Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG04151907
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.
In this personal injury case arising from a collision between a bicycle and an automobile, plaintiff Warren C. Havens (plaintiff) appeals from a judgment entered after a jury verdict in favor of defendant Marvin T. Brown (defendant). Plaintiff, the bicyclist in the accident, challenges the jury’s finding that defendant was not negligent. Plaintiff also maintains the trial court erred by declining to give certain proposed jury instructions and by declining to admit certain evidence. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We include a description of the intersection and the accident, based on the testimony of plaintiff and defendant. In part II.A.3 below, we discuss additional evidence relating to the accident, in connection with our discussion of plaintiff’s argument that the jury’s verdict is not supported by substantial evidence.
The accident occurred on April 20, 2002, at approximately 7:00 p.m., at the intersection of Parker Street and Piedmont Avenue in Berkeley. At the time of the collision, it was still daylight and visibility was clear.
The intersection of Parker and Piedmont is a four-way stop, i.e., there is a stop sign at each of the four entrances to the intersection. The intersection is also divided by a diagonal barrier or barricade consisting of six concrete “bollards” in a line from the northeast corner to the southwest corner of the intersection. On the ground near the southwest corner of the intersection, and between the two bollards closest to that corner, is a low metal rod. Because of the barrier, cars must turn rather than drive straight through the intersection. However, bicyclists are permitted to ride between the bollards and proceed straight through the intersection. At the intersection, there is only one lane in each direction on Parker and on Piedmont.
Plaintiff’s accident reconstruction expert, Toby Gloekler, prepared a diagram of the intersection, which was admitted into evidence at trial. Photographs of the intersection were also admitted. Finally, Gloekler videotaped plaintiff riding a bicycle through the intersection in the manner plaintiff contends he rode on the day of the accident; two stills from this videotape were admitted into evidence at trial.
The photographs and video stills submitted by plaintiff show that “Do Not Enter” signs are posted on both sides of one of the bollards, and it appears that these signs are visible to traffic approaching the intersection from any of the four directions. Below each of the “Do Not Enter” signs is another sign, which, according to plaintiff, says “Emergency Vehicles and Bicycles Excepted.” The text on these lower signs is not readable on the copies of the photographs that plaintiff submitted to this court; however, defendant does not dispute that bicyclists are permitted to ride between the bollards and proceed straight through the intersection.
Plaintiff, a competitive amateur long-distance bicyclist, was riding his bicycle east (and slightly uphill) on Parker Street. He was planning to ride up Parker, around the University of California at Berkeley campus, to Tilden Park, where he planned to do a training ride. The bicycle he was riding was a “racing bike,” and he was wearing bicycling shoes with toe clips that clip into the pedals of the bicycle.
When plaintiff reached the intersection of Parker and Piedmont, he did not come to a complete stop at the stop sign. Plaintiff did not stop because doing so would have required him to take his foot out of the pedal and then clip it back in. According to plaintiff, it was not his “custom and practice” or the custom and practice of other riders of racing bicycles with toe clips to come to a complete stop at an intersection “unless [there] is significant traffic or there is a cause to stop and take your feet out of the pedal.” In addition, plaintiff testified, the stop sign at the intersection of Parker and Piedmont “didn’t seem that relevant[,]” because it was not until he reached the barricade (several feet past the stop limit line) that he would need to make the decision whether or not to go through the intersection. According to plaintiff, “I didn’t see any reason to come to a full stop.”
Plaintiff estimated that he had been traveling at 10-12 miles per hour and slowed to a “fast walk” pace as he rode past the stop sign. Plaintiff then crossed through the barricade. He proceeded to ride between the low metal rod (which was on his right) and the second concrete bollard (which was on his left). Plaintiff did not accelerate between the time he passed the stop sign and the time he rode through the barricade.
When he was close to the barricade or just past the barricade, plaintiff first saw defendant’s car, which was coming toward him (westbound on Parker) and making a left turn from Parker onto southbound Piedmont Avenue. Plaintiff swerved and braked in an effort to avoid a collision, but defendant’s car and plaintiff’s bicycle collided.
The collision threw plaintiff off his bicycle and onto the hood and windshield of the car. The impact of plaintiff’s body left cracks in the windshield and dents in the hood of the car. Plaintiff rolled off the car and fell onto the street. As a result of the collision, he claimed to have sustained injuries to his back and shoulders. Plaintiff also claimed damages in the form of medical expenses, property damage (to his bicycle and helmet), and lost income.
As mentioned, defendant was driving his car west on Parker Street toward the intersection with Piedmont Avenue. Because of the barrier, defendant was required to make a left turn onto southbound Piedmont. He stopped at the stop sign before entering the intersection, waiting for a woman jogger to pass in front of his car. Defendant could then see clearly into the intersection and saw that no one was coming through the barricade. Defendant “didn’t look specifically to see if there was a bicyclist coming through the barricade[.]”
Defendant then made a left turn onto Piedmont Avenue. As he was making the turn, he did not look right and left but looked ahead in the direction his car was moving and “followed the arc of the car.” Defendant never saw plaintiff until plaintiff’s body hit the windshield and hood of his car. Defendant estimated that he was driving at about 3-5 miles per hour when the collision occurred, and he stopped his car immediately after the collision.
As we will discuss in greater detail, plaintiff and defendant each called their own accident reconstruction expert at trial. It was no surprise that the two experts reached different conclusions about the accident. Plaintiff’s expert, Toby Gloekler, opined that plaintiff entered the intersection first and therefore “controlled” the intersection and had the right-of-way. Defendant’s expert, Dr. Richard Stuart, opined that, when defendant began his left turn, plaintiff had not yet reached the stop sign or entered the intersection. The parties also disagreed as to which of them had hit the other: plaintiff testified that defendant’s car hit his bicycle, while defendant testified that plaintiff’s bicycle hit his car.
B. Procedural Background
At the conclusion of the trial, the jury returned a special verdict finding that defendant was not negligent in connection with the accident. Because of this finding and pursuant to the instructions on the special verdict form, the jury did not reach the remaining questions on the form, including whether plaintiff was contributorily negligent. The trial court entered judgment in favor of defendant in accordance with the jury’s verdict.
Plaintiff filed a motion for a new trial. After a hearing, the trial court denied the motion.
Plaintiff filed a timely notice of appeal.
II. DISCUSSION
A. The Jury’s Finding That Defendant Was Not Negligent
1. Standard of Review
Plaintiff challenges the sufficiency of the evidence to support the jury’s special verdict finding that defendant was not negligent. When an appeal challenges the trier of fact’s resolution of a disputed factual issue, we apply the deferential “substantial evidence” standard of review. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053 (Bickel), superseded by statute on other grounds in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.) Under this standard, “ ‘ “the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) We must therefore 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 . . . .’ ” (Bickel, supra, 16 Cal.4th at p. 1053, quoting Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660; accord Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 544, overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal.4th 548.)
