Opinion
B223302
11-30-2011
PETER TAGLIAFERRI, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent.
Moriarity & Associates, John Moriarity, R. Timothy O'Connor; Brown White & Newhouse, George P. Schiavelli for Plaintiff and Appellant. Carmen A. Trutanich, City Attorney and Kjehl T. Johansen, Deputy City Attorney for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LC080574)
APPEAL from a judgment and orders of the Superior Court of Los Angeles County, Michael Harwin, Judge. Affirmed.
Moriarity & Associates, John Moriarity, R. Timothy O'Connor; Brown White & Newhouse, George P. Schiavelli for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney and Kjehl T. Johansen, Deputy City Attorney for Defendant and Respondent.
INTRODUCTION
Plaintiff and appellant Peter Tagliaferri brought this premises liability action against defendant and respondent City of Los Angeles (defendant or the City). He appeals the judgment and three post-judgment orders in favor of defendant.
Plaintiff alleges he sustained personal injuries after tripping over a portion of sidewalk within City limits, and that this area constituted a dangerous condition. Under Government Code section 835.4 (section 835.4), a public entity is immune from premises liability if its failure to repair a dangerous condition was "reasonable." The jury returned a verdict in the City's favor based on section 835.4.
Plaintiff asserts four sets of arguments. The first set arises from defendant's response to Request for Admission (RFA) No. 64, wherein defendant admitted it did not know of any facts to support its defense based on section 835.4. Plaintiff contends that in light of this admission, the trial court erroneously admitted certain evidence and provided incorrect jury instructions and an erroneous special verdict question.
Plaintiff's second set of arguments relate to his counsel's attempts to contact the jury after the trial. He contends the trial court erroneously denied plaintiff's request for the jurors' contact information. He further contends the trial court abused its discretion by prohibiting his lawyer from having contact with jurors who indicated they did not wish to speak to counsel.
Plaintiff also argues the trial court erroneously denied his motion for attorney fees based on Code of Civil Procedure section 2033.420. This statute permits the recovery of reasonable litigation expenses against a party denying requests for admission if the requirements of the statute are satisfied.
Finally, plaintiff argues the trial court abused its discretion in denying his motion for a new trial. He contends, inter alia, that there was jury misconduct, the trial court's failure to admit certain evidence was an error in law, and misconduct by defendant's counsel resulted in an irregularity in the proceedings.
Although an order denying a motion for new trial is nonappealable, the order may be reviewed on appeal from the underlying judgment. (Walker v. Los Angeles County Metropolitan Transp. Authority (2005) 35 Cal.4th 15, 18.) The orders denying plaintiff's motion for judgment notwithstanding the verdict (JNOV) and motion for attorney fees based on Code of Civil Procedure section 2033.410 are appealable. (Code Civ. Proc., § 904.1, subds. (a)(2) & (a)(4).)
After carefully considering all of plaintiff's arguments, we reject them. We therefore affirm the judgment and the post-judgment orders plaintiff appeals.
BACKGROUND
1. The Accident
On February 2, 2007, at 9:00 p.m., plaintiff was jogging on a sidewalk on Cedros Avenue in Van Nuys. Plaintiff tripped over a section of sidewalk that was raised more than three inches from surface by a tree root. He fell and sustained personal injuries, including injuries to his neck.
2. The Pleadings
About a year later plaintiff filed a complaint against the City for damages based on a premises liability theory. In its answer defendant alleged it was immune from liability pursuant to numerous statutes, including section 835.4. This section, which we shall discuss post, provides that a public entity cannot be liable for a dangerous condition if the act or omission that created the condition was reasonable. The reasonableness of the public entity's conduct is determined by, inter alia, weighing the costs and benefits of action or inaction by the public entity. (Gov. Code, § 835.4, subd. (b).)
Defendant also alleged it was immune from liability pursuant to Government Code section 840.6 (section 840.6). Section 840.6, however, relates to the liability of a public employee. Because the City is not a public employee, this section is inapplicable. We thus do not address plaintiff's arguments relating to section 840.6.
3. Plaintiff's Requests for Admission
Prior to trial plaintiff propounded numerous RFA's on defendant, including the following:
RFA No. 23: "In a Directive dated May 2, 1995 the inspection of defective conditions on sidewalks, curbs and driveway approaches were limited to the location of the complaint."
RFA No. 30: "Assuming that an appropriate truck was within the Van Nuys District and already had prepared asphalt aboard, the cost of temporarily repairing the hazard that is the subject of this action would have been less than $20.00."
RFA No. 64: "Admit that you know of no facts to help prove that Defendant City is immune from liability pursuant to the provisions of Government Code §835.4." Defendant admitted RFA Nos. 23, 30 and 64.
