Opinion
E050193 Super.Ct.No. RIC406194
10-28-2011
JOSE FELIX GOMEZ et al., Plaintiffs and Respondents, v. THE STATE OF CALIFORNIA, Defendant and Appellant.
Ronald W. Beals, Chief Counsel, Jeffrey R. Benowitz, Deputy Chief Counsel, Glenn B. Mueller and John Frederick Smith, Assistant Chief Counsel, Heidi A. Wierman, Deputy Attorney, for Defendant and Appellant. Moreno, Becerra & Casillas, Gregory W. Moreno and Arnoldo Casillas for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. William Burby, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Ronald W. Beals, Chief Counsel, Jeffrey R. Benowitz, Deputy Chief Counsel, Glenn B. Mueller and John Frederick Smith, Assistant Chief Counsel, Heidi A. Wierman, Deputy Attorney, for Defendant and Appellant.
Moreno, Becerra & Casillas, Gregory W. Moreno and Arnoldo Casillas for Plaintiffs and Respondents.
FACTUAL AND PROCEDURAL HISTORY
On January 18, 2003, plaintiffs and respondents Jose Felix Gomez, Sylvia Gomez, Jairo Sanchez, Mirna Gomez, Mayra Gomez, Brian Gomez and Jose Emmanuel Gomez (collectively, "plaintiffs") were involved in an automobile collision when a Mustang driven by Aric Henry impacted the 1992 Suburban driven by Jose, causing it to skid out of control. The Suburban subsequently struck a dike (or curb) on the edge of the freeway, which tripped the vehicle and caused it to roll three and three quarter turns down the adjacent embankment until it came to rest on its side. Plaintiffs received varying degrees of physical and psychological injuries. Myrna, who was nine years old at the time of the accident, was ejected from the Suburban and suffered the most serious injuries: severe head trauma, which lead to a critical IQ decline and permanent cognitive impairments; an injury to her left arm, requiring amputation below the elbow; and severe lacerations permanently disfiguring the right side of her face.
For ease of reference, and meaning no disrespect, individual plaintiffs will be referred to by their first names.
Plaintiffs filed suit against defendant and appellant, the State of California (the State) on the theory that the section of freeway where the instant collision occurred contained "A-dikes," which had been previously determined by the State to cause rollover accidents; and that it was the A-dike that caused the rollover and the ensuing severity of the injuries sustained.
An "A-dike" is a six-inch vertical berm or curb also known as a "high dike." Dikes are used for erosion control. The A-dike at the subject location, however, was only four- to four and a half inches tall.
Plaintiffs also filed suit against the driver, Henry, and the manufacturer of the Suburban, GM; however, those defendants settled with plaintiffs prior to trial and are not parties to this appeal.
In 1982 the State urged that any rehabilitation or safety projects on freeways with A-dikes consider replacing them with more easily mountable "E-dikes." In 2001, the plans for a maintenance/rehabilitation project for a 10-mile area of the 91 Freeway, including the area where the subject accident occurred (hereafter the "2001 Project"), specifically called for replacement of the A-dikes with E-dikes. The "as-built" plans, which reflect the actual physical status of a project after its completion, showed all A-dikes in the subject area had been removed and replaced with E-dikes. Although approximately 10 percent of the dikes within the 2001 project's purview now had E-dikes, the site of the accident, as well as another 80 percent of the project area, still had A-dikes; the remaining 10 percent of the project had no dikes at all. A jury rendered special verdicts in favor of plaintiffs, apportioning 85 percent of the responsibility for the collision to the driver, Henry, and 15 percent to the State. The trial court entered judgment on the verdict against the State in the amount of $5,047,081.06; $4,988,159.98 of which was awarded to Mirna.
An E-dike is an intermediate dike that is four inches tall and sloped one inch for every one inch it gains in height; thus, it is mountable by vehicles without causing them to trip.
On appeal, the State makes five arguments: (1) the trial court erred in ruling against it on three of its motions in limine; (2) plaintiffs committed prejudicial misconduct throughout trial; (3) the court erred in denying its motion for mistrial; (4) the court erred in denying its motion for judgment notwithstanding the verdict (JNOV); and (5) the court erred in denying its motion for new trial. We affirm the judgment in full.
DISCUSSION
A. EVIDENTIARY RULINGS
The State contends the trial court abused its discretion in effectively denying its motions in limine numbers three (MIL3), four (MIL4), and six (MIL6). We hold the court acted within its broad discretion.
Prior to trial, the State filed a number of motions in limine seeking to exclude plaintiffs' presentation of evidence on certain subjects: MIL3 sought to exclude any testimony, reference, or evidence that the accident location could have been made safer by the State; in particular, the State sought exclusion of the "1982 Manual Change Transmittal" memorandum wherein the State noted its Highway Design Manual had "been rewritten to require the use of an intermediate asphalt dike with a 4:1 slope on the front face instead of the high dike for most conditions. This [would] minimize the tendency of a vehicle to overturn when traversing the dike." MIL4 sought exclusion of evidence of other designs for the subject accident location; in particular, that removal of the A-dikes and replacement with the E-dikes would have made the subject location safer. MIL6 sought to exclude evidence of a prior accident that occurred on April 18, 2000, within 100 feet of the collision site at issue in the instant case.
As to MIL3, the court ruled it would permit plaintiffs to put on their case any way they saw fit; if the State found an area objectionable, the court would rule on the objection at that time. As to MIL4, the court stated, "[s]ame ruling as 3." The State queried whether that meant the ruling was "basically in abeyance . . .?" The court stated the State was correct. As to MIL6, the court ruled the relevance of the prior accident would depend upon plaintiffs' proof of substantial similarity between both accidents: "I'm going to hold that in abeyance and see what the evidence is."
In reviewing a challenge to a trial court's ruling on a motion to exclude evidence, the appellate court's duty is to determine whether the trial court abused its discretion. (Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1476; Smalley v. Baty (2005) 128 Cal.App.4th 977, 984.)
1. MIL3: EXCLUSION OF EVIDENCE THAT THE ACCIDENT LOCATION COULD HAVE BEEN MADE SAFER
On appeal, the State contends MIL3, seeking to exclude the documentary evidence that served as the basis for Schultz's expected testimony that the A-dike was a dangerous condition, should have been granted. The State maintains public property is not dangerous merely because it can be made safer by other means; thus, the State argues documentary evidence supporting plaintiffs' contention the site could have been made safer should have been deemed inadmissible either as irrelevant, or as more prejudicial than probative. (Evid. Code, §§ 350, 352; Belcher v. City and County of San Francisco (1945) 69 Cal.App.2d 457, 463 (Belcher).)
The State also cites Chatman v. Alameda County Flood Control Etc. Dist. (1986) 183 Cal.App.3d 424 for the same proposition; however, the State provides no pinpoint cite, making it difficult to determine what portion of the decision defendant believes supports its assertion. After having read the entire decision, it is apparent the case does not support the State's position. Chatman stood for the proposition that where a defendant challenges a plaintiff's inherent burden of proving ownership or control over an allegedly dangerous condition of public property, the plaintiff's failure to rebut the defendant's claim of nonownership may entitle the defendant to summary judgment. (Id. at p. 430.) Thus, Chatman does not address the issue of whether evidence that public property can be made safer should be excluded at trial. Where Chatman could be relevant to the issues below—ownership of the property—the State conceded ownership.