Where the party challenging the verdict had the burden of proof at trial, the question for the reviewing court is whether the evidence required a verdict for that party as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571 (Roesch); Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.) Because plaintiff had the burden to prove by a preponderance of the evidence that defendant was negligent (e.g., Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482-483 (Leslie G.)), we may only reverse the verdict if the evidence compelled a finding that defendant was negligent. (See Goncalves v. Los Banos Mining Co. (1962) 58 Cal.2d 916, 918 (Goncalves) [where jury found that a defendant in an automobile collision case was not negligent and the plaintiff appealed, the question on appeal was “whether the evidence establishes as a matter of law that [the defendant] was negligent”].) Specifically, even if the testimony plaintiff presented at trial was “uncontradicted and unimpeached,” we may only reverse if that testimony was “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding [that defendant was negligent].” (See Roesch, 24 Cal.2d at p. 571.)
2. Jury Instructions On The Standards For Determining Whether Defendant Was Negligent
We assess the sufficiency of the evidence to support the verdict under the law stated in the instructions given to the jury, specifically the instructions explaining the standards for determining whether defendant was negligent. (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 674-675; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1530, 1534-1535.) Here, the trial court, relying principally on standard CACI instructions, explained to the jury both general principles of negligence and relevant provisions of the Vehicle Code.
As discussed further in part II.B. below, plaintiff asserts on appeal that the trial court erred by refusing to give certain additional instructions relating to whether plaintiff was obligated to stop his bicycle at the stop sign and/or at the barricade.
Instructing the jury as to the elements of a negligence claim (CACI No. 400), the court identified negligence as “the failure to use reasonable care to prevent harm to oneself or to others” (CACI No. 401). It then explained that a person must use reasonable care in driving a vehicle, including keeping a lookout for pedestrians, obstacles, and other vehicles, and that the failure to exercise reasonable care while driving constitutes negligence (CACI No. 700). The jury also received instruction under CACI No. 411: “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 person will not use reasonable care or will violate the law.”
As to the more specific Vehicle Code provisions, the court explained that, under Vehicle Code section 21200, a person riding a bicycle on a street or highway “has all the rights and is subject to all the provisions applicable to the driver of a vehicle[,] [e]xcept those provisions which by their nature can have no application.” (See § 21200, subd. (a).) The court then instructed the jury that, under section 22450, the driver of a vehicle approaching a stop sign at the entrance to an intersection must stop at the limit line. (See § 22450, subd. (a).) This was followed by an instruction as to the responsibilities of a driver making a left turn, using the language of section 21801 and CACI No. 704. Section 21801, subdivision (a), provides that the driver of a vehicle intending to make a left turn must “yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn or U-turn can be made with reasonable safety.” (§ 21801, subd. (a).) Section 21801, subdivision (b), specifies that, after yielding as required in subdivision (a), and after signaling, a driver may make a left turn “and the drivers of vehicles approaching the intersection . . . from the opposite direction shall yield the right-of-way to the turning vehicle.” (§ 21801, subd. (b).)
All further statutory references are to the Vehicle Code unless otherwise specified.
After reading the foregoing instructions, the trial court gave CACI No. 704, which provides that a “hazard” (as used in section 21801) exists “if any approaching vehicle is so near or is approaching so fast that a reasonably careful person would realize that there is a danger of a collision or accident.” (CACI No. 704.) The court also read the portion of CACI No. 704 that states: “A driver who is attempting to make a left turn must make sure that no oncoming vehicles are close enough to be a hazard before he or she proceeds across each lane.” (CACI No. 704.) Finally, the court instructed the jury generally that a driver “must use reasonable care when turning.”
The court’s final instruction on the responsibilities of drivers concerned the definition of “right-of-way” (CACI No. 701). The court explained: “[W]hen the law requires a driver to yield the right-of-way, this mean[s] that the driver must let the other person or vehicle go first. Even if someone has a right-of-way, that person must use reasonable care to avoid an accident.”
3. Analysis
In challenging the sufficiency of the evidence to support the jury’s finding that defendant was not negligent, plaintiff focuses on defendant’s testimony that he did not see plaintiff until his body hit the windshield and hood of the car. Plaintiff maintains this testimony established that defendant was at least partially at fault for the collision, because a reasonable driver exercising due care would have seen plaintiff before the impact. We conclude that neither this testimony nor the other evidence in the record required a verdict for plaintiff as a matter of law. (See Roesch, supra, 24 Cal.2d at pp. 570-571; Caron, supra, 133 Cal.App.2d at p. 409.)
Plaintiff’s initial argument is that defendant “admitted” at trial that he was at least partially at fault for the accident since he did not see plaintiff before the impact. However, the testimony plaintiff cites on this point does not support his contention. The relevant testimony states:
“[Plaintiff’s Counsel]: Do you admit that the accident was at least partially your fault?
“[Defendant]: I could have seen [plaintiff]. I didn’t see him. I mean, he was just there on my hood. So if I had seen him, maybe I could have done something else, I don’t know. But I didn’t see him.”
Contrary to plaintiff’s assertion, this testimony is not an unambiguous “admission” by defendant that he acted negligently or that he was partially at fault for the accident. At best, the testimony is ambiguous as to defendant’s belief about the circumstances under which he might have, or “could have,” seen plaintiff, and about whether he would have been able to avoid the accident if he had seen him. Defendant did not testify that he believed he was not careful or did not act reasonably.
In fact, as plaintiff observes in his opening brief, defendant testified that he believed he was not legally at fault for the accident because he stopped at his stop sign while plaintiff did not stop at his. Plaintiff criticizes this testimony, arguing that defendant’s opinion on this point is a legal conclusion that does not bear on the factual question of whether defendant exercised due care. While plaintiff is correct that any opinion by defendant as to whether he was legally negligent would not control the jury’s determination of whether defendant exercised reasonable care, defendant’s testimony on this point further undercuts plaintiff’s assertion that defendant unequivocally admitted that he was negligent.