4. Carl Sheriff's Testimony
The case was tried in October 2009. On October 19, 2009, plaintiff called as an expert witness Carl Sheriff. Sheriff is an accident reconstruction and safety forensic engineer.
During Sheriff's direct examination plaintiff's counsel read into the record RFA Nos. 23 and 30 and other admissions by defendant, but counsel did not read RFA No. 64. With respect to RFA No. 23, Sheriff testified that defendant followed the directive dated May 2, 1995, in this case. Sheriff pointed out that prior to plaintiff's accident, defendant performed repairs 50-100 feet away from the area of the accident but did not repair the three-inch displacement in the sidewalk that plaintiff tripped over.
Sheriff opined during direct examination that the "abrupt change" in the sidewalk constituted a dangerous condition and that this condition caused plaintiff's accident. He further stated that there were a number of other contributing factors to the dangerous condition, including the lack of lighting and the "camouflage effect" caused by a tree adjacent to the accident location. Sheriff also opined the City did not have a "proper sidewalk inspection program."
Additionally, Sheriff opined that defendant failed to prioritize its resources. Specifically, he stated: "[I]t is my opinion that it's not a matter of lack of money on the part of the City, but a failure to use whatever funds are available effectively. Effective use of funds and to keep costs down would be to direct City employees to look for nearby defects once they're out at a particular location repairing a sidewalk, look for nearby sidewalks so they can take care of it while they're out there. And it could have been done for less than $20. . . ."
In cross-examination of Sheriff, defendant's counsel asked questions relating to RFA No. 23. Plaintiff's counsel objected to two such questions, but the court overruled the objections.
To place RFA No. 23 into context, defendant's counsel read the entire directive dated May 2, 1995, into the record. This document stated, inter alia: "Considering that the Bureau repairs approximately 200,000 potholes annually, it is not possible to keep pace with the ever increasing backlog of defective concrete conditions requiring temporary asphalt repairs. Therefore, effective immediately, temporary asphalt repairs to defective conditions on sidewalk, curbs and driveway approaches may be requested and performed only at the location of the request."
Sheriff was cross-examined about his statement regarding the City's failure to have a proper sidewalk inspection program. Sheriff stated he found the lack of a program a contributing factor to the accident and that he "faulted" the City Council, or whoever was responsible for such a plan. He further testified that City policymakers did not effectively "prioritize" the money they spent on repairs.
Sheriff and defendant's counsel had the following colloquy: "Q. If you were sitting on the City Council, what things would you take in mind before you made a decision about what to do with regard to spending of money? [¶] A. Consider public safety one of the highest priorities. [¶] Q. Okay. Anything else? [¶] A. And to use whatever funds are available most effectively. [¶] . . . [¶] Q. Any other way you would spend the money, Councilman? [¶] A. I would prioritize recognizing the importance of safety. [¶] Q. And you think that the City Council did not do that? Is that your testimony? Because you said that you faulted them for their failure to properly prioritize. A. Again, not necessarily City Council, but those in charge of formulating policies. . . . . . . Q. How do you know they didn't prioritize properly? [¶] A. An example being the fact that . . . six to nine months before this incident, they did . . . minor, basically cosmetic [repairs to] defects in the sidewalk within 100 feet . . . from the subject area, but did not bother to rectify the dangerous condition where Mr. Tagliaferri fell. That indicates a clear lack of prioritizing, proper prioritizing."
Sheriff was also cross-examined about his testimony regarding the camouflage effect in the area of the accident. He maintained that the "lack of proper [tree] trimming" was a contributing factor to the accident. Sheriff conceded, however, that the City received 50,000 requests per year to trim trees and that the City had over 700,000 trees.
At no time during Sheriff's cross-examination did plaintiff's counsel raise an objection based on RFA No. 64.
In redirect examination, plaintiff's counsel asked Sheriff about the salaries of the members of the City Council and the City's expenditures on the Michael Jackson funeral. The trial court sustained defendant's objections to these questions. The court also sustained defendant's objections to plaintiff's request to introduce 50 newspaper articles regarding the City's alleged misuse of funds.
5. Defendant Seeks to Withdraw RFA No. 64
In between the first and second day of the cross-examination of Sheriff, defendant's counsel discovered that defendant erroneously admitted RFA No. 64. Defendant made an oral motion to withdraw the admission. Plaintiff argued that the motion should be denied because he would be prejudiced by the withdrawal. Specifically, plaintiff contended that he did not conduct discovery in light of the RFA. The trial court denied the motion, without prejudice. The court further stated that it would consider a written motion.
"A party may withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties." (Code Civ. Proc., § 2033.300, subd. (a).) Any doubts in ruling on a motion to withdraw must be resolved in favor of the moving party. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1408, 1420 (New Albertsons).)
