Opinion
A151691
10-31-2018
STEFANIE RAWLINGS, Plaintiff and Respondent, v. CITY OF OAKLAND, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG 14736248)
I.
INTRODUCTION
Appellant City of Oakland (the City) appeals a jury verdict awarded to respondent Stefanie Rawlings arising from an accident where defendant David Hurth hit Rawlings with his car during a protest at the Port of Oakland. Rawlings sued both Hurth and the City for negligence, claiming the Oakland Police Department (OPD) directed Hurth to drive through the picket line causing her injuries. The jury found Rawlings to be 60 percent at fault, the City to be 40 percent at fault, and assigned no liability to Hurth. The City alleges that the jury verdict was not supported by sufficient evidence, the court made erroneous evidentiary rulings, and the court erred in denying both its motion for summary adjudication and motion for a new trial. We affirm.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The Second Amended Complaint (2AC) alleges one cause of action for general negligence against the City. It states OPD officers had a duty to exercise care in directing traffic entering the port, and OPD officers negligently directed Hurth to drive into the picket line. The 2AC also alleges causes of action for negligence and an intentional tort, of driving his car into protestors, against Hurth.
A. Evidence at Trial
Rawlings went to a demonstration at the Port of Oakland on November 27, 2013 to support the truckers who were on strike. When she arrived, she saw protestors carrying signs and noise makers and there were police officers present. Cars and trucks approached the picket line and most of them turned around, but the police helped some of them come through by moving the protestors out of the way. Rawlings stated the police officers asked protestors to move so that cars could pass through. The City played a video from the news where a reporter asked Rawlings if they planned to let any vehicles go in and she responded: "hell no."
Lieutenant Eric Lewis was the incident commander for OPD at the protest. He testified OPD issued orders for the protestors to leave the roadway to make it clear for traffic. OPD Officer Joel Hight was at the port to do crowd control at the protest where officers facilitated getting cars through the picket line into the terminal. OPD Officer Donald Lane was also present at the protest at the port. He did not remember escorting any vehicles at the protest, but he did assist in keeping the crowd back so people could get to work.
The admissibility of Officer Lane's testimony is discussed in section II.C. Through Officer Lane, Rawlings introduced a video clip where Officer Lane stated: "I would just go forward and run them over."
Katharine Loneke, a protestor, saw OPD officers waving cars through the picket line. She said some people continued to picket while the officers attempted to escort the cars into the port terminal. The protestors would attempt to talk to the drivers as the police were ushering them through. Robert Donohoe participated in the protest and saw OPD officers escorting cars through the picket line. The purpose of the picket line was to make it difficult for people to enter the port.
Donohoe enlisted Rawlings counsel, Dan Siegel, as a legal observer at the protest. Rawlings's counsel was present the day of the protest and represented her in a previous lawsuit. This is discussed in detail in section II.D.
Hurth testified he drove to the port to report to work that morning. There were people picketing at the entrance. Hurth first testified the OPD officers told the protestors to "part and let them through," but the officers did not wave him forward. He then stated OPD officers did not say anything to him or gesture towards him, but they "waved" him through. The police told the protestors to "part" and let his car pass, but Hurth stated the officers did not wave him through the gate. Hurth honked his horn at the protestors as he was driving through. He did not know that he hit Rawlings because it was just a "brush." Hurth testified he did not intentionally drive into anyone and no OPD officer directed him to drive into anyone.
Accident reconstruction and biomechanics consultant, Dr. Rajeev Kelkar, testified that Hurth was driving approximately at the speed someone would be walking. He explained that Rawlings's contact with the car would have lasted only two seconds. If Hurth's attention was drawn in another direction, he may not have seen the car hit her. Rawlings walked in front of his car.
Beth Peller was protesting with Rawlings at the port. OPD officers were waving cars through the picket lines. She said that the officers were "directing verbally" and making hand motions. Peller testified: "I saw [Rawlings] get hit by a car that the Oakland Police Department had directed through the picket line." Rawlings was hit on her left leg and she fell against the car onto her hip. As the car hit Rawlings, she "came up on the hood" and Peller grabbed her and helped pull her out of the way. Rawlings did not fall on the ground, she fell against Peller.
After Rawlings was hit, she "tried to just walk it off" because she did not think she was seriously injured. Peller thought Rawlings appeared to be in shock. Rawlings was interviewed by a reporter after the incident and told the reporter she was not seriously injured, just bruised a little bit.