Plaintiff also argues more broadly that defendant’s testimony about where he was looking before and during his left turn establishes that he breached his duty to look to determine if he had the right-of-way and to use reasonable care to avoid an accident even if he had the right-of-way. In particular, plaintiff asserts that defendant effectively admitted his own negligence by testifying that (1) he did not look to see if a bicycle was coming through the barricade; and (2) he looked in the direction his car was traveling (i.e., he “followed the arc of the car”) instead of looking down Parker Street in the direction from which plaintiff was coming. Contrary to plaintiff’s arguments, we conclude that the evidence relating to these issues did not require as a matter of law a finding that defendant acted negligently, either before or during his left turn.
a. Whether Defendant Exercised Reasonable Care Before He Began His Left Turn
The record before us does not support a finding that defendant failed to check to see if he had the right-of-way before he began his left turn. According to defendant, after he stopped at the stop sign and waited for a jogger to pass in front of his car, he could see clearly into the intersection, and he saw that no one was coming through the barricade. Plaintiff points out that defendant also testified he “didn’t look specifically to see if there was a bicyclist coming through the barricade[.]” These passages of testimony, taken together, are somewhat ambiguous as to how carefully defendant studied the intersection and the barricade. Viewing the evidence in the light most favorable to defendant, it nevertheless supports a conclusion that defendant did look into the intersection and at the barricade and determined that there were no oncoming persons or vehicles to whom he needed to yield because they were “close enough to constitute a hazard at any time during the turning movement[.]”
In his opening brief, plaintiff offers that defendant “had been looking at a lady jogger.” Defendant testified that he saw the jogger pass in front of his car but did not continue looking at her after she cleared the intersection; at that point, he looked straight ahead into the intersection.
Plaintiff disputes this conclusion, contending that, if defendant really had been looking to see whether there were oncoming persons or vehicles that were close enough to constitute a hazard, he necessarily would have seen plaintiff. Plaintiff cites his own testimony that it was daylight at the time of the accident, visibility was clear, and plaintiff was wearing a bright yellow bicycling jersey. However, whether defendant would have seen plaintiff when he looked into the intersection before beginning his left turn would have depended on where plaintiff was at that time. For instance, if plaintiff had not yet reached his own stop sign when defendant looked and began his turn, it would have been reasonable for defendant not to have looked that far up Parker Street, because any person or vehicle in that location would not be close enough to constitute a hazard at any time during the turning movement. As reflected in the jury instructions, any vehicle or bicyclist heading east on Parker Street (i.e., any “oncoming” traffic from defendant’s perspective) was obligated to stop at the stop sign before entering the intersection (§§ 22450, subd. (a), 21200, subd. (a)). We are also mindful the jury was instructed that the defendant had a “right to expect” any oncoming bicyclist would use reasonable care and would not violate the law (i.e., the bicyclist would stop at the stop sign), unless he knew or should have known that the oncoming bicyclist would not use reasonable care or would violate the law.
Plaintiff also asserts that he “was not emerging from behind any obstruction into [defendant’s] line of sight.” However, plaintiff’s expert, Toby Gloekler, pointed out that plaintiff would at one point in his ride have passed behind the “Do Not Enter” sign that is posted on top of one of the bollards. Plaintiff’s counsel also acknowledged in his closing argument at trial that plaintiff might have been “blocked for a moment by the sign[.]”
For example, in Goncalves, a car travelling on a through highway collided with a car on a cross-street that had run a stop sign and entered the intersection with the through highway. (Goncalves, supra, 58 Cal.2d at pp. 917-918.) The driver of the car on the through highway, Sanchez, claimed that she looked straight ahead and “did not concern herself with possible approaching traffic on [the cross-street] because she knew there was a stop sign.” (Id. at p. 919.) The Supreme Court held that Sanchez was “entitled to assume” that any driver on the cross-street approaching the intersection would stop at the stop sign, unless and until she knew or should have known that the driver on the cross-street would not stop. (Ibid.) It was for the jury to decide at what time prior to the collision, if at all, Sanchez should have known that the driver on the cross-street would fail to stop and whether Sanchez thereafter could have taken any action that would have avoided the collision. (Ibid.; accord Inouye v. McCall (1939) 35 Cal.App.2d 634, 638 (Inouye) [driver on through highway was entitled to assume that driver of truck on cross-street would stop at stop sign before entering intersection].) Similarly, here, defendant was entitled to assume that any oncoming bicyclist approaching the intersection would stop at the stop sign, unless and until he knew or should have known that the bicyclist would not stop. And it was for the jury to decide when, if at all, defendant should have known plaintiff would fail to stop at the stop sign.
If plaintiff had proven that he had already passed his stop sign and entered the intersection when defendant looked to see whether it was safe to begin his left turn, then plaintiff’s argument that defendant was negligent for failing to see plaintiff would be much stronger. However, the evidence did not require the jury to conclude that plaintiff had reached his stop sign or entered the intersection when defendant looked and decided to begin his turn.
The parties’ accident reconstruction experts provided differing testimony on this point. Plaintiff’s expert, Toby Gloekler, inspected the intersection and found there was no physical evidence establishing the precise location within the intersection at which the collision occurred. However, based on his understanding of the paths along which defendant’s car and plaintiff’s bicycle travelled, Gloekler identified a location at which he believed the collision occurred. Gloekler then provided estimates as to how long it would have taken each of the two vehicles to reach that location after entering the intersection.
Gloekler videotaped plaintiff riding his bicycle through the intersection on October 6, 2005 (more than two years after the accident) in what plaintiff said was the same manner he had ridden on the day of the accident. Based on the speed at which plaintiff rode his bicycle during this inspection, Gloekler opined that it would have taken plaintiff “about four seconds” from the time he crossed his stop limit line to reach the point of impact with defendant’s vehicle. Assuming the defendant accelerated his car at an average rate of five feet per second squared, defendant’s car was in the intersection for approximately 2.2 seconds. Gloekler concluded that plaintiff entered the intersection first and therefore “controlled” the intersection and had the right-of-way. Gloekler opined that, when defendant began his left turn, plaintiff had crossed his own limit line, although he had not yet passed the barricade.
However, a jury was not required to accept a reconstruction expert’s opinions as to the location of the accident, the speed at which a party was riding, the rate at which one was accelerating his car, or conclusions as to how long each party had been in the intersection when the collision occurred. As long as it does not act arbitrarily, a jury may reject the testimony of any lay or expert witness, even when some or all of the witness’s testimony is uncontradicted. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632-633 (Howard) [even where defendant offered no expert testimony contradicting plaintiff’s expert, jury was not required to accept the conclusions of plaintiff’s expert].)
It would not have been arbitrary for the jury to reject some or all of Gloekler’s conclusions. Gloekler’s estimates as to the precise location of the accident and the speed at which plaintiff was riding were based on plaintiff’s recollections and his reenactment of where and how he rode on the day of the accident. The jury could reasonably have concluded that plaintiff’s recollections on these subjects (and his reenactment more than two years after the accident) were not reliable.
For example, the trial court, in denying plaintiff’s motion for a new trial, noted that “[t]he jury could consider that [plaintiff] was going faster than he said he was[.]”