Subsequently, defendant asked the trial court to reconsider its ruling. The trial court again denied the motion but stated that it would consider a written motion. Defendant did not make a written motion to withdraw its admission of RFA No. 64.
6. Gary Gsell's Testimony
Defendant called Gary Gsell to testify. Gsell's title is "Street Services Superintendent II." He is a City employee who is responsible for maintenance work in the East Valley Area, which includes the location where the accident occurred.
Gsell was asked to "explain" the City's admission that it would cost less than $20 to temporarily repair the condition that caused the accident. Plaintiff objected on the ground that defendant admitted RFA No. 30. The court overruled this objection. Gsell testified that the $20 cost was calculated by using an hourly cost of the truck and labor needed for the temporary repair.
Gsell also testified regarding facts relating to whether the City's failure to repair the alleged dangerous condition was reasonable. He stated that there are more than 10,000 miles of sidewalk in the City and that the City is 469 square miles in area. He further testified that in 2007 the City employed eight people to perform road repairs for the East Valley Area, which consisted of the area east of the 405 Freeway and north of Pico Boulevard. Gsell further stated that the City did not employ more people to perform road repairs because of budget constraints.
Additionally, Gsell testified that the City received "thousands" of requests for repairs each week but "there's only so much resources we have to take care of all the complaints coming in." According to Gsell, the City prioritizes the repairs it makes in light of the safety concerns raised by the complaint. Potholes on commercial streets had a higher priority than potholes on residential streets. Sidewalk repairs were less of a priority because potholes posed a great danger to motorcyclists driving at a fast speed.
Plaintiff did not make any objections to Gsell's testimony based on RFA No. 64.
7. Special Verdict
On October 23, 2009, the jury returned a special verdict. The jury found that (1) the sidewalk where the accident occurred was a dangerous condition, (2) the dangerous condition created a reasonably foreseeable risk, and (3) the dangerous condition was a substantial factor in causing harm to plaintiff. It also found, however, that the City's failure to repair the dangerous condition was reasonable under the circumstances. In light of this finding, the jury was instructed to not answer any further questions, including questions regarding plaintiff's alleged damages.
8. Communications Between Plaintiff's Counsel and the Jury
After the special verdict plaintiff's counsel, John Moriarity, called several members of the jury. The court clerk then received a call from a juror complaining about Moriarity's call. Moriarity allegedly stated something to the effect, "if you don't help us out here, Mr. Tagliaferri is going to lose his house or have to declare bankruptcy . . . ." On October 29, 2009, the court clerk called Moriarity and advised him to have no more contact with the jurors.
On November 2, 2009, plaintiff filed an ex parte application for an order allowing his representative to interview all willing jurors. The trial court denied the application without prejudice and scheduled a hearing on November 10, 2009.
On November 10, 2009, the court held a hearing regarding Moriarity's contact with jurors. The court found that it could not fully evaluate the matter without hearing from the jurors in question. The court thus ordered the clerk to set another hearing after contacting the jurors. The court further ordered the parties and their counsel not to contact the jurors prior to the next hearing.
On November 17, 2009, the court held another hearing on the matter. At the conclusion of the hearing the court stated that it "makes no finding of inappropriate conduct by plaintiff's counsel." The court also caused a letter to be sent to each member of the jury to inquire whether they wished to be contacted by the parties' attorneys and, if so, how best to contact them.
On December 11, 2009, the court held a status conference regarding the jurors' responses. The court provided six juror responses to the parties. Some of the jurors stated they wished to be contacted; others stated that they wished to be left alone. Plaintiff's counsel orally requested the address and telephone numbers for all the jurors who did not respond to the court's inquiry. The court denied this request.
9. Judgment and Post-Judgment Orders
On December 11, 2009, the trial court entered judgment in favor of defendant pursuant to the special verdict.
In January 2010, plaintiff filed three motions: (1) a motion for JNOV; (2) a motion for a new trial; and (3) a motion for recovery of attorney fees under Code of Civil Procedure section 2033.420. The trial court denied all three motions. This appeal followed.
DISCUSSION
This action is governed by Government Code section 835 (section 835), which provides: "Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes [1] that the property was in a dangerous condition at the time of the injury, [2] that the injury was proximately caused by the dangerous condition, [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [4] that either:
"(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
"(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition."
The jury found that the first three elements of section 835 were satisfied. With respect to the fourth element, plaintiff claimed that the City had actual and constructive notice of the dangerous condition, that is, the requirements of section 835, subdivision (b) were satisfied. In a letter to plaintiff prior to trial the City essentially conceded that this element was satisfied. The trial court thus did not ask the jury to make a finding regarding element 4. Accordingly, by finding in plaintiff's favor with respect to the first three elements, the jury effectively found that plaintiff proved his prima facie case.
Plaintiff did not argue that a particular employee of the City committed a negligent or wrongful act or omission within the meaning of section 835, subdivision (a).
