Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. NCV000957. Joseph R. Brisco, Judge.
Law Offices of Carcione, Cattermole, Dolinski, Okimoto, Stucky, Ukshini, Markowitz & Carcione, Joseph W. Carcione, Jr., Gerald K. Okimoto, Chad DeVeaux, Gary W. Dolinski, and Joshua S. Markowitz for Plaintiffs and Appellants.
Ronald W. Beals, Linda Cohen Harrel, Christopher Hiddleson, and Mark A. Berkebile for Defendant and Respondent.
OPINION
RICHLI, J.
On November 29, 2003, Charles Berger and his wife Joann were traveling on Interstate 95 (I-95) to their home in North Dakota when Gerald Small crossed over the divider line on a curve and hit them head on. Charles and Small died instantly, and Joann succumbed to her injuries the following day.
Appellants Bryan Berger, Michelle Parks, Cheryl Schwartzman, Jean Butterfield, and Mary Weflen (collectively the Bergers) filed a complaint against the State of California Department of Transportation (the State) and Small’s estate for wrongful death. The Bergers settled with the Small estate prior to trial. After a jury trial, the jury rendered a defense verdict, making the sole finding that the road where the accident occurred was not in a dangerous condition, absolving the State of all liability.
The complaint also was filed against two other parties who are not relevant here.
The Bergers now claim on appeal,
1. Juror misconduct deprived the Bergers of their constitutional right to a fair trial.
2. The trial court denied the Bergers a fair trial by excluding evidence of subsequent remedial repairs at the accident site.
3. The State improperly impeached Bryan Berger with an interrogatory response attested to prior to settling with the Small estate that Small was intoxicated when the accident occurred.
4. The trial court’s admission of testimony concerning the Bergers’ settlement with the Small estate constituted prejudicial error.
5. The trial court’s refusal to instruct the jury that exceeding a posted speed limit or failing to obey all laws does not necessarily constitute lack of “due care” was reversible error.
6. The trial court’s discovery order limiting the evidence of accidents on the highway where the accident occurred to the prior five years constituted prejudicial error.
We find no reversible error and affirm the judgment.
I
PROCEDURAL BACKGROUND
On November 4, 2004, the Bergers filed a complaint in San Bernardino County Superior Court for wrongful death of their parents, Joann and Charles Berger, against Gerald Small, the Estate of Gerald Small, Debora Yeats, Innovative Reconstruction and Restoration, LLC., and the State. It alleged against the State that the portion of the road where the accident had occurred constituted a dangerous condition of public property. Prior to trial, the Bergers settled with all of the named defendants except the State.
The Bergers brought a motion to amend the complaint to exclude all codefendants prior to the trial.
A jury trial commenced on March 17, 2008. On April 2, 2008, the jury returned their special verdict answering “no” to the first question on the verdict form, concluding that the highway was not in a dangerous condition at the time of the accident. The jury did not reach any of the other questions on the verdict form, including whether Small contributed to the accident.
Judgment was entered on April 7, 2008. A notice of entry of judgment was served on April 21, 2008.
On May 6, 2008, a motion for new trial was filed by the Bergers raising many of the same issues raised on appeal. The State filed opposition to the motion. The motion for new trial was denied on June 20, 2008.
II
We note that both parties in their briefs have either drawn their statement of facts from the opening arguments (which is not evidence), improperly cited to the record, or provided no citation to the record. The parties are required to provide a brief with proper citation to the record. (See Cal. Rules of Court, rule 8.204, subd. (a)(1)(C).)
A. The Accident
On November 29, 2003, Small was at his ex-wife’s house in Hemet, California. Prior to leaving her house to drive to his home in Texas, Small’s ex-wife gave him a cooler containing a half-full bottle of vodka and several bottles of beer. Small then headed home on I-95 highway driving a Ford truck and pulling a small, empty horse trailer. The speed limit on I-95 for persons towing trailers was 55 miles per hour.
At trial, Small’s ex-wife testified she gave the alcohol to him because she did not want her son drinking it.
Charles and Joann Berger, who were in their early 60’s, had been spending their Thanksgiving holiday in California visiting their children. They were pulling a fifth wheel trailer behind their truck. They were driving on I-95 on their way to visit one of their daughters in Phoenix, Arizona, prior to returning to their home in North Dakota. Small approached a curve in the highway at 4:05 p.m. He crossed over the yellow line and hit Charles and Joann head on. Charles and Small died at the scene of the accident. Joann was transported to the hospital and died the next day.
The Bergers presented testimony from all of the children of their close relationship with their parents. The parties stipulated to the medical expenses.
B. Road Condition Evidence
1. The Bergers’ evidence
Robert Anderson was an engineer and accident reconstruction expert. Anderson surmised that Charles was driving slower than Small at the time of the accident, but he could not calculate a definite speed. Small could have been traveling at 70 miles per hour and Charles at 50 miles per hour.
Anderson admitted that Small probably was speeding, but the road was a “partial cause” of accident. Anderson noted that as one approached the curve, it “suddenly” became “sharper, ” taking the driver by surprise. He also testified that the curve could not be seen from a long distance. Anderson drove the curve at 40 miles an hour. He started to veer over the centerline and had to “jerk” back into his lane. Anderson had to turn his wheel 180 degrees in order to drive the curve at 40 miles per hour. He probably could have made it through curve at 55 or 60 miles per hour. Small crossed over right at the sharp curvature, showing that the road contributed the accident.
A truck driver was passed by Small prior to the accident. The truck driver was going 58 miles per hour and estimated Small was going 70 miles per hour.
Edward Stevens was a transportation engineer who helped design highways. Stevens testified that a driver familiar with the curve could traverse it at 50 miles per hour by turning the steering wheel 10 to 20 degrees. He reviewed reports of accidents occurring at the site in the five years prior to this incident. He went to the accident site on September 2, 2006. The curve where the accident occurred becomes very sharp. The curve, in Stevens’s opinion, was improperly designed. There was a warning of a curve and speed reduction to 50 miles per hour prior to the curve in both directions.
Stevens felt the curve was not safe at 50 miles per hour. At the beginning of the curve, a safe speed was 71 miles per hour. In the sharpest part of the curve, 41 miles per hour was the safe speed. The change in safe speed changed rapidly.