As for Gloekler’s estimates concerning defendant’s travel just before the collision, Gloekler acknowledged that he did not know how quickly defendant accelerated. Gloekler testified that he therefore made an “assumption” that defendant accelerated at a rate of five feet per second squared, which he believed to be “pretty average” and which he derived from “some trial and error, basically, based on some tabulated data from some motorist accelerating.” Gloekler acknowledged that this assumption was an important part of his analysis, noting that the accuracy of his estimate as to where plaintiff was when defendant began his turn “really depends on how rapidly [defendant] accelerated.” Again, the jury reasonably could have concluded that Gloekler’s assumption as to defendant’s acceleration rate was not persuasive or well-supported enough to establish that plaintiff was in the intersection when defendant looked into the intersection and began his left turn.
Moreover, Gloekler’s related testimony that defendant was in the intersection for only 2.2 seconds before the collision was challenged by defendant’s expert, Richard Stuart. Stuart testified that if Gloekler were correct that defendant was accelerating at five feet per second squared and had travelled for 2.2 seconds, he only would have travelled approximately 12.2 feet. Because it was approximately 10 feet from the limit line to the extended curb line, the front of defendant’s car would, under these calculations, only extend approximately two feet past the extended curb line into the intersection, which would not be close to the collision location identified by Gloekler. This discrepancy lends credence to the conclusion that a decision by the jury to reject some or all of Gloekler’s analysis would not have been arbitrary.
In rebuttal, Gloekler testified that the 2.2 seconds figure he had mentioned in his earlier testimony was the time he estimated defendant was in the interior of the intersection after passing the extended curb line, rather than the time after defendant passed the stop limit line. Gloekler opined that the total distance from the limit line to the point of impact would be approximately “22-24 feet,” which defendant would have covered in 2.9 seconds.
The jury also might have credited some or all of Stuart’s testimony. Stuart disagreed with Gloekler as to the precise location of the accident within the intersection and the length of time defendant was in the intersection. Stuart testified that it was his understanding, based on reading either plaintiff’s deposition or another statement made by plaintiff, that plaintiff rode his bicycle closer to the curb than plaintiff had stated in his trial testimony. Specifically, Stuart testified that it was his understanding that plaintiff rode to the south of the low metal bar (which was on his left) and to the north of the concrete bollard that was nearest to the southeast corner of the intersection (which was on his right). Stuart believed plaintiff rode along that route because “[m]ost cyclists do not ride out in the middle of the road,” and he assumed plaintiff “was like an average bicyclist.” (Plaintiff, of course, testified that he rode closer to the center of the intersection, i.e., between the second concrete bollard (which was on his left) and the low metal rod (on his right).)
Based in part on this understanding, Stuart identified the location within the intersection at which he believed the collision occurred, which was different from the spot Gloekler had identified. Stuart estimated that plaintiff travelled approximately 25 feet from his limit line to the point of impact, while defendant travelled approximately 37 feet from his limit line. Using Gloekler’s estimate of how quickly defendant accelerated (which Stuart thought probably was too high), Stuart estimated that defendant’s car was in the intersection for approximately 3.9 seconds before the collision occurred. Stuart offered that it was necessary to “tack on” another second (for a total of almost five seconds before the impact) to account for the time defendant would have needed to look at the intersection, decide to proceed, and move his foot from the brake pedal to the accelerator. According to Stuart, the relevant question in determining whether defendant exercised reasonable care is “where is the bicyclist [i.e., plaintiff] five seconds before the impact[.]” Stuart’s answer to this question: “almost regardless of how fast you assume [plaintiff is] going, [he] is going to be a long ways away and behind the barriers.” Thus, when defendant looked and then started moving into the intersection, plaintiff still had not reached his stop sign.
Plaintiff criticizes Stuart for adding this extra second, noting Stuart agreed that consideration of the extra second does not establish which party entered the intersection first or “controlled” the intersection. However, the jury reasonably could have concluded that, as Stuart explained, adding an extra second was appropriate to establish the time at which defendant looked and decided whether it was safe to begin his left turn.
Stuart further opined that a driver in defendant’s position would be unlikely to notice a bicyclist approaching from the opposite direction, in part because the driver would expect that the bicyclist would stop at his stop sign, and in part because the driver just would not expect or look for a bicyclist until after the bicyclist passed through the barricades. Contrary to plaintiff’s suggestion, Stuart did not state that defendant was not exercising reasonable care or that defendant would or should have seen plaintiff if he had been paying sufficient attention.
Plaintiff maintains that Stuart’s testimony does not constitute substantial evidence supporting the verdict. As plaintiff urges, expert opinion testimony does not constitute substantial evidence if it is based on conclusions or assumptions not supported by evidence in the record. (Hongsathavij v. Queen of Angels Etc. Medical Center (1998) 62 Cal.App.4th 1123, 1137.) It is certainly true that opinion testimony, which is speculative or conjectural, “cannot rise to the dignity of substantial evidence.” (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135; Leslie G., supra, 43 Cal.App.4th at p. 487.) However, we conclude that plaintiff’s criticisms of Stuart’s testimony fail to establish that the verdict in this case is unsupported by substantial evidence.
Plaintiff first claims that Stuart’s testimony as to where he believed plaintiff rode through the intersection (i.e., to the south of the low metal bar) is not supported by the record, because plaintiff testified at trial that he rode to the north of the bar; and it therefore follows that Stuart’s conclusion as to the location of the collision and his testimony that defendant was in the intersection before plaintiff are flawed. Even if plaintiff did not testify or state that he rode to the south of the metal bar, as Stuart claims he recalled reading in plaintiff’s deposition or other statement, and even if Stuart were unjustified in concluding that is where an average bicyclist would ride, this would not compel a verdict for plaintiff. Stuart testified that even if plaintiff had not ridden south of the bar, that would not change his calculations significantly, and he continued to voice the view that, when defendant looked into the intersection and began his turn, plaintiff had not yet reached his stop sign. The jurors were not required to accept plaintiff’s or Gloekler’s testimony as to how the accident occurred, whether or not they credited all of Stuart’s analysis.