The State failed to indicate both in its motion below and its brief on appeal what documentary evidence, other than the Manual Change Transmittal issued in 1982, it sought to exclude. From a reading of the record, we assume that documentary evidence consisted of the following: A July 9, 1965, memorandum from Caltrans clarifying that dikes are not barriers and that they are "easily mounted and further constitute a hazard which tend[s] to convert minor skidding accidents into severe roll-over type accidents." A November 25, 1969, memorandum noting, "Whenever possible, a 6" dike should be replaced by a lower dike. . . . If a dike higher than 0.17' is required for hydraulic reasons, the District Highway Safety Committee has recommended that a 4" dike should be used instead of [a] 6" dike. Headquarters has concurred that the 4" dike is much safer than a 6" dike and approves of its use." A June 8, 1970, memorandum noting, "The use of the 6" AC dike continues to be a controversial subject. The problem involves priorities— safety vs. drainage/maintenance. [¶] . . . [¶] . . . There is general agreement that dikes are to be avoided elsewhere because they would tend to increase the severity of ran-off-the-road accidents. (Rolling due to tripping, air-borne, etc.) From a safety standpoint then, there is very little that can be said in favor of 6" AC dikes." An April 20, 1971, memorandum reading, "Because they adversely affect a driver's ability to retain or regain control of his vehicle, dikes should be avoided. This is particularly true of high dikes." An April 27, 1971, memo comparing A- and S-dikes noting the S-dike "has been road tested at 60 mph and a flat angle with a successful recovery and ride. [¶] The Type 'A' Dike and similar curbs do not allow vehicles to cross with the same degree of driver control experience by crossing over a Type 'S' Dike. . . . [¶] . . . [¶] Type 'S' Dike increases the recovery area on a project. Many of these same areas would not be used by a driver if 'guarded' by a Type 'A' Dike. . . . [¶] . . . [¶] The low profile minimizes irregularities of poor longitudinal alignment experienced with the Type 'A' Dike."
An August 4, 1977, memorandum reading, "We believe that four-inch dike with a sloping face . . . should be considered as a state standard in lieu of the current six-inch high Type A dike. Test data . . . demonstrates . . . that a four-inch dike produces less ramping than a six-inch dike and its use would therefore improve safety . . . . We have noted several accident reports in which dikes appear to have increased the severity of accidents. [¶] Actually we believe the . . . 'smike' dike design is better . . . as it is flatter and more rounded." A July 27, 1981, memorandum noting, "District 11 uses type A 'High Dike' and the 'S' or Smite Dike. The 'S' Dike is tapered from 1 inch to a 4 inch to 6 inch height on a 4:1 slope. The 'S' Dike is traversable at high speeds." The manual change transmittal document dated June 1, 1982, reading "Index 7-303.1 has been rewritten to require the use of an intermediate asphalt dike with a 4:1 slope on the front face instead of the high dike for most conditions. This will minimize the tendency of a vehicle to overturn when traversing the dike. The 4-inch high dike can be modified to increase the height to 6 inches to increase the drainage carrying capacity. The present 6- inch dike may only be used in cut sections or in fill sections under guardrail." And finally, the Highway Design Manual dated July 1, 1990, providing, "'It is not intended that current manual standards be applied retroactively to all existing state highways; such is neither warranted nor economically feasible. However, when warranted, upgrading of existing roadway features such as guardrail, lighting, superelevation, roadbed width, et cetera, should be considered, either as independent projects or as part of larger projects.'"
In the reporter's transcript, the parties discuss portions of the Highway Design Manual "dated May 18 of 1992," however, the only date we find on the referenced exhibit No. 266 is July 1, 1990.
First, the State fails to show that it objected, as the court's ruling on its motion would require, to each document as it was introduced into evidence. Second, two of the elements required to show a dangerous condition of public property are that "the property was in a dangerous condition at the time of the incident" and that the State "had notice of the dangerous condition for a long enough time to have protected against it." (CACI No. 1100; Gov. Code, §§ 830, 835, 835.2.) The documents listed ante, were directly relevant and not at all liable to consume undue time or confuse the issues in the jury's determination that the A-dike was a dangerous condition of public property, which the State had sufficient notice of to protect against. Thus, the court acted within its discretion in permitting admission of the above-noted materials.
The State's citation to Belcher in support of its argument—that documentary evidence supporting plaintiffs' contention the site could have been made safer should have been deemed inadmissible—is unavailing. In Belcher, the wind caused the plaintiff to fall and injure herself as she was walking up a steep stairwell. The plaintiff claimed the city should have made the stairwell safer by providing handrails, posts, and warnings of the danger when it was windy. (Belcher, supra, 69 Cal.App.2d at p. 459.) Belcher noted, in the first place, it was not alleged the steps themselves were dangerous; thus, the plaintiff's theory of liability stemmed not from any danger from the steps themselves, but from the lack of additional devices that would render the steps more safe—a proposal the court regarded as an "absurdity," as it would require the city to maintain such additional devices on every street. (Id. at pp. 460-461.) The court noted, "[t]he condition of the steps and the force of the wind were such as to be taken in at a glance and in an instant by any reasonably prudent person. Wind is a force of nature to which all persons are of course subject. If danger existed it was open and obvious. While [San Francisco's] general knowledge of its winds must be conceded, such knowledge is not superior to the knowledge and observation of an adult, and presumably reasonably prudent, person actually exposed to the wind." (Id. at p. 463.) Thus, while it "has likewise been held that liability is not to be fastened upon a municipality merely because it may appear that certain property, in nowise dangerous either in its construction or intended use, could possibly be made safer by other means"; (ibid.) it would not be inappropriate to attach liability to a situation, such as here, where a plaintiff alleges the danger lay in the actual object installed by the government entity itself, and that entity had decades of notice regarding the dangerousness of that object. The jury's reliance upon these documents to support its finding of a dangerous condition was entirely appropriate. The update of the State's design standards for dikes did not necessarily establish that all A-dikes were dangerous per se as alleged by plaintiff; rather, they merely helped prove dangerousness, and the State's sufficient notice of that dangerousness.
2. MIL4: EXCLUSION OF EVIDENCE OF OTHER PLANS FOR THE SUBJECT ACCIDENT LOCATION
We discern little difference between this motion to exclude evidence and the previous one. Indeed, the E-dike was described as mountable by a car and "[s]ignificantly less likely to induce [a] rollover"; thus, giving the driver an enhanced chance to regain control of the vehicle." Thus, the comparison between an E-dike and an A-dike, and the attendant benefits of using the former, would appear to have already been made in the documents discussed ante. Further, the State devoted only one paragraph, consisting of two sentences, with no citation to authority and no argument, to this particular motion. Contrary to the State, the "prejudicial nature of the evidence" is not made clear simply by the jury's verdict; in fact, we discern no error, let alone prejudice. Thus, for the reasons stated with regard to the preceding MIL3, we hold the trial court acted within its discretion in permitting evidence of a comparison of the relative benefits of the use of the E-dike over the A-dike.
