling in the lane in which oncoming traffic might travel, he would have been less likely to simply brake to avoid the collision, because if he had done nothing more than brake, his vehicle would have remained in the path of potential oncoming traffic. We conclude the trial court erred in determining that no reasonable juror could have found Castro's violation of section 21460, subdivision (b), was a proximate cause of decedents' deaths.
5. The Trial Court's Error Was Harmless
In Alcala, supra, 167 Cal.App.4th at page 755, the court outlined the standard of prejudice to be applied in considering whether a trial court's instructional error in a civil case requires reversal of the judgment:
" 'A judgment may not be reversed on appeal, even for error involving "misdirection of the jury," unless "after an examination of the entire cause, including the evidence," it appears the error caused a "miscarriage of justice." [Citation.]' [Citation.] 'Instructional error in a civil case is prejudicial " '[w]here it seems probable' " that the error prejudicially affected the verdict. [Citation.] It is not enough that there may have been a "mere possibility" of prejudice. [Citation].' [Citation.]"
" '[T]he determination of prejudice depends heavily on "the particular nature of the error, including its natural and probable effect on a party's ability to place his full case before the jury. [¶]... Actual prejudice must be assessed in the context of the individual trial record." ' " (Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1088.) "Several factors must be taken into consideration in determining whether prejudice resulted: (1) the effect other instructions may have had; (2) whether respondents' argument to the jury may have contributed to misleading the jury; (3) the degree of conflict in the evidence; (4) did the jury request a rereading of instructions or indicate confusion; and (5) the closeness of the jury's verdict. [Citations.]" (Weaver v. Chavez (2005) 133 Cal.App.4th 1350, 1356-1357.)
The trial court provided the jury with standard negligence instructions, including modified versions of CACI Nos. 400, 401, and the original version of CACI No. 700, as follows:
"Plaintiffs claim they are entitled to damages as a result of defendants['] negligence. To establish this claim, plaintiffs must prove all of the following:
"1. That Humberto Castro was negligent;
"2. That defendant Humberto Castro's negligence was a substantial factor in causing the deaths of Francisco Aldana and Angel Villanueva." (CACI No. 400, as modified.)
"Negligence is the failure to use reasonable care to prevent harm to oneself or to others. [¶] A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. [¶] You will note that the person whose conduct we set up as a standard is not the extraordinarily cautious individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence. [¶] You must decide how a reasonably careful person would have acted in Humberto Castro's situation." (CACI No. 401, as modified.)
"A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence." (CACI No. 700.)
Because the trial court provided these instructions, the jury could have found Castro was negligent in committing actions that amounted to a violation of section 21460, subdivision (b), and this negligence was a proximate cause of the accident. Further, the trial court allowed plaintiffs to present evidence to the jury pertaining to Castro's actions that amounted to a violation of section 21460, subdivision (b). For example, plaintiffs presented eyewitness testimony that Castro drove on the left side of the road in the no passing zone, and also presented expert testimony supporting their theory that Castro's doing so was a proximate cause of the accident. In addition, plaintiffs' expert Haight testified that "approaching the no passing zone, it's [Castro's] obligation to pull back into his lane between the cars he's passing, not to finish passing five cars and be on the wrong side of the road."
Further, the trial court permitted plaintiffs' counsel to argue to the jury that Castro's action in passing in the no passing zone was a proximate cause of the accident. (Compare with Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1252 [concluding failure to provide negligence per se instruction was reversible error where "[plaintiff's] counsel was precluded from arguing to the jury that it is presumed [defendant's] alleged violation of the regulations [governing care provided in nursing homes] conclusively proved it was negligent in caring for [nursing home patient].") In this case, Plaintiffs' counsel fully availed himself of the trial court's ruling, repeatedly suggesting during closing argument that Castro's action in passing too close to the intersection was a proximate cause of the accident. Plaintiffs' counsel argued, "[Castro] makes a pass too close to the intersection, and that's what puts him in the position where he has got to react to what's going on, more than he already has, to what's happening up ahead, this Volkswagen." Plaintiffs' counsel also argued Castro decided "to go behind the Volkswagen in the wrong lane and pass behind him in that intersection. What tells you this is just one other step of his aggressive driving, trying to get past the line of cars." Counsel further argued that the jurors had to ask themselves, "Did [Castro] try to pass those [sic] line of cars too close to the intersection?" Counsel told the jury it had to consider where Castro was when he finished passing Sandoval, rhetorically asking, "Was it a half mile back like [Castro] says, or was it within about 300 feet of the intersection like Mr. Sandoval says?" The trial court's failure to instruct the jury regarding section 21460, subdivision (b), did not, as plaintiffs claim, "completely [prevent plaintiffs] from placing their entire case before the jury."
In addition, plaintiffs' requested negligence per se instruction would have essentially instructed the jury that driving on the left side of the road is illegal, a commonsense fact not disputed at trial. Further, since defendants never contested that driving on the left side of the road in a no passing zone constitutes a breach of a duty of care, the instruction would have merely established an undisputed duty of care. (See Elsner v. Uveges (2004) 34 Cal.4th 915, 927 [Evidence Code section 669 "codifies the common law doctrine of negligence per se, pursuant to which statutes and regulations may be used to establish duties and standards of care in negligence actions"].)