The trial court modified the special verdict form, based on California Civil Jury Instructions (CACI) VF-1100, by removing the question regarding element 4. The trial court also modified CACI No. 1100, which sets forth the essential elements of plaintiff's claim under section 835. Paragraph 4 of CACI No. 1100 relates to element 4 (notice). This part of the instruction was stricken by the trial court.
The jury nonetheless rendered a verdict in defendant's favor because it found that defendant's failure to repair the dangerous condition was reasonable. This was tantamount to a finding in defendant's favor on defendant's affirmative defense based on section 835.4.
Section 835.4, subdivision (b) provides: "A public entity is not liable under subdivision (b) of Section 835 for injury caused by a dangerous condition of its property if the public entity establishes that the action it took to protect against the risk of injury created by the condition or its failure to take such action was reasonable. The reasonableness of the action or inaction of the public entity shall be determined by taking into consideration the time and opportunity it had to take action and by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicality and cost of protecting against the risk of such injury."
RFA No. 64 stated that defendant knew of no facts to help prove it is immune from liability pursuant to section 835.4. Plaintiff's first five arguments are based on defendant's admission of RFA No. 64.
1. Plaintiff Forfeited His Argument That the Trial Court Erroneously Provided Question 4 of CACI Verdict Form 1100
Before the case went to the jury the trial court reviewed with the parties the proposed special verdict form, which was based on CACI VF-1100. Question 4 of the verdict form, as modified by the parties, initially stated: "When you consider the likelihood and seriousness of potential injury compared with the practicality and cost of protecting against the risk of injury, was the City of Los Angeles' failure to repair reasonable under the circumstances?" This question related to defendant's affirmative defense based on section 835.4.
Plaintiff objected to Question 4. Unfortunately, plaintiff's counsel did not state the grounds for his objection. He instead simply stated, "I don't think that [question] should be in the verdict form."
After further discussion among the trial court and counsel for both parties, the trial court ruled the first phrase of Question 4 would be omitted, so that the question now stated: "Was the City of Los Angeles' failure to repair reasonable under the circumstances?" Plaintiff did not object to Question 4 in this form.
On appeal plaintiff argues the trial court erroneously submitted Question 4 to the jury. He contends the question should not have been on the verdict form in light of defendant's admission of RFA No. 64. Plaintiff, however, did not make an objection in the trial court to this question based on RFA No. 64, and did not make any objection to this question after it was modified by the trial court. He thus forfeited this claim of error on appeal. (Kelly v. CB & I Constructors, Inc. (2009) 179 Cal.App.4th 442, 451; Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 550-551; Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 277.)
2. Plaintiff Forfeited His Argument That the Trial Court Erroneously Admitted Evidence Relating to Section 835.4
Plaintiff contends the trial court erroneously allowed the City to present evidence regarding the reasonableness of the City's conduct, including evidence relating to the insufficiency of the City's resources to repair the dangerous condition that caused the accident. This evidence, plaintiff contends, should have been excluded in light of the City's admission of RFA No. 64.
In the respondent's brief the City argues that plaintiff failed to preserve the issue on appeal for two reasons. First, plaintiff did not object to the evidence during the trial. Second, plaintiff did not read RFA No. 64 and its response into evidence.
In his reply brief, plaintiff argues: "While it is true that [plaintiff] did not read RFA [No.] 64 and the response at trial, given the purpose of RFAs is to narrow issues to be presented at trial, the prejudicial error was the trial court permitting [defendant] to introduce the contradictory factual information, through testimony, over [plaintiff's] objections. (RT 385, 387, 607, 632-633, 639, 640-644, 646-647.)" Plaintiff, however, failed to cite any objections to evidence based on RFA No. 64. The pages of the Reporter's Transcript plaintiff cites either contain no objection at all or contain objections based on some other ground, such as RFA No. 30. Accordingly, plaintiff forfeited on appeal his argument that the trial court erroneously admitted evidence relating to section 835.4. (Evid. Code, § 353, subd. (a); Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1226-1227, fn. 13.)
3. Plaintiff Forfeited His Claim of Error Regarding Defendant's Closing Argument
Plaintiff argues the trial court erroneously allowed defendant's counsel in closing argument to refer to facts showing defendant's conduct was reasonable. But plaintiff did not make any objections based on RFA No. 64 to the closing argument of defendant's counsel. Moreover, plaintiff's counsel made statements in closing argument relating to the reasonableness of the City's conduct. For example, plaintiff's counsel stated the City policymakers "allocated for things that will do them good politically and just let the sidewalks go to blazes." Plaintiff thus forfeited on appeal his claim of error regarding the closing argument of defendant's counsel. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 509.)