Rawlings testified that the next day she felt a sharp sort of nerve pain. She had a prior injury, a broken pelvis, during her military service, but this pain was "increased." She has had pain on a daily basis since the accident. After the long Thanksgiving weekend, she went to urgent care and was given an anti-inflammatory medication. She also attended physical therapy. She experienced depression and saw a psychologist. The constant pain led her to consider suicide.
Rawlings testified that at the time of trial she did not take drugs anymore, which was a "big deal" because she was taking Vicodin and Gabapentin and they were mood altering. It is unclear if she was prescribed these for the injury from the accident or for her earlier injury in the military.
Kathryn Hoban, a friend of Rawlings, testified that after the accident, Rawlings felt hopeless and that pain was interfering with her life. Her energy level decreased, and she was less active. Another friend, David Grefrath, testified that after the accident Rawlings was physically "slow" and was not as active or mobile. Rawlings had suffered bouts of depression prior to the accident. Rawlings's significant other, Christopher Cantor, testified that she stopped biking everywhere, and her activities fell off. She also had pain during sex. The injury caused a change in their relationship.
B. The City's Motion for a Directed Verdict
At the close of the evidence, the City moved for a directed verdict arguing there was no evidence OPD directed Hurth to drive his car into Rawlings. Additionally, there was no evidence the City owed a duty to Hurth or Rawlings.
Rawlings argued the City owed a duty to her to direct traffic in a reasonable manner so as not to cause harm to the protestors. The City argued it did not wave Hurth through or direct him to drive through the protestors, the OPD officers directed the protestors out of the roadway onto the sidewalk.
The court stated that it was for the jury to decide if the OPD officers were waving and if they specifically waved to Hurth. The OPD officers had a duty not to be negligent. The court denied the motion.
C. Verdict
The jury found that Hurth did not intend to harm Rawlings and did not act negligently. It found the City was negligent and its negligence was a substantial factor in causing harm to Rawlings. The court awarded damages for physical and mental pain and suffering in the amount of $50,000. The jury found Rawlings's violations of the law were a substantial factor in causing her harm and she was 60 percent responsible for her injury. The jury found the City 40 percent responsible and Hurth zero percent responsible.
D. Motions for Judgment Notwithstanding the Verdict and New Trial
Both the City and Rawlings filed motions for judgment notwithstanding the verdict (JNOV) and motions for a new trial The City argued it did not owe Rawlings a duty of care because it had no special relationship and Rawlings had failed to prove the City legally or proximately caused her injuries. There was no substantial evidence to support the jury verdict. OPD did not direct Hurth to hit Rawlings and did not cause her injuries. The City further argued the introduction of Officer Lane's testimony prejudiced it. Lane was not present for the incident and had no personal knowledge. Evidence about Lane's conduct and state of mind was irrelevant and prejudicial.
Rawlings argued the evidence was insufficient to justify the verdict, the verdict was contrary to law, and the damages were inadequate. The evidence established Hurth hit Rawlings with his car and he was negligent in driving into the group of protestors.
At the hearing on the motions for new trial and JNOV, Rawlings agreed with the City that the verdict was "illogical." Rawlings argued there is no logical basis to conclude that Hurth was not negligent and was in no way responsible for her injuries. The evidence was uncontested that he drove his car into her. Hurth, however, argued that there was evidence Rawlings walked into his vehicle.
The City argued that OPD gave a dispersal order for the protestors to move out of the roadway and Rawlings ignored the order. Hurth testified that the City did not direct him to drive into any protestors. If Hurth was not negligent and did not do anything wrong, then the City was not negligent and did not do anything wrong.
The court denied both motions for JNOV and a new trial.
III.
DISCUSSION
A. Sufficiency of the Evidence
"Where the appellant challenges the sufficiency of the evidence, the reviewing court starts with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant's affirmative burden to demonstrate otherwise." (Garlock Sealing Technologies, LLC v. NAK Sealing Technologies Corp. (2007) 148 Cal.App.4th 937, 951.) "In reviewing the sufficiency of the evidence, we must consider all of the evidence in the light most favorable to the prevailing party, accept as true all the evidence and reasonable inferences therefrom that tend to establish the correctness of the trial court's findings and decision, and resolve every conflict in favor of the judgment. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631.) 'It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.' (Ibid.)" (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 369.)