3. MIL6: EXCLUSION OF EVIDENCE OF OTHER ACCIDENTS
On May 12, 2009, the court held an additional Evidence Code section 402 hearing on the relevance of the prior accident, with the State's accident reconstruction expert and person most knowledgeable (PMK), Kenneth Berner, testifying. He testified that both accidents occurred within 150 to 200 feet of one another. He testified that in both instances, the vehicles hit the dike and flipped over. Nevertheless, he opined, "to a traffic engineer, a single accident is a random occurrence." The trial court opined, "I think the accident is close enough to this one, and in light of the Caltrans report in [1982], about the use of these berms, they're on notice obviously when they came out with that directive. They didn't need this accident in 2000 to put them on notice. They already were. [¶] So I don't know how important this other accident really is. However, we will have testimony from this witness, according to his declaration, 191,500,000 westbound vehicles driving by this location during a five-year period, and we have what, two accidents of similarity, allegedly?" Thus, the court concluded that any evidence of similarity or dissimilarity "would go to the weight of the jury, what they want to put on these two accidents."
Berner, a former Caltrans employee for 25 years and current employee for a private accident reconstruction firm, testified that he researched the number of accidents occurring at or near the subject collision spot, in which a vehicle went over the dike during the past five years. He discovered that of the 191,500,0000 cars that traveled past the location during the preceding five years, only one had been involved in such an accident. On April 18, 2000, a vehicle traveling at an unsafe speed for the rainy and wet conditions that night, went over the dike approximately 250 feet away from the subject location and flipped; the vehicle was not hit by another car. The dike may or may not have played a role in causing that vehicle to overturn. There was no pattern of accidents at that location; a single previous accident was considered a random event from a traffic engineering perspective. Schultz testified the April 18, 2000, accident was similar to the instant collision because the first vehicle slid sideways, struck the berm, and rolled over.
Prior accidents at the same location may, when relevant, be admitted to show notice of a dangerous condition. "However, it must be established that the circumstances of the accidents are the same or similar." (Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 363.) "The requirement of similarity of conditions is 'much relaxed' when the evidence is offered to show notice of the dangerous condition. [Citation.] In order to establish the liability of [the State] for a dangerous and defective condition of public property it [is] incumbent upon plaintiffs to show that [the State] had actual or constructive notice of the alleged dangerous condition of the intersection. ([Gov. Code,] § 835, subd. (b).) The test of admissibility of evidence of prior accidents to show notice is that the evidence must be such as to have attracted [the State's] attention to the dangerous situation. [Citation.] The question of admissibility of this sort of evidence, furthermore, rests within the discretion of the court. [Citations.]" (Hilts v. Solano County (1968) 265 Cal.App.2d 161, 169.)
Here, the propriety of admitting evidence of the previous accident was a closer call. First, as testified to by Berner, one accident out of nearly 192 million cars traveling that section of the freeway in five years does not create a pattern. Second, the prior accident had several distinguishing features: it took place at night, it took place while it was raining and the roadway was wet, it involved a single vehicle that was speeding and not hit by another, and no one could testify as to whether the dike was then six inches or four- to four and one-half inches tall when the accident took place. However, we do not look at the prior accident in a vacuum, but must also consider all of the documentary evidence discussed above. In such a circumstance, the State had before it numerous internal memoranda establishing the dangerousness of the A-dike. Further, the State had evidence of one accident occurring close to the instant collision site, in which another car hit the dike and flipped. In this context, the evidence of the prior accident was sufficiently relevant to be within the court's discretion to admit.
B. MISCONDUCT
The State contends plaintiffs engaged in an extensive course of prejudicial misconduct throughout trial, beginning during voir dire and ending during plaintiffs' closing argument. Indeed, the State identifies over 135 specific incidents of what it alleges are acts of misconduct that were so pervasive as to deprive the State of a fair trial. Upon review of the entire record we conclude plaintiffs' counsel, while guilty of at least one instance of minor misconduct, did not commit prejudicial misconduct.
Approximately 109 of these incidents are presented only by citation to the record in a footnote; in other words, defendant does not identify the specific comments that constitute the alleged misconduct, does not cite to any authority, and does not argue how those comments come within any authority establishing misconduct, prejudicial or otherwise. Thus, this section of the State's opening brief reads like a complaint, rather than an appellate argument. (See In re S.C. (2006) 138 Cal.App.4th 396, 408 [to demonstrate error, appellant must present meaningful legal analysis].) This court is not inclined to act as cocounsel for the State's appellate attorneys, and furnish legal arguments as to how the actions of plaintiffs' counsel constituted prejudicial misconduct. (Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 767.) The failure to provide a legal argument forfeits the issue on appeal. (Los Angeles Unified School Dist. v. Casasola (2010) 187 Cal.App.4th 189, 212.)
"The term 'misconduct' is generally used in connection with trials to mean the disregard of rules of evidence or procedure for the purpose and with the effect of prejudicing the adverse party's claim or defense before a jury." (7 Witkin, Cal. Proc. (5th ed. 2008) Trial, § 210, p. 253.) A reviewing court "must determine whether it is reasonably probable [the State] would have achieved a more favorable result in the absence of that portion of [plaintiffs' conduct] now challenged." (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 802.) The court must examine "the entire case, including the evidence adduced, the instructions delivered to the jury, and the entirety of [plaintiffs'] argument," in determining whether misconduct occurred and whether it was sufficiently egregious to cause prejudice. (Ibid.) "Each case must ultimately rest upon a court's view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge's control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances." (Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 320-321, fn. omitted (Sabella).) "[I]t is only the record as a whole, and not specific phrases out of context, that can reveal the nature and effect of such tactics." (Id. at p. 318.) "Because accusations of misconduct of counsel read out of context frequently exaggerate its seriousness . . . we have been impelled to study, and have studied, a transcript of [25] volumes ([4,721] pages)." (Love v. Wolf (1966) 226 Cal.App.2d 378, 385 (Love).)
The State contends, "There were over 30 instances of misconduct during voir dire alone," but fails to enumerate, let alone argue, each of them. Our count of those defendant does specifically mention is 14.
The State contends plaintiffs engaged in misconduct during voir dire of the prospective jury in an attempt to precondition the jurors to a verdict in plaintiffs' favor, by indoctrinating the jurors, educating them on the law, prejudicing them against the State, and actually arguing the case. We hold that no misconduct occurred.
"[T]he trial judge should permit liberal and probing examination calculated to discover bias or prejudice with regard to the circumstances of the particular case. The fact that a topic has been included in the judge's examination should not preclude additional nonrepetitive or nonduplicative questioning in the same area by counsel. [¶] The scope of the examination conducted by counsel shall be within reasonable limits prescribed by the trial judge in the judge's sound discretion. In exercising his or her sound discretion as to the form and subject matter of voir dire questions, the trial judge should consider, among other criteria, any unique or complex elements, legal or factual, in the case and the individual responses or conduct of jurors which may evince attitudes inconsistent with suitability to serve as a fair and impartial juror in the particular case." (Code Civ. Proc., § 222.5.)
The State avers jury selection began unreported; the State had to request a reporter due to misconduct committed by plaintiffs. Although the record establishes that voir dire began unreported, it does not establish why it was reported thereafter. Thus, the record fails to support the State's contention it asked that voir dire be reported due to plaintiffs' misconduct. The State provides no record support for its contention otherwise.