The rise in the roadway concealed the right curve from northbound drivers. Stevens concluded that the road was unsafe and dangerous, even if used with due care.
Stevens recommended the speed limit be reduced to 40 miles per hour. He also recommended a flashing warning sign of the reduced speed. In addition, he recommended that there be warning signs called chevrons placed on the curve that could help guide drivers through the curve. There were no chevrons at time of the accident. Stevens indicated that it was not safe to go through this curve with a trailer at 65 miles per hour.
This was the 11th accident that had occurred at this specific curve in a five-year period that involved a northbound vehicle crossing the centerline and striking an object across the road or an oncoming vehicle. There was a history of accidents at all speeds, including 50 miles per hour.
The Bergers called Bruce Mahmoudi, who worked for the California Department of Transportation (Caltrans). Caltrans had a database that tracked locations on roads where accidents occurred more than four times in one year. Mahmoudi had driven the curve in question based on a report of numerous accidents at the location.
Mahmoudi concluded there was not a pattern for the accidents of northbound drivers; at trial, he testified that in fact he was mistaken and that the pattern was that drivers were speeding through the curve. He did not find a design change to the curve was viable. When he drove the curve at the posted 50 miles per hour, he navigated the road easily. He found there was enough warning for drivers to slow down, but many drivers were not heeding the warning. He admitted that a manual maintained by Caltrans stated that when investigating roads with a high number of accidents, an investigator should avoid “inflammatory” words such as “dangerous” or “unsafe.”
Najib Challitta was also called by the Bergers and worked for Caltrans. He supervised Mahmoudi and approved his assessment of the curve and recommendation that no action be taken. Challitta signed off Mahmoudi’s report that stated there was no pattern to the collisions in the northbound direction. Challitta had reviewed the report again and felt that in fact there was a pattern of accidents.
Haissam Yahya worked for Caltrans as well. He also changed his mind since signing the report that there was a showing of a pattern of accidents. Yahya believed that there was a pattern of speeding, not road deficiency.
2. State’s evidence
Timothy Reust was an accident reconstructionist. He reconstructed the accident after reviewing the California Highway Patrol reports and photographs. The jury was shown a photograph of the scene on the date of the accident. Reust opined that Small’s vehicle was traveling at least 81 miles per hour at the time of impact, while Charles and Joann were going less than 50 miles per hour. Small was probably traveling 94 miles per hour prior to the impact because there was evidence that he used his brakes prior to impact. Based on Small’s speed, he never made the curve and kept going straight into the impact.
Reust drove a Ford pickup pulling a trailer through the curve. He did not have difficulty staying in his lane on the curve. A videotape of Reust driving the curve was shown to the jury. He drove the curve from 50 miles per hour to 65 miles per hour. He also observed cars go through the curve and used a radar gun. Most traveled in excess of 50 miles per hour through the curve.
Richard Ryan was a civil and highway engineer. He was called to impeach the testimony of Stevens, the Bergers’ expert, that despite warnings, cars going around the curve were crossing the centerline. Ryan drove the curve 15 to 20 times at speeds between 45 to 65 miles per hour. Up until 70 miles per hour, his testing showed it was in the comfort speed for curves. He drove it at 80 miles per hour but did not recommend that someone drive the curve at that speed. He observed cars going through the curve, and none crossed the centerline. Going northbound, there is a curve warning sign, a speed advisory, and an arrow showing the direction of the curve. Ryan concluded the curve was not in a dangerous condition.
A California Highway Patrol sergeant testified that he had traveled on the curve numerous times and had no problem negotiating the curve. He concluded that the accident was caused by speed. The sergeant had observed other drivers go through the curve with no problem.
The federal Bureau of Land Management (the BLM) owned the surrounding land and had control over the activities on the land. The BLM had approval rights of any changes to road design. There were many restrictions, and it was a very long process.
3. The Bergers’ rebuttal
Anderson was recalled. He estimated that if the Bergers were traveling 50 miles per hour and the skid marks on the street relied upon by Reust were used, Small would have been traveling at 132 miles per hour. Anderson could not rule out that Small was going 80 miles per hour, but it was more likely he was going 70.
Stevens was recalled. Stevens believed that changes could be made to the roadway without impacting the surrounding land and wildlife. There was no need to make any improvements. There were already several warning signs leading into the curve. Chevrons were the only way to properly sign.
Stevens concluded that, because the curve is so sudden, someone driving with due care could get in trouble and might take wrong evasive action. He explained that a duly careful driver was someone who followed the speed limit and advisory signs. Someone driving 70 miles per hour in a 55 miles per hour zone was not using due care.
III
JUROR MISCONDUCT
The Bergers contend that juror misconduct prejudicially affected the verdict. They claim, relying on declarations from three jurors submitted with their new trial motion, that jurors took into account their personal experience with the curve in question, which constituted juror misconduct requiring reversal.
A. Additional Factual Background
During voir dire, most of the jurors indicated that they had driven the subject road and most of them felt that the road was dangerous.
At the close of evidence, the jury was instructed that they should not conduct their own experiments or visit the scene. The jurors were told that if they happened to pass by the site, they were not to stop or investigate. They were also instructed not to let their training and experience be a part of the evidence received in the case. The jury reached its verdict in just over two hours: The road was not in a dangerous condition at the time of the accident. When polled, only one juror indicated disagreement with the verdict.
The Bergers brought a motion for new trial on the ground of juror misconduct, attaching declarations from several jurors.
Juror No. 10 submitted a declaration stating the following: The first vote was six to six, and the last vote was nine to three in favor of the defense. “During the discussions many jurors talked about their personal experience [and] their personal opinion about the curve in question.” Juror No. 2 had changed her mind from yes, the road was in a dangerous condition, to no, it was not. The foreperson had asked Juror No. 2 why she had changed her mind, and she stated it was because she drove the curve regularly and did not feel uncomfortable. The foreperson had said she did not feel uncomfortable driving the curve. Juror No. 12 had stated the same thing. One juror said that he thought the road was dangerous based on his personal experience. Juror No. 10 herself had stated in the jury room that she thought the road was unsafe and felt uncomfortable driving it. Juror No. 3 had driven the road and voted it was not a dangerous condition based on personal experience. Juror No. 1 and Juror No. 5 had both voted the road was dangerous in the jury room. Every juror brought up their personal experience with the curve. The fact that chevrons were now on the curve was discussed.