4. The Trial Court Did Not Erroneously Give CACI No. 1112
Over plaintiff's objection the trial court gave the jury CACI No. 1112. This jury instruction was based on the language of section 835.4, subdivision (b). It read as follows: "A public entity is not responsible for harm caused by a dangerous condition if its failure to take sufficient steps to protect against the risk of injury was reasonable. If City of Los Angeles proves that its conduct was reasonable, then your verdict must be for City of Los Angeles.
"In determining whether City of Los Angeles' conduct was reasonable, you must consider how much time and opportunity it had to take action. You must also weigh the likelihood and the seriousness of the potential injury against the practicality and cost of protecting against the risk of injury."
The City stated in its answer that it was immune from liability under section 835.4. Further, there was substantial evidence at trial to support this defense. The trial court therefore was obligated to give CACI No. 1112 to the jury. (Thomas v. Intermedics Orthopedics, Inc. (1996) 47 Cal.App.4th 957, 965; [" 'A party has a right to jury instructions on his or her theory of the case, if they are reasonable and supported by the pleadings and the evidence, or any inference which may properly be drawn from the evidence' "]; accord Estate of Mann (1986) 184 Cal.App.3d 593, 612.)
Plaintiff contends that CACI No. 1112 should not have been given because defendant admitted RFA No. 64. "Any matter admitted in response to a request for admission is conclusively established against the party making the admission" unless the court permitted the admission to be withdrawn under Code of Civil Procedure section 2033.300. (Code Civ. Proc., § 2033.410, subd. (a).) However, because cases should, if possible, be decided on the merits (New Albertsons, supra, 168 Cal.App.4th at p. 1418), admissions are binding "only to the extent required by the literal reading of the request." (Rylaarsdam et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) 18:1389.1, p. 8G-32, citing Burch v. Gombos (2000) 82 Cal.App.4th 352 (Burch).)
In Burch, parties named Dean and Redwood Empire disputed whether a certain road was limited to private use. Dean propounded the following request for admission on Redwood Empire: " 'Admit that you have no evidence of recreational use of the disputed portion of Summit Road prior to March 4, 1972.' " (Burch, supra, 82 Cal.App.4th at p. 356.) Redwood Empire admitted this request. Subsequently, in support of its motion for summary judgment and at trial, Redwood Empire submitted evidence of public recreational use of the road in the 1950's and 1960's. (Id. at pp. 356-357). Redwood Empire claimed that it learned of this evidence after it responded to Dean's request for admission. The main issue on appeal was whether Redwood Empire had a duty to update its response to Dean's request for admission. The court held that Redwood Empire had no such duty. (Id. at p. 355.)
In reaching its decision, the court explained: "The RFA asked Redwood Empire to admit that it did not 'have' the evidence in issue. When Redwood Empire verified and served its response to that present tense question in April 1997, it gave the answer that was true at the time. It was still true at the time of trial (and it will always be true) that in April of 1997 Redwood Empire had no evidence of pre-1972 recreational use of the road." (Burch, supra, 82 Cal.App.4th at p. 359.)
The court further stated: "Notwithstanding our conclusion, we do not fault Dean for feeling 'sandbagged.' She had, she thought, eliminated an issue from the case, only to have it reappear much closer to trial. While the problem only appeared in hindsight, it is a consequence of the choice to use an RFA regarding a matter of a party's present knowledge, rather than the more typical RFA, which addresses a matter of historical fact. With this case as a cautionary tale, we suspect practitioners can devise methods to avoid similar situations in the future." (Burch, supra, 82 Cal.App.4th at p. 360.)
RFA No. 64 requested the City to admit "you know of no facts" to help prove the City is immune from liability pursuant to section 835.4. This request thus related to the City's knowledge of evidence when it responded to RFA No. 64 in October 2008. The RFA did not relate to the existence of facts supporting the City's immunity under section 835.4 or the City's knowledge of such facts during the trial in October 2009. In light of the limited nature of RFA No. 64, the trial court did not erroneously give CACI No. 1112 to the jury.
We do not fault plaintiff for feeling "sandbagged" because he felt that the issue of defendant's immunity under section 835.4 had been eliminated from the case. Plaintiff, however, should have heeded the cautionary tale of Burch, and not propounded a request relating to the City's present knowledge. Moreover, plaintiff did not object to the evidence relating to section 835.4 at trial or read RFA No. 64 into evidence. Only near the end of trial, after the evidence relating to section 835.4 was admitted, did defendant argue that the CACI No. 1112 should not be given in light RFA No. 64. But this technical argument fails because technically the City did not make an admission barring its section 835.4 defense at trial. In the end, the jury heard evidence regarding whether the City's failure to repair the sidewalk was reasonable within the meaning of section 835.4, and it decided in the City's favor.