The State contends plaintiffs committed misconduct by insinuating the State's attorneys would be untruthful. The relevant passage occurs after a potential juror expressed concern that one side might present the matter in an untruthful manner. Plaintiffs' counsel responded, "Now, I can promise you this, on behalf of [plaintiffs], we're going to tell it straight. You're going to hear it pretty much straight, okay. It's going to be for you to determine what the value of it is, but it's going to be told to you straight. [¶] I hope the State . . . is going to do the same thing. I'm not talking bad about the attorneys, you now, right now. I don't know. You're going to have to wait and see and value, that's what you're going to value." First, we certainly do not see how plaintiffs could vouch for the State's veracity during trial. Second, we do not view plaintiffs' statement as an implication the State would be untruthful. On the contrary, plaintiffs' statement implies the ordinary course of business during trial is that both parties present the case truthfully as they see it. Thus, plaintiffs' comment was not misconduct.
The State makes reference to an incident where a potential juror expressed concern regarding plaintiffs' suggestion the State's attorney would "'slant'" the evidence. The State provides no citation to the record of this occurrence; fortunately, we have discovered the incident in our review of the record. The prospective juror states, "I don't remember the exact wording . . . . It was just a reference, 'They may try to,' but I don't remember the word that was used. I don't know if it was 'misrepresent,' or 'slant your thinking,' or whatever." It is apparent the reference is to either an unreported portion of the voir dire that we cannot review or to the just-discussed portion where plaintiffs expressed the hope that the State would present the case straightforwardly. If the latter, we again find no misconduct, particularly as the juror stated that the comment would not prohibit the juror from listening fairly and impartially to the facts and evidence.
The State contends plaintiffs' statement, "I'm doing this job. And if I succeed, I'll get paid," preconditioned the prospective jurors regarding plaintiffs' poverty and their fee arrangement with their attorney. (Nakamura v. Los Angeles Gas & Elec. Corp. (1934) 137 Cal.App. 487, 490 [misconduct to appeal to jury's sympathy for a plaintiff due to plaintiff's poverty].) Although the statement certainly infers plaintiffs' counsel were hired on a contingency fee basis, this does not establish that plaintiffs were, per se, in poor financial condition. Indeed, we believe it general knowledge that most personal injury attorneys, regardless of their clients' financial status, are hired on a contingency fee basis. Thus, the comment did not convey that plaintiffs were poor, and was not intended to engender impermissible sympathy for them.
The State contends plaintiffs' request during voir dire, "in closing statement fashion" to "find responsibility and give a lot of money" constituted misconduct. First, the State failed to object below. "'Generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished.' [Citation.] '"As the effect of misconduct can ordinarily be removed by an instruction to the jury to disregard it, it is generally essential, in order that such act be reviewed on appeal, that it shall first be called to the attention of the trial court at the time, to give the court an opportunity to so act in the premises, if possible, as to correct the error and avoid a mistrial. Where the action of the court is not thus invoked, the alleged misconduct will not be considered on appeal, if an admonition to the jury would have removed the effect."' [Citation.]" (Sabella, supra, 70 Cal.2d at p. 318.) Second, the State fails to note the context of the statement. The statement came in reaction to a prospective juror's expressed concern in his questionnaire over the outrageousness of the monetary amounts of many jury verdict awards he had heard about. Thus, rather than an attempt to persuade the jury, it was a concession that plaintiffs would indeed be requesting a large verdict, and an attempt to determine if this prospective juror was so biased against such awards that he would be unable to render one. This is entirely within the appropriate scope of voir dire.
The State next quotes the voir dire in an attempt to provide "examples of Plaintiffs' misconduct in voir dire" intended to create sympathy, without explaining how or why we should deem them thus. The passages include mentions of Mirna's amputated arm, brain damage, disfigurement, a reference to a specific award amount, and the current economic times. The State appears to have objected to all of the questions, and the objections were sustained. We believe the court's rulings and comments cured any impropriety. "'"It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have." [Citation.]'" (Sabella, supra, 70 Cal.2d at p. 318.)
The State next gives an example of misconduct intended to prejudice the jurors against the State. The passage involves a question posed to a potential juror regarding whether he could award damages even if the State argued it did not have any money to make the necessary changes to the dikes. The State objected. The court noted, "We're getting into stuff we shouldn't get into." Nevertheless, plaintiffs asked whether the juror would be "willing to look at both sides, look at our evidence, what we can show you? Or, 'Nope, they say they got no money, they got no money'?" The question appears appropriate considering the State apparently raised design immunity as a defense in its summary judgment motion, which required plaintiffs to prove, in part, that the State was not unable to remedy the dangerous condition because it lacked the funds to do so. (CACI No. 1123; Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 66.) Thus, the question was within the scope of proper venire because it sought to examine the potential juror's ability to determine the propriety of a possible defense.
Next the State quotes from the voir dire to show plaintiffs' misconduct by incorrectly instructing on the law. A potential juror is asked whether he understands that there is no limit to the amount of damages the jury may award plaintiffs under the law, and asked whether the juror can follow the law. Plaintiffs ask whether the remaining jurors agree; they respond in the affirmative. The State failed to object and has therefore forfeited the argument on appeal. Moreover, it is clear from the foregoing that plaintiffs were "not attempting to ascertain the knowledge or ignorance of a prospective juror on questions of law, thereby usurping the function of the trial judge to adequately instruct on the applicable law [citation], but that his questions were for the purpose of determining whether the juror would follow an instruction" given by the court. (People v. Tolbert (1969) 70 Cal.2d 790, 812.) Thus, the question did not constitute misconduct.
Next the State contends plaintiffs misstated the law when they stated, "if the State failed to 'determine the defect' damages could be awarded." This language does not appear at the page cited by the State. Rather, the passage asks, "If there's a proven defect in this case . . . and it wasn't taken care of and they had an opportunity to take care of it, you say you could find [liability on the part of the State], right?" Again, the State failed to object and, therefore, forfeited the issue. Plaintiffs asked a question, rather than merely stating the law—the question rather succinctly and accurately summarized the law on dangerous conditions. Thus, there was no misconduct.
The State cites two more examples where plaintiffs ostensibly misstated the law; however, the State failed to object to the first, and although it objected to the second, it allowed plaintiffs to continue without receiving a ruling from the court. Thus, the State forfeited the issue. "Here defendant remained silent as to all but one line of argument, and as to the latter he objected but failed at any time to request an admonition of the jury to disregard the remarks. Under the circumstances we conclude that defendant must be denied relief. [Citation.]" (Sabella, supra, 70 Cal.2d at p. 319.) We discern that no misconduct, let alone prejudicial misconduct, occurred during voir dire.
2. EXAMINATION OF BERNER
The State premises its argument that multiple acts of misconduct were committed during the examination of Berner, on the contention that plaintiffs called Berner pursuant to Evidence Code section 776 primarily for two improper purposes: (1) to tell the jury that the State had filed and lost a motion for summary judgment, and (2) to suggest that the State had "played games in discovery" by producing Berner as PMK when, in plaintiffs' view, there were current State employees more knowledgeable about the features of this particular section of highway. First, we do not see how the latter reason would be at all improper if, as plaintiffs appear to have successfully done, they were able to elicit testimony from Berner that he never designed anything including a dike; did not know much about dikes; never gave an opinion regarding whether a dike could cause a vehicle to trip; had never written anything about dikes; admitted that changing the A-dikes to E-dikes during the 2001 Project would have been consistent with the 1982 Manual Change Transmittal memorandum; and that some E-dikes appeared in the 2001 Project area, but he could not tell whether they were installed as part of that project. Second, although a nominal insinuation of the outcome of the summary judgment motion was made during the course of Berner's examination, it was of a minimal nature and by no means established it was the primary reason plaintiffs would call Berner for an examination that lasted over 265 transcript pages. Nevertheless, we shall address more specifically each of the State's complaints.
