Opinion
E073253
04-06-2022
NECO MOSS, Plaintiff and Appellant, v. ROBERT HENRY HARTMAN et al., Defendants and Respondents.
Neco Moss, in pro. per., for Plaintiff and Appellant. Ford, Walker, Haggerty & Behar and Ashley S. Loeb for Defendant and Respondent, Robert Henry Hartman. Farmer Case & Fedor, Anthony T. Case and Maxine D. Harvey for Defendant and Respondent, Juan Manuel Orozco.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. CIVDS1411177 Bryan Foster, Judge.
Neco Moss, in pro. per., for Plaintiff and Appellant.
Ford, Walker, Haggerty & Behar and Ashley S. Loeb for Defendant and Respondent, Robert Henry Hartman.
Farmer Case & Fedor, Anthony T. Case and Maxine D. Harvey for Defendant and Respondent, Juan Manuel Orozco.
OPINION
SLOUGH J.
This appeal arises from an automobile accident involving plaintiff Neco Moss, defendants Juan Manuel Orozco and Robert Henry Hartman, and two other motorists who aren't involved in the litigation.
The accident occurred on May 15, 2013, on the eastbound 210 freeway in Fontana. According to Orozco and Hartman, Orozco crossed a double yellow line to enter the carpool lane at a relatively low speed in the path of Hartman's truck. Hartman struck Orozco's vehicle, which started a chain reaction-Orozco hitting Moss, Moss hitting a fourth vehicle, and the fourth vehicle hitting a fifth.
Moss sued Hartman and Orozco for, among other things, negligence, and represented himself at trial, as he does on appeal. A jury found Hartman was not negligent and found Orozco had been negligent but awarded no damages.
Moss appeals, arguing the trial judge committed several errors. He focuses much of his argument on the assertion that default judgments entered early in the case mean Hartman and Orozco never should have been permitted to appear at trial. These arguments lack merit. The court did enter a default against Hartman and Orozco on June 10, 2016, when they didn't answer Moss's second amended complaint, but three days later Moss filed a third amended complaint and the trial court set aside the defaults. Hartman filed an answer three days later. The third amended complaint did not specifically name Orozco, though he had been identified as a Doe defendant previously, but Moss later filed a fourth and then a fifth amended complaint which did name Orozco as a defendant and alleged new causes of action against him. Orozco answered those complaints. When Moss tried to get the trial judge to hold defendants to the default, the trial judge refused and clarified that any defaults were set aside. We conclude the trial court was correct to set aside the earlier defaults, allowing both Hartman and Orozco to defend themselves.
Moss also challenges what happened during the trial. He argues the jury should have returned a verdict that Hartman was negligent because the evidence supported the verdict and because the finding that he was not negligent was inconsistent with the finding that Orozco was negligent. However, there was significant evidence both that Hartman wasn't negligent and that Orozco was negligent, starting with Hartman's testimony that Orozco drifted across the double yellow lines of the carpool lane shortly after he slowed to 60 miles per hour when he saw a police car enter the lane in front of him. The jury was entitled to reach its verdict on the negligence of the two drivers based on that evidence alone.
Moss argues the jury should have concluded he established damages and made an award based on the finding that Orozco was negligent. However, Moss didn't present substantial evidence of damages. Before trial, the judge warned him he would need expert medical testimony to be able to introduce and rely on medical records and medical bills, and that absent such testimony the records and bills would be excluded, leaving him to establish damages by describing his physical sensations. As a result, the jury was left to decide whether Moss suffered damages based on his descriptions of his pain, which evidence was undercut by his own testimony that he had complained of suffering similar, ongoing pain after two prior accidents. Again, it was reasonable for the jury to reject Moss's complaint, and we aren't permitted to overturn their finding on appeal.
Moss raises a laundry list of other issues, arguing (i) the doctrine of res ipsa loquitor should have been applied to establish a presumption of negligence on the part of Hartman and Orozco, (ii) Moss was entitled to punitive damages, (iii) the judge allowed the jury to be tainted by a question about his prior felony conviction, (iv) the judge erred by excluding evidence of Moss's medical bills and records, (v) Orozco and Hartman improperly split their defenses in successive actions, (vi) the judge erred by refusing to instruct the jury that exceeding the speed limit can establish negligence, and (vii) it was improper to allow respondents to use his deposition testimony on cross-examination.
