Opinion
E042966
7-30-2008
YOLANDA VELASQUEZ OCHOA, Plaintiff and Respondent, v. OMNITRANS et al., Defendants and Appellants.
Lewis Brisbois Bisgaard & Smith, Karen A. Feld, Lawrence S. Rookhuyzen, Jeffry A. Miller, and Matthew B. Stucky, for Defendant and Appellant. Law Offices of Gary A. Dordick, Gary A. Dordick, and David Azizi, for Plaintiff and Respondent.
Not to be Published
Plaintiff and respondent Yolanda Velasquez Ochoa was a bus passenger who was injured during a bus/car collision. She filed a personal injury action against the car driver, as well as defendant and appellant Omnitrans, the bus company, and James Montgomery, Omnitranss bus driver. After a jury trial, the court entered a judgment in favor of Omnitrans and Montgomery. Plaintiff moved for a new trial; the court granted the motion. Omnitrans appeals.
FACTS AND PROCEDURAL HISTORY
On March 6, 2003, plaintiff was a passenger on an Omnitrans bus, being driven by defendant Montgomery. Helena Abilez was driving her car and had stopped at a cross-street. Abilez mistakenly thought that the intersection was controlled by a four-way stop, but it was only a two-way stop in Abilezs direction. In any case, Abilez expected the traffic to be going about 20 to 25 miles an hour. She also testified that her car had a "bad window tint job" and that the sun was in her eyes, so that she did not see any other vehicles. Abilez pulled out into the intersection to cross the street.
Montgomery, the bus driver, watched Abilezs car. He noticed that the driver was not keeping her eyes on the bus. Then, he saw her pull out abruptly in front of the bus. At first, Montgomery thought Abilez would clear the intersection. He did not immediately apply his brakes, but sounded his horn. Eventually, Montgomery did apply his brakes, but he was unable to avoid a collision. Montgomery told police afterward that he thought he was traveling about 40 miles an hour.
Plaintiff was sitting in the first forward-facing seat behind the bus driver. She did not notice anything wrong until she was suddenly thrown from her seat by the impact. She slammed her shoulder on a metal rail, and was injured. Plaintiff suffered a fractured clavicle, a "frozen" shoulder, and a rotator cuff tear.
Plaintiff filed her action in September 2003. Omnitrans and Montgomery filed an answer and also cross-complained against Abilez. Abilez settled with plaintiff before trial.
In motions heard before trial, Omnitrans and Montgomery moved to bifurcate the issues of liability and damages. The court granted this motion. Plaintiff moved that the investigating police officer be precluded from giving an opinion on fault or liability, inasmuch as defendants had not listed the officer in the exchange of expert witnesses. The court granted this motion also.
When plaintiff began her case-in-chief, she discovered that Omnitrans was no longer able to locate Montgomery; then Omnitrans informed plaintiff that Montgomery had died. The court permitted the parties to use portions of Montgomerys deposition testimony.
Plaintiff presented additional witnesses on her behalf. George Ripsom, plaintiffs traffic reconstruction expert, testified that Montgomery was traveling at 40 miles an hour just before the accident, but, as it was a school zone, he should have been going no more than 25 miles an hour. He should not have continued pressing the accelerator when he saw the Abilez vehicle; he should at least have taken his foot off the gas, if not apply his brakes. As it was, he did not apply his brakes until he had nearly entered the intersection. Montgomery was going too fast, failed to pay due attention to the other vehicle, and responded too late.
Lydia Bracco was a school crossing guard on duty at the intersection. She saw Abilezs vehicle stop at the stop sign. Bracco heard the bus coming, and feared that Abilez might pull into the intersection. When Abilez pulled out, her car was struck by the bus.
The responding police officer also testified. He wrote a traffic investigation report. Montgomery told the officer that he had been going about 40 miles an hour before the accident.