At one point, plaintiffs asked Berner if, in preparing a declaration in support of the State's motion for summary judgment, he understood "that if this motion is successful, based on . . . the original design of the roadway, the State . . . would get a defense of immunity and the case will not proceed, did you understand that, sir." The State objected, contending the question was argumentative. The court properly responded that the question was "certainly out of line." Later, plaintiffs asked Berner if "having prepared the declaration in review of the motion for summary judgment, it was your understanding that Caltrans was asking for design immunity in this case; is that correct?" The State objected on the grounds the question was irrelevant, argumentative, and went to motive and bias. The court recessed the jury so counsel could argue the issue outside of the jury's presence. The State then argued that any questioning regarding a matter of discovery, i.e., those sources used by Berner in preparing his declaration for the summary judgment motion, were irrelevant. The State also noted the impropriety of referring to the motion for summary judgment. The court noted that the witness was doing an excellent job of fielding the questions regarding discovery materials, "[b]ut going into the summary judgment motion, that should have been kept out a long time ago. There was no in limine on that, so I never knew it was coming." The court ultimately ruled, "The declaration itself can be used for impeachment if he says something here that's inconsistent with what's in the declaration. But the purpose of going into the motion for . . . summary judgment, suggesting to the jury the Court denied the motion because it was not meritorious. I mean that's the inference that they're trying to get across here."
The court proposed a remedy for plaintiffs' mention of the summary judgment motion: "I'm going to tell the jury, my plan is that the motion for summary judgment has nothing to do with this case, absolutely zero. And I will so inform the jury. If you want to draft something up to that effect, or I can ad lib it, I can do that. It has absolutely no place in this trial how that motion was handled. [¶] The declaration is admissible; that was part of that motion. And I've allowed that. [¶] But to step into the arena and tell this jury, and suggesting to the jury that the motion for summary judgment was denied, California was not given immunity, is wrong. It's not for the jury to decide." The court asked the State if it had anything more to say; counsel responded, "No. I just think at this point, I agree with what the Court has said on the status." Ultimately, the court offered to read an instruction to the jury directing it to disregard any discussion of the summary judgment motion; counsel for the State declined the instruction, stating she intended to cross-examine Berner on the issue.
"In the trial of an action, neither a party, nor a witness, nor the court shall comment upon the grant or denial of a motion for summary adjudication to a jury." (Code Civil Proc., § 437c, subd. (n)(3).) There is no doubt here that plaintiffs committed misconduct by implying the State had lost its motion for summary judgment. However, the issue is not whether misconduct occurred, but the extent of that misconduct, i.e., whether it prejudiced the State. Plaintiffs implied the State's motion had been denied by stating that if the motion had been granted the case would not proceed; since trial occurred, this necessarily insinuated the motion had been denied. Nevertheless, plaintiffs neither explicitly stated that the State's motion for summary judgment had been denied, nor explained what a motion for summary judgment was. We cannot say with any certainty that the jurors would have been sophisticated enough in the law to understand even an express reference to the denial of a motion for summary judgment. Moreover, plaintiffs tied any ruling on the motion for summary judgment to the affirmative defense of design immunity; thus, at best, plaintiffs' question suggested to the jury that the defense of design immunity was invalid, not that any other defense they might raise was equally unmeritorious. Indeed, since the State did not even proceed at trial on the defense of design immunity, it is difficult to see what harm it suffered. Furthermore, the court offered the State near complete autonomy on how it should handle the matter. The State tactically chose not to indulge in the court's proffered remedy of an instruction, whether written by the court or defense counsel; instead, the State chose to cross-examine Berner with regard to the issue. We discern no prejudice in the matter.
The State repeatedly complained below that plaintiffs' questions, prefaced with such clauses as "Isn't it true," were argumentative. The court appeared to agree, stating plaintiffs' counsel had "a tendency to testify rather than ask a question. 'Isn't that true, true, true, true. . . . [¶] . . . [¶] [Just] because the attorney infers in his question that it's true doesn't mean that's a true fact" Plaintiffs' counsel agreed, but contended, correctly, that such a question was a leading question, which was permissible on cross-examination or examination of a witness pursuant to Evidence Code section 776. On appeal the State contends these questions constituted misconduct in that they provided a vehicle for plaintiffs' counsel to testify.
In Love, supra, 226 Cal.App.2d 378, the court noted: "'These "did you know that" questions designed not to obtain information or test adverse testimony but to afford cross-examining counsel a device by which his own unsworn statements can reach the ears of the jury and be accepted by them as proof have been repeatedly condemned.'" (Id. at p. 390.) However, in Love, counsel's "did you know" questions involved completely irrelevant matters directed at disparaging the witness, or that represented the accuracy of a medical study that counsel had failed to produce. (Id. at pp. 385-386, 390.) Here, plaintiffs' leading questions pertained directly to the evidence adduced at trial and did not attempt to disparage, but rather impeached Berner's view of the evidence. As such, they were proper. Moreover, if plaintiffs' questions benefitted any party, it was the State. At some point, every time the State objected to a question and plaintiffs gave an offer of proof, the judge threatened to remove the entire jury so the parties might argue the matter, even where the objections were patently frivolous. This resulted in plaintiffs sometimes withdrawing completely appropriate questions, possibly out of a fear of alienating the jury by being viewed as the party responsible for significantly delaying an already interminable trial. Finally, the court in Love reversed the judgment finding prejudicial misconduct only where there were "60 instances of plaintiff's counsel's flagrant misconduct." (Id. at p. 385.) We find no such multiplicity of misconduct, let alone flagrant misconduct.
The State next contends plaintiffs committed misconduct by suggesting the State had failed to live up to its discovery obligations when Berner allegedly failed to provide plaintiffs with certain documents at his deposition. The State asserts, without citation to authority, that the exclusive remedy for violations of discovery procedures lies in pretrial motions, and that plaintiffs' failure to utilize those methods of amelioration did not permit plaintiffs to mention any of those purported discovery violations during trial. Regardless, it is clear that a discussion of any discovery violation committed by Berner, or any other defense witness, was not the aim of plaintiffs' questions. Rather, plaintiffs sought evidence to prove whether certain documents did or did not exist, so the jury would not be confused as to why plaintiffs had not provided them. An examination of the passages cited by the State in support of its argument, reveals plaintiffs were concerned with why plaintiffs were unable to obtain the original plans of the 2001 Project, instead of just the "as built" plans. After multiple objections by the State, to questions asked by plaintiffs of a number of witnesses, all of which were sustained by the court, a defense witness, Basem Muallen, the deputy district director for program management at Caltrans, testified the original project plans were kept, but were simply stamped "as builts" when the project was completed; the "as built" plans were the original plans with only the added stamp reading "as built." Thus, plaintiffs were not impermissibly commenting on the State's failure to meet its discovery obligations, but simply attempting to clarify why they were unable to provide the jury with the "original" design plans.