Juror No. 5 submitted a declaration. She claimed that on the last vote before entering the courtroom, there was a nine-to-three vote. She had voted in the jury room that the curve was dangerous. She drove through the curve frequently during trial. She saw the chevrons on the curve many times. The pictures shown at trial of the curve made it unrecognizable because it did not have the chevrons. She claimed numerous jurors commented on their personal experience with the road, which she surmised was after the chevrons were in place. She claimed she got confused in open court and misstated her vote.
Juror No. 1 submitted a declaration. He contended that he was confused during the polling and had actually voted that the road was in a dangerous condition.
The State filed opposition to the new trial motion. It presented its own declarations from seven jurors, all of whom declared that they had listened to the testimony and followed the court’s instructions, deciding the case on the facts and the law.
At the hearing, the trial court rejected all the claims in the new trial motion that addressed the admission or exclusion of evidence by the trial court. The trial court was going to stand by its rulings and deny on that basis.
As to the claim of juror misconduct, the Bergers maintained the verdict was nine to three, and the State argued it was 11 to one. Both parties complained about the admissibility and credibility of the juror declarations. The State reminded the trial court that most of the persons in voir dire had indicated they had experience with the road and thought it was dangerous. The State argued, “So in this case, the plaintiff wanted the jury that was full of people that were familiar with the roadway. He got that jury. [¶] What he didn’t get was the outcome he wanted, and now he’s trying to argue misconduct.”
The Bergers admitted that “maybe” they should have sought a change of venue. Further, they claimed the exclusion of subsequent remedial measures allowed jurors to make their own conclusion based on their life experience instead of the evidence at trial.
The trial court issued a written denial of the new trial motion. It did not indicate the reasons for its denial but stated it came to its conclusion after arguments of counsel.
B. Review of a Denial of Motion for New Trial
The denial of a motion for new trial is not an appealable order, but it may be reviewed on appeal from the judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19.) An order denying a motion for a new trial “will not be disturbed on appeal unless it is manifest that said ruling was an abuse of discretion. [Citation.]” (Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 463; see also Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161.) Moreover, “[i]t is a fundamental rule of appellate review that the judgment appealed from is presumed correct and ‘“‘all intendments and presumptions are indulged in favor of its correctness.’” [Citation.]’ [Citation.]” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
“A denial of a motion for new trial grounded on jury misconduct implies a determination by the trial judge that the misconduct did not result in prejudice. [Citation.]” (Andrews v. County of Orange (1982) 130 Cal.App.3d 944, 954.) However, when juror misconduct has been shown and the new trial motion has been denied, the appellate court independently reviews the entire record to determine whether the juror misconduct was prejudicial. (Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 158; Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 508 (Enyart).)
C. Juror Misconduct
Juror misconduct is grounds for granting a new trial. (Code Civ. Proc., § 657, clause 2.) “‘Trial by jury is an inviolate right and shall be secured to all....’ [Citation.] The right to unbiased and unprejudiced jurors is an ‘“‘inseparable and inalienable part’”’ of the right to jury trial. [Citation.] The guarantee includes the right to 12 impartial jurors. [Citation.]” (Enyart, supra, 76 Cal.App.4th at p. 506.) “An impartial jury is one in which no member has been improperly influenced [citations] and every member is ‘“capable and willing to decide the case solely on the evidence before it”’ [citation].” (In re Hamilton (1999) 20 Cal.4th 273, 294 (Hamilton).)
Juror misconduct is shown when a juror violates the oaths, duties, and admonitions imposed on jurors. Misconduct includes concealing bias on voir dire, consciously receiving outside information, and sharing improper information with other jurors. (Hamilton, supra, 20 Cal.4th at p. 294.)
Evidence Code section 1150 governs what evidence is admissible to prove juror misconduct and impeach a verdict. (Enyart, supra, 76 Cal.App.4th at p. 506.) The statute states in relevant part: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Evid. Code, § 1150, subd. (a).)
“‘[S]ection 1150 properly distinguishes between “proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved....”’” (Enyart, supra, 76 Cal.App.4th at p. 506, italics omitted.) “This rule ‘serves a number of important policy goals: It excludes unreliable proof of jurors’ thought processes and thereby preserves the stability of verdicts. It deters the harassment of jurors by losing counsel eager to discover defects in the jurors’ attentive and deliberative mental processes. It reduces the risk of postverdict jury tampering. Finally, it assures the privacy of jury deliberations by foreclosing intrusive inquiry into the sanctity of jurors’ thought processes.’ [Citation.]” (Hamilton, supra, 20 Cal.4th at p. 294, fn. 17.)
This case presents a circumstance unlike most other cases. Most if not all of the jurors impaneled stated during voir dire that they had driven the highway on which the accident occurred. Instead of excluding these persons, the Bergers fought to keep them on the jury, probably because most of them felt the road as a whole was in a dangerous condition, clearly a benefit to the Bergers. Based on a review of voir dire, it was clear that the Bergers were counting on those jurors who stated the road, and, it can reasonably be deduced, the curve itself, was dangerous
Each person comes to the jury with his or her life experience. The Supreme Court has observed that “‘[j]urors do not enter deliberations with their personal histories erased, in essence retaining only the experience of the trial itself. Jurors are expected to be fully functioning human beings, bringing diverse backgrounds and experiences to the matter before them.’ [Citation.] ‘Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system.’” (People v. Leonard (2007) 40 Cal.4th 1370, 1414.) However, what occurred here, if we assume the declarations are to be believed, was that several of the jurors communicated their personal experience driving the curve where the accident occurred to the other jurors, bringing in evidence that was not presented at trial, and expressing their opinion as to whether it was dangerous. This is classic juror misconduct. Even though it appears that the jurors’ experience with the road was based on their daily activities and thus inadvertent, it still establishes misconduct because they communicated their opinions to other jurors. (See People v. Zapien (1993) 4 Cal.4th 929, 994 [although the juror received the outside information inadvertently, it still constituted misconduct].) Hence, we presume that juror misconduct occurred here.