1. Evidence OPD Directed Hurth Toward the Protestors
The City argues there was insufficient evidence that OPD directed Hurth to drive through the protestors, leading to his collision with Rawlings. The City contends Hurth testified that no OPD officer directed him and Rawlings presented no evidence that OPD directed Hurth.
The court instructed the jury that in order to find in Rawlings's favor on the negligence claim, she must prove: (1) the City was negligent; (2) Rawlings was harmed; and (3) the City's negligence was a substantial factor in causing that harm. A "substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm." It does not have to be the only cause of the harm. The basic standard of care for the City was to prevent harm to Rawlings. Negligence can be acting or failing to act.
The evidence before the jury was that OPD was present at the protest and involved in ushering cars into the port. Rawlings testified that OPD helped some cars pass through by moving the protestors out of the way. Peller saw OPD officers waving cars through the picket lines. Peller testified: "I saw [Rawlings] get hit by a car that the Oakland Police Department had directed through the picket line." She said that the officers were "directing verbally" and making hand motions. Donohoe testified that he saw OPD officers escorting cars through the picket line.
Officer Lane testified OPD moved picketers out of the driveway area, so cars could pass, and the cars were not instructed to move until the picketers were off the driveway. Hurth testified OPD officers did not say anything to him or gesture towards him, but they "waved" him through. OPD told the protestors to "part" and let his car pass.
"A defendant's negligent conduct may combine with another factor to cause harm; if a defendant's negligence was a substantial factor in causing the plaintiff's harm, then the defendant is responsible for the harm; a defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing the plaintiff's harm; but conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct." (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187 (Yanez), citing Viner v. Sweet (2003) 30 Cal.4th 1232, 1239-1241.)
" 'Although a finding of causation may not be based on mere speculation or conjecture, such finding may be predicated on reasonable inferences drawn from circumstantial evidence.' [Citation.]" (City of Modesto v. Dow Chemical Co. (2018) 19 Cal.App.5th 130, 153.)
In Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 707 (Lugtu) our Supreme Court concluded that a California Highway Patrol (CHP) Officer had a legal duty "to exercise his or her authority in a manner that does not expose . . . persons to an unreasonable risk of harm."
Based on all the evidence before the jury, the jury could have reasonably inferred that OPD directed Hurth to drive in the direction of the protestors. Peller's testimony provides substantial evidence OPD directed Hurth's car toward the protestors. This was supported by Rawlings's, Loneke's, and Donohoe's testimony. Based on the jury's verdict finding Hurth was not negligent and finding Rawlings 60 percent at fault and the City 40 percent at fault, we can reasonably conclude the jury believed the testimony that OPD directed the car toward the picket line, but also that OPD had ordered the protestors to move out of the way, and Rawlings failed to do so. The jury could have reasonably found OPD's actions in waving cars through were a substantial factor in causing Rawlings's injuries.
2. The City's Negligence Absent a Finding Hurth Was Negligent
The more troubling issue is the City's argument that given the jury found Hurth was not negligent, the City cannot be negligent. OPD argues its alleged act of directing Hurth, without an independent act by Hurth of driving into Rawlings, could not be the cause of Rawlings's injury. It contends OPD's acts were not the "but for" cause of the incident.
In Lugtu, the court considered whether CHP Officer Hedgecock who stopped a speeding car in the center median was negligent when another driver hit the car. (Lugtu, supra, 26 Cal.4th at p. 707.) The CHP argued "even if the jury were to find that Hedgecock was negligent, the undisputed evidence established, as a matter of law, that Hedgecock's negligence was not a legal cause of plaintiffs' injuries." (Id. at p. 725.) The CHP argued that the driver's conduct was the superseding cause of the injuries to the plaintiffs. (Ibid.) "It is well established that when a defendant's negligence is based upon his or her having exposed the plaintiff to an unreasonable risk of harm from the actions of others, the occurrence of the type of conduct against which the defendant had a duty to protect the plaintiff cannot properly constitute a superseding cause that completely relieves the defendant of any responsibility for the plaintiff's injuries." (Ibid.) Officer Hedgecock owed a duty of care to protect the plaintiffs from being hit by an oncoming driver in the fast lane of traffic. (Ibid.) Even if a jury were to conclude the driver was negligent this does not eliminate Hedgecock's liability and necessitates the application of comparative fault principles. (Id. at p. 726.)