We conclude all these arguments lack merit, and therefore affirm the judgment.
I
FACTS
On May 15, 2013, Hartman, Orozco, Moss, and the drivers of two other vehicles were involved in a five-vehicle accident. Only Hartman, Orozco, and Moss are parties in this lawsuit. The trial judge bifurcated the case, delaying litigation relating to insurance coverage. The only issues to be tried were those related to the liability of Hartman and Orozco.
Moss testified that Hartman was driving too fast in the carpool lane just before the accident. He said he had just entered the 210 freeway at the Haven Avenue entrance. He said he immediately ran into a traffic jam and was stopped in the fast lane when he saw a police vehicle move into the carpool lane behind him and pass him on the left. While watching the police vehicle, he "noticed in the driver's side through my driver's side mirror, a big white truck speeding uncontrollably" toward him. "I noticed it veered to the right which is in the lane I was in and as soon as I seen it veer to the right and the type of speed it was, I immediately turned forward and got fear into me. I was scared. I thought the worst and I braced myself. I knew something was about to happen. I grabbed the steering wheel and braced myself, clenched down. As soon as I did that all I heard was boom and felt it all, the whole accident." He said the collision threw his vehicle forward and he struggled to keep control. According to Moss, he didn't see Orozco's car and the accident occurred because Hartman's truck veered out of the carpool lane.
Moss then testified about his injuries. He said he injured his arm, "had chest pain in my chest and my face that day, and a couple days, the pain worsened in my face which turned out to be in my teeth, my jaw." He said he later had numbness in his fingers, hips, abdomen, and feet, and also started having spasms. He complained of continuing loss of sleep, anxiety, and headaches, and said he later lost a couple of teeth. Moss didn't present expert medical testimony or any evidence concerning his treatment for these injuries. On cross-examination, he testified about injuries he'd experienced in past accidents, including what he had described as headaches and chronic back pain.
Hartman had a different version of the accident. He said he was driving his Ford F-350 truck in the carpool lane with his wife and daughter as passengers. He said no one was driving within a mile in front of him, and his speed was between 70 and 75 miles per hour. He said he saw a police vehicle cross from the fast lane, over the double yellow lines, and into the carpool lane about half a mile ahead of him. Seeing the police led him to slow down to about 60 miles per hour. About a second later, Hartman said he saw the front end of a vehicle-as it turns out the vehicle driven by Orozco-entering the carpool lane. He estimated he was about 60 to 80 feet away from Orozco's vehicle and he was travelling at approximately 60 mph. Hartman engaged his brakes, but nevertheless collided with Orozco's car. Hartman estimated Orozco was traveling at about 10 to 15 miles per hour when the cars collided. Hartman said he didn't think there was anything he could have done to avoid the collision.
An accident reconstruction expert testified that, assuming Hartman was traveling 60 miles per hour and Orozco was traveling 15 to 20 miles per hour, there was nothing Hartman could have done to avoid the accident. He also said Hartman couldn't have avoided the accident if he'd been traveling 55 miles per hour and probably wouldn't have avoided the accident if he'd been traveling 50 miles per hour.
Orozco testified about the accident too. He said he was driving a 2001 Honda Civic with a coworker as his passenger. He was traveling on the freeway in the fast lane next to the carpool lane when he saw a police car enter the carpool lane ahead of him. Orozco decided to take the carpool lane because he had a passenger, and he crossed over the double yellow lines to enter the lane. Orozco looked in his mirror and saw Hartman's truck approaching in the carpool lane. He said he thought Hartman was about 100 feet or more away, and that he believed he was traveling about 25 to 30 miles per hour as he entered the lane. However, he said in his deposition that he was traveling 15 to 20 miles per hour when he changed lanes. Orozco said Hartman's vehicle hit his car, then his car hit Moss's car, which was in the fast lane next to the carpool lane.
