Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GC041441 Jan A. Pluim, Judge.
Law Offices of Eric Bryan Seuthe & Associates and Eric Bryan Seuthe for Plaintiff and Appellant.
Wesierski & Zurek, Ronald Zurek and Paul J. Lipman, for Defendant and Respondent.
ZELON, J.
INTRODUCTION
Plaintiff Joseph Graven was riding his bicycle on a public road and collided with Defendant Stephanie Goodell, who was turning right in her automobile. Graven filed a negligence action alleging that Goodell failed to act with reasonable care while operating her vehicle and that he had been injured as a result of her actions. The jury entered a verdict in favor of Goodell. Graven appeals, arguing that: (1) there was insufficient evidence to support the jury’s verdict, and (2) the trial court erred in instructing the jury. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 27, 2007, Defendant Stephanie Goodell was driving her automobile in South Pasadena, California. While executing a right turn, she collided with Plaintiff Joseph Graven, who was riding a bicycle along the right side of Goodell’s vehicle. Graven was ejected over the hood of Goodell’s car and injured. On September 9, 2008, Graven filed a complaint alleging that Goodell had failed to exercise reasonable care while operating her vehicle and, as a result, proximately caused his injuries.
At trial, four witnesses testified about the events preceding the collision: Goodell, Graven, the police officer who prepared the accident report and a third-party witness. Goodell testified that, on the date of the incident, she was driving her Infiniti 35 westbound, in the center lane of a downhill section of Mission Street located between Meridian Avenue and Orange Grove Avenue. Shortly after passing through a traffic signal at Meridian, she checked her rear view mirror, put on her right turn blinker and moved to the lane closest to the curb. As Goodell approached Orange Grove, the traffic light was red and she slowed her car from 25 miles per hour to about 15 miles per hour. Approximately 100 feet prior to the intersection, she turned on her right turn blinker. Before Goodell reached Orange Grove, the traffic light turned from red to green and, without coming to a stop, she “looked to the right to check that the intersection was clear of pedestrians” and began to execute a right turn. Halfway through her turn, Plaintiff Charles Graven, who was on a bicycle, struck the side of Goodell’s car. The collision left a watermelon-sized dent in the passenger side of her car.
Goodell admitted that, immediately prior to turning, she had not looked in her rear or side view mirrors, nor had she looked over her right shoulder. When asked why she did not check her mirrors, Goodell stated that she did not see or pass any bicyclists while driving down Mission and therefore had “no reason... to believe there would be a cyclist” on her right hand side.
Graven’s testimony contradicted Goodell in several key respects. Graven stated that he was an experienced bicyclist and, on the day of the accident, he was riding a high-end road bike westward on Mission, traveling approximately 20 miles per hour. Graven stated that he “specific[ally] recalle[d]” being passed by a beige Infiniti 35 about halfway between Meridian and Orange Grove. When asked why he remembered this detail, Graven stated “Infiniti has that Infiniti logo with each letter spelled out. That always jumps out in my mind, and on this particular occasion as usual, it did. I just noticed it was an Infiniti and beige in color.”
As Graven approached Orange Grove, he saw the light was red, stopped pedaling and began coasting down the hill, slowing his speed to about 5 to 10 miles per hour. The light turned green before Graven reached Orange Grove and he watched Goodell’s car begin moving from a stopped position through the light, with no turn blinker on. Graven continued driving straight and, as he was entering the Mission/Orange Grove intersection, Goodell’s vehicle turned right, thereby causing the collision. Graven stated that although he attempted to maneuver right to avoid hitting Goodell’s car, he never tried to pass her on the right. He stated that the car hit his leg first, and he was thrown over the hood of Goodell’s car onto the pavement.
A police officer testified that, contrary to Goodell’s trial testimony, the officer’s accident report indicated Goodell told police she had come to a complete stop at the intersection of Mission and Orange Grove, and then began her turn. The officer later admitted that the statements in his report were based on information his partner had gathered during an interview with Goodell. The officer also admitted that, prior to writing the report, he could not recall writing any notes but merely “typed up what [he] remembered” his partner had said. Goodell testified that although she knew the report incorrectly stated that she had come to a full stop, she did not know she was permitted to ask the police to correct the report.