Rawlings argues that OPD's conduct meets the substantial factor test for causation if it was the "but for" cause even if not the sole cause. (Yanez, supra, 221 Cal.App.4th at p. 190.) This is based upon Rawling's theory that a "uniformed, sworn police officer direct[ed] a motorist into a group of pedestrians." An officer or officers gave the direction and Hurth followed it.
Even if the jury accepted Hurth's testimony that OPD did not specifically direct him towards the protestors and that if they had directed him to drive into a protestor, he would not have done it, they still could have concluded OPD was responsible for his car moving toward Rawlings. At a minimum, Hurth and others testified that OPD "waved" cars through and attempted to disperse the protestors to allow cars to pass. Under Lugtu, OPD owed a duty of care to the protestors and exposed protestors to a risk of harm by allowing cars to move toward and through the picket lines. Here, whether the jury concluded Hurth was negligent, it could still conclude OPD was also at fault, along with Rawlings herself.
3. Evidence in Support of Noneconomic Damages
Finally, the City argues that the award of noneconomic damages is not supported by the evidence. The City contends the total award of $50,000 in damages, with the City's share of $20,000, was unreasonable. The City asserts Rawlings provided no evidence of medical bills or other expenses, and there was no guidance on how the jury should calculate damages.
"We review the jury's damages award for substantial evidence, giving due deference to the jury's verdict and the trial court's denial of the new trial motion. [Citations.] 'In considering the contention that the damages are excessive the appellate court must determine every conflict in the evidence in respondent's favor and must give him the benefit of every inference reasonably to be drawn from the record [citation].' " (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 300.) There is no fixed standard for a jury to compute the monetary value of emotional distress, but the jury is entrusted with discretion in determining the amount of damages to be awarded. (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1602.)
Here, the trial court instructed the jury that Rawlings "does not have to prove the exact amount of damages that will provide reasonable compensation for the harm; however, you must not speculate or guess in awarding damages." The court told the jury it must decide a reasonable amount based on the evidence and common sense.
"As our Supreme Court stated, 'One of the most difficult tasks imposed upon a jury in deciding a case involving personal injuries is to determine the amount of money the plaintiff is to be awarded as compensation for pain and suffering. No method is available to the jury by which it can objectively evaluate such damages, and no witness may express his subjective opinion on the matter. [Citation.] In a very real sense, the jury is asked to evaluate in terms of money a detriment for which monetary compensation cannot be ascertained with any demonstrable accuracy.' " (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764, quoting Beagle v. Vasold (1966) 65 Cal.2d 166, 172.)
Rawlings testified to her pain suffering, including chronic nerve pain, since the accident. She attended physical therapy and saw a psychologist and stated the constant pain led her to contemplate suicide. Rawlings's friends testified about her decreased energy level, how she had become less physically active, and that she suffered bouts of hopelessness and depression.
Rawlings had no further duty to provide medical testimony to support her pain and suffering damages. Pain and suffering may be established by lay testimony, including a plaintiff's own testimony. No opinion testimony is required from a properly qualified medical physician. (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 895-896.)
The City argues that $50,000 for "soft-tissue injuries and sadness" is unreasonable. However, "[t]he amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. They see and hear the witnesses and frequently, as in this case, see the injury and the impairment that has resulted therefrom. As a result, all presumptions are in favor of the decision of the trial court [citation]." (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507 (Seffert).)
"The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury." (Seffert, supra, 56 Cal.2d at p. 507.) An award of $20,000 against the City is not so large that it shocks the conscience or suggests passion or prejudice. We see no basis to interfere with the jury's verdict which was upheld by the trial court on a motion for new trial.
B. Denial of the City's Motion for Summary Adjudication
The City argues the court erred in denying its motion for summary adjudication (summary judgment) because it had no special duty to Rawlings.
1. Summary Adjudication Motion
The City filed a motion for summary adjudication arguing it did not owe Rawlings a duty of care. There is no special relationship between Rawlings and OPD. Rawlings was voluntarily protesting in the roadway trafficked by cars. Rawlings opposed the motion arguing even if there was no special relationship, OPD officers owed her a duty of care and their conduct supported her negligence claims.
The court issued an order denying the motion for summary adjudication. The order states: "Defendant's Motion for Summary Adjudication is in fact a Motion for Summary Judgment." The City sought summary adjudication of Rawlings one and only claim. The 2AC does not allege a special relationship or a special duty to protect Rawlings or the other protestors. Rawlings's claim is the City is liable because OPD negligently directed Hurth to drive his car near a group of protestors. The court found Rawlings presented sufficient evidence to support a reasonable inference that OPD directed Hurth to proceed into or near a group of protestors.