This case is in sharp contrast to Galvez v. Frields (2001) 88 Cal.App.4th 1410 and Daum, supra, 52 Cal.App.4th 1285, cited by plaintiffs, in which the issue of the applicable standard of care was contested, and related to a subject matter for which lay jurors would have had little common experience. (See Galvez, at pp. 1423-1424 [concluding trial court committed reversible error by refusing plaintiff's request for negligence per se instruction based on the defendant's alleged violation of regulation requiring clinicians to advise pregnant women of the availability of the alpha-fetoprotein test where defense counsel and defense expert contended that regulation did not establish applicable standard of care]; Daum, supra, 52 Cal.App.4th at p. 1318 [concluding trial court committed reversible error by refusing plaintiffs' request for negligence per se instruction on informed consent claim where plaintiffs "were forced to engage in a battle of experts over the duty of disclosure," rather than rely on applicable statutes and regulations governing such disclosures].) Further, unlike in this case, the trial courts in both Galvez and Daum compounded their error of not providing a negligence per se instruction by instructing the jury that it could rely only on the opinions of expert witnesses in deciding the applicable standard of care. (Galvez, at p. 1424; Daum, at pp. 1316 -1317.)
In considering the other factors for determining prejudice, nothing in defense counsel's closing argument to the jury could have misled the jury on this issue. Counsel never suggested Castro's alleged act of driving on the left side of the road in a no passing zone would not be a breach of a duty of care. (Compare with Norman v. Life Care Centers of America, Inc., supra, 107 Cal.App.4th at p. 1252 ["[defense] counsel argued that its [client's] decisions regarding its assessment and care of [nursing home patient] were merely 'judgment calls,' possibly misleading the jury to conclude [defendant's] decisions in caring for [patient], even if in violation of regulations [governing care provided in nursing homes], were within its wide discretion and therefore did not constitute neglect"].) Further, defense counsel did not suggest the jury could not consider whether Castro's alleged act of driving on the left side of the road in the no passing zone was a proximate cause of the accident. On the contrary, defense counsel argued the evidence demonstrated Castro had not entered the eastbound or right lane just 260 feet prior to the intersection, as plaintiffs claimed. In making this argument, defense counsel argued Sandoval's testimony to this effect was not credible, considering Sandoval's conflicting testimony on this issue and Castro's and Bernadino's testimony that Castro had returned to the eastbound or right lane much farther than 260 feet before the intersection, as plaintiffs claimed.
Plaintiffs claim that defense counsel's reference to Sandoval's lay opinion testimony regarding the likelihood that Sandoval's vehicle would have struck decedents' car but for Castro's truck colliding with their car increases the probability of prejudice stemming from the court's failure to provide plaintiffs' requested negligence per se instruction. Considering our conclusion that the trial court properly admitted Sandoval's testimony (see pt. III.A., ante), we are not persuaded by this claim.
Further, there is no evidence the jury was misled. The jury did not express in any way that it was confused. Plaintiffs' argument--the fact the jury returned its verdict "fairly quick[ly]" after it began its deliberations suggests that the jury was misled by the court's failure to instruct the jury on section 21460, subdivision (b)--is speculative.
The jury returned to the courtroom with its verdict at 2:09 p.m. on the same day that it began deliberations. Although the record does not reveal when the jury began its deliberations, the court began its morning session at 9:21 a.m. and prior to the commencement of deliberations, defense counsel provided closing argument, plaintiffs' counsel provided rebuttal argument, and the court provided the jury with a final set of instructions.
Finally, there is no evidence in the record that the verdict was close. Although the court did not poll the jury, the special verdict form contains the question, "Was Humberto Castro negligent?" The line following this question reads "____ Yes" and "______ No." The number 12 is written on the line next to the word "No." We conclude the trial court's failure to instruct the jury regarding section 21460, subdivision (b), was harmless.
Plaintiffs concede that "the unanimous defense verdict was not close."
D. The Cumulative Error Doctrine
Plaintiffs claim the trial court's errors, when taken together, require reversal of the judgment. We have not accepted plaintiffs' claims that the court erred in admitting Sandoval's lay opinion testimony, and in requiring plaintiffs' counsel to rephrase a question posed to expert Haight. We assumed for the sake of argument that the trial court erred in admitting hearsay statements Sandoval made at the scene of the accident to the effect that his vehicle would have hit the decedents' vehicle if Castro had not. However, that error was not prejudicial considering Sandoval's properly admitted lay opinion testimony essentially to the same effect. Further, we conclude that neither this assumed error, nor the error in failing to provide a negligence per se instruction, whether considered individually or cumulatively, make it " 'reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error[s].' " (Johnson v. Tosco Corp. (1991) 1 Cal.App.4th 123, 141.)
IV
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.