“Juror misconduct raises a presumption of prejudice....” (Enyart, supra, 76 Cal.App.4th at p. 507.) “Any presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant. [Citations.]” (Hamilton, supra, 20 Cal.4th at p. 296.) “‘Some of the factors to be considered when determining whether the presumption is rebutted are the strength of the evidence that misconduct occurred, the nature and seriousness of the misconduct, and the probability that actual prejudice may have ensued.’” (People v. Von Villas (1992) 11 Cal.App.4th 175, 256.)
“This does not mean that every insignificant infraction of the rules by a juror calls for a new trial. Where the misconduct is of such trifling nature that it could not in the nature of things have prevented either party from having a fair trial, the verdict should not be set aside. [Citation.]” (Enyart, supra, 76 Cal.App.4th at p. 507.)
The nature of the misconduct here was not prejudicial to the verdict. As stated, the jurors had experience driving this road prior to the trial. The Bergers did not feel prior to trial that the jurors’ experience with driving the road, with or without the changes such as new signs and chevrons, was prejudicial to them in any way, as they fought to keep these jurors on the jury. The Bergers now complain that the jurors never stated that they knew where the exact curve location was during voir dire. However, the trial court specifically informed the jurors of the location. It is apparent to this court that the Bergers sought to keep those jurors who thought the road in general was dangerous, presumably hoping it would help their case. However, having lost their case, they now claim the fact the jurors had personal experience with the road was prejudicial. Although this certainly does not waive any claim of juror misconduct, it diminishes the impact of the alleged misconduct. If the Bergers did not think prior to trial that the jurors’ personal experience with the road was prejudicial, it seems disingenuous for them to argue prejudice after trial.
None of the declarations support that the jurors actively sought out driving on the road or that they drove through the curve to test it after the trial began. It is not discernible from the declarations that the jurors went through the curve and tested it during trial, as stated by the Bergers. As they expressed in voir dire, each of them had driven the road or continued to drive the road. Only one stated that she drove the road during the trial, and she declared she felt the road was dangerous. This is not akin to the cases in which jurors actively sought out the location and conducted experiments. Although their driving the road and relating that experience to other jurors was misconduct, it was not of such a serious nature that it requires reversal of the judgment.
The Bergers claim that there was prejudice because the jurors were driving the road as it was, with the change in signs. They complain they had been precluded from presenting evidence to the jurors that such changes had been made since the accident. The Bergers conclude that, since the jurors drove a different road than existed at the time of the accident, such misconduct was prejudicial and such changes could only benefit the defense. However, it is clear from the record that all the jurors were well aware of the changes. They were shown a videotape of the curve as it existed at the time of the accident. They were shown photographs that showed the curve as it existed just prior to the accident and were told what signs existed at the time of the accident. One of the jurors declared they talked about the chevrons during deliberation.
Based on the jurors’ knowledge of how the curve appeared at the time of the accident, those who drove the curve were aware that the State had put in new signs, and the Bergers were not prejudiced. Experts testified at the hearing that the best remedial measure was to put in chevrons. Those who drove the curve after the signs had been put up essentially were made aware that the State had made the recommended changes. This raised a presumption that the State acknowledged the road was in a dangerous condition at the time of the accident. In fact, three jurors felt, even after driving the road with the chevrons, that it was in dangerous condition. The remedial measures taken, of which the jury was clearly aware, could only serve to prejudice the State.
As we discuss in more detail, post, the trial court excluded a videotape depicting the sign with the new signage believing it was significantly different and new signs could affect the flow of traffic. What the trial court did not consider was the prejudice to the State.
Finally, other jurors attested that they listened to the evidence and followed the trial court’s instructions in reaching their verdict. Those instructions included that they were to base their decision on the law and evidence presented at trial only. Although the State’s juror declarations did not refute that there was discussion of their personal experience with the road during deliberations, they do establish that, if their personal experiences with the curve were discussed, they did not impact the verdict.
The jurors were admonished not to visit the scene, and it is not borne out by the evidence before us that the jurors’ experience was based on visits made after the trial began.
We cannot consider the declarations submitted by the three jurors in support of the motion for new trial to the extent that they had considered their own personal experience with the road in reaching their verdict. (Evid. Code, § 1150.) Based on our independent review of the record, we cannot conclude the misconduct was prejudicial.
Finally, the Bergers argue that since the verdict was nine to three, and not 11 to one, we must review any “judicial irregularities to a heightened standard of scrutiny.” Other courts have concluded that when the verdict is nine to three, “the disqualification for bias of any one of the majority jurors could have resulted in a different verdict.” (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110.) Even if we were to accept the jurors’ declarations on the vote count, we would find the misconduct was not prejudicial. The jurors were presented with competent evidence that the road in question was not in a dangerous condition and that the cause of the accident was excess speed. There is no indication that the remaining nine jurors were anything other than fair and impartial. The trial court properly denied the Bergers’ motion for new trial, and that determination will not be overturned on appeal.
IV
EXCLUSION OF SUBSEQUENT REMEDIAL REPAIRS UNDER EVIDENCE CODE SECTION 1151
Despite the well-established rule that subsequent remedial repairs are not admissible at trial, the Bergers nonetheless contend that the trial court erred by granting the State’s pretrial motion in limine to exclude repairs made to the curve after the accident.
A. Additional Factual Background
Prior to trial, the State sought to exclude any evidence of subsequent remedial measures taken at the accident site. The Bergers filed opposition, arguing that it was admissible for a limited purpose other than to show negligence. The Bergers argued that the accident occurred in a small town, and many of the jurors would be driving by the scene of the accident, possibly daily, or had done so in the past. Chevrons had been put up since the accident, and the jurors might conclude they were there at the time of the accident. The trial court responded, “I can understand your concern, but... this is basic public policy that the subsequent remedial repairs are not to be submitted at trial because it discourages authorities, such as the State, to fix things that are wrong.” The trial court agreed to exclude the evidence, ruling, “You’re just going to need to emphasize that the photographs are how the scene existed at the time; and I will admonish them at every recess and at the end of the day not to go to the scene and avoid it if they can. That’s all I can do.”
During trial, the jurors were shown a picture of the accident site the day after the accident occurred. One of the State’s experts volunteered that since the accident more signs had been added. At one point, the State sought to introduce a videotape of one of their experts driving through the curve. It showed the new signs on the road, including five chevrons, another dip sign, and a new curve sign with a new advisory sign. The trial court noted after looking at the videotape of driving through the road as it was after the new signage, “[T]he scene itself is so different now... it could affect the flow of traffic in a way that didn’t exist at the time of the accident. And I think that would mislead the jury if I allow it in.” It felt the signs could influence how a driver drove on the curve. There was “completely different signage.” The trial court excluded the tape.