2. Review of a Denial of a Summary Judgement Motion Posttrial
"In Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830 (Waller), the trial court denied the defendants' summary judgment motion. A jury later decided the same issues at trial in the plaintiff's favor. The Court of Appeal declined to review the summary judgment denial, reasoning that the defendants suffered no prejudice because they received a jury trial on the merits. (Id. at p. 836.) Waller explained: 'When the trial court commits error in ruling on matters relating to pleadings, procedures, or other preliminary matters, reversal can generally be predicated thereon only if the appellant can show resulting prejudice, and the probability of a more favorable outcome, at trial.' " (California Housing Finance Agency v. Hanover/California Management & Accounting Center, Inc. (2007) 148 Cal.App.4th 682, 688, italics omitted (Hanover).)
Review of a ruling denying summary judgment is inappropriate when "the same questions raised by the motion are then decided adversely to the unsuccessful moving party after a trial on the merits which itself is free from prejudicial error." (Waller, supra, 12 Cal.App.4th at p. 836.)
" 'A decision based on less evidence (i.e., the evidence presented on the summary judgment motion) should not prevail over a decision based on more evidence (i.e., the evidence presented at trial).' " (Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1269, quoting Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (2004) ¶ 8:168.10, p. 8-114.) This court has agreed that appealing a denial of summary judgment "runs afoul of the general rule that denial of their motions may not be challenged here because the parties litigated the same issues at trial. [Citations.]" (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1011.)
Here, after considering all of the evidence at trial, the jury reached the same conclusion as the trial court did in denying summary judgment: OPD owed an ordinary duty of care to Rawlings. We, therefore, decline to review the denial of the City's summary judgment motion on appeal because the City has suffered no prejudice. (Hanover, supra, 148 Cal.App.4th at p. 688.)
C. Trial Court's Admission of Officer Lane's Testimony
The City contends that the trial court erred under Evidence Code section 352 in admitting Officer Lane's testimony. The City argues the trial court did not perform the required balancing under section 352.
All statutory references are to the Evidence Code unless otherwise stated.
Prior to trial, the City filed a motion in limine regarding Officer Lane's proposed testimony. The City argued evidence of OPD officers' feelings about the protest were not relevant under section 350. OPD officers' negative statements about the protestors would engender prejudice toward OPD. Officer Lane's portable digital recording device recorded him stating that the drivers should run over the picketers. This statement had no relevance to Rawlings's injury because he was not present or involved in directing cars near Rawlings.
The court addressed Officer Lane's testimony several times prior to and during the course of trial. At a hearing on the motions in limine, the City objected to Rawlings including Officer Lane as a witness because the video contained "inflammatory remarks" made by an officer who was not on the scene when the accident happened.
Rawlings subpoenaed Officer Lane and the City again objected that Officer Lane's foot was run over at a different entrance and his testimony would be "inflammatory" and "prejudicial." The court stated: "I don't see the necessity of holding an evidentiary hearing prior to having him called . . . ." Officer Lane was off duty due to a disability, so the City had not had the opportunity to depose him and Rawlings had not noticed his deposition. The court overruled the City's motion in limine because it did not "have sufficient evidence to make a determination that there's prejudice here, because I don't really know what his testimony is going to be."
Later during trial, the City objected to the introduction of the recording during Officer Lane's testimony under sections 352 and 402 because Rawlings did not intend to play the full recording.
Officer Lane testified that he was present at the protest at the port. He did not remember escorting any vehicles at the protest, but he did assist in keeping the crowd back, so people could get to work. OPD moved picketers out of the driveway area so cars could pass, and the cars would not move until the picketers were off the driveway. During this process, a car ran over his foot.
With Officer Lane's testimony, Rawlings attempted to introduce two segments of a video from Officer's Lane's portable digital recording device and there was a four-minute gap between the two segments. The City objected to the video as misleading. Officer Lane authenticated a video clip where he stated: "I would just go forward and run them over." He testified that prior to this statement, the protestors were running in front of vehicles attempting to enter the port terminal.
