Opinion
A152133
09-27-2019
YOUNG M. KIM et al., Plaintiffs and Respondents, v. OURAMDANE ZAROUR, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT THE COURT: It is ordered that the opinion filed herein on September 27, 2019, be modified as follows: On page 7, footnote 3, the entirety of the text is deleted and the following text is inserted in its place:
"Zarour's principal argument on appeal rests on the legal contention that the Kims "had the burden of proving that . . . [his] actions . . . were a substantial factor in causing the harm suffered by [them]." (Appellant's Opening Brief at pp. 13-16, italics added.) From this legal premise, he argues that the Kims failed to bear their burden of proving "the nature and/or severity of the harm suffered." (Id. at pp. 16-21, 21-29, italics added.) In his reply brief, Zarour appears to place a new twist on this argument, contending that the Kims failed to "introduce sufficient evidence at trial to support the amount of damages awarded by the jury." (Appellant's Reply Brief at pp. 19-28, italics added.) In support of this reframed contention, the reply brief for the first time cites a case for the proposition that " '[t]he burden of proof is on the plaintiff to prove his damages with reasonable certainty.' " (Fields v. Riley (1969) 1 Cal.App.3d 308, 313.) To the extent the recasting of Zarour's argument in reply is just a
semantic shift in the "substantial factor in causing harm" argument made in his opening brief, we reject it for the reasons we have already explained. To the extent it is a new argument about the burden of proving damages, we need not and shall not address it because it appears for the first time in reply. (See Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [for "[o]bvious reasons of fairness," declining to consider issue raised by appellant for first time in reply brief].)There is no change in the judgment. Appellant's petition for rehearing is denied. Date:
/s/_________ P. J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV527935)
The case arises out of a fatal three-car highway accident on Highway 101, just past the Marine Parkway exit in Redwood City. Defendant Ouramdane Zarour, the driver of one of the vehicles involved in the crash, appeals from an adverse judgment entered after a jury found him liable for negligence. The jury awarded total damages of $5,483,826. By percentage of fault, Zarour was found to be 15 percent responsible. He now appeals, claiming there was insufficient evidence to support the finding that his negligence was a substantial factor in causing harm. We affirm.
I. BACKGROUND
On the day of the accident Zarour, a professional driver, was driving three passengers in a SuperShuttle van to the San Francisco International Airport. Prior to the accident, Zarour had merged onto U.S. Highway 101 heading north. Another defendant, Melinda Pourtash, who was driving a Chevrolet Impala rental car en route from a friend's house in Belmont toward the North Bay, was also on the Highway headed north. In front of Pourtash was a black Honda Accord driven by John Kim (Mr. Kim), with his wife Young Kim (Mrs. Kim) in the passenger seat.
While Pourtash was driving in the No. 4 lane, she rear-ended the Kims' Honda Accord. The right front corner of Pourtash's Impala hit the left rear corner of the Kims' Honda. Pourtash's vehicle continued to proceed northward, and swerved into the No. 2 lane where Zarour's SuperShuttle was traveling. To avoid Pourtash's vehicle, Zarour moved into the No. 1 lane. At this point, the Kims' Honda had passed in front of Pourtash's vehicle and swerved over to the No. 1 lane after the initial impact with Pourtash's vehicle in the No. 4 lane. As a result, Zarour's SuperShuttle collided with the Kims' Honda in the No. 1 lane.
The portion of Highway 101 where the accident occurred has a raised concrete center divider separating northbound traffic from southbound traffic; there are four lanes of travel for northbound traffic, with the No. 1 lane being closest to the center divider and the No. 4 lane being farthest from the center divider.
About five seconds before Zarour's SuperShuttle collided with the Kims' Honda, Zarour was traveling at 71 miles per hour, which was unsafe for the traffic conditions and a violation of the 65 miles per hour speed limit. The collision between Zarour's SuperShuttle and the Kims' Honda was a "T-bone collision" in which the front of the SuperShuttle collided into the side of the Honda's occupant compartment area. The collision caused extensive damage to the Kims' Honda.
Mr. Kim was transported to the hospital after the crash, where he passed away as a result of his injuries. Mrs. Kim was also transported to the hospital after the crash with life-threatening injuries. Mrs. Kim suffered major chest injuries, a lung injury, a shoulder injury, tears to her spleen and liver, and pelvic fractures. After undergoing treatment and staying at the hospital for about a month, Mrs. Kim was discharged and relocated to a rehab facility to undergo further treatment for another two months before returning home.