Omnitrans presented its own expert, Robin Harrison. He opined that, given the time to respond and the speed he was traveling, there was nothing Montgomery could have done that could have avoided the accident. Abilez was the sole cause of the accident. In Harrisons view, Montgomery would have no reason to slow down or react at all unless and until Abilez started moving into the intersection. As Montgomery had described his reactions, he at first applied the brakes lightly, tapping or what he called "fanning" the brakes. He honked the horn, and he then applied the brakes hard. Even though a school was nearby, a school crossing guard was present, the roadway was marked, "slow school crossing" and a pedestrian sign was posted, the signage did not specifically designate the intersection as a "school zone," and there was no need to slow to 25 miles an hour. The posted speed limit was 40 or 45 miles an hour.
In preparing for testimony at the trial, Harrisons assistant noted some concerns with Montgomerys deposition testimony: Montgomerys statement that he was a quarter-mile away from the intersection when Abilez "darted out," seemed a poor estimate. Although Montgomery had indicated he had nowhere to maneuver, he also took time to honk and brake lightly, believing Abilez would stop before she entered his lane. When he was interviewed by police, Montgomery apparently forgot about a regular bus stop on the far side of the intersection, and the effect of the anticipated stop on his speed. Montgomery apparently testified at his deposition that he let certain regular passengers off at that bus stop "every day without fail." Montgomery also described the area as a school zone with a speed limit of 35 miles an hour.
Harrison agreed with portions of Omnitranss driver manual, including the instruction to "never assume other operators will stop at stop signs and yield the right-of-way. Anticipate other operators will be careless. Slow down or brake when entering the intersection if you have any doubts that you can enter and go through safely." If Abilez had traveled another eight to 10 feet, or had about one-third of a second more time, the collision could have been avoided entirely.
The jury was given a special verdict. The jury marked the question, "Was James Montgomery negligent?" with a "Yes" answer, but when asked, "Was his negligence a substantial factor in causing harm to [the plaintiff]?" nine jurors voted, "No." The court therefore gave judgment in favor of Omnitrans and Montgomery.
Plaintiff thereafter moved for a new trial, on the grounds of irregularity of the proceedings, insufficiency of the evidence, and that the verdict was contrary to law. Plaintiff argued that liability should have been clear, even if the apportionment of liability was contested. Montgomery clearly saw the Abilez vehicle, saw her crossing through the intersection, but thought that she would clear the intersection before the bus arrived. He was driving too fast through a school crossing, and, instead of braking, honked his horn, applying his brakes too late. The collision occurred, and plaintiff was flung from her seat, sustaining injuries. Plaintiff argued that "[t]here was no evidence to support a rational conclusion that there was any other cause of [plaintiffs] injury other than the accident." Nevertheless, even though the jury found Montgomery was negligent, nine jurors concluded there was "no causation."
Plaintiff contended that the "no causation" result was likely obtained as a result of misconduct of defense counsel, who violated numerous in limine orders excluding issues, for example, of the police officer assigning fault, and whether Abilez had liability insurance. In addition, counsel allegedly repeatedly appealed to the sympathies and prejudices of the jurors, by referring to plaintiffs inability to speak English, and characterizing the plaintiffs suit as a "shakedown" of a public entity simply because of "deep pockets."
The trial court chided plaintiffs counsel for a poor presentation of the motion, including failure to obtain a transcript of the alleged violations, but ultimately remarked that its "task is made easier because the actions complained of were so egregious the court remembers them well," and proceeded to list several specific instances of misconduct by defense counsel. The court ruled that, "[o]ne or two of the above [incidents] might be overlooked as trivial. But the cumulative effect of all seven of them deprived plaintiff of a fair trial. They invited the jury to decide this case on the basis of bias and improper evidentiary suggestions." The court therefore granted plaintiffs motion for a new trial.
Omnitrans now appeals.
ANALYSIS
I. Standard of Review
"The standard of review of a new trial order has recently been stated thus: `On appeal from an order granting a new trial, the sole question is whether the trial court abused its discretion. (Seimon v. Southern Pac. Transportation Co. (1977) 67 Cal.App.3d 600, 604.) This court makes all presumptions in favor of the order as against the verdict, and this court will reverse only if manifest abuse of discretion is shown. (Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331, 345.)" (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 205.)
Similarly, "as a general matter, orders granting a new trial are examined for abuse of discretion." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859.)