On May 9, 2019, the jury found Hartman was not negligent and Orozco was negligent but awarded zero dollars in damages. Moss filed no posttrial motions. He then filed a timely notice of appeal.
II
ANALYSIS
A. Default Judgments
Moss argues Hartman and Orozco should not have been permitted to defend themselves at trial because they failed to file timely answers to prior versions of his complaint, and the trial court entered default judgments against them.
1. Additional background
Moss filed his initial complaint on July 29, 2014. He stated a motor vehicle negligence cause of action against Hartman and Orozco, general negligence against Hartman (and three others, but not Orozco), a products liability cause of action against Hartman, and an action for premises liability against Fontana Arco 85048.
After considerable procedural wrangling, Moss filed and properly served Hartman with a second amended complaint filed on January 19, 2016. Hartman is named as a defendant, and Orozco's name is added to the cover page of the complaint as a defendant. In the body of the complaint, Moss alleged motor vehicle negligence, general negligence, products liability, and intentional tort causes of action against Hartman and Does 1 to 100, but did not name Orozco in those causes of action. Moss also alleged premises liability causes of action under a variety of theories against Hartman and Does 1 to 100, the City of Fontana, and AAA Auto Insurance.
Hartman filed a timely demurrer. On March 21, 2016, the trial judge, San Bernardino County Superior Court Judge Bryan Foster, sustained the demurrer without leave to amend as to Moss's causes of action against Hartman for premises liability, products liability, and intentional tort. However, the judge overruled the demurrer as to the negligence causes of action, giving Hartman 20 days to answer. When Hartman didn't answer by June 10, 2016, Moss filed a request for entry of default and clerk's judgment against Hartman, and the clerk of court entered a default against Hartman the same day. At the same time, Moss filed a separate request for default and clerk's judgment against Orozco, and the clerk of court entered a default against Orozco the same day.
However, three days later, Moss filed a third amended complaint alleging motor vehicle negligence, general negligence, failure-to-warn premises liability, and products liability causes of action against Hartman and Does 1 to 100. The products liability cause of action alleged Hartman and Does 1 to 100 were strictly liable for the manufacture or assembly of the vehicle as well as that Ford were strictly liable for the manufacture, design, and sale. Moss also alleged Hartman and Does 1 to 100 were liable for negligence in product manufacture and breach of implied warranty. The new complaint did not identify Orozco by name. It did name 21st Century Insurance and another individual defendant in a cause of action for fraud and the insurance company alone for a cause of action for intentional tort.
The trial court set aside the default as to Hartman and Orozco the same day Moss filed his third amended complaint. Three days later, Hartman filed an answer.
On June 27, 2016, Moss filed a demurrer, motion to strike, and motion for judgment on the pleadings, arguing, among other things, that Hartman had a default entered against him and should not have been able to file an answer. Hartman opposed the argument against default on the grounds that (i) the court already set aside the default, (ii) Moss reopened the judgment by filing his third amended complaint, and (iii) Hartman would have sought to overturn the default had the court not done so on its own after Moss filed the new complaint.
On August 9, 2016, the trial judge denied Moss's motions in a minute order without providing reasons, and the litigation proceeded with the trial judge granting Hartman's motion for leave to file a cross-complaint. Among other things, Hartman's cross-complaint named Orozco as a cross-defendant and alleged he operated his vehicle "in a negligent, careless and reckless manner and, as a proximate cause thereof, contributed to the injuries and damages, if any, alleged to have been sustained by plaintiff." On September 21, 2016, Orozco filed an answer to Hartman's cross-complaint and filed his own cross-complaint against Hartman and Roes 1 to 10. A week later, Hartman filed an answer to Orozco's cross-complaint.
On October 31, 2016, Moss filed a fourth amended complaint which alleged causes of action against both Hartman and Orozco. The new complaint stated motor vehicle negligence and general negligence causes of action against both Hartman and Orozco separately and by name, as well as products liability claims against both defendants. It also stated a failure-to-warn premises liability cause of action against Hartman, but not Orozco. Moss included a variety of causes of actions against other defendants who aren't parties to this appeal.