Finally, a third-party witness testified that, while pumping gas at a nearby station, he “believe[d]” he saw Goodell’s car come to a complete stop at the intersection of Mission and Orange Grove. The witness further stated that he could not recall the year in which the accident occurred and that there was nothing unusual about the manner in which Goodell executed her right turn.
After the parties had presented their evidence, Graven’s counsel made an oral motion for a directed verdict based on the fact that Goodell admitted she “did not look for a period of 30 seconds in her mirror... to make sure it was safe before she made the turn.” The trial court denied the motion, stating “I am not even going to ask for opposition. Denied... This is an issue for the jury.”
The court then reviewed the parties’ proposed jury instructions. Goodell’s counsel proposed an instruction modeled after California Civil Jury Instruction (CACI) number 411, stating: “every person has a right to expect that every other person will use reasonable care and will not violate the law, unless he or she knows, or should know, that the other persons will not use reasonable care or will violate the law.” Graven’s counsel objected to the instruction, arguing that it was not “appropriate... given the facts of this case” and would “confuse the jury.” The court permitted the instruction, explaining “this is just kind of standard language.”
After being instructed, the jury heard closing arguments. Graven and Goodell’s counsel offered opposing views on the appropriate conclusions that should be drawn from the evidence. Graven’s counsel asserted that:
If Miss Goodell had had her turn signal on before the accident occurred, it certainly would have provided a warning to Mr. Graven. But when you really look at the events and the facts of this accident, Mr. Graven was doing what he was allowed to do. He was allowed to ride his bicycle on that street... [¶]... [¶] The defendant was negligent because she failed to take the easiest most reasonable precautions to avoid the accident. [¶]... [¶] You don’t make a right turn without looking. That’s all it would have taken.... [¶]... [D]efendant] [ ] tr[ies] to say that Mr. Graven was at fault for this accident. And I ask you, what did he do wrong? [¶] There was no signal from this car... [¶] And Mr. Graven didn’t come from nowhere. He didn’t come out of a side street. He didn’t come out of the driveway.... He was operating his bicycle on the roadway and he had a right to do so.
Goodell’s counsel, on the other hand, contended that Goodell was not compelled to check her mirrors prior to turning and that Graven’s irresponsible actions were the cause of the accident:
I dare say that of the thousands of right turns that are being made during the time I’m making this closing argument, that if we had a video camera on every driver in Southern California, you probably wouldn’t see one who turns around and looks over at the curb and behind them. [¶] Why would you? There’s no reason to, okay? Unless his bicycle was right here – unless she drove right by him, and she knew he was right here – well, yeah, then that’s obviously a different situation. [¶] But he wasn’t. He was back here and he was coming real fast, and he was going downhill, and she didn’t have any way, no reasonably careful person would have had any way to anticipate that or think that he was going to come, cut to the right and try to pass her and go right.
Graven timely appealed the verdict.
DISCUSSION
Graven raises two issues in this appeal. First, he contends that there was insufficient evidence to support the jury’s verdict. Second, he argues that the trial court erred by including a “right to assume” instruction modeled on CACI No. 411.
A. The Jury’s Verdict is Supported by Substantial Evidence
1. Standard of review
“When a party contends insufficient evidence supports a jury verdict, we apply the substantial evidence standard of review. [Citations.] ‘“[T]he power of [the] appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the [verdict].” [Citations.]’ [Citation.]” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188 (County of Orange).) “Substantial evidence” is evidence that is reasonable, credible, and of solid value. (Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.) “[T]he testimony of a single witness, even the party himself may be sufficient.” (Chodos v. Insurance Co. of North America (1981) 126 Cal.App.3d 86, 97 (Chodos).)
“We must ‘view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor....’ [Citation.]” (County of Orange, supra, 169 Cal.App.4th at p. 1188.) Thus, “we defer to the trier of fact on issues of credibility. [Citation.] ‘[N]either conflicts in the evidence nor “‘testimony which is subject to justifiable suspicion... justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’” [Citations.] Testimony may be rejected only when it is inherently improbable or incredible, i.e., “‘unbelievable per se, ’” physically impossible or “‘wholly unacceptable to reasonable minds.’” [Citations.]’ [Citation.]” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) “Needless to say, a party ‘raising a claim of insufficiency of the evidence assumes a “daunting burden.” [Citation.]’ [Citation.]” (County of Orange, supra, 169 Cal.App.4th at p. 1188.)