Omnitrans urges, somewhat against this standard of review, that the power to grant a new trial motion is wholly statutory, and that the statutory scheme required the motion to be supported by affidavits; plaintiff submitted no affidavits, and thus the trial court was required to reject the motion. (Code Civ. Proc., §§ 657, 658; Linhart v. Nelson (1976) 18 Cal.3d 641, 645; Capaldi v. Levy (1969) 1 Cal.App.3d 274, 280.)
In Linhart and Capaldi, however, the trial court had denied the moving partys motion for a new trial; thus, on appeal, the reviewing court could disregard any grounds stated in the motion which were required to be, but had not been, supported by affidavits. In Linhart, moreover, the issue was whether the court could proceed by way of taking testimony; the appellate court rejected that contention, noting that the statute provided solely for presentation of affidavits, as opposed to the taking of testimony by witnesses. It was in that context that the court stated, " `the procedural steps prescribed by law for making and determining such a motion are mandatory and must be strictly followed [citations]. " (Linhart v. Nelson, supra, 18 Cal.3d 641, 644.)
As already noted, however, the standard of review when a motion for new trial has been granted is not the same as when such a motion has been denied. In Webber v. Webber (1948) 33 Cal.2d 153, the trial court had granted a new trial motion in favor of one party, even though the motion had not been supported by affidavits. The court reasoned: "It will be noted that section 658 of the Code of Civil Procedure does not purport to require affidavits in all cases but only in support of those grounds specified in the first four subdivisions of section 657, which grounds can ordinarily be shown solely by facts which do not appear upon the face of the record. But where, as here, the party moving for a new trial under subdivision one of section 657 relies wholly upon facts appearing upon the face of the record, the reason for the rule requiring affidavits ceases and such rule should be held inapplicable (Civ. Code, § 3510)." (Webber v. Webber, supra, 33 Cal.2d 153, 624.) Thus, "[u]nder some circumstances, the absence of a supporting affidavit is noncalamitous and other support appearing in the record may be accepted . . . ." (McCown v. Spencer (1970) 8 Cal.App.3d 216, 228.)
In McConnell v. Superior Court (1921) 51 Cal.App. 744, the trial court had granted the plaintiffs motion for a new trial, and the defendant filed a petition asking to set aside the order granting a new trial, in part because "the lower court proceeded to determine the motion for a new trial without having before it proper affidavits." (Id. at p. 745.) The Court of Appeal held, "[a]ssuming this to be the fact, we think the only result was an irregularity in the proceedings of the court which did not affect the jurisdiction conferred by section 657 et seq. of the Code of Civil Procedure to hear and determine the motion for a new trial." (McConnell v. Superior Court, supra, 51 Cal.App. 744, 745.)
Here, the trial court clearly remembered the alleged instances of error (attorney misconduct), and all the matters considered were available on the face of the record. The court verified its recollection by having the court reporter read the relevant portions of the record. The failure to provide affidavits did not deprive the court of jurisdiction to hear and decide the motion for a new trial, and was a "noncalamitous" omission.
II. The Trial Court Did Not Abuse Its Discretion in Granting Plaintiff a New Trial
The court specified seven separate instances of misconduct:
"1. A question to Ms. Abilez: `Did you sue the bus company? The driver of the other car, Ms. Abilez was injured and her car wrecked as a result of the accident. This was a clever method of securing a laymans opinion that the bus company was not at fault.
"2. To the investigating officer: [`]Okay. Your report says that Mrs. Abilezs vehicle violated . . . (Objection, sustained.)
"3. To Abilez: `You had insurance on your vehicle at the time of this accident, correct? Now that Abilez has basically stated the bus company was not at fault for the accident, and the plaintiff had to object to a question regarding fault posed to another layman—the officer, defense lets the jury know that Abilez was covered by insurance. The nature and extent of plaintiffs injuries were not introduced in this bifurcated case, and nothing was brought out to show the amount of insurance, but this conditioned the jury for the `deep pockets argument. (See below.) It is well known that the existence of a defendants insurance is seldom permitted in a personal injury trial.