Eventually, on September 21, 2017, Moss filed a fifth amended complaint which alleged causes of action against both Hartman and Orozco by name. The new complaint stated motor vehicle negligence and general negligence causes of action against both Hartman and Orozco, as well as products liability and premises liability claims against Orozco. Moss also included a variety of causes of actions against other defendants who aren't parties to this appeal. At a predisposition hearing on May 30, 2018 where all three parties appeared, the trial judge noted Hartman and Orozco had not yet answered the fifth amended complaint and ordered them to file or contact the clerk's office to clear up any problems.
On June 1, 2018, Hartman filed a motion to strike those portions of the new complaint seeking punitive damages against him as well as certain seemingly irrelevant allegations against Hartman contained in causes of action against other defendants. Moss opposed the motion to strike on several grounds, including that Hartman was in default, and could no longer contest the pleadings.
In the meanwhile, Orozco filed an answer to the fifth amended complaint. Moss opposed Orozco's right to answer the fifth amended complaint on the ground there was a default judgment against him.
The trial judge granted Hartman's motion, striking "[a]ll of Plaintiff's claims for punitive damages or allegations related to punitive damages, as to Defendant Robert Henry Hartman." Hartman then filed an answer to Moss's fifth amended complaint.
Moss filed an application for entry of default judgment against both Hartman and Orozco. Moss claimed the clerk entered a default judgment against both defendants on June 10, 2016, and that neither defendant "filed a motion to set aside the default."
On October 4, 2018, the trial judge rejected Moss's request for default judgments against Hartman and Orozco. "Plaintiff's motion is not well taken. The operative complaint is the 5th Amended Complaint. Both of the named defendants have answered the complaint and any request for entry of default previously file[d] is set aside by order of the court. The multiplicity of filings and name changes make enforcement of any request for entry of default untenable since Plaintiff has continued to litigate against the named defendants without regard to their technical status. The court finds that justice demands that any default entered as to defendants in regard to the 1st, 2nd, 3rd, or 4th Amended Complaint is invalid and set aside."
2. Analysis
In this case, as we've seen, there is no default judgment. The clerk of court entered defaults on June 10, 2016, but set aside the defaults when Moss filed his third amended complaint. Moss later moved to have the prior default recognized at various stages of the litigation, but the trial court denied those requests and specifically held that justice demanded treating any defaults as invalid and set them aside.
Moss persistently attempted to enforce the default judgments to his advantage, culminating in his attempt to get the trial judge to recognize the default judgments as a reason to reject Orozco's answer to the fifth amended complaint and Hartman's motion to strike the claim for punitive damages. However, the trial judge rebuffed these efforts repeatedly, and clarified in September 2018 that, to the extent any such judgments had issued, justice demanded treating them as invalid and setting them aside. Thus, the record establishes the only defaults issued on June 10, 2016, were vacated and set aside on June 13, 2016, and the trial judge refused what amounted to a motion to reconsider or vacate the order vacating and setting aside the judgments.
The basis of Moss's request for relief in this court is unclear. His notice of appeal says his appeal arises from the fact that "[a]ll defendants re-defaulted approximately June 10 2016, then filed cross complaints against each other approximately September 2016[, ] [v]iolating plaintiff rights" under provisions of the Code of Civil Procedure setting out when a default judgment may issue when a party fails to answer a complaint or cross-complaint. (Code Civ. Proc., §§ 585 subds. (b), (d), & (e), & 586 subd. (a)(1) and (2).) A party must appeal from a judgment or order in a case, however, not from an act of a party.
To the extent Moss is attempting to appeal an order in which the trial judge refused, implicitly or not, to vacate the prior order setting aside the default judgments, he seeks to appeal from an unappealable order. The same circumstances arose in Taliaferro v. Davis (1963) 216 Cal.App.2d 860, 863. There, the Court of Appeal explained, "While the order setting aside the default and default judgment was appealable [citations], appellant did not appeal therefrom. Appellant appealed from the denial of his motion to vacate such order. An appeal does not lie from an order refusing to vacate a judgment or order which is itself appealable. [Citations.] The order [setting aside the default judgment] was appealable. The order . . . refusing to vacate it was not appealable." In such circumstances, the proper resolution is to dismiss the appeal. (Ibid.)