After the accident, Mrs. Kim and her two children Henry Kim (Henry) and Sandra Kim Lane (Sandra) brought suit against several defendants including Zarour, Pourtash, SuperShuttle International, Inc., SuperShuttle of San Francisco, Inc., Veolia Transportation Services, Inc. and Avis Budget Group Inc. The complaint included negligence claims by the Kims as a family (Mrs. Kim, Henry, and Sandra) seeking damages for the wrongful death of Mr. Kim, and by Mrs. Kim on her own behalf seeking damages for the injuries she personally sustained.
The case proceeded to jury trial against Pourtash and Zarour, with the jury ultimately finding that Pourtash and Zarour were both negligent, that Pourtash's negligence was a substantial factor in causing Mr. Kim's death and Mrs. Kim's injuries, and that Zarour's negligence was also a substantial factor in causing Mr. Kim's death and Mrs. Kim's injuries. The jury awarded $5,483,826 in total damages to the Kims and found Zarour 15 percent responsible, Pourtash 70 percent responsible, and Mr. Kim 15 percent responsible.
After the trial court entered judgment on the verdict, Zarour timely appealed. The appeal is by Zarour alone.
II. DISCUSSION
A. Applicable Principles
On appeal, Zarour argues that the judgment must be reversed because the jury's finding that his negligence was a substantial factor in causing the death of Mr. Kim and injuries to Mrs. Kim is not supported by substantial evidence. As a threshold matter the Kims urge us not to reach the merits of the appeal, claiming Zarour forfeited his right to pursue it by violating several rules of appellate procedure. Without minimizing the importance of the rules on which the Kims rely, none of the procedural violations on which this forfeiture argument is based precludes this court from making an informed evaluation of Zarour's contentions on the merits. We therefore shall proceed to the merits.
The Kims argue that 1) the sole basis of Zarour's appeal is a new theory not presented to the trial court; 2) Zarour fails to set forth all related material evidence in his opening brief; and 3) Zarour fails to cite to the record.
When an appellate court reviews for sufficiency of the evidence, " 'the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted' " to support the challenged findings. (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503.) This Court reviews the record in the light most favorable to the prevailing party, indulging every reasonable inference and resolving all conflicts in the prevailing party's favor. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
Evidence is substantial if it is reasonable, credible, and of solid value. (Fresh Express Inc. v. Beazley Syndicate 2623/623 at Lloyd's (2011) 199 Cal.App.4th 1038, 1055.) Quality of evidence is more important than quantity of evidence; a small amount of solid evidence may be substantial while a large amount of weak evidence may be insubstantial. (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100-1101.) "Inferences may constitute substantial evidence as long as they are the product of logic and reason rather than speculation or conjecture." (Id. at p. 1101.) A single witness's testimony may also constitute substantial evidence. (Ibid.)
To meet the causation element in a negligence theory, a plaintiff must show that the defendant's negligence "was a substantial factor in bringing about plaintiff's harm" and that "there is no rule of law relieving the defendant of liability." (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) The plaintiff generally has the burden of proof in establishing the causation element in a negligence theory; the plaintiff must present evidence showing it is more likely than not that the defendant's conduct was a cause-in-fact. (Ibid.)
For cause-in-fact determinations, California uses the substantial factor test drawn from the Restatement Second of Torts. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1239.) According to the Restatement Second of Torts, "the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent." (Rest.2d Torts, § 432, subd. (1).) There is an exception to this rule where "two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another." (Rest.2d Torts, § 432, subd. (2).) Under this concurrent causation exception, each "actor's negligence may be found to be a substantial factor in bringing [the harm] about." (Ibid.)
An important limiting principle is that "a force which plays only an 'infinitesimal' or 'theoretical' part in bringing about injury, damage, or loss is not a substantial factor." (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969, citing People v. Caldwell (1984) 36 Cal.3d 210, 220 (Rutherford).) In applying this limiting principle, however, we must be mindful that the substantial factor standard is quite broad. A relatively minor force that nonetheless causes harm may be a substantial factor as long as its contribution is more than negligible. (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79 (Bockrath).)
B. Analysis
Zarour argues there is no substantial evidence to support the finding that his negligence was a substantial factor in bringing about the harm suffered by the Kims because they failed to put forward any substantial evidence that that harm differs from the harm they would have suffered if he had not been negligent. Absent his negligent speeding, Zarour claims, the Kims' Honda would have collided with the center median wall and deflected back into oncoming traffic, causing a sideswipe collision with the SuperShuttle.