On cross-examination, plaintiff’s counsel challenged Stuart on this point, asserting plaintiff had not testified in his deposition that he rode “close to the curb.” Stuart agreed and said, “I have been trying to find that someplace. We got that testimony which you guys should know[.]” Later, after plaintiff had rested (and after the trial court understood that defendant had also rested), defendant’s counsel sought to read in rebuttal a portion of plaintiff’s deposition transcript. According to defendant’s counsel, in the proffered deposition testimony, plaintiff was asked where he rode his bicycle, and plaintiff responded by drawing a line on a diagram of the intersection that was consistent with Stuart’s understanding (i.e., close to the curb and south of the metal rod) and that contradicted plaintiff’s trial testimony. The trial court declined to permit defendant to introduce the deposition passages in rebuttal since the taking of evidence had closed, and defendant had shown no reason for failing to timely introduce the deposition passages. The transcript of plaintiff’s deposition is not included in the record plaintiff submitted to this court.
a. Whether Defendant Exercised Reasonable Care While Making His Left Turn
Nor did the evidence, as a matter of law, require the jury to find that defendant failed to exercise due care after he began his left turn. As mentioned, defendant testified that, after he stopped at the stop sign, waited for the jogger to pass, and looked into the intersection, he began his left turn; as defendant turned, he did not look right and left but looked ahead in the direction his car was moving and “followed the arc of the car.” Plaintiff argues that defendant’s testimony that he looked in the direction his car was travelling, instead of continuing to look down Parker Street (in the direction from which plaintiff was coming) to check for oncoming vehicles, establishes that defendant was negligent under the applicable jury instructions. We disagree.
When a driver intends to make a left turn, he first must yield the right-of-way to any oncoming vehicles that are “close enough to constitute a hazard at any time during the turning movement” and must continue to yield until the left turn “can be made with reasonable safety.” (§ 21801, subd. (a).) After yielding in this manner, the driver has the right-of-way to turn left, and drivers of vehicles approaching from the opposite direction (including bicyclists) must yield to the turning vehicle. (§§ 21801, subd. (b), 21200, subd. (a).) For the reasons previously discussed, the jury reasonably could have found that defendant properly checked to see if he had the right-of-way before beginning his turn. Contrary to plaintiff’s urgings, defendant was not required to continue to yield to oncoming vehicles during his turn; instead, it was plaintiff’s duty to yield the right-of-way to defendant. (§§ 21801, subd. (b), 21200, subd. (a).)
Plaintiff appears to suggest that several instructions required defendant to continue to look for, and yield to, oncoming persons or vehicles as he was turning. The first of these, which defendant mentions in passing in his reply brief, is the second paragraph of CACI No. 704 stating: “A driver who is attempting to make a left turn must make sure that no oncoming vehicles are close enough to be a hazard before he or she proceeds across each lane.” (CACI No. 704, italics added.)
CACI No. 704 does not compel a finding that defendant was negligent. The cited language, which is based on Sesler v. Ghumman (1990) 219 Cal.App.3d 218 (Sesler), requires that a driver who is making a left turn across multiple lanes of oncoming traffic must, during the turn, check before crossing each oncoming lane to make sure that it is safe to cross that lane. According to the “Directions for Use” for CACI No. 704, this portion of the instruction should be given “in appropriate cases involving multiple lanes of oncoming traffic.” (CACI No. 704, Directions for Use, citing Sesler, supra, 219 Cal.App.3d at p. 227.) In Sesler, the plaintiff, a motorcyclist, made a left turn across three lanes of oncoming traffic at an intersection where there were no traffic signals or stop signs. (Sesler, supra, 219 Cal.App.3d at pp. 220-222.) Drivers in the first two lanes had stopped and signaled for the plaintiff to proceed with his left turn. (Id. at p. 221.) The plaintiff (Sesler) proceeded with his turn although he was unable to see whether there were any vehicles approaching in the third lane. Sesler also could not recall looking to the right for oncoming traffic during his turn, and he proceeded to cross the third oncoming lane without stopping. (Id. at pp. 221-222.) The defendant, who was driving in the third oncoming lane, struck Sesler’s motorcycle. (Id. at p. 222.) Relying on In re Kirk (1962) 202 Cal.App.2d 288, Sesler held: Because section 21801, subdivision (a), states that a driver intending to make a left turn must yield the right-of-way to any oncoming vehicles that are close enough to constitute a hazard “ ‘at any time during the turning movement,’ ” a driver who begins to turn left and crosses one lane of oncoming traffic (because the lane is clear or because the oncoming driver has waived the right-of-way) may not proceed across the next lane of oncoming traffic until he or she has determined that no oncoming vehicles in that lane are close enough to constitute a hazard. (Sesler, supra, 219 Cal.App.3d at pp. 223-224, quoting Kirk, supra, 202 Cal.App.2d at p. 291.) This may require the turning driver to stop or pause before crossing each lane of traffic. (Id. at p. 224.) Consequently, the driver of the oncoming car that struck the motorcyclewas entitled to an instruction describing Sesler’s obligation to check each lane of oncoming traffic before crossing it. (Id. at pp. 222-226.)
There was only one traffic lane in each direction on Parker Street at the intersection with Piedmont Avenue. The “Directions for Use” for CACI No. 704 do not provide for the use of the cited portion of the instruction in a case involving a left turn that crosses only one lane of oncoming traffic. (CACI No. 704, Directions for Use.) Given these facts,the cited portion of CACI No. 704 was inapplicable. Although the full instruction was given, the jury reasonably could have found that defendant satisfied his obligation under the instruction by checking for hazards in the only oncoming lane before he began his left turn across that single lane. This instruction did not require defendant to stop or look down Parker Street again in the middle of his turn to determine whether any oncoming vehicles that he had not seen before he began his turn were now approaching. This is particularly true since any such oncoming vehicles (plaintiff) were obligated to stop at the stop sign, and defendant was entitled to assume that they would do so. (§ 22450, subd. (a).)
The other instruction on which plaintiff appears to rely in arguing that defendant was required to continue looking down Parker Street while he made his turn onto Piedmont Avenue is the general instruction requiring a driver with the right-of-way to exercise reasonable care to avoid an accident. Plaintiff contends that, even if defendant properly looked for oncoming vehicles before beginning his left turn and therefore had the right-of-way, defendant was required to continue to look up Parker Street for oncoming vehicles. However, the jury reasonably could have concluded that, once defendant began his turn across the single oncoming lane (which he had already checked for hazards), it was reasonable for him to look where he was going, i.e., to “follow[] the arc of the car,” as he completed his turn. Such a conclusion is buttressed by the fact that defendant was entitled to assume that any oncoming vehicles were required to stop at the stop sign. (§ 22450, subd. (a).)
The evidence before the jury did not require as a matter of law a finding that defendant was negligent.
B. Additional Instructional and Evidentiary Issues
Plaintiff asserts the trial court erred by declining to give three of plaintiff’s proposed special jury instructions and by declining to admit certain evidence. The instructions and evidence at issue relate to plaintiff’s argument that his failure to stop at the stop sign did not establish that he was contributorily negligent. The jury found that defendant was not negligent, so it did not reach the question of whether plaintiff was contributorily negligent. Because the jury’s finding that defendant was not negligent was supported by substantial evidence, we would normally not address the correctness of any trial court rulings on proffered instructions or evidence that relate solely to plaintiff’s contributory negligence.