Even if we construe the notice of appeal broadly to appeal the prior order setting aside the default, Moss does not prevail. Moss added products liability and premises liability causes of action against Hartman that were not part of the case when the default was taken on June 10, 2016. The court had previously sustained Hartman's demurrer as to these two causes of action on March 21, 2016 without giving Moss leave to amend. As a result, when Hartman didn't answer the second amended complaint, he no longer faced liability based on those two causes of action. As for Orozco, the second amended complaint did not include his name anywhere except in the caption, and his name appears nowhere in the third amended complaint. However, Orozco had already been identified as a Doe defendant earlier in the case. And in any event, in the fourth amended complaint, Moss named Orozco and stated motor vehicle negligence, general negligence, and products liability causes of action against him, for the first time by name. The fifth amended complaint added premises liability claims against Orozco. Filing these new complaints adding new causes of action against Hartman and Orozco opened the defaults and justified the trial court in setting the defaults aside. (Ford v. Superior Court. (1973) 34 Cal.App.3d 338, 343.)
We therefore conclude Hartman and Orozco were within their rights to respond to later pleading and defend themselves at trial.
B. Inconsistent Verdicts
Moss argues we should reverse the judgment under the inconsistent verdict rule. In support, he cites Witkin on California Procedure. "Where the asserted liability of each defendant is independent of that of any other, e.g., where they are alleged to be joint tortfeasors, they may be sued together or individually, and individual judgments may be had against any of them. [Citation.] Hence, though sued together, a verdict against one and in favor of another may be entirely proper. [Citation.] If, however, the liability of the defendants to the plaintiff is based upon the same facts, a verdict against one in favor of another may be inconsistent." (4 Witkin, Summary of Cal. Law (2d ed. 1971) Cal. Procedure, § 274, p. 3081.)
The problem for Moss's argument is it's the first portion of the quoted passage which describes this case. Hartman and Orozco drove separate vehicles. Moss testified that he saw Hartman driving recklessly and believed it was Hartman's vehicle that hit his vehicle as a result. Hartman and Orozco testified differently; both said Orozco crossed double lines and entered the carpool lane in front of Hartman while driving at a low speed. They also said Hartman hit Orozco and Orozco hit Moss. The jury was entitled to believe Hartman and Orozco and conclude that Orozco was negligent for crossing the double yellow lines into Hartman's path without allowing adequate room to complete the lane change, and that Hartman was not negligent because there was nothing he could have done to avoid the accident once Orozco veered into his path. Far from being inconsistent, the verdicts simply accepted one version of events.
Moss relies on Brown v. Regan (1938) 10 Cal.2d 519, 522 and Campbell v. Zokelt (1969) 272 Cal.App.2d 315, 319, but those cases aren't relevant. In Brown, a jury found two defendants liable for a car accident which caused substantial injuries to a pedestrian. Specifically, the jury found the owner of the vehicle liable for negligence as well as the driver of the vehicle, his son. But when the jury imposed damages, they found the son liable for nothing, but the father, who's liability was based on negligent entrustment, liable for $5,000. (Brown, supra, at pp. 521-522.) The Supreme Court concluded there was error in the form of the verdict and "the jury by said verdict was attempting to pass on to the owner of the automobile the liability of the operator." (Id. at p. 523.) Moss argues Brown establishes "[a] verdict against a defendant who can be only secondarily liable and in favor of a defendant who is primarily liable is fatally inconsistent." There are two primary problems with Moss's reliance on Brown. First, the jury in that case found both defendants liable. Their mistake was finding no damages against the driver but $5,000 in damages against the owner. Here, the jury reached different conclusions about liability. Second, Hartman and Orozco drove their own vehicles and the jury was asked to decide whether they were liable based on their own conduct. Thus, even if Moss's interpretation of the decision in Brown is correct, it has no application to this case.