In their new trial motion, the Bergers argued in conjunction with their juror misconduct argument that the trial court erred by excluding the remedial repairs. As set forth, ante, the trial court denied the new trial.
B. Analysis
Evidence Code section 1151 provides: “When, after the 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.” “The reason for this rule is primarily the ‘very urgent policy against discouraging taking of safety measures.’ [Citation.]” (Sanchez v. Bagues & Sons Mortuaries (1969) 271 Cal.App.2d 188, 190-191.)
Other courts have found an exception to this rule if the remedial repairs are introduced in order to impeach the testimony of a witness. (See Sanchez v. Bagues & Sons Mortuaries, supra, 271 Cal.App.2d at pp. 190-191.) The Bergers do not contend that the evidence was admissible to impeach testimony. They sought to admit the evidence of repairs to show the road was in a dangerous condition at the time of the accident.
At the time the trial court ruled on the State’s in limine motion, it did not err by relying on Evidence Code section 1151 to exclude the subsequent remedial measures. The Bergers do not argue in this appeal that they renewed the motion after it became clear after voir dire that all the jurors had driven the road. As such, we will not consider that issue. Prior to trial, the trial court clearly had grounds upon which to exclude the subsequent remedial repairs under Evidence Code section 1151.
We do not agree with the Bergers’ assessment that Dyas v. Southern Pacific Co. (1903) 140 Cal. 296 provides for an exception to the general rule in Evidence Code section 1151. In that case, witnesses were testifying about the site where the incident occurred as it appeared after repairs. Photographs that showed the repairs were shown to the jury without objection, and the jurors visited the scene and saw the changes. (Dyas, at p. 306.) Several witnesses testified about the repairs without objection. (Ibid.) The Supreme Court noted on appeal, “The substantial effort in this case was not to prove subsequent repairs, but to show the condition of the lumber at the operation and action of the workmen disclosed it, and we think that, simply because in detailing his observations the witness incidentally mentioned facts, from which the jury might infer that repairs were being made at the time, did not render the evidence inadmissible or objectionable.” (Id. at p. 307, italics added.)
This case is unlike Dyas. Here, the State specifically objected to the admission of subsequent repairs prior to trial. Further, despite the Bergers claim that the introduction of the repairs was to help alleviate the jurors “misunderstanding, ” it clearly was an attempt to establish liability on behalf of the State.
Moreover, although the Bergers contend that the jurors were not aware of the significant changes to the curve since the accident, this is simply not true. The jurors were shown photographs of the site at the time of the accident and were aware it did not have chevrons. However, all of the jurors had driven the road and presumably knew the chevrons were later in place. Again, this evidence prejudiced the State. It showed that the State felt that chevrons were needed on the curve. The fact that the jurors did in fact visit the scene, of which the Bergers were well aware, does not, as argued by the Bergers, show they were misled. It was abundantly clear to this jury that the changes to the curve were made after the accident.
Even if we were to conclude that the trial court erred by excluding the evidence, any such error was not prejudicial. “In civil cases, a miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.]” (People v. Rains (1999) 75 Cal.App.4th 1165, 1170; see also O’Hearn v. Hillcrest Gym & Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 500.) In the present case, we see no such reasonable probability of a more favorable result to the Bergers, and thus no miscarriage of justice has occurred.
The Bergers claim they were prejudiced because they could not properly explain to the jury the differences in driving through the subject highway curve. That is not true. One of the experts testified that chevrons were easier to see than the existing signs and helped to guide someone through the curve. Moreover, the Bergers claim that the jurors visited the scene of the accident “despite the trial court’s ruling barring the parties from introducing evidence of the changes.” However, only one juror declared that she had visited the road since the beginning of trial. She found the road dangerous. No other evidence supports that the jurors went to road after trial commenced.
The trial court did not err by excluding the evidence, the exclusion was not prejudicial, and the trial court did not abuse its discretion in denying the Bergers’ new trial motion on this ground.
V
IMPEACHMENT OF BRYAN BERGER WITH INTERROGATORY RESPONSE REGARDING SMALL’S INTOXICATION
The Bergers contend that the State impermissibly used one of Bryan Berger’s interrogatory responses to admit evidence of a toxicology report that contained a blood alcohol test the trial court excluded prior to trial, finding it had been contaminated and was unreliable. This argument was raised in the Bergers’ motion for new trial, which was denied by the trial court.
A. Additional Factual Background
Prior to trial, the Bergers brought an Evidence Code section 402 motion to exclude evidence to be introduced at trial that toxicology reports showed that Small had a.15 percent blood alcohol level at the time of the accident. The Bergers argued the sample on which the test was performed was contaminated. The sample was taken from Small’s abdominal cavity, which can be contaminated and give false results. The Bergers also objected to testimony that Small’s ex-wife had given him alcohol prior to the accident. They argued that evidence of Small’s aggressive driving behavior prior to the accident was not evidence of his intoxication.
The State filed a motion in limine to preclude the Bergers from contending Small was not intoxicated: Bryan had admitted as much in an interrogatory response, and the Bergers should not be allowed to change their position. The State also argued that the blood alcohol test was proper, and all other evidence relating to Small’s intoxication should be admitted. The Bergers admitted that Bryan did state in a interrogatory response that Small was intoxicated. The State brought a motion to allow admission of evidence that Small’s ex-wife gave him alcohol containers prior to leaving her house, which the Bergers opposed.
A section 402 hearing was conducted on whether to exclude the toxicology report and results of the blood alcohol test on Small. The trial court excluded the results, finding the sample taken was too contaminated. It additionally ruled, “Now, this does not preclude the State from presenting evidence of the eye witnesses in regard to how Mr. Small was driving, or the testimony of his ex-wife in regard to her giving him the Vodka and the beers. That is not affected by this ruling.” It then reserved its ruling as to whether there could be questioning on admissions by Bryan regarding Small’s intoxication.