"As built" plans represent the final, actual existing condition of a completed project.
3. REFERENCES TO POVERTY AND THE STATE'S BUDGET
The State contends plaintiffs committed multiple acts of misconduct by attempting to generate sympathy for plaintiffs by making reference to their poverty. Specifically, the State avers counsel insinuated plaintiffs did not receive recommended follow-up psychotherapy because they could not afford it, and that if the jury did not render a judgment in plaintiffs' favor, Mirna would be unable to afford prosthetic replacements. We find no misconduct.
"Evidence of the wealth or poverty of a party is ordinarily inadmissible either to prove liability or an award of damages . . . ." (Love, supra, 226 Cal.App.2d at p. 388; see also Nakamura v. Los Angeles Gas & Elec. Corp., supra, 137 Cal.App. at p. 490.) The State first cites plaintiffs' expert witness, neuropsychologist Robert Asarnow's answer to the State's own question on cross-examination. Defense counsel asked, "given that Mirna has never received psychotherapy . . . can you say to a degree of reasonable . . . certainty that Mirna will ever receive neuropsychotherapy?" Asarnow responded, "I think it is extraordinarily more likely that she'll receive psychotherapy if she can pay for it." Since Asarnow recommended a minimum of 50 sessions over the next three years, costing $200 to $250 an hour—making the minimum cost $10,000—it seems apparent most individuals would not likely participate in such sessions unless they could pay for them. Next, the State cites to Cecilio Gomez's testimony, whose six-year-old son was also involved in the accident, in response to the State's question establishing he did not take his son to further recommended psychotherapy sessions: "No, because [it is] very expensive." First, since the ostensibly objectionable statements were made by witnesses to the State's own questions, it is difficult to see how this amounts to misconduct by plaintiffs' counsel. Second, the answers did not suggest plaintiffs were poor, nor necessarily generate sympathy for them; the answers merely exposited the obvious. Finally, the State did not object to the answers of the witnesses; the State had ample opportunity to contest the number, if any, of necessary psychotherapy sessions and their costs requisite for the respective treatments of Mirna and Cecilio's son.
The State further maintains plaintiffs' questioning of Robert Taylor, the State's expert accountant, regarding the present value of the anticipated future medical needs of Mirna, impermissibly insinuated she would not be able to afford replacement prosthetics unless the jury found the State liable. On the contrary, in the context of Taylor's testimony as a whole, it is apparent plaintiffs were only suggesting that if the State's experts had incorrectly determined Mirna's needs, their projection of her future medical needs would leave significant gaps. Thus, the question was an appropriate attempt to impeach Taylor's calculations regardless of whether the jury found the State liable for Mirna's injuries. Nevertheless, the court sustained multiple objections to this line of questioning, eventually stating, "[t]he jury has the two numbers from both sides, so they can deal with that." The court had previously, and would subsequently, instruct the jury that the attorneys' questions were not to be considered evidence. "[W]e presume that the jury followed the instructions absent some indication to the contrary. [Citation.]" (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1123.)
4. MISCONDUCT DURING CLOSING
The State contends plaintiffs committed multiple acts of misconduct during closing argument. We find no such misconduct.
"In conducting closing argument, attorneys for both sides have wide latitude to discuss the case. '"'"The right of counsel to discuss the merits of a case, both as to the law and facts, is very wide, and [counsel] has the right to state fully his views as to what the evidence shows, and as to the conclusions to be fairly drawn therefrom. The adverse party cannot complain if the reasoning be faulty and the deductions illogical, as such matters are ultimately for the consideration of the jury."'" [Citations.] "Counsel may vigorously argue his case and is not limited to 'Chesterfieldian politeness.'" [Citations.] "An attorney is permitted to argue all reasonable inferences from the evidence, . . ." [Citation.] "Only the most persuasive reasons justify handcuffing attorneys in the exercise of their advocacy within the bounds of propriety." [Citation.]' [Citation.]" (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 795-796.) However, "[t]here can be no doubt that to argue facts not justified by the record, and to suggest that the jury could speculate, [is] misconduct. [Citations.] While a counsel in summing up may indulge in all fair arguments in favor of his client's case, he may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences." (Malkasian v. Irwin (1964) 61 Cal.2d 738, 747.)
First, the State takes issue with plaintiffs' statement, "Well, imagine engineers eliminating something without an analysis, lo and behold, God forbid." The State contends plaintiffs were improperly catering their argument to a member of the jury who was an overseas minister. Although appeals to religious bias are generally considered improper (see 7 Witkin, Cal. Proc. (5th ed. 2008) Trial, § 215, p. 261), we do not view plaintiffs' statement as an improper appeal to religious prejudice.
Second, the State contends plaintiffs' counsel misstated the facts adduced at trial when he discussed "the daily activities [of] little girls" in which Mirna could not now participate: "You, you tell me the functions. I can't go through them all in this period of time. But you tell me the functions. Let's just talk, getting dressed, excited, ponytail, little girls do ponytails, pigtails, you know. Whatever you have. Little dresses, little bows, 'Mommy, mommy, can you help me? Look, mommy, don't I look pretty?'" The State referenced plaintiffs recount that Mirna could not play tetherball or dodge ball, needed help putting on a bra, and would miss out on other events due to her condition. Even though the record may not support Mirna's inability to perform these particular activities, it does amply support her inability to perform closely related ones. Daniel Conyers, a certified Prosthesist Orthotist specializing in upper extremity prosthetic rehabilitation, testified Mirna was interested in swimming and playing basketball again, activities she could not do due to her disability. Mirna, age 15 at the time of trial, testified she previously enjoyed baseball, basketball, and swimming. She testified she currently needed help doing her hair and cooking; she could not fasten her own bra, nor tie her own shoes.
Mirna's father testified that in public people would stare at Mirna's face and comment on her appearance. Mirna's mother testified Mirna was permanently disfigured, even after six facial reconstructive surgeries. Michael Brones, a plastic and reconstructive surgeon, testified Mirna had incurred an evulsion to the right side of her face; "the skin has been ripped apart of the upper forehead." He testified that although she had already undergone several reconstructive facial surgeries, he would recommend one more, though at this point it was impossible to return her to a completely normal appearance. Ophthalmologist Richard Handwerger testified Mirna's "face was avulsed or torn off" and the bone had been exposed. Mirna incurred scarring of the eyelid and required reconstructive surgery to correct problems, including nerve repair to enable her to regain movement of the upper right side of her face. Mirna testified that looking in the mirror made her sad; her facial scarring was "nasty;" she attempted to cover it up with make-up and her hair style. The record is amply supportive of the fact Mirna was concerned with her appearance, and was no longer able to participate in a number of activities.