However, in the circumstances of this case, it is possible the jurors considered plaintiff’s failure to stop at the stop sign in reaching their verdict that defendant was not negligent. For example, in assessing whether defendant exercised reasonable care, the jurors could have considered defendant had a right to expect that any oncoming bicyclist would stop at the stop sign. We therefore elect to address plaintiff’s challenges to the trial court’s rulings on the instructions and evidence that plaintiff proffered on this issue.
Nevertheless, we are not accepting plaintiff’s argument that the jury must have improperly “conflated” the issues of whether defendant was negligent and whether plaintiff was contributorily negligent. We merely recognize that the jury’s understanding of plaintiff’s obligation to stop at the stop sign may have been a legitimate factor in its determination that defendant was not negligent.
1. Standard of Review
A party generally has the right to jury instructions on his or her theory of the case, if the instructions are reasonable and supported by the pleadings and the evidence, or any inference that may properly be drawn from the evidence. (E.g., Thomas v. Intermedics Orthopedics, Inc. (1996) 47 Cal.App.4th 957, 965 (Thomas); Sesler, supra, 219 Cal.App.3d at p. 223.) However, a party is not entitled to instructions that incorrectly state the applicable law (see, e.g., Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 333-334 (Hyatt)), or instructions on legal theories that are untenable as a matter of law. (See, e.g., Thomas, supra, 47 Cal.App.4th at p. 966; Cain v. State Farm Mut. Auto. Ins. Co. (1975) 47 Cal.App.3d 783, 797.) The trial court also is not required to give instructions that are argumentative, overbroad, misleading, or confusing. (Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 717-718 (Fibreboard); Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 301-303.) When a proposed instruction is erroneous, misleading or incomplete, the trial court may properly reject the instruction and is not required to modify or correct it. (Fibreboard, supra, 227 Cal.App.2d at p. 717; Hyatt, supra, 79 Cal.App.3d at p. 335.) The validity of a jury instruction is a legal question that we review de novo. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 831.)
We review a trial court ruling admitting or excluding evidence for abuse of discretion. (E.g., People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640.)
2. Plaintiff’s Proposed Instruction and Evidence on Custom and Practice
a. Background
Plaintiff testified that it was not plaintiff’s custom and practice or the custom and practice of other riders of racing bicycles with toe clips to come to a complete stop at an intersection unless there is significant traffic or some other reason to stop and unclip from the pedal. Plaintiff sought to offer additional testimony concerning whether other bicyclists plaintiff had ridden with in Berkeley or in amateur bicycle races customarily came to a stop at stop signs. The trial court ruled that such testimony was not relevant. Plaintiff’s counsel next sought permission to elicit testimony from Gloekler, plaintiff’s accident reconstruction expert and a former law enforcement officer, that it is the custom and practice of bicyclists wearing toe clips “to not actually stop” at stop signs and that police generally do not issue tickets to such bicyclists. The trial judge stated that a custom or practice of not obeying the traffic laws is not a legal excuse, and he apparently excluded the evidence as irrelevant.
In the on-the-record discussion of this issue, the trial judge stated that it was his inclination to exclude the evidence as irrelevant, but he would consider the issue overnight and give plaintiff’s counsel the opportunity to submit authorities in support of his position. Any further discussions of this issue apparently were held off-the-record.
Plaintiff submitted a proposed jury instruction, CACI No. 413, stating that the jury could consider customs or practices in the community in deciding whether plaintiff acted reasonably. (See CACI No. 413.) The trial court declined to give the instruction, apparently based on a note to CACI No. 413 and Shuff v. Irwindale Trucking Co. (1976) 62 Cal.App.3d 180 (Shuff), which found the instruction to be inappropriate in cases involving negligence in the use of public roads. (See CACI No. 413, Directions for Use, citing Shuff, supra, 62 Cal.App.3d at p. 187.)
The proposed instruction read: “You may consider customs or practices in the community in deciding whether [plaintiff] acted reasonably. Customs and practices do not necessarily determine what a reasonable person would have done in [plaintiff’s] situation. They are only factors for you to consider.
b. Analysis
The trial court did not err in refusing to give CACI No. 413 and did not abuse its discretion in rejecting plaintiff’s proffered custom and practice evidence. First, as to CACI No. 413, the trial court stressed the comment in its Directions for Use. (CACI No. 413, Directions for Use, citing Shuff, supra, 62 Cal.App.3d at p. 187.) In Shuff, there was a question as to whether the drivers of large trucks were negligent because they had driven too fast or otherwise unsafely given the foggy conditions on a highway. (Id. at pp. 183, 185-187.) The Court of Appeal held that the trial court had erred by giving two instructions—BAJI No. 3.40 and BAJI No. 3.16—relating to the standard of care. (Shuff, supra, 62 Cal.App.3d at p. 187.) BAJI No. 3.40 stated that when a person’s employment is unusually dangerous, the “amount of caution required of him by law in the exercise of ordinary care” is lessened; BAJI No. 3.16 directed the jury to consider “any custom that has grown up in a particular business in determining the reasonableness of a party’s conduct.” (Shuff, supra, at p. 187.) Shuff concluded that these instructions likely misled the jury into believing that the standard of care in general and the speed law in particular is different for drivers of large trucks than for ordinary motorists. (Ibid.) In particular, the court ruled that the standard of care applicable to truck drivers on public roads and highways is not determined by the custom or practice in the trucking business, but is the same standard of care that applies to all motorists. (Id. at p. 188.)
The analysis in Shuff applies to the instant case. Section 22450, subdivision (a), establishes a duty of care and requires all vehicles to stop at stop signs, and section 21200, subdivision (a), applies the same duty to bicyclists. (§§ 22450, subd. (a), 21200, subd. (a).) CACI No. 413 seemingly suggests that a different standard of care applies to some or all bicyclists. (See Shuff, supra, 62 Cal.App.3d at pp. 187-188.) Plaintiff was not entitled to an instruction on this theory, because it was untenable as a matter of law. (Id. at pp. 187-188; see also Thomas, supra, 47 Cal.App.4th at p. 966; Cain v. State Farm Mut. Auto. Ins. Co., supra, 47 Cal.App.3d at p. 797.)