Bryan was called by the State as a witness at trial. The State asked him whether, prior to entering into a settlement with the Small estate, he had said under oath that Small was under the influence of alcohol. The Bergers objected on the ground that there was “supposed to be no reference at all to the alcohol.” The Bergers also stated that there was no foundation from which to testify whether Small was intoxicated or not. The State responded that Bryan had made the statement under oath in response to an interrogatory. The trial court ruled that if Bryan made the statement under oath, it was admissible. The trial court ruled, “Impeachment. I’m going to allow it.”
The State asked Bryan if, under oath in writing, he had stated that Small, while under the influence of alcohol, negligently strayed into the opposing lane of traffic causing a head-on collision. Bryan agreed he had made the response. On cross-examination, Bryan stated that he had since changed his mind as to Small being intoxicated because there was proof that he was not.
B. Analysis
The Bergers contend that the State sought to admit the excluded toxicology report through the back door of impeaching Bryan. Further, the manner in which the evidence was introduced was calculated to make Bryan appear dishonest. The Bergers claim this unfairly impugned Bryan’s character. Further, the Bergers claim that the evidence was inadmissible hearsay that was introduced to prove that Small was intoxicated at the time of the accident. The Bergers conclude that evidence relating to intoxication when improperly admitted is highly prejudicial.
We need not decide whether the trial court erred by introducing the evidence, as it was clearly not prejudicial. As previously stated, “a miscarriage of justice should be declared only when the court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.]” (People v. Rains, supra, 75 Cal.App.4th at p. 1170.) “Prejudice from error is never presumed but must be affirmatively demonstrated by the appellant. [Citations.] Whether an error is reversible depends on the facts and circumstances of the particular case under review. [Citations.]” (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854.)
As to impugning Bryan’s character, he was called for the sole purpose of establishing that he had a bond with his parents and for damages. Whether the jury found Bryan honest or not did not impact their verdict as to whether the road where the accident occurred was dangerous. Although the Bergers contend that the jurors would have concluded that Bryan was lying for money, we simply do not believe that the jurors would have concluded that from the interrogatory response. Additionally, we do not interpret from the record, as the Bergers do, that the jury was presented with the excluded toxicology report. The jury was not told how Bryan knew that Small was intoxicated. In fact, the trial court specifically excluded any reference to the test.
Moreover, this was not the only testimony introduced to show Small’s intoxication. Small’s ex-wife testified that she gave Small a half-full bottle of Vodka and several beer bottles that he placed in an ice chest in his car. Testimony was also presented that Small was a regular user of alcohol. Finally, the jury was presented with evidence that Small was seen weaving prior to the accident. This evidence was more than enough for the jury to conclude that Small was intoxicated without Bryan’s testimony. We disagree with the Bergers that there no evidence of consumption of alcohol. The jury could reasonably infer that Small had consumed the alcohol. Further, the prejudice was minimized by Bryan’s own testimony he had since found out that Small was not intoxicated.
Based on the foregoing, we cannot conclude that the Bergers have affirmatively shown prejudice from the admission of the interrogatory response. The trial court properly denied their motion for new trial on this ground.
VI
ADMISSION OF SETTLEMENT WITH SMALL ESTATE
The Bergers contend that the trial court erred by allowing in evidence that they had settled with the Small estate prior to trial.
A. Additional Factual Background
Prior to trial, the Bergers brought a motion in limine to exclude all settlement negotiations under Evidence Code sections 352 and 1152, subdivision (a). The trial court excluded any evidence or testimony regarding the settlement negotiations.
The State called Bryan and immediately asked if he and his sisters had sued the estate of Small. The Bergers objected that the settlement was inadmissible. The trial court denied the objection, believing that the jurors were aware that the Bergers had settled with the Small estate because Small was not part of the lawsuit. The trial court thought it would help the jury to know why Small was not part of the lawsuit. The State asked Bryan, “[Is it] true that you settled with the Estate of Gerald Small, Deborah Yates, and Innovative Reconstruction?” Bryan responded, “Correct.”
During closing argument, the State said, “I had Mr. Berger read the answer to the Interrogatory in which he said that Mr. Small was under the influence of alcohol. What changed? There’s a settlement. Now he’s only one percent at fault.” The Bergers objected that this was impermissible use of the settlement. That objection was overruled. The State then argued, “So at one point in the case, it was advantageous to say basically drunk. At another point in the case where it’s not so advantageous, there’s no evidence of it. [¶] View that skeptically.”
At the close of evidence, the jury was given Judicial Council of California Civil Jury Instruction (CACI) No. 217, which instructed the jurors, “You have heard evidence that there was a settlement. You must not consider this settlement to determine responsibility for any harm. You must consider this evidence only to decide whether Bryan Berger is biased or prejudiced and whether his testimony is believable.”
In their new trial motion, the Bergers argued it was improper to admit evidence of the settlement between the Bergers and the Small estate. The People responded it was properly admitted to challenge Bryan’s credibility. Also, the State argued the jury instruction cured any potential prejudice, in addition to the instruction that they were not to consider Small’s conduct in determining whether the roadway was in a dangerous condition. The trial court denied the new trial motion.
B. Analysis
As previously stated, a trial judge is afforded wide discretion in ruling on a motion for new trial and exercise of that discretion is afforded great deference on appeal. (Sherman v. Kinetic Concepts, Inc., supra, 67 Cal.App.4th at pp. 1160-1161.)
The State argues that the evidence was admissible to impeach Bryan’s credibility. “While evidence of a settlement agreement is inadmissible to prove liability [citation], it is admissible to show bias or prejudice of an adverse party. [Citation.] Relevant evidence includes evidence relevant to the credibility of a witness. [Citation.]” (Moreno v. Sayre (1984) 162 Cal.App.3d 116, 126.) The Bergers contend in response, relying upon Shepherd v. Walley (1972) 28 Cal.App.3d 1079 and Granville v. Parsons (1968) 259 Cal.App.2d 298, 303, that the admission of a settlement agreement only applies to impeach a third-party defendant not a party to the action. In addition, they argue the evidence of the settlement was inappropriately argued by the State to show Small’s liability. We do not necessarily agree with the Bergers that a settlement agreement may not be admitted to impeach an adverse witness. (See Zelayeta v. Pacific Greyhound Lines, Inc. (1951) 104 Cal.App.2d 716, 729[“Evidence of the settlement of the claims of the bus passengers was not admissible as an admission that... Greyhound was liable for Zelayeta’s death. [Citations.] But such evidence may be admissible to show bias or prejudice of an adverse witness, or, in a proper case, may be used to rehabilitate a witness.”].) However, we need not determine whether the settlement agreement was improperly admitted or whether that evidence was inappropriately argued by the State.