Without providing examples, the State further contends plaintiffs disparaged the State's counsel, and routinely engaged in attacks on all witnesses. It is clear from a review of the record in its entirely that plaintiffs' counsel were aggressive in their examination of the State's witnesses. However, "[a]ggressive advocacy is not only proper but desirable. Our jurisprudence is built upon a firm belief in the adversary system. Moreover, in a long trial, as this one was, vigorously prosecuted and defended, frayed tempers leading to intemperate outbursts are a to-be-expected byproduct. Skilled advocates are not always endowed with 'high boiling points.' Juries, characteristically composed of average men and women, may be assumed able to withstand substantial blandishments without surrendering their ability to reason soberly and fairly. Recognizing these factors, reviewing courts are not, and should not be, overly eager to reverse for conduct which is merely moderately captious." (Love, supra, 226 Cal.App.2d at p. 393.) Having found only one incident of minor misconduct, we hold plaintiffs' conduct during the entirety of trial did not result in any prejudice to the State.
C. MOTION FOR MISTRIAL
The State contends the court erred in denying its motion for mistrial predicated on plaintiffs' counsels' misconduct. We hold the trial court acted within its discretion.
At the court's direction, the State moved for a mistrial based upon the misconduct of plaintiffs' counsel. The court denied the motion noting that 25 days of trial had already occurred at great expense to the state and all parties involved. Nevertheless, as an alternative remedy, the court proposed reading the jury an admonishment as written by the State. The court subsequently read the jury the following admonishment: "The question of [the witness] about [Mirna] being able to pay for future medical needs, like the prosthesis and that sort of thing, has been properly objected to by the [State]. And I am ordering that that question be stricken and not considered by the jury. [¶] As I have told you before, nothing the attorneys say is evidence in this case. [¶] And secondly, you must not be swayed by any sympathy or emotion in deciding this case. [¶] . . . [¶] [Y]ou must totally disregard that [question] or any inference from the same. You must treat it as though it did not exist."
A trial court has broad discretion to deny a motion for mistrial. (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 578.) Indeed, the California Supreme Court has insinuated "a substantive preference against them" narrowly defining the grounds upon which such a motion should be granted: "'A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.' [Citations.]" (Id. at p. 679.) "[A] mistrial by definition is a species of prophylactic waste of resources in the name of preventing yet further waste of resources. The decision to declare a mistrial is one that essentially scraps a considerable public investment in the form of judge (and maybe juror) time, and an equivalent private investment in the form of attorney and witness time." (Ibid., fn. omitted.)
We find no misconduct that would have amounted to an irreparable deprivation of the State's right to a fair trial. Thus, the court acted within its discretion in denying the motion for mistrial.
D. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
The State contends the court erred in denying its motion because insufficient evidence supported the verdict. We hold substantial evidence supported the jury's verdict.
The jury's verdict was rendered on July 6, 2009. The judgment was filed November 2, 2009, and the notice of entry of judgment was filed November 19, 2009. On November 24, 2009, the State filed a motion for judgment notwithstanding the verdict. The court heard argument and denied the motion on January 8, 2010.
"'A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support. [Citation.] [¶] . . . As in the trial court, the standard of review [on appeal] is whether any substantial evidence— contradicted or uncontradicted—supports the jury's conclusion.' [Citation.]" (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.) We do not weigh the evidence, or judge the credibility of witnesses, but, disregarding conflicting evidence and indulging every legitimate inference in favor of the jury's verdict, we determine whether the evidence is sufficient to support that verdict. (Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 703.)
"[A] public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and . . . . [¶] . . . [¶] [t]he public entity had actual or constructive notice of the dangerous condition under [Government Code s]ection 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition." (Gov. Code, § 835, subd. (b); Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129 (Metcalf); see also CACI No. 1000.) "'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." (Gov. Code, § 830, subd. (a); Metcalf, at p. 1132; ; see also CACI No. 1102.) "A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character." (Gov. Code, § 835.2, subd. (a); Metcalf, at p. 1129; see also CACI No. 1103.)
Here, plaintiffs' adduced substantial evidence at trial the A-dike comprised a dangerous condition of the State's property that was a foreseeable and proximate cause of plaintiffs' injuries, of which the State had actual notice. The subject section of the 91 freeway had apparently been built in 1970, with A-dikes. Plaintiffs adduced evidence of a July 9, 1965, Caltrans memorandum clarifying that dikes were not barriers and that they were "easily mounted and further constitute a hazard which tend[ed] to convert minor skidding accidents into severe roll-over type accidents." Another Caltrans memorandum dated November 25, 1969, noted, "Whenever possible, a 6" [A-dike] should be replaced by a lower dike. . . . If a dike higher than 0.17' is required for hydraulic reasons, the District Highway Safety Committee has recommended that a 4" dike should be used instead of [a] 6" dike. Headquarters has concurred that the 4" dike is much safer than a 6" dike and approves of its use." A June 8, 1970, Caltrans memorandum noted, "The use of the 6" AC dike continues to be a controversial subject. The problem involves priorities—safety vs. drainage/maintenance. [¶] . . . [¶] . . . There is general agreement that dikes are to be avoided elsewhere because they would tend to increase the severity of ran-off-the-road accidents. (Rolling due to tripping, air-borne, etc.). From a safety standpoint then, there is very little that can be said in favor of 6" AC dikes."
An April 20, 1971, Caltrans memorandum read: "Because they adversely affect a driver's ability to retain or regain control of his vehicle, dikes should be avoided. This is particularly true of [A-dikes]." An April 27, 1971, Caltrans memorandum comparing A-and S-dikes noted the S-dike "has been road tested at 60 mph and a flat angle with a successful recovery and ride. [¶] The Type 'A' Dike and similar curbs do not allow vehicles to cross with the same degree of driver control experienced by crossing over a Type 'S' Dike. . . . [¶] . . . [¶] Type 'S' Dike increases the recovery area on a project. Many of these same areas would not be used by a driver if 'guarded' by a Type 'A' Dike. . . . [¶] . . . [¶] The low profile minimizes irregularities of poor longitudinal alignment experienced with the Type 'A' Dike." An August 4, 1977, Caltrans memorandum read: "We believe that four-inch dike with a sloping face . . . should be considered as a state standard in lieu of the current six-inch high Type A dike. Test data . . . demonstrates . . . a four-inch dike produces less ramping than a six-inch dike and its use would therefore improve safety . . . . We have noted several accident reports in which dikes appear to have increased the severity of accidents. [¶] Actually we believe the . . . 'smike' dike design is better . . . as it is flatter and more rounded." A July 27, 1981, Caltrans memorandum noting, "District 11 uses type A 'High Dike' and the 'S' or Smite Dike. The 'S' Dike is tapered from 1 inch to a 4 inch to 6 inch height on a 4:1 slope. The 'S' Dike is traversable at high speeds."
On June 1, 1982, the State's office of planning and design issued a memorandum to all holders of the State's design manual informing them: "Index 7-303.1 has been rewritten to require the use of an intermediate asphalt dike with a 4:1 slope on the front face [E-dike] instead of the high dike [A-dike] for most conditions. This will minimize the tendency of a vehicle to overturn when traversing the dike. The 4-inch high dike can be modified to increase the height to 6 inches to increase the drainage carrying capacity. The present 6-inch dike may only be used in cut sections or in fill sections under guardrail." The standards in the Highway Design Manual issued on July 1, 1990, provided: "It is not intended that current manual standards be applied retroactively to all existing State highways; such is neither warranted nor economically feasible. However, when warranted, upgrading of existing roadway features such as guardrail, lighting, superelevation, roadbed width, etc. should be considered, either as independent projects or as part of larger projects.'" (Italics added.) Schultz concluded, "Caltrans employees, technicians and engineers knew of the hazards induced by using the Type A dike in fill sections," and that "[t]he near vertical face of the Type A dike can induce tripping and rollover." Thus, the State's internal documents, along with expert witness testimony, established: (1) the A-dike posed a danger like what occurred in the present case; (2) the State had actual knowledge of the dangerous condition; and (3) the State had sufficient time to take ameliorative action.