2. There was sufficient evidence to support the jury’s verdict
Graven argued at trial that Goodell failed to exercise reasonable care in executing a right turn onto Orange Grove and, as a result, collided with his bicycle and proximately caused his injuries. The law is well-established that “‘the driver of any vehicle using a public street or highway [must]... exercise ordinary care at all times to avoid placing the driver or others in danger; and to use like care to avoid an accident; to keep a proper lookout for traffic and other conditions to be reasonably anticipated and to maintain a proper control of the vehicle.’” (Monreal v. Tobin (1998) 61 Cal.App.4th 1337, 1350 [citing and quoting BAJI No. 5.00]; see also CACI No. 700.) “‘The degree of care required in watching the movements of a particular machine depends upon the facts and circumstances existing at the time and place of the accident’ and a driver is required to use that degree of care, only, which would be required of a reasonably prudent driver under similar circumstances. [Citation.]” (Whitford v. Pacific Gas & Elec. Co. (1955) 136 Cal.App.2d 697, 701 (Whitford); see also Watkins v. Ohman (1967) 251 Cal.App.2d 501, 502-503 [“driver... was required to act as a reasonably prudent person under the same or similar circumstances”].) “‘[W]hether or not [a driver] has exercised ordinary care under the circumstances is usually a question of fact for the jury.’” (Miller v. Atchison, T. & S. F. Ry. Co. (1958) 166 Cal.App.2d 160, 170; see also La Fleur v. Hernandez (1948) 84 Cal.App.2d 569, 572-573 [whether driver’s actions were negligent “were questions to be determined by the jury”].)
The jury heard extensive testimony regarding the specific circumstances under which Goodell executed her right turn and concluded that she was not negligent. “As an appellate court, we are bound by that finding if it is supported by substantial evidence.” (Whitton v. State of California (1979) 98 Cal.App.3d 235.) In this case, the jury’s verdict was adequately supported by Goodell’s testimony. Goodell stated that, while driving down Mission Boulevard, she did not pass any bicyclists and therefore had no reason to believe that a bicyclist was approaching from the rear while executing her turn. She further stated that, 100 feet before making her turn, she turned on her right turn blinker and made sure there were no pedestrians in the cross walk. She then executed a turn from the far right lane. Based on Goodell’s testimony, there was substantial evidence that she did nothing negligent or out of the ordinary in executing her turn. (Chodos, supra, 126 Cal.App.3d at p. 97 [“The testimony of a single witness, even the party himself or herself, may be sufficient”].)
Although Graven’s trial testimony conflicted with Goodell’s version of events in certain key respects – he alleged that Goodell passed him on Mission and then failed to turn on her blinker – those conflicts were issues to be resolved by the jury. (Lenk, supra, 89 Cal.App.4th at p. 968 [“‘[N]either conflicts in the evidence nor “‘testimony which is subject to justifiable suspicion... justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends’”]; see also Hart v. Farris (1933) 218 Cal. 69, 72 [“While there was testimony tending to exonerate the driver of the automobile from fault, it merely created a conflict in the evidence to be determined by the jury”].)
Graven disagrees, arguing that the evidence compelled the jury to find Goodell failed to exercise reasonable care because she admitted she did not check her mirrors or look over her shoulder immediately prior to turning. In effect, Graven contends that, as a matter of law, drivers must always check their side and rear view mirrors before turning right no matter what the circumstance. Graven cites no statute or case law that imposes such an absolute requirement. Instead, he relies on authorities stating that failing to keep a “vigilant lookout” or “fail[ing] to see that which may be readily seen, if the driver is looking” may constitute negligence. (Huetter v. Andrews (1949) 91 Cal.App.2d 142, 146.) However, the jury, having been specifically instructed on a driver’s duty of care, concluded that Goodell did maintain a vigilant outlook.
The court instructed the jury 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....” It also instructed that a driver “must use reasonable care when turning or moving to the right.”