The Bergers contend that the admission of the settlement and the State’s argument was prejudicial and requires a new trial because it impermissibly allowed the jury to conclude that Small was liable for the accident. However, any prejudice that might have flowed from the admission of the settlement was avoided by the trial court’s curative instruction: CACI No. 217. As set forth, ante, the jury was admonished that they could not consider the settlement with the Small estate to establish liability. The Bergers have presented nothing to this court to suggest the jurors did not follow this admonition. As such, a new trial is not warranted on this ground.
In their reply brief, the Bergers don’t address the instruction even though the State, in its respondent’s brief, had relied on the instruction to cure any prejudice.
VII
SPEED LIMIT INSTRUCTION
The Bergers contend that the trial court erred by refusing to give a requested instruction on speed limit and “due care” as it related to determining whether the curve where the accident occurred was in a dangerous condition.
A. Additional Factual Background
The Bergers requested that standard jury instruction CACI No. 1102 be modified and given to the jury as follows: “A ‘dangerous condition’ is a condition of public property that creates a substantial risk of injury to members of the general public who are using the property with reasonable care and in reasonably foreseeable manner. A condition that creates only a minor risk of injury is not a dangerous condition. [¶] In determining whether the condition of the public property poses a substantial risk of injury to those persons using the property with reasonable care, you should not consider the alleged negligence of Gerard Small. So long as the condition of the property creates a substantial risk to any foreseeable user acting with reasonable care, a dangerous condition is established. [¶] For a driver to be considered using the road ‘with reasonable care’, it is not required that the driver obey the posted speed limit, or obey all traffic laws.”
Up to this point, this is the standard instruction. The remaining two paragraphs were offered by the Bergers.
During the discussion of the jury instructions, the trial court agreed to the second paragraph with modifications. The State responded that the concept in the third paragraph was more appropriate for argument than in a jury instruction. The State also noted that this was covered in the basic speed law instructions. The trial court concluded it would not give the third paragraph of the requested instruction because it was more appropriate for argument.
The trial court then instructed the jury with several instructions on the basic speed law and dangerous condition as will be set forth in detail, post.
In their new trial motion, the Bergers claimed the trial court erred by failing to give that part of their special speed limit instruction. The trial court denied the motion.
B. Analysis
Government Code section 830, subdivision (a) provides: “‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” The determination of whether a property creates a dangerous condition is usually a question of fact for the jury. (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 810.)
“[S]o long as a plaintiff-user can establish a condition of the property creates a substantial risk to any foreseeable user of public property who uses it with due care, he has successfully established the existence of a dangerous condition. Although the public entity may assert the negligence of a plaintiff-user as a defense, it has no bearing on the determination of a dangerous condition in the first instance. They are separate questions of fact, for the trier of fact, and may not be combined or intertwined....” (Alexander v. State of California ex rel Dept. of Transportation (1984) 159 Cal.App.3d 890, 902.)
In Muffett v. Royster (1983)147 Cal.App.3d 289, the court addressed whether the trial court erred by finding as a matter of law that any driver traveling in excess of the posted speed limit was not using “due care.” The trial court could not find the road where an accident occurred was in dangerous condition as a result of this conclusion. The reviewing court first recognized, “We agree that the existence of a ‘dangerous condition’ is usually a question of fact....” (Id. at p. 305.) It then stated, “If a ‘dangerous condition’ is a factual question, and use with ‘due care’ is one aspect of the existence of a ‘dangerous condition, ’ it follows that any questions as to whether a defendant used ‘due care’ when exceeding the posted speed on the curve are also factual questions.” (Ibid.) The court surmised that it would not be prudent to find that going over the posted speed limit on a curve is not “due care” as a matter of law, as it would encourage the state to avoid liability by posting slower speed limits. (Id. at p. 306.) The Muffett court concluded, “If speeding in excess of the prima facie limit is not negligence as a matter of law, then going faster than the posted speed... should not indicate ‘lack of due care’ as a matter of law.” (Ibid., fn. omitted.) The court did not discuss whether instruction to the jury with language in line with these findings was necessary, as it was merely resolving the grant of a nonsuit.
Muffett was followed by Alexander v. State of California Ex Rel Dept. of Transportation, supra, 159 Cal.App.3d 890. In Alexander, the court concluded that the lower court had erred by concluding that “due care” as defined in Government Code section 830 meant obeying all laws. It found that the “existence of a dangerous condition and use with due care are factual questions.” (Alexander, at p. 901.)
Finally, in Ferrula v. Santa Fe Bus Lines (1948) 83 Cal.App.2d 416, a case involving driver negligence and speeding, the appellate court concluded that it was error not to give a jury instruction requested that stated, “‘The speed at which a vehicle travels upon a highway, considered as an isolated fact and simply in terms of so many miles an hour, is not proof either of negligence or of the exercise of ordinary care. [¶] Whether that rate of speed is a negligent one is a question of fact, the answer to which depends on all the surrounding circumstances. The basic speed law of this state is as follows: [¶] “No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property.”’” (Id. at p. 418.) The court found, “This instruction was refused and no instruction upon the subject embraced in it was given. There can be no contention that the offered instruction was not a correct statement of the law. Whether or not the bus driver was violating these provisions of the law under the testimony in this case was a question of fact for the jury [citation].” (Id. at p. 419.)
We agree with the Bergers that the instruction suggested by them (for a driver to be considered using the road with reasonable care, it is not required that the driver obey the posted speed limit or obey all traffic laws) would have been appropriate. However, we have found no case, nor have the Bergers presented one, where such instruction is required. We cannot conclude the trial court erred by failing to give an instruction that is appropriately addressed in argument.
“Each party is entitled to have his theory of the case submitted to the jury in accordance with the pleadings and proof [citation], and it is incumbent upon the trial court to instruct on all vital issues involved [citation].” (Sills v. Los Angeles Transit Lines (1953) 40 Cal.2d 630, 633.) On the other hand, the “‘court is not required to give every instruction offered by a litigant nor is a party entitled to have the substance of instructions given by the court repeated in different language. [Citation.]’ [Citations.]” (Harland v. State of California (1977) 75 Cal.App.3d 475, 486.) Accordingly, “the duty of the court is fully discharged if the instructions given by the court embrace all the points of the law arising in the case.” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.)