In Campbell v. Zokelt, supra, 272 Cal.App.2d at pp. 317-320, the plaintiff sued the driver of the vehicle (Zokelt) in which he was a passenger and the driver of a second vehicle (DeWinter) for personal injuries caused in an accident involving the two cars. The driver of plaintiff's car and the second car cross-complained against each other. (Id. at p. 317.) The jury found the driver of the second vehicle negligent as to plaintiff (with no damages) but found in favor of the second driver on his cross-claim against the driver of plaintiff's car and against the driver of the plaintiff's car on his cross-complaint against the second driver. (Ibid.) The Court of Appeal held the verdict in favor of plaintiff against the second driver necessarily included an implied finding that the second driver was negligent. However, the verdict in favor of the second driver against the plaintiff's driver necessarily included a finding that the second driver was not negligent. Since plaintiff and his driver were in the same car, the court concluded the second driver could not be negligent as to plaintiff but not negligent as to his driver and concluded the verdicts were inconsistent. (Id. at pp. 319-320.) Here, the jury's finding had no such inconsistency. The jury found Hartman was not negligent and found Orozco was negligent, which is perfectly reasonable given the evidence at trial.
C. Res Ipsa Loquitor Instruction
Moss argues the trial judge should have instructed the jury on the doctrine of res ipsa loquitur ("the thing speaks for itself"). The doctrine allows the inference of negligence in the absence of evidence of duty and breach in circumstances where an injury occurred that would not ordinarily occur without negligence. If it applied to this case, the doctrine would have allowed the jury to presume negligence, shifting the burden of production to defendants. (Newing v. Cheatham (1975) 15 Cal.3d 351, 364.)
"[T]here are three conditions for the application of the doctrine: '(1) the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.'" (Newing v. Cheatham, supra, 15 Cal.3d at p. 359.)
We need not reach the question whether an instruction on res ipsa loquitur was warranted here because the failure to instruct the jury was not prejudicial. (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1459-1460.) An instructional error is prejudicial only when it's probable the jury would have come to a different conclusion if correctly instructed. (Caldera v. Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 45.) Here, the instruction would have made no difference for either defendant. The jury found Orozco negligent based on the evidence presented. Moss didn't need the presumption to prevail on the issue. As for Hartman, he presented evidence that he was not negligent, including his own testimony and the testimony of an accident reconstruction expert. Thus, he successfully rebutted any presumption of negligence a res ipsa loquitor instruction could have generated. "T]he trier of fact determines whether defendant was negligent without regard to the presumption, simply by weighing the evidence." (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 826, italics added.)
D. Finding that Hartman was Not Negligent
Moss argues the jury should have found Hartman was negligent because Orozco's intervening act and Moss's resulting injury were foreseeable. As stated, this is not a proper ground for appeal. It's appellant's burden to identify issues on appeal and establish prejudicial error. (Vulk v. State Farm General Ins. Co. (2021) 69 Cal.App.5th 243, 253-254.) In this instance, Moss has failed to carry that burden.
In any event, as we've discussed in part II.B. ante, there was significant evidence for the jury to conclude Hartman was not negligent. Hartman testified there was no one in front of him in the carpool lane for at least a mile, he slowed down to 60 miles per hour when he saw a police vehicle cross over the double yellow lines into the carpool lane about half a mile ahead of him, and Orozco entered the carpool lane illegally and at a slow speed shortly thereafter. Hartman said he didn't think there was anything he could have done to avoid the collision, and an accident reconstruction expert said he agreed.
Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 521 is of no help to Moss. In Hoyem, the court held a trial judge cannot conclude a risk was not foreseeable for the purpose of granting a defendant's demurrer, taking the issue away from the jury. (Id. at pp. 521-522.) In this case, the court did no such thing. The question of defendants' negligence went to the jury, and they found Hartman was not negligent.
The bottom line is substantial evidence supported the jury's liability findings in this case, so we couldn't overturn the verdict even if we disagreed.