For the reasons we have explained, the trial court did not make a legal error in giving CACI No. 1112 to the jury, and this allowed the jury to decide the matter on the merits. (New Albertsons, supra, 168 Cal.App.4th at p. 1418)
5. Plaintiff Did Not Meet His Burden of Showing Any Prejudice Resulted from the Trial Court Giving CACI No. 1104 to the Jury
Over plaintiff's objection the trial court gave the jury CACI No. 1104. This jury instruction, based on Government Code section 835.2, subdivision (b)(1), relates to whether defendant had notice of the dangerous condition, that is, element 4 of a section 835 cause of action. As we explained ante, however, the City essentially conceded that element 4 was satisfied, and the trial court did not include a question on the special verdict form regarding this element. CACI No. 1104 therefore appears to be superfluous.
The instruction read: "In deciding whether the City of Los Angeles should have discovered the dangerous condition, you may consider whether the City of Los Angeles had a reasonable inspection system and whether a reasonable system would have revealed the dangerous condition. [¶] In determining whether an inspection system is reasonable, you may consider the practicality and cost of the system and balance those factors against the likelihood and seriousness of the potential danger if no such system existed."
Plaintiff did not object to CACI No. 1104 on the ground that it was superfluous for the reasons we have explained. He instead objected to the instruction on the ground that defendant admitted RFA No. 64. This objection is not well taken because RFA No. 64 does not relate to Government Code section 835.2, subdivision (b)(2), or notice.
Plaintiff also objected to CACI No. 1104 on the ground that defendant admitted RFA No. 66, which states: "Admit that you know of no facts to help prove that Defendant City is immune from liability pursuant to the provisions of Government Code § 840.6." As we explained in footnote 2 ante, however, section 840.6 is inapplicable to this case. Therefore plaintiff's objection based on RFA No. 66 is unmeritorious.
Even assuming plaintiff had asserted the correct objection to CACI No. 1104, we cannot reverse the judgment unless the trial court's ruling to give the instruction resulted in a miscarriage of justice—i.e. that it was prejudicial to plaintiff. (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1156.) "[W]hen the jury receives an improper instruction in a civil case, prejudice will generally be found only ' "[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction . . . ." ' " (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)
Plaintiff contends there was prejudice in this case because the jury had a "misunderstanding (as proved by the juror declarations) that the City lacked notice that resulted in ten jurors finding that the City's failure to repair was reasonable." As we shall explain in Section 8 post, however, there is no admissible evidence to support plaintiff's contention. Plaintiff therefore did not meet his burden of showing that the trial court's decision to give CACI No. 1104 resulted in a miscarriage of justice.
6. The Trial Court Did Not Abuse Its Discretion in Sustaining Defendant's Objections to Questions About City Expenditures Unrelated to Road and Sidewalk Repairs
Plaintiff argues that the trial court erroneously sustained defendant's objections to plaintiff's evidence regarding the City's alleged wasteful spending. The trial court sustained defendant's objections to questions regarding the salaries of members of the City Council and expenditures on Michael Jackson's funeral, as well as plaintiff's attempt to introduce 50 newspaper articles regarding alleged wasteful spending by the City.
We review the trial court's ruling under an abuse of discretion standard. (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111.) A trial court does not abuse its discretion unless it acts in an arbitrary, capricious or patently absurd manner. (San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1419 (San Lorenzo).)
We hold that the trial court did not abuse its discretion. The evidence offered by plaintiff was irrelevant or, at most, marginally relevant because it related to City expenditures wholly unrelated to road and sidewalk repairs and maintenance. If the trial court opened the door to evidence and argument regarding all City expenditures, the trial could have taken a very lengthy, confusing and time-consuming tangent on political and policy issues that would have distracted the jury from the central issues of the case. Thus the trial court had the discretion to exclude such evidence pursuant to Evidence Code section 352.
This statute provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.)
7. The Trial Court Did Not Abuse Its Discretion by Denying Plaintiff's Request for Juror Contact Information and Prohibiting Plaintiff's Counsel from Contacting Jurors Who Stated They Did Not Wish to be Contacted
Plaintiff argues the trial court erroneously denied his request for the address and telephone numbers of the jurors. He contends that under Code of Civil Procedure section 237 (section 237) the court was required to disclose such information unless it found a "compelling interest" not to do so, such as a threat or danger of physical harm. Plaintiff further argues the trial court erroneously prevented him from contacting jurors. We reject these arguments.
In order to protect juror safety and privacy (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1091 (Townsel)) the trial court has "the inherent judicial power to limit the parties' ability to contact jurors following completion of the trial." (Id. at p. 1094.) When the Legislature enacted section 237, it balanced the interests of providing access to records of juror indentifying information with the interests in protecting juror safety, privacy and well-being. (Townsel, supra, 20 Cal.4th at p. 1096.)