Plaintiff contends that Shuff is distinguishable since this case did not involve any equivalent of BAJI No. 3.40, the instruction on the standard of care in dangerous industries. However, the other, more general, instruction at issue in Shuff, BAJI No. 3.16, which told the jury to consider any custom that has developed in a particular business in determining the reasonableness of a party’s conduct, is analogous to the instruction plaintiff requested here, CACI No. 413, which would have told the jury it could consider customs and practices in the community in deciding whether plaintiff acted reasonably. (See Shuff, supra, 62 Cal.App.3d at p. 187; CACI No. 413.) Although Shuff found the instructions in that case to be especially misleading due to the combination of BAJI No. 3.40 and BAJI No. 3.16, the court stated that neither instruction was appropriate in a case involving a collision of private vehicles on a public highway (see Shuff, supra, 62 Cal.App.3d at p. 187), and the comment to CACI No. 413 accordingly specifies that it is not appropriate in cases involving negligence on public roads. (CACI No. 413, Directions for Use, citing Shuff, supra, 62 Cal.App.3d at p. 187.)
As to plaintiff’s proposed evidence of custom and practice, our Supreme Court has held: When a statute establishes a duty of care, it is a “settled rule” that “ ‘evidence of custom and practice may not be used to contravene [the] statutory duty of care.’ ” (Elsner v. Uveges (2004) 34 Cal.4th 915, 939, quoting Hom v. Clark (1963) 221 Cal.App.2d 622, 650.) Because section 22450, subdivision (a), and section 21200, subdivision (a), establish the duty of care for vehicles and bicyclists approaching stop signs, plaintiff was not entitled to introduce evidence that certain bicyclists have a custom and practice of not stopping at stop signs or that law enforcement officials do not always ticket bicyclists who run stop signs. Plaintiff’s proposed testimony to that effect was irrelevant and inadmissible.
Plaintiff further contends he should have been permitted to introduce such evidence pursuant to Evidence Code section 669, subdivision (b)(1), to rebut a presumption of negligence per se arising from his failure to stop at the stop sign. Evidence Code section 669, subdivision (a), codifies the common law presumption of negligence per se: If a person violates a statute and the violation proximately causes injury or damage (and if certain other conditions apply), a presumption arises that the person failed to exercise due care. (Evid. Code, § 669, subd. (a).) Evidence Code section 669, subdivision (b)(1), permits one to rebut the presumption with proof that he or she “did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law[.]” (Evid. Code, § 669, subd. (b)(1).) This statute does not provide a basis for admission of evidence of custom and practice in this case. Under subdivision (b)(1), a statutory violation may be excused only in emergencies or unusual circumstances that make it “difficult or impossible to comply with the statute[.]” (Casey v. Russell (1982) 138 Cal.App.3d 379, 384-385 (Casey).) The fact that people commonly fail to comply with a statute does not justify a violation. (Id. at p. 385, fn. 1.)
Standard jury instructions also address these issues. CACI Nos. 418 and 419 instruct the jury to presume negligence per se in the case of a statutory violation that proximately causes harm. (CACI Nos. 418 & 419.) CACI No. 420 permits the jury to find that a statutory violation is excused in certain circumstances. None of these instructions was included in the trial court’s instructions on negligence in this case.
Also, the phrase “who desired to comply with the law” in subdivision (b)(1), “does not mean one who in general is a law-abiding person, but rather refers to one who, although he desired to comply with the particular statute in issue, was faced with other circumstances which prevented compliance or justified noncompliance.” (Id. at p. 385.) Plaintiff does not argue that he wanted to stop at the stop sign but was unable to do so because of an emergency or other unusual circumstances. To the contrary, plaintiff testified that he simply “didn’t see any reason to come to a full stop.” Evidence Code section 669, subdivision (b)(1), provides no basis for admission of the evidence plaintiff proffered.
Plaintiff did testify that one reason he decided not to stop was because he would have had to take his foot out of the toe clip and then clip it back in. In our view, the difficulty or inconvenience involved in unclipping from, and clipping back into, a toe clip on a bicycle pedal does not amount to the sort of unusual circumstance justifying violation of the statutory requirement to stop at a stop sign.
Finally, plaintiff argues that the theory he sought to advance with his proffered evidence and instruction on custom and practice is not that bicyclists should be free to violate section 22450, subdivision (a), but that the practice by bicyclists of making what plaintiff calls a “virtual stop,” i.e., slowing down but not coming to a complete stop, is accepted as a method of “stopping” that substantially complies with section 22450, subdivision (a). This argument also lacks merit. The requirement in section 22450, subdivision (a), that a driver or bicyclist approaching a stop sign must “stop” is not satisfied by slowing down, even to a very slow speed. (Shiya v. Reviea (1953) 122 Cal.App.2d 155, 162-163 [applying section 577, the predecessor to section 22450]; Inouye, supra, 35 Cal.App.2d at p. 638 [proceeding through stop sign at speed of two-to-four-miles per hour violated duty to stop].) Plaintiff was not entitled to use evidence of custom and practice to seek to persuade the jury to adopt a different definition of the statutory term “stop.”
To support his claim plaintiff cites two cases, both of which are from other jurisdictions, and both of which are inapposite. In State Dept. of Corrections v. Johnson (Alaska 2000) 2 P.3d 56, the Alaska Supreme Court held that, under Alaska law, a trial court has discretion to decline to give an instruction on the negligence per se doctrine when the statute or ordinance violated is obsolete. (Id. at pp. 62-63.) In Bauman By Chapman v. Crawford (Wash. 1985) 704 P.2d 1181, the Washington Supreme Court held that, under Washington law, the negligence per se doctrine does not apply to children. (Id. at pp. 1184-1186.) Here, no negligence per se instruction was given and, in any event, plaintiff makes no argument that section 22450 is obsolete.
3. Plaintiff’s Proposed Special Instruction That He Was Not Legally Required To Stop At The Barricade
Plaintiff next challenges the trial court’s rejection of his proposed special instruction No. 2, which states: “[Plaintiff] was not legally required to stop his bicycle at the barricade.” After trial, when the judge put his ruling on the record, he stated that he did not believe the instruction accurately stated the law and that the instruction was discretionary.
Plaintiff argues that this instruction accurately stated the law and supported his theory of the case. In particular, plaintiff claims that the “crucial point” for determining whether plaintiff exercised reasonable care was when he passed through the barricade; and because plaintiff had no duty to stop his bicycle at the barricade, any duty to stop at the stop sign was “irrelevant.”