In 1992, Caltrans put a high occupancy vehicle (HOV) lane in each direction of the 91 freeway, and widened the center median and shoulders in the subject accident area (hereinafter the "1992 Project"). Berner testified the 1992 project was what Caltrans would consider a major construction project. Schultz testified the 1992 project was precisely the type of project wherein the A-dikes should have been removed, because it occurred 10 years after the design standard change, and contractors would have all the equipment and material in the immediate vicinity. According to Schultz, any "halfway major" construction project in the area should have required removal and replacement of the dikes.
The 2001 Project, designed by Egibor, solely covered work on the freeway shoulders incorporating the area of the accident; his plans specifically called for all A-dikes along the corridor to be replaced with E-dikes. Egibor's supervisor, Ahmed, reviewed and approved the plans. Muallen testified the plans called for removal and replacement of the dikes. The "Red Book," which is the project description distributed to potential contract bidders, specifically listed as one of the project's requirements that 25,300 tons of "'asphalt concrete dike'" be removed. The project went out to bid with the requirement that the dikes be removed and replaced.
Egibor testified he did not know the difference between an A-dike and an E-dike.
Ali Al-Saadoon, a resident engineer and construction project administrator for Caltrans, supervised contractors working on Caltrans projects. He administered the 2001 project, which was completed on October 20, 2001. Al-Saadoon prepared the final report upon completion of the project. The "as built" plans reflected the A-dikes had been removed and replaced with E-dikes as required in the plans. Ahmed and Al-Saadoon both signed off on the "as-built" plans. Nevertheless, not all of the A-dikes were removed from the project area. Berner testified changing the dikes in the area of the 2001 Project would have been consistent with the 1982 manual change transmittal. Schultz testified the A-dikes should have been removed and replaced with E-dikes during the 2001 project. Therefore, plaintiffs established that the State's projects in the area gave it ample opportunity to replace the dangerous condition created by the A-dikes with the less dangerous E-dikes.
Miller testified a type A-dike was the type of dike the Suburban hit on the day of the accident, and that hitting the dike was what caused the Suburban to "trip" and "roll." The Suburban then became airborne, before rolling three and three-quarter turns down the adjacent embankment. Miller testified if the A-dike had not been in place, the Suburban would have spun out flat on the asphalt shoulder of the freeway. Schultz concurred, testifying, "[t]he dike induced rollover. [¶] Had the dike not been there, or had there been a Type E dike, rollover would have been significantly less likely to have occurred . . . ." Schultz testified the E-dike was mountable by a car, and significantly less likely to induce a rollover; thus, giving the driver an enhanced chance to regain control of the vehicle. The E-dike "does not induce tripping. It's a very gradual slope."
Miller acknowledged that the A-dike was four, rather than six inches tall; however, he opined the reduced height of the dike merely lessened the extent of the tripping. Schultz concurred, noting it was the dike's vertical face, rather than its height, which posed the most danger. Berner testified that another accident had occurred in the subject area, where a vehicle had hit the dike and overturned. Schultz testified the previous accident, which occurred on April 18, 2000, was similar to the instant accident because the vehicle slid sideways, struck the dike, and rolled over. Thus, plaintiffs established that the A-dike was a foreseeable and proximate cause of their injuries.
The State posited a theory that inclusion of the replacement of the A-dikes in the 2001 Project plans was a mistake, because maintenance was not funded or permitted to implement "safety" projects; hence, the State did not have sufficient time to correct the problem. The jury was well within its province in finding that theory implausible. Indeed, Mullaen initially testified the maintenance department did not simply remove dikes, because they were not allowed to do so. However, he then testified that if a project called for removing and replacing a dike, his department would do it.
The State maintains plaintiffs adduced insufficient evidence to overcome the State's design immunity defense; however, as plaintiffs note, the State did not raise the affirmative defense of design immunity during trial. Thus, the State forfeited design immunity as a defense to plaintiffs' action.
A public entity may avoid liability for the dangerous condition of its property "by raising the affirmative defense of design immunity. [Citation.]" (Cornette v. Department of Transp., supra, 26 Cal.4th at p. 66.) "'"In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.' [Citations.]" [Citation.] Neither a trial court nor a reviewing court in a civil action is obligated to seek out theories plaintiff might have advanced, or to articulate for him that which he has left unspoken.' [Citation.]" (Metcalf, supra, 42 Cal.4th at pp. 1130-1131.) "A public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. [Citations.]" (Cornette, at p. 66.)
Here, while the State may have argued design immunity as a defense in its summary judgment motion, it never argued or presented evidence that it was entitled to design immunity during trial. Thus, it forfeited the defense below and on appeal. The State never conceded or established "a causal relationship between the . . . design and the accident"; in fact, its evidence and argument attempted to establish the opposite. The State's accident reconstruction expert Clayton Campbell testified he did not believe the dike caused the Suburban to trip. Campbell additionally testified Jose could not have recovered the vehicle and maintained it on the roadway regardless of the presence of the dikes. The State maintained the dike did not contribute, at all, to any of plaintiffs' injuries. The State repeatedly argued during its closing that the dike was not a dangerous condition, maintaining that the dike did not trip the Suburban; it would have rolled down the embankment regardless of the presence of the dike. The State never requested the jury instruction for assertion of the design immunity defense (CACI No. 1123); thus, the court never instructed the jury on the defense. Hence, the jury could not have made a determination whether the defense applied. Moreover, the State failed to establish substantial evidence of design approval and reasonableness of the design of the A-dike. Thus, the State forfeited the defense of design immunity. Substantial evidence supported the jury's verdict and the court acted appropriately in denying the State's motion for judgment notwithstanding the verdict.
E. MOTION FOR NEW TRIAL
The State contends the trial court erred in denying its motion for a new trial because substantial evidence failed to support the verdict, and the misconduct of plaintiffs prevented it from having a fair trial. We find no abuse of discretion.
A new trial may be granted for '[i]rregularity in the proceedings . . . by which either party was prevented from having a fair trial." (Code Civ. Proc., § 657.) "The trial court's determination on a motion for a new trial will not be disturbed on appeal absent a showing of a manifest and unmistakable abuse of discretion. [Citation.]" (Wood v. Jamison (2008) 167 Cal.App.4th 156, 162.) "When the court has denied a motion for a new trial, however, we must determine whether the court abused its discretion by examining the entire record and making an independent assessment of whether there were grounds for granting the motion. [Citation.]" (ABF Capital Corp. v. Bergalss (2005) 130 Cal.App.4th 825, 832.)
As discussed above, any misconduct of plaintiffs' counsel did not rise to the level of prohibiting the State from obtaining a fair trial. Likewise, as discussed above, substantial evidence supported the jury's verdict. The trial court acted within its discretion in denying the State's motion for new trial.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
HOLLENHORST
Acting P. J.
RICHLI
J.