Section 237 does not state the trial court must release juror contact information unless there is a compelling interest not to do so. Rather, section 237, subdivision (a)(1) provides: "The names of qualified jurors drawn from the qualified juror list for the superior court shall be made available to the public upon request unless the court determines that a compelling interest, as defined in subdivision (b), requires that this information should be kept confidential or its use limited in whole or in part." (§ 237, subd. (a)(1), italics added.)
Section 237, subdivision (b) provides that any person may file a petition for access to court records regarding juror contact information, including addresses and telephone numbers. It further provides: "The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, but shall not set the matter for hearing if there is a showing on the record of facts that establish a compelling interest against disclosure. A compelling interest includes, but is not limited to, protecting jurors from threats or danger of physical harm." (Italics added).
In the present case, at the conclusion of voir dire on October 15, 2009, the trial court issued a minute order stating the names of the jurors. Thus the trial court was not required to apply the "compelling interest" test of section 237, subdivision (a)(1). Further, plaintiff did not make a written request for juror contact information supported by a declaration, as required by section 237, subdivision (b). Thus the trial court was not required to set a hearing on plaintiff's request pursuant to section 237, subdivision (b).
Plaintiff's ex parte application dated November 2, 2009, was for an order allowing plaintiff's representative to interview jurors. On December 11, 2009, plaintiff orally requested the court to provide the jurors' contact information. This request was procedurally defective because it was not supported by a declaration. (§ 237, subd. (b).)
We review whether the trial court's exercise of its inherent power to limit the parties' contact with jurors (Townsel, supra, 20 Cal.4th at p. 1096) and its rulings regarding section 237 (People v. Jones (1998) 17 Cal.4th 279, 317) under the abuse of discretion standard. As we stated ante, an abuse of discretion does not occur unless the trial court's rulings are arbitrary, capricious or patently absurd. (San Lorenzo, supra, 139 Cal.App.4th at p. 1419.)
Here, after a juror complained about being contacted by plaintiff's counsel, Moriarity, the trial court was initially legitimately concerned about the nature of Moriarity's communications with jurors. The trial court had to balance that concern with plaintiff's claim it needed to contact the jurors.
In Moriarity's declaration attached to plaintiff's application for an order allowing Moriarity to interview the jurors, he stated that several members of the jury already advised him about the reasons for their answer to Question 4 of the special verdict. Plaintiff argued that the jurors misapplied the law when answering the question and that Moriarity needed to contact more jurors to support his challenge to the propriety of the verdict. As we shall explain in Section 8 post, however, evidence regarding the mental processes of the jurors in arriving at the verdict is inadmissible. Plaintiff thus did not show good cause for contacting the jurors or obtaining their contact information from the court.
We hold that the trial court acted within its discretion when it suspended the parties' contacts with jurors until after (1) it held a hearing on the propriety of Moriarity's conduct and (2) it received written responses by the jurors regarding whether they wished to be contacted. The court also acted within its discretion when it denied plaintiff's request for contact information for the jurors who stated in writing they wished to be left alone. By first asking the jurors whether they wished to be contacted, the trial court balanced plaintiff's interest in contacting the jurors after trial with the jurors' interests in safety and privacy. There was nothing arbitrary, capricious or patently absurd about the trial court's rulings.
8. The Trial Court Did Not Commit Reversible Error by Denying Plaintiff's Motion for a New Trial
Code of Civil Procedure section 657 (section 657) provides seven grounds upon which the trial court may vacate a verdict and grant a new trial. Plaintiff argues the trial court should have granted his motion for a new trial on five of the seven grounds enumerated by the statute: (1) misconduct of the jury, (2) insufficiency of the evidence, (3) an error in law, (4) accident or surprise, which ordinary prudence could not have guarded against, and (5) irregularity in the proceedings. (Code Civ. Proc., § 657, subds. 1, 2, 3, 6 & 7.) We reject each of plaintiff's arguments.
a. Misconduct of the Jury (§ 657, subd. 2)
" 'In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial.' " (Sierra View Local Health Care Dist. v. Sierra View Medical Plaza Associates (2005) 126 Cal.App.4th 478, 484.)
We review the trial court's rulings on admissibility of evidence under the abuse of discretion standard of review. (San Lorenzo, supra, 139 Cal.App.4th at p. 1419.) Because we shall conclude that plaintiff did not file admissible evidence to support his claim of jury misconduct, we do not reach the second and third steps of the analysis.
Evidence Code section 1150, subdivision (a) provides: "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined." (Italics added.)