As drafted, the proposed instruction was overbroad, argumentative and misleading. Plaintiff is quite correct that there is no stop sign or other sign requiring a bicyclist to stop at the barricade. However, as he acknowledges, the trial court’s instructions correctly advised the jury that, even when a party has the right-of-way to proceed through an intersection, one must exercise reasonable care to avoid an accident. It follows that a cyclist properly proceeding through the intersection might in some circumstances be “legally required” (as part of his legal duty to exercise reasonable care) to slow down or stop at the barricade if necessary to avoid a collision with a motorist, a pedestrian or another cyclist. Depending on the jury’s conclusions as to when plaintiff and defendant entered the intersection, such a duty might have been applicable in this case. However, plaintiff’s proposed instruction, which would have told the jury categorically that plaintiff was not required to stop at the barricade regardless of the circumstances, was an incorrect statement of the law. (See Fibreboard, supra, 227 Cal.App.2d at pp. 717-718; Joyce v. Simi Valley Unified School Dist., supra, 110 Cal.App.4th at pp. 301-303.)
4. Plaintiff’s Proposed Special Instruction that the Stop Sign Did Not Apply to Bicyclists Proceeding Straight on Parker Street
Plaintiff submitted special instruction No. 3: “The stop sign [plaintiff] passed through regulated only the traffic turning left onto Piedmont, and did not apply to the bike passage along Parker through the barricade.” The trial court declined to give this instruction on the ground that it did not correctly state the law.
Relying on language in certain sections of the Vehicle Code, plaintiff reasons: when the City of Berkeley constructed the diagonal row of bollards across the intersection of Parker Street and Piedmont Avenue, the legal effect of this change was that there was no longer an “intersection” of public “highways” or “streets” at that location. Instead, there are now two adjacent “highways” that do not cross each other, with “a short bicycle path (through the barricade) between them.” Because bicycles are not “vehicles” under sections 670 and 231, the “bicycle path” through the barricade is not a highway or a street, and therefore the stop sign that plaintiff encountered at the west entrance to what “previously” had been the intersection of Parker and Piedmont now regulates only drivers and bicyclists who are planning to turn left onto Piedmont, and does not apply to bicyclists who intend to proceed straight through the barricade. We have difficulty with plaintiff’s reasoning.
Under section 22450, subdivision (a), and section 21200, subdivision (a), every vehicle driver or bicyclist approaching a stop sign “at the entrance to, or within, an intersection” is required to stop. (§§ 22450, subd. (a), 21200, subd. (a).) Section 365 defines an “intersection” as “the area embraced within the prolongation of the lateral curb lines, or, if none, then the lateral boundary lines of the roadways, of two highways which join one another at approximately right angles or the area within which vehicles traveling upon different highways joining at any other angle may come in conflict.” (§ 365, italics added.) Parker Street and Piedmont Avenue in Berkeley are “highways” that intersect at right angles. Accordingly, the area within the prolongation of the lateral curb lines where those two streets join is an “intersection” under section 365. A driver or bicyclist approaching the stop sign posted at any of the four entrances to the intersection is required to stop. (§§ 22450, subd. (a), 21200, subd. (a).)
Section 360 provides that: “ ‘Highway’ is a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.” Section 590 contains an identical definition of “street” and provides that the term “street” includes a “highway.”
Plaintiff next contends that the installation of the diagonal line of bollards across the intersection “nullif[ied] the existence” of the intersection, because “[t]wo ‘highways’ no longer joined at that location, and ‘vehicles’ (which does not include bicycles) no longer could come in conflict there.” We disagree. Parker and Piedmont still join at right angles and form an intersection; the barrier just prevents vehicles from traveling through the intersection in certain directions, while permitting travel in other directions. Plaintiff has cited no authority supporting the proposition that a barrier placed at an intersection to limit the directions in which traffic can travel through the intersection nullifies the existence of the intersection. (Cf. Blanton v. Curry (1942) 20 Cal.2d 793, 801-802 [when an intersection is divided by a parkway or a railroad right-of-way, there is still just one intersection]; Dawson v. Williams (1954) 127 Cal.App.2d 38, 41 [same].) The diagonal row of bollards between the two portions of the intersection of Parker and Piedmont does not nullify the existence of that intersection.
Contrary to plaintiff’s suggestion, section 365 does not specify that the existence of an intersection depends on whether, or to what extent, vehicles may “come in conflict there.” Instead, section 365 just refers to the potential “conflict” of vehicles in describing the area that is included in an intersection. As noted above, section 365 provides two ways of identifying the exact area that comprises an intersection: (1) when two highways join at right angles, the intersection is the area within the prolongation of the lateral curb lines (or, if none, then the lateral boundary lines of the roadways) where the two highways join; (2) when highways join at any angle other than a right angle, the intersection they form is the area within which vehicles traveling on those highways “may come in conflict.” Because Parker and Piedmont join at right angles, the intersection they form is the area within the prolongation of the lateral curb lines. (§ 365.)
Because Piedmont and Parker still form an intersection, plaintiff’s additional arguments also fail. According to plaintiff, the stop sign he approached at the western entrance to the intersection only regulates traffic turning left onto Piedmont and does not regulate bicyclists who intend to proceed straight through the intersection. Thus, the stop sign was not intended to protect left-turning drivers like defendant who are approaching from the opposite direction.
Again, we must disagree. Because Parker and Piedmont still form an intersection, any driver or bicyclist approaching a stop sign at the entrance to the intersection is required to stop, regardless of which direction he intends to proceed after stopping. (§§ 22450, subd. (a), 21200, subd. (a).) As defendant notes, a contrary result would be odd and unworkable—a bicyclist intending to turn left onto Piedmont would be required to stop, while a bicyclist intending to go straight would not. Moreover, as defendant also notes, plaintiff has presented no evidence that the City of Berkeley, in constructing the barrier, intended to limit the applicability of the stop signs to certain drivers or bicyclists.
Plaintiff’s final argument in support of his proposed special instruction No. 3 is that, under Evidence Code section 669, subdivision (a), no presumption of negligence should arise from his failure to stop at the stop sign because left-turning drivers like defendant were not “one of the class of persons for whose protection [section 22450, subdivision (a)] . . . was adopted.” (See Evid. Code, § 669, subd. (a).) This argument provides no basis for giving plaintiff’s proposed instruction. Under section 22450, subdivision (a), the stop signs at the intersection regulate all drivers and bicyclists arriving at any entrance to the intersection, regardless of which direction they intend to proceed after stopping. (§§ 22450, subd. (a), 21200, subd. (a).) The statute thus protects all drivers, bicyclists and pedestrians in the intersection who may come into conflict with each other, including left-turning drivers.
Because plaintiff’s proposed special instruction No. 3 inaccurately described the legal effect of the stop sign that plaintiff rode through at the western entrance to the intersection of Parker Street and Piedmont Avenue, the trial court properly declined to give the instruction.
III. DISPOSITION
The judgment is affirmed. Defendant shall recover his costs on appeal.
We concur. SIMONS, ACTING P.J., NEEDHAM, J.
“Following a custom or practice does not excuse conduct that is unreasonable. You should consider whether the custom or practice itself is unreasonable.”