E. Damages
Moss argues we should reverse the jury finding that he suffered no damages in the accident. He complains that he testified about his own injuries and says the testimony of a doctor or medical expert is not required. This argument misconstrues what happened at trial. Moss was allowed to present his own testimony regarding his alleged injuries, and that testimony included cross-examination establishing that he had complained of many of the same injuries after prior accidents, including evidence that he suffered chronic pain. The amount of damages awarded in a special verdict is a fact question and an award of damages will not be disturbed if it is supported by substantial evidence. (Rony v. Costa (2012) 210 Cal.App.4th 746, 753.)
Here, the jury heard substantial evidence of Moss's preexisting medical conditions. Moss himself testified he had been treated over a long period for chronic pain all over his body, which he had blamed on prior accidents. This evidence gave the jury a reasonable basis to conclude Moss's claimed injuries were caused by prior incidents, not the car accident in this case. (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 74 ["The determination of the adequacy of damages rests largely in the discretion of the trial judge. An appellate court will disturb the verdict only where the amount of the award is not supported by substantial evidence or where the verdict is a clear abuse of the jury's discretion"].)
F. Punitive Damages
Moss argues he was entitled to punitive damages because "[m]alice was proven when respondent testified he traveled that road and was aware of dangerous road conditions." He argues this testimony "established that a conscious disregard for the safety of others may constitute the malice required to sustain a claim for punitive damages."
There are several problems here. First, the court had already stricken Moss's request for punitive damages by the time of trial. Second, a defendant's acknowledgement that he had traveled the road and knew of dangerous road conditions does not establish malice. Third, the trial testimony does not establish "clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice," (Civ. Code, § 3294, subd. (a) where "malice" is defined as "conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others." (Civ. Code, § 3294, subd. (c)(1).)
Plaintiff cites Taylor v. Superior Court (1979) 24 Cal.3d 890, 892, but that case supports the proposition "the act of operating a motor vehicle while intoxicated may constitute an action of 'malice.'" (Italics added.) Ordinary negligence, gross negligence, and reckless conduct don't amount to malice and don't support a punitive damages award. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1211; Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1044; Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1155.)
Here, Hartman testified he was driving at 60 mph when he first became aware Orozco's vehicle crossed the double yellow lines into the carpool lane where Hartman was driving prior to slamming on his breaks to attempt to avoid an accident. Moss therefore was not entitled to allege punitive damages at trial.
G. Question about Moss's Prior Felony
Moss argues that allowing a question about his prior felony conviction at trial tainted the jury. At the end of cross-examination, counsel for Orozco asked, "Mr. Moss, have you been convicted of a felony?" The trial judge immediately called for a bench conference and then ordered the question stricken. Moss didn't answer the question, and he also didn't object or request a jury instruction.
We conclude Moss neither preserved this issue for appeal nor carried his burden of establishing error. Moss made no objection at the time and did not take up the trial judge's suggestion that he could instruct the jury there was no evidence he had suffered a felony conviction. Appellants may be held to have waived a claim of error either by affirmative conduct or by failure to take proper steps in the trial court to avoid or cure the error. (Baxter v. State Teachers' Retirement System (2017) 18 Cal.App.5th 340, 379.) In addition, the appellant bears the burden to affirmatively demonstrating an error occurred. (Balla v. Hall (2021) 59 Cal.App.5th 652, 671.) Moss's argument on this point provides neither pertinent legal authority nor developed argument sufficient to identify an error. (Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951, 963 [appellant "bears the burden of providing reasoned argument, supported by citation to the law and facts in evidence, demonstrating trial court error"].)
In any event, we conclude not providing an instruction relating to the question was harmless. (Akers v. County of San Diego, supra, 95 Cal.App.4th at pp. 1459-1460.) To overturn a judgment based on instructional error, an appellant must show a miscarriage of justice occurred. Here, the trial judge struck the question before Moss answered it and Moss has presented no basis for finding prejudice.
H. Evidence of Medical Records
The trial judge properly excluded evidence of Moss's medical bills and medical records because he failed to have his treating physicians or medical experts testify.