Here, the jury was adequately instructed on a dangerous condition and the impact of speed limit on the dangerous condition. They were instructed with CACI No. 700, in pertinent part, that “[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.” Further, the jury was instructed on the basic speed law as follows: “A person must drive at a reasonable speed. Whether a particular speed is reasonable depends on the circumstances, such as traffic, weather, visibility, and road conditions. Drivers must not drive so fast that they create a danger to people or property.” They were also instructed that “[t]he maximum speed limit on U.S. Highway 95 for a vehicle pulling a trailer is 55 miles per hour.” The jurors were then instructed on dangerous condition: “A dangerous condition is a condition on public property that creates a substantial risk of injury to members of the general public while using the property with reasonable care and in a reasonably foreseeable manner. A condition that creates only a minor risk of injury is not a dangerous condition.” In addition, the jury was instructed, “So long as a user can establish that a condition of property creates a substantial risk to any foreseeable user of the public property who uses it with due care, he has successfully shown the existence of a dangerous condition regardless of anyone’s personal lack of care.” It was also advised, “If, however, it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not dangerous.”
These instructions accurately set forth the law on due care and dangerous conditions. It was up to the jury to make this factual determination, and nothing in the instructions presented the problems in Muffett or Alexander that speeding or obeying the law was not reasonable or due care as a matter of law. Further, unlike in Ferrula, the jury here was instructed with a portion of the instruction omitted in that case as it pertained to the basic speed law. The refusal to instruct the jury with the Bergers’ special instruction did not prevent the jury from reaching the factual issues before them.
Even if the trial court erred by refusing to give the requested instruction, in reviewing the entire record, it does not appear that such failure to instruct was prejudicial or constituted a miscarriage of justice. “Instructional error in a civil case is prejudicial ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ [Citations.]” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) “Actual prejudice must be assessed in the context of the individual trial record.” (Ibid.)
Initially, the prior accidents on the curve occurred both when the drivers were speeding and when they were obeying the speed limit. The speed limit instruction had little impact on the prior accidents. No one suggested that Small was driving only a few miles over the speed limit. The Bergers’ own experts surmised he was driving 70 miles per hour, which, based on their testimony, was unsafe. In fact, one of their experts testified that a person driving 70 miles per hour in a 55 mile per hour zone was not exercising due care. The speed advisory for pulling a trailer was 55 miles per hour. The posted speed limit on the curve was 50 miles per hour. If the jury believed that Small was traveling at 70 miles per hour, which was 15 miles over the standard speed limit for pulling a trailer and 20 miles per hour over the posted speed advisory for the curve, they could not have reasonably found he was exercising due care based on the evidence presented in the case. Based on our review of the entire record, we conclude that even if there was instructional error, there was no miscarriage of justice warranting a new trial.
VIII
DISCOVERY ORDER LIMITING PRIOR ACCIDENTS TO 5-YEAR PERIOD BEFORE THE CURRENT ACCIDENT
The Bergers contend that the trial court erroneously limited discovery of prior accidents at the site to those occurring five years prior to the instant accident.
A. Additional Factual Background
Prior to trial, the Bergers requested information on all traffic accidents for the prior 10 years within three miles of the accident site. In a response to a discovery request, the State had listed all traffic accidents beginning on April 30, 1995, and ending in 2004 for that three-mile radius. The State apparently provided accident reports for all of these accidents. The State then filed opposition to a motion to compel further discovery asking that the accident reports be included for locations within a five- to 10-mile radius from the accident, and also asked that the information to be produced be limited to 2.5 miles from the accident and only for the prior five years. On December 2, 2005, the Bergers’ motion to compel all of the accident reports was denied by the trial court. The trial court ruled that five years prior to the accident was sufficient to show that the State had notice of the dangerous condition of the curve.
At trial, the trial court allowed the Bergers to introduce all 11 accidents occurring in the preceding five years.
In their new trial motion, the Bergers complained that the trial court improperly limited the scope of discovery. The State indicated that the ruling had no impact on the trial and that the Bergers had actually been provided with accident reports dating back to 1995. The trial court denied the motion for new trial.
B. Analysis
The principal purpose of the discovery statutes is “to educate the parties concerning their claims and defenses so as to encourage settlements and to expedite and facilitate trial.” (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.) As such, parties are entitled to obtain nonprivileged information relevant to the subject matter involved in the pending action. (Code Civ. Proc., § 2017.010.) “A trial court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence....” (Code Civ. Proc., § 2017.020, subd. (a).) “Management of discovery lies within the sound discretion of the trial court.... Where there is a basis for the trial court’s ruling and the evidence supports it, a reviewing court will not substitute its opinion for that of the trial court. [Citation.]” (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1061.) An aggrieved party can raise the ruling on appeal from the final judgment. (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169.) “When the trial court commits error in ruling on matters relating to pleadings, procedures, or other preliminary matters, reversal can generally be predicated thereon only if the appellant can show resulting prejudice, and the probability of a more favorable outcome, at trial.” (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833; see also Cal. Const., art. VI, § 13.)
The Bergers contend that they were prejudiced by the order because they speculate that the discovery of further accidents 10 years prior to the instant accident would have presented further evidence in support of their claims. The Bergers also complain that the State was able to argue that all of the prior accidents that were admitted showed that driver negligence was the cause. They speculate that other accident reports would have shown causes other than driver negligence.
It does appear that the Bergers were given the accident reports at least for the 2.5 mile radius of the curve back to 1995. However, they made no attempt to submit those reports to support their claim when filing the motion for new trial. Moreover, it is not entirely clear whether, had they submitted the reports at trial, the trial court would have ordered them excluded. Their conclusory allegation that the prior accidents would have shown that the road was in a dangerous condition is mere speculation. Since the Bergers have failed to show that the pretrial order restricting the accidents to the prior five years prejudiced them at trial, we need not address the merits of the trial court’s determination to restrict the discovery. The motion for new trial was properly denied on this ground.
IX
DISPOSITION
The judgment is affirmed. The State of California is awarded its costs on appeal.
We concur: RAMIREZ, P.J., HOLLENHORST J.