Rawlings argues that the trial court weighed the probative value of the evidence against any potential prejudice to the City. While the issue was raised multiple times before and during trial, the court never held an evidentiary hearing or conducted a balancing under section 352. At the first hearing, the discussion focused on the lack of Officer Lane's deposition and the issues with subpoenaing Officer Lane. The court instructed the parties to meet and confer. The court stated it would address any issue under section 352 as it arises during trial. The next time the issue was raised, the court stated that it did not see any reason to hold an evidentiary hearing. The court found it did not have sufficient evidence to make a determination of prejudice. During Officer Lane's testimony, when the City raised the issue again, the court allowed Officer Lane to testify.
" ' "The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues." ' " (People v. Jefferson (2015) 238 Cal.App.4th 494, 507, quoting People v. Karis (1988) 46 Cal.3d 612, 638.) " 'Exclusion of evidence under Evidence Code section 352 is reserved for those cases where the proffered evidence has little evidentiary value and creates an emotional bias against the party.' [Citation.]" (Ibid.)
The admission of Officer's Lane's recorded statement was unduly prejudicial and not probative of the issue of negligence by OPD. The fact Officer Lane had animosity toward the protestors after his foot was run over by a car was not relevant to Rawlings's case and it was highly prejudicial to OPD. It portrayed OPD in an unfavorable light.
Even if we conclude the court erred in failing to conduct the necessary balancing and admitting Officer Lane's testimony, we conclude the error was harmless. "To prevail on appeal, [a party] must demonstrate the error was prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836. [Citation.] 'Under the Watson standard, prejudicial error is shown where " ' "after an examination of the entire cause, including the evidence," [the reviewing court] is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] 'We have made clear that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' " ' [Citation.]" (People v. Jefferson, supra, 238 Cal.App.4th at p. 508, italics omitted.)
The testimony was relatively brief, and none of the parties discussed it at length in their closing arguments. Rawlings's counsel stated that after Officer Lane had his foot run over, he stated that the cars should go forward and run over all the protestors. "And maybe that sheds some light on, at least his state of mind, and maybe the states of mind of the other officers." The City also only made a brief mention of Officer Lane's testimony in closing argument, arguing Rawlings called Officer Lane "with the intent to embarrass him and shame the Oakland Police Department."
The evidence demonstrated that OPD ushered and directed cars to the port entrance through the protestors. The jury found that this conduct made OPD 40 percent at fault for Rawlings's injuries. Officer Lane's disgruntled statements after his foot had been run over were not probative of any issue in the case and could have been prejudicial but after examining the entire cause, it is not reasonably probable the jury would have reached a different verdict in the absence of this testimony.
D. Rawlings's Counsel's Role as a Percipient Witness
In a somewhat unorthodox situation, Rawlings's trial counsel (and current appellate counsel), Dan Siegel, was also a legal observer at the protest as well as counsel for some of the truckers involved.
The City sought to call Siegel as a witness at trial. Prior to trial, Rawlings filed a motion to exclude Siegel's testimony. Siegel submitted a declaration stating he was not present at the port when Hurth's car hit Rawlings and he did not see the incident. He had no discussions with Rawlings prior to the protest and no knowledge she would be there. He did not discuss the injunction regarding activities at the port with her. He was told after the incident that she had been hit and he spoke to her in his capacity as her attorney.
The City argued Siegel was a percipient witness and had special knowledge of the injunction prohibiting protestors from blocking the entry that Rawlings violated at the protest. The City asserted that Siegel may have contributed to Rawlings's injuries by his own negligence by encouraging protestors to block traffic. The City accused Siegel of violating the Rules of Professional Conduct because he continued to represent Rawlings and he was a material witness.
The court held a hearing on the motion and Siegel again argued that he was not a percipient witness because he was not present when Rawlings was hit and did not see the accident. He had been Rawlings's attorney in other matters for approximately five years and he spoke to her after the accident. He never discussed the injunction with Rawlings.
In a minute order, the court granted Rawlings's motion to exclude Siegel as a witness. The order states that if there are specific items of evidence regarding Siegel, it would rule on those as they come up.
Under the Rules of Professional Conduct, an attorney "shall not act as an advocate before a jury which will hear testimony from the [attorney]" unless the attorney "has the informed, written consent of the client." (Rules Prof. Conduct, rule 5-210.) The City argues that because Siegel was involved in the protest and a percipient witness, it was a breach of professional conduct for him to also act as Rawlings's counsel. This, however, turns the rule on its head. As Rawlings's counsel, Siegel would violate rule 5-210 of the Rules of Professional Conduct if he provided testimony as a witness. Siegel argued the only relevant evidence he could provide was his visual observations of Rawlings after the accident, and there were other witnesses who could provide the same testimony. Siegel was not the only source of the evidence.