"4. To Ms. Ochoa, the plaintiff: `You have lived in the United States for over 30 years, is that correct? A. `Yes. Q. `You speak English? A. `No. This had nothing to do with the accident, for plaintiff was not an actor, she was a passive fare paying passenger on a common carrier. It was an appeal to juror bias, an effective tactic for prejudice against Spanish speakers who do not learn English is widespread.
"5. The following statements were made by the defense during oral argument to the jury:
"a. `Rules of evidence say keep out our evidence that we think should come in. The court attempted to minimize this by giving a short statement on why such rules exist. But that statements impact may have been obviated by juror knowledge that many of the rules, including those which keep out evidence when the constable blundered, are judge made. Also jurors resent side bars, etc. which result in keeping facts from them. Our laws of evidence are the result of monumental efforts to devise methods for ascertaining truth. They are analogous to the scientific method. An attempt to inculcate the jury with the idea they are evil and `keep out our evidence that we think should come in is reprehensible. This department recently granted a mistrial in case where plaintiffs counsel, a student of Gerry Spence, made the same suggestion.
"b. (After [alluding] to the fact that Abilez pulled out in front of a vehicle which had the right of way.) ` . . . thats all of our worst nightmares. This had the same effect as a golden rule argument.
"c. `I support the jury system, and like many of you, Im concerned with the types of cases that are brought, especially against what we call deep pocket defendants. [¶]
"One or two of the above misconducts might be overlooked as trivial. But the cumulative effect of all seven of them deprived plaintiff of a fair trial. They invited the jury to decide this case on the basis of bias and improper evidentiary suggestions. They resulted in prejudicial error."
Omnitrans argues that, because a new trial may be granted only upon a showing of a "miscarriage of justice," referring to the constitutional standard (Cal. Const., art. VI, § 13), and because "no trial is perfect" and prejudice "rarely occurs," the trial court below likely abused its discretion in finding that the acts complained of had met the standard (i.e., "miscarriage of justice") for granting the new trial.
Omnitranss argument stands the abuse of discretion review standard on its head. On appeal, it is not this courts function to evaluate the evidence to determine whether a miscarriage of justice occurred as a result of the alleged misconduct below. Rather, a broad discretion is granted to the trial court in making such a determination, and on appeal, our task is simply to determine whether the trial courts conclusion was so far out of bounds as to constitute an abuse of that broad discretion:
"Witkin distills the law on the point: `The trial judge is familiar with the evidence, witnesses and proceedings, and is therefore in the best position to determine whether, in view of all the circumstances, justice demands a retrial. Where error or some other ground is established, [the courts] discretion in granting a new trial is seldom reversed. The presumptions on appeal are in favor of the order, and the appellate court does not independently redetermine the question whether an error was prejudicial, or some other ground was compelling. Review is limited to the inquiry whether there was any support for the trial judges ruling, and the order will be reversed only on a strong affirmative showing of abuse of discretion. (8 Witkin, [Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court] § 143, p. 644.)" (Bell v. State of California (1998) 63 Cal.App.4th 919, 931.)
"Thus the question is not whether the challenged acts by opposing counsel were prejudicially erroneous, but whether they were sufficiently opprobrious so that the trial court could conclude that they were improper." (Seimon v. Southern Pac. Transportation Co. (1977) 67 Cal.App.3d 600, 605.)
Here, the trial court was in the best position to evaluate the effect of the alleged misconduct, and indeed considered it so egregious that it clearly remembered the acts. Omnitrans has failed to demonstrate that it was unreasonable for the trial court to conclude that counsels conduct was improper.
The entire theme of the defense position was set in opening statements, when defense counsel argued that Abilez had admitted fault, Abilez could not say that the bus driver did anything wrong, and that plaintiffs case was "an attempt to shake down and extort money." Plaintiffs counsel was obliged to object: "Argument. Prejudicial and improper." The court agreed, "Its both. Please disregard the last statement of Counsel."