Goodell’s duty was to use only “that degree of care... which would be required of a reasonably prudent driver under similar circumstances. [Citation.]” (Whitford, supra, 136 Cal.App.2d at p. 702.) Goodell was not compelled to anticipate that an unseen bicyclist, approaching from the rear, might ignore her right hand turn signal and attempt to pass while she was executing her turn. Bicycle riders, like automobile drivers, are chargeable with using ordinary care when using public streets, (see generally Hunt v. Los Angeles Railway Corp. (1930) 110 Cal.App. 456, 460), and “every person has a right to presume that every other person will perform his duty and obey the law.” (Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 523.)
A. The Trial Court Did Not Err in Instructing the Jury
Graven next contends that the trial court erred in instructing the jury pursuant to CACI No. 411, which provides: “Every person has a right to expect that every other person will use reasonable care... unless he or she knows, or should know, that the other person will not use reasonable care.” Graven argues that, under the facts of this case, there was no basis for including the instruction. “The propriety of jury instructions is a question of law that we review de novo.” (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 410.)
“Instructions are proper where there is evidence which, if believed by the jury, applies to the set of facts recited in such instruction and will support the giving of such instruction.” (Whitton, supra, 98 Cal.App.3d at p. 246.) CACI No. 411, which is largely identical to the instruction in BAJI 3.13, applies to two aspects of the duty drivers owe to other persons on public roads: “(1) They must exercise ordinary care in their conduct, and (2) they must not have any reasonable cause to believe an accident will likely occur absent the misconduct of some third person. The second part of the instruction is a form of describing the rule of foreseeability.” (Id. at p. 245 [discussing BAJI § 3.13].) Thus, the instruction is appropriate “[i]f there is evidence on both sides of the question as to whether the conduct of a third person is or is not foreseeable, the jury instruction is correct. Its application or effect will depend on the finding of the jury as to whether the act of the third person should have been anticipated or foreseen.” (Id. at p. 246.)
Graven argues that this instruction was improper for two reasons. First, he contends that, by failing to check her mirrors prior to turning, Goodell did not exercise “ordinary care, which is required for the application of CACI 411.” In other words, Graven argues that the instruction does not apply here because the evidence conclusively demonstrates Goodell did not exercise reasonable care. (See Malone v. Perryman (1964) 226 Cal.App.2d 227, 234 [“this rule does not extend to a person who is not exercising ordinary care”].) This is but a variation on Graven’s argument that there was insufficient evidence to support the jury’s verdict, a contention we have already rejected.
Graven next contends that the instruction was inappropriate because there was no evidence that he failed to act with reasonable care and, as a result, there was no reason to invite the jury to consider whether his own misconduct caused the accident or whether such misconduct was foreseeable. Goodell testified that, while on Mission Street, she did not pass a biker and activated her right turn blinker 100 feet before she turned. Based on this evidence, the jury could reasonably infer that Graven came from the rear of Goodell’s car and, despite her right turn blinker, attempted to pass her while she was executing the turn. We therefore reject Graven’s contention that there was no evidence he engaged in misconduct or otherwise failed to abide by his duty of care.
The record also demonstrates that foreseeability was an issue in this case. Specifically, the jury had to consider whether Goodell knew or should have known that a bicyclist might be in the road when she began to turn right. Goodell testified that she did not pass a bicyclist at any point prior to turning right on Orange Grove, and therefore had no reason to believe that a bicycle might be approaching from her rear. Graven, on the other hand, testified that Goodell passed him before reaching Orange Grove, suggesting that she should have known a bicycle was approaching when she made her turn. These conflicting accounts demonstrate there was evidence “on both sides of the question as to whether the conduct of [Graven was]... foreseeable, ” and CACI No. 411 was therefore appropriate. (Whitton, supra, 98 Cal.App.3d at p. 246.)
Graven also argues that CACI No. 411 is only designed to “gauge plaintiff’s conduct, not the conduct of defendants.” Graven’s contention finds no support in the law. (See generally Whitton, supra, 98 Cal.App.3d at pp. 244-246 [CACI No. 411 appropriate when given in support of defendant]; In re Air Crash Disaster (6th Cir. 1996) 86 F.3d 498, 520 [same].)
DISPOSITION
The trial court’s judgment in favor of Respondent is affirmed. Respondent is awarded her costs on appeal.
We concur: PERLUSS, P. J., JACKSON, J.