Medical records are subject to the hearsay rule, though they may be admissible as business records, assuming a custodian of records or other qualified witness provides proper authentication to meet the foundational requirements of the hearsay exception. (People v. Landau (2016) 246 Cal.App.4th 850, 872, fn. 7 ["Hospital records, if properly authenticated, are admissible under the business records exception to the hearsay rule. Authentication requires the entries to have been made in the regular course of business, at or near the event and the method and time of preparation tend to indicate the entry's trustworthiness"].)
The most effective way to support a medical expense claim is to put on testimony by a treating physician, who can help lay the foundation for medical bills and reports. (See Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266, 1278.) However, Moss didn't subpoena the records to trial, didn't call a custodian of records or witness to authenticate the records, and didn't call a medical expert to testify about his x-rays or medical prognosis. Under those circumstances, the trial court did not err by excluding the records. (Calhoun v. Hildebrandt, supra, 230 Cal.App.2d at p. 73.)
I. Successive Defenses
Moss argues respondents improperly withheld issues or split defenses in successive actions. This argument is insufficiently developed. Moss identifies no issues any party withheld from trial. As a result, he has failed to carry his burden of establishing an error on appeal. It's not the role of an appellate court to sort through the record or search for issues that justify overturning the trial court. We presume in favor of the verdict, and the burden is on appellant to identify and affirmatively demonstrate errors occurred.
J. Speed Limit Instruction
Moss argues the trial court erred by refusing to give a "prima facie speed limit instruction" and inform the jury that the violation of a posted speed limit is negligence.
Moss requested the trial judge to give three instructions related to speed limits. The trial judge instructed the jury that a person must drive at a reasonable speed under the circumstances and that failure to drive at a reasonable speed at the time of an accident is negligence. (CACI 706 (Basic Speed Law.) However, the judge refused to give two other instructions related to speed limits. One, CACI 708, would have instructed the jury as to the maximum speed limit where the accident occurred. The other, CACI 707 (Speed Limit), would have instructed the jury as to the speed limit where the accident occurred and that exceeding the speed limit is one factor to consider in deciding whether the driver was negligent.
The trial court rejected CACI 707 and CACI 708 because there was no evidence as to the speed limit. The parties have a right to have the jury instructed only if supported by substantial evidence. (People v. Williams (1992) 4 Cal.4th 354, 361.) Here, Moss doesn't contest that the record was devoid of evidence about the actual speed limit, so we have no basis for concluding the trial court erred by refusing the instructions.
K. Use of Mr. Moss's Deposition Testimony
Finally, Moss argues the court erred by allowing respondents to use his deposition transcript at trial, though he claims (without specifics) that it misstates and misquotes his testimony. Moss moved to exclude his deposition transcript because he didn't get a chance to review it and make corrections after the deposition occurred. It was contested whether he had an opportunity to do so. In any event, the trial judge explained to Moss that he would be able to explain any mistakes to the jury if questioned about his testimony and would also be able to explain that he didn't understand he could have reviewed the transcript and corrected mistakes before trial. The court denied Moss's motion for that reason.
This argument fails because Moss doesn't indicate how either respondent used the deposition transcript at trial in a way that prejudiced his case. He argues elsewhere that he should have been shown his deposition transcript when "Respondents tried to disqualify [his] testimony … in front of [the] jury." He cites a portion of the transcript where Orozco's counsel used his deposition testimony to impeach him on his claim that the accident in this case caused his injuries. At his deposition, he discussed prior accidents as well as the injuries he suffered and medical advice he had received previously. The point of eliciting the testimony was to show Moss had been complaining about many of the same purported injuries for a long time. Moss didn't claim at trial that these portions of his deposition were misstatements or misquotations, and he does not identify them as such on appeal. He's therefore again failed to carry his burden of affirmatively establishing prejudicial error.
Moss also objects that he should have been shown these portions of his deposition before being questioned about them. However, it is not necessary to show a witness a prior statement that is inconsistent with his prior trial testimony, which was the purpose of the line of questioning. (Evidence Code, § 769.)
III
DISPOSITION
We affirm the judgment. Moss shall bear respondents' costs on appeal.
We concur: McKINSTER Acting P. J. CODRINGTON J.