" 'Only in extraordinary circumstances should an attorney in an action be called as a witness, and before the attorney is called, defendant has an obligation to demonstrate that there is no other source for the evidence he seeks.' [Citation.]" (People v. Linton (2013) 56 Cal.4th 1146, 1186 (Linton).) "In determining the necessity of counsel's testimony, the court should consider 'the significance of the matters to which he might testify, the weight his testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which these matters may be independently established.' [Citation.]" (Smith, Smith & Kring v. Superior Court (1997) 60 Cal.App.4th 573, 581.)
Here, Siegel did not see Rawlings prior to the accident and was not present for the accident. Siegel did speak to Rawlings after the accident, but there were other witnesses who could and did testify to Rawlings's physical and emotional condition after the accident. The City argued to the trial court Siegel was an observer for the Lawyer's Guild, he advised protestors of their rights and specifically instructed them about the injunction. Whether this is true is not relevant here because both Siegel and Rawlings testified that he did not see her or advise her before the protest.
Under these circumstances, the trial court did not abuse its discretion in granting Rawlings's motion to preclude Siegel's testimony at trial. Rawlings demonstrated there were other witnesses and evidence available and this was not an extraordinary circumstance where Siegel should be called as a witness. (See Linton, supra, 56 Cal.4th at p.1186.)
E. Jury Question Regarding the Definition of "Enjoin"
The City argues the trial court provided a misleading response to the jury's question about the meaning of the word "enjoin."
During trial, the City introduced an exhibit of the preliminary injunction from a prior lawsuit between the City of Oakland, the port, and individual truck drivers. The injunction stated that the named parties and "all persons acting in concert" with them "are enjoined from blocking ingress into or egress from, or the passage of vehicles or person through, Port facilities" in violation of the Vehicle Code or Oakland Municipal Code.
During deliberations, the jury submitted a note asking the court to clarify the meaning of the word "enjoin." In discussing the note with the parties, the court noted the law dictionary definition was: " 'To require, command, positively direct. To require a person by writ of injunction to perform or to abstain or desist from some act. See injunction restraining order.' " The City argued the court should read the entire dictionary definition. The court removed the last sentence: " 'See injunction restraining order.' " The City stated that the jurors were asking specifically what enjoin meant in this context and here, the injunction is instructing them to "abstain." The wording at issue in the injunction before the jury meant to abstain or desist from, not being required to do anything.
The court's written response stated: "Pursuant to Black's Law Dictionary, the term 'enjoin['] is defined as '[t]o require a person, by writ of injunction, to perform, or to abstain or desist from, some act.' "
On appeal, the City argues that providing the full dictionary definition was confusing to the jury. The jury could interpret enjoin to mean the protestors were directed to block the ingress and egress, rather than abstain or desist from such action.
Contrary to Rawlings's argument that this issue was waived, the City properly preserved the issue by raising it before the trial court, but the issue fails on the merits. The trial court provided the jury with the dictionary definition of the term "enjoin" and we can presume the jury used its common sense to interpret the meaning of the term in context.
"To ascertain the common meaning of a word, 'a court typically looks to dictionaries.' [Citation.]" (People v. Whitlock (2003) 113 Cal.App.4th 456, 462.) In People v. Karis (1988) 46 Cal.3d 612, one juror looked up the definition of the word "mitigate" during deliberation and informed the other jurors that it was defined in the dictionary as " 'to make or become milder, less severe, less rigorous, or less painful; moderate.' " (Id. at p. 644.) Our Supreme Court concluded that while it was misconduct for the juror to consult a dictionary, the defendant was not prejudiced: "While the dictionary definition of 'mitigating' may not have been particularly helpful to the jury in understanding the use of the term in this context, defendant offers no persuasive argument to support a conclusion that the jury might have been misled. He suggests that if the jury had believed it could consider as mitigating evidence that did not pertain directly to the crime, notwithstanding the instruction, consideration of that definition would lead them to conclude that to be considered mitigating the factors had to make the crimes themselves 'mild, soft, or tender,' or 'less severe, less rigorous, less painful, moderate.' [¶] Nothing in the definition suggests the restricted meaning that defendant believes the jury may have attributed to the word mitigating." (Id. at p. 645.)