Omnitrans attempts to defend each of the alleged instances of misconduct. It denies, for example, that questioning plaintiff about her length of residence in the United States was prejudicial, because the questions were relevant to establish her level of understanding of English and her need for an interpreter. The argument that, "[b]ecause she required an interpreter, the fact that [plaintiff] did not speak English was obvious to the jurors," does not help, but hurts Omnitranss argument on appeal: That plaintiffs need for an interpreter was patently obvious to the jurors makes it clear that there was little or no proper purpose in asking the question, other than to invoke bias against plaintiff for having lived so long in this country without learning English.
Omnitrans contends that the trial courts ruling on the motion for a new trial did not explain how the partial question to the police officer, concerning finding Abilez at fault, prejudiced plaintiff. To the contrary, the court carefully explained the prejudice. It is true that the officer never answered the question, because of plaintiffs counsels timely objection, but the matter for the trial courts determination was the misconduct of counsel. Counsel had already been instructed, via the motions in limine, not to bring up the matter of assigning fault; even though the trial court sustained the objection to the question, the insinuation remained that Abilez was the party exclusively at fault for the accident, a matter that was extensively exploited by the defense expert.
Omnitrans urges that, although defense counsel argued to the jury that it is "all of our worse nightmares" to have a car pull out suddenly in front of another car, this was not a "golden rule" violation, because "[c]ounsel never told the jurors to place themselves in defendants shoes." Again, this is contrary to the natural sense of the statements. No, counsel did not directly say, "place yourself in the shoes of the bus driver," but saying it was "all of our worse nightmares" is indistinguishably different in effect. Just as with improper direct "golden rule" appeals, this argument asked the jurors essentially to "become a personal partisan advocate for [a party], rather than an unbiased and unprejudiced weigher of the evidence." (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 484-485.)
Omnitrans argues that substantial evidence supported the verdict in its favor: "Abilez admitted that she erred in believing the intersection was a four-way stop, and that due to the bad, peeling tint job on her front window and the glaring sun, she pulled out into the intersection without being able to see the bus coming. . . . Defendants expert opined that the collision was unavoidable. There was nothing Montgomery could have done to avoid hitting Abilezs car." These are arguments that Montgomery was not at fault. The jury, however, determined otherwise: It found that Montgomery had been negligent.
The only evidence presented at trial upon which Montgomery could be found at fault was that he was driving too fast for conditions, he paid insufficient attention to Abilezs vehicle, and he did not react quickly enough. The "circumstances" included that he took time to "fan" the brakes and honk his horn before fully engaging the brakes; he was going 40 miles per hour through an intersection marked by a school crossing with a crossing guard on duty, at an hour of the morning when children could be expected to be arriving at school; he was also near a stop at which he regularly stopped, and should have anticipated having to stop; and he saw the Abilez vehicle from a quarter-mile away or at least some distance, and was concerned that she might pull out, but simply hoped that she would successfully clear the intersection.
Even though the defense expert opined that the accident was unavoidable, he conceded that with one-third of a second more time, the impact would not have occurred. It is baffling how negligence in these circumstances—i.e., the circumstances leading to the collision—did not contribute to the injury.
As defense counsel argued on the motion for a new trial, "We have a result that doesnt make any sense. . . . This is a case where you had . . . a negligent-free passenger on a bus, a car pulls out, and the bus and the car collide. [¶] The jury found the bus driver negligent. The only allegations of negligence were that he was speeding and inattentive. The jury found him negligent. But then they determined the negligence wasnt a cause of injury. That makes absolutely no legal sense. [¶] In facts of this nature and the evidence that was presented, how could he have been negligent operating a bus and that negligence not be a cause of injury?" We agree. "This case had no causation issue. Either he was negligent or he wasnt. She was on the bus, and there was a collision. Either his negligence was a cause of injury, or he wasnt negligent. . . . There [were] no allegations of any kind of negligence that would not be a cause [of injury]."
We conclude, upon a proper deferential review of the trial courts ruling, that it indeed could reasonably have found the allegations of misconduct prejudicial. Omnitrans has failed to show that the trial court abused its discretion in so ruling.
DISPOSITION
The order granting a new trial to plaintiff is affirmed.
Respondent is awarded her costs on appeal.
We concur:
HOLLENHORST, Acting P. J.
RICHLI, J.