While testimony from the Kims' accident reconstruction expert supports Zarour's hypothesized scenario in which his negligence never happened, he extends the hypothetical and asserts without support in the record evidence that after the inevitable sideswipe collision with the SuperShuttle, the Kims' Honda then potentially would have been crushed between the wall and the van. The problem for the Kims, Zarour claims, is that they failed to present evidence of any damages beyond the catastrophic injuries they were likely to suffer had this chain reaction of events unfolded without any fault on his part.
To support this extended counterfactual, Zarour relies primarily on two cases, Endicott v. Nissan Motor Corp. (1977) 73 Cal.App.3d 917 (Endicott) and Soule v. General Motors Corp. (1994) 8 Cal.4th 548 (Soule). In Endicott, the plaintiff sued his car's manufacturer for a defective seatbelt which broke during a serious car crash. (Endicott, supra, 73 Cal.App.3d at p. 921.) The plaintiff there claimed he would have been injured less seriously if the seatbelt had held. (Id. at p. 924.) The Endicott court held "[i]f the violence of a crash is the effective efficient cause of [the] plaintiff's injuries to the extent that it supersedes other factors such as defective design and makes them immaterial, [the] plaintiff cannot recover." (Id. at p. 926.)
In Soule, after a serious car accident, the plaintiff sued her car's manufacturer claiming a minor design defect in her car caused her ankle injuries during the crash. (Soule, supra, 8 Cal.4th at p. 557.) The Soule court similarly stated "[i]f the external force of a vehicle accident was so severe that it would have caused identical injuries notwithstanding an abstract 'defect' in the vehicle's collision safety, the defect cannot be considered a substantial factor in bringing [the injuries] about." (Id. at p. 572.)
As we read these cases, the rule they establish is limited to circumstances in which the facts show an overwhelming causal factor in a serious auto accident, and yet the plaintiff tries to collect damages for an alleged contributing cause that is immaterial by comparison. So read, Soule and Endicott are consistent with the rule that when determining cause-in-fact in a negligence case, a negligible, infinitesimal, or theoretical factor is not a substantial factor. (See Rutherford, supra, 16 Cal.4th at p. 969; Bockrath, supra, 21 Cal.4th at p. 79.)
With that reading of Soule and Endicott in mind, we reject Zarour's contention that they defeat the Kims' negligence claims against him. We do so for three reasons.
First, the catastrophic causes that overwhelmed all other causes in Soule and Endicott actually occurred. There was, as a result, no need to hypothesize, which made it possible to conduct a materiality analysis on the evidence presented in those cases without speculation. In this case, by contrast, Zarour's hypothetical about the Kims' Honda being crushed between the SuperShuttle van and the median wall is speculation at best and proposes a completely different type of collision than the one that, in fact, occurred.
Second, based on what we do know of the actual series of events here, without resorting to speculation, we cannot possibly equate a collision between a 7,117-pound van and a 3,337-pound Honda to a tangential design defect. Needless to say, the "T- bone" collision between Zarour's SuperShuttle and the Kims' Honda which resulted in severe injuries for Mrs. Kim and fatal injuries for Mr. Kim was far from negligible, infinitesimal, or theoretical.
Third, the Kims presented evidence at trial through their crash expert that absent Zarour's speeding, the T-bone collision would not have occurred, but a different collision, probably in the form of a sideswipe, would have occurred instead. A reasonable trier of fact could have concluded that this hypothetical sideswipe collision would have resulted in significantly different, less severe injuries than what actually resulted from the "T-bone" collision.
Accordingly, upon consideration of the record as a whole, we conclude that there is substantial evidence that the Kims would not have suffered the same harm absent Zarour's speeding, and that there is substantial evidence Zarour's speeding was a substantial factor in causing the Kims' harm. We therefore reject Zarour's sufficiency of the evidence argument.
Zarour shifts his stance in his reply brief and instead argues the Kims failed to introduce sufficient evidence to support the amount of damages awarded by the jury. We need not address arguments raised for the first time in reply. (See Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11 [for "[o]bvious reasons of fairness," declining to consider issue raised by appellant for first time in reply brief].)
III. DISPOSITION
The judgment is affirmed. Plaintiffs to recover their costs.
/s/_________
STREETER, J. We concur: /s/_________
POLLAK, P.J. /s/_________
BROWN, J.