Similarly here, nothing in the dictionary definition of "enjoin" suggests the meaning was restricted to the positive aspects of the term (require, command, or direct) versus the negative aspects (abstain or desist). Given the jury's ultimate verdict finding Rawlings contributorily negligent for violating the Vehicle Code sections, we can conclude any error was harmless.
F. Denial of the City's Motion for New Trial and JNOV
The City argues both that the trial court erred when it denied the City's Motion for Judgement Notwithstanding the Verdict by failing to properly weigh the evidence supporting the verdict and erred in denying its motion for a new trial.
For the JNOV, referring to its arguments on sufficiency of the evidence, the City contends there was no substantial evidence to support the verdict. Respondent contends that the trial court properly denied the motion upon a finding that there was substantial evidence to support the verdict.
" 'A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.' (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) On appeal, 'the standard of review is whether any substantial evidence—contradicted or uncontradicted—supports the jury's conclusion.' (Ibid.)" (Simers v. Los Angeles Times Communications, LLC (2018) 18 Cal.App.5th 1248, 1269.)
The City's motion for JNOV raises the same issues raised on appeal: it did not owe Rawlings a duty of care, it was not the legal or proximate cause of Rawlings's injuries, OPD did not direct Hurth to drive into Rawlings, and it was prejudiced by the introduction of Officer Lane's testimony. Thus, there was no substantial evidence to support the jury verdict and the verdict is not supported by the weight of evidence. At the hearing, the City argued if Hurth was not negligent and did not do anything wrong, then the City was not negligent and did not do anything wrong. The court denied both the motions for JNOV and a new trial.
The City asserts that the substantial evidence rule only operates when the court properly performed its function of weighing the evidence. "[T]he basis for application of the substantial evidence rule is the theory that the trier of fact is in the best position to determine the value and weight to be attributed to evidence. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 246, pp. 4238-4239.) The rule thus operates only where it can be presumed that the court has performed its function of weighing the evidence. If analysis of the record suggests the contrary, the rule should not be invoked." (Estate of Larson (1980) 106 Cal.App.3d 560, 567.)
There is no basis on the record before us to conclude the court failed to properly weigh the evidence. The court's order states: "The Court heard and considered the argument and legal authorities presented by the parties, both in moving and responding papers and oral argument, before the matter was submitted for decision. [¶] Based on the above, the Court DENIES Defendant's motions . . . ." An appellate court the will infer the trial court made "implied factual findings favorable to the prevailing party on all issues necessary to support the judgment." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 60.) " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
The trial court also properly denied appellant's motion for a new trial. In ruling on a motion for new trial, the trial court sits as an independent trier of fact with the power to assess witness credibility, reweigh the evidence, and draw reasonable inferences contrary to those of the trier of fact. (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503.) On appeal from an order denying a motion for new trial, the appellate court reviews the entire record, including the evidence, to make an independent determination of whether the claimed error was prejudicial. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417, fn. 10, overruled on other grounds in Soule v. General Motors Corp. (1994) 8Cal.4th 548; Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 159.)
As discussed at length above in sections II.A, C, D, and E this court has reviewed the record and the evidence presented during the trial and finds there was no error made by the trial court in denying Rawlings's motion for a new trial. The weight of the evidence supported the jury's verdict.
In sum, we have addressed the merits of each of these arguments above and conclude there was substantial evidence supporting the verdict and thus the trial court did not err in denying the City's motion for a JNOV. We have also reviewed the entire record, including the evidence, and independently find that the verdict was supported by the weight of the evidence; hence there was no error made by the trial court when it denied the motion for a new trial.
The City's final argument is the judgment does not conform to the special verdict form. Specifically, the special verdict states that total damages are $50,000 with Rawlings 60 percent liable and the City 40 percent liable. The judgment states: "Judgment is entered in favor of plaintiff Stefanie Rawlings and against defendant City of Oakland in the amount of $20,000." The City's argument puts form over substance. The Judgment lists the calculated amount: 40% of $50,000 is $20,000 and orders the City of Oakland to pay that amount. This is not error. The City cites no authority for its position and we could find none.
The City further objects to the judgment ordering the City to pay Rawlings waived court fees and costs of $615 pursuant to California Government Code section 68637, subdivision (b)(1). This issue is moot because on August 29, 2017, the trial court issued a new judgment striking the order to pay fees and costs. The City fails to address the issue in their reply brief.
IV.
DISPOSITION
The judgment is affirmed.
/s/_________
LEE, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
TUCHER, J.
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.