Here, the evidence of alleged juror misconduct consisted of Moriarity's declaration and the declaration of four jurors. In Moriarity's declaration he stated: "When your Declarant spoke to the jury foreman by phone he [the foreman] was very clear . . . that he had to explain over and over 9 or 10 times that the confusing wording in Question #4 of the Verdict Form was due to the fact that the City did not have notice of a dangerous condition." The four juror declarations each stated that 10 of the jurors found the failure of the City to make repairs to the sidewalk was reasonable because the City had no notice of the need to repair. Plaintiff contends this constituted "misconduct" because the City admitted in several letters that it had indeed been given notice of the dangerous condition that caused the accident.
The evidence filed in support of plaintiff's jury misconduct argument is inadmissible under Evidence Code section 1150 because it relates to the jurors' mental processes. The trial court thus correctly denied plaintiff's motion for a new trial based on alleged jury misconduct.
b. Insufficiency of the Evidence (§ 657, subd. 6)
Section 657 provides that the trial court may grant a new trial where there is an "[i]nsufficiency of the evidence to justify the verdict or other decision . . . ." Plaintiff contends there was an insufficiency of evidence for the jury's finding that the City's failure to repair the dangerous condition was reasonable. According to plaintiff, this finding was "factually wrong[.]"
We review a trial court's denial of a motion for a new trial based on insufficiency of the evidence under an abuse of discretion standard. (Windeler v. Scheers Jewelers (1970) 8 Cal.App.3d 844, 852.) No such abuse occurred here. There was ample evidence that the City acted reasonably. For example, there was evidence that the City received a very large number of requests for repairs in the area where the accident occurred, and that the eight-person crew who conducted the repairs had to prioritize which repairs were performed first based on safety concerns and budget constraints.
While plaintiff may believe the jury's finding was factually wrong, reasonable people in the jury's shoes could have found differently based on the evidence presented at trial. There was nothing arbitrary, capricious or patently absurd about the trial court's decision to let the jury's finding stand.
c. Error in Law (§ 657, subd. 7)
Plaintiff argues the trial court should have granted his motion for a new trial because there was an error in law. The error, according to plaintiff, was the trial court's failure to include on the verdict form "the crucial fact that the City did have notice and had admitted having had notice of the condition of the sidewalk prior to [plaintiff's] fall and injuries."
Plaintiff forfeited this argument on appeal because he did not request the trial court to include this "crucial fact" on the verdict form. Further, plaintiff does not cite any authority, and we have found none, for the proposition that a trial court must include facts in a verdict form. We thus reject plaintiff's argument that the trial court should have granted plaintiff's motion for a new trial based on an alleged error in law.
d. Accident or Surprise (§ 657, subd. 3)
Section 657 provides that the trial court may grant a new trial on the ground that there was "[a]ccident or surprise, which ordinary prudence could not have guarded against." Plaintiff claims that the "surprise" in this case was the trial court's "error in refusing [plaintiff's] proffered Verdict Form . . . ." However, plaintiff does not cite where in the record his proffered verdict form can be found, nor does he describe the contents of the form. Plaintiff thus forfeited this claim of error on appeal. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].)
e. Irregularity in the Proceedings (§ 657, subd. 1)
Finally, plaintiff contends the trial court should have granted his motion for a new trial because there was an "irregularity in the proceedings." He asserts two grounds for this contention. The first purported irregularity was the trial court's ruling to prohibit plaintiff's counsel from contacting jurors who stated in writing they did not wish to be contacted. As we explained ante, however, the trial court did not abuse its discretion when it made that ruling.
The second purported irregularity was "misconduct" by defendant's counsel, George Lowry. Plaintiff contends that Lowry improperly elicited testimony supporting the City's defense based on section 835.4. We reject this argument. Lowry zealously advocated for his client. He did not commit misconduct.
Plaintiff's reliance on City of Los Angeles v. Decker (1977) 18 Cal.3d 860 is misplaced. There, in an eminent domain proceeding, the City's attorney made factual arguments to the jury he knew were untrue. (Id. at p. 871.) This misconduct misled the jury and breached the City's responsibility to arrive at just compensation for the defendant. (Ibid.) No similar facts exist here.
There was no irregularity in the proceedings of this case.
9. The Trial Court Did Not Abuse Its Discretion in Denying Plaintiff's Motion for Attorney Fees Pursuant to Code of Civil Procedure Section 2033.420
Code of Civil Procedure section 2033.420 (section 2033.420) provides: "(a) If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.
"(b) The court shall make this order unless it finds any of the following:
"(1) An objection to the request was sustained or a response to it was waived under Section 2033.290.
"(2) The admission sought was of no substantial importance.
"(3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter.
"(4) There was other good reason for the failure to admit."
After trial, plaintiff filed a motion pursuant to section 2033.420, which was denied by the trial court. On appeal plaintiff contends the trial court's ruling was erroneous. We review the trial court's ruling for an abuse of discretion. (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1275-1276 (Laabs).)
Plaintiff's motion was based on defendant's denial of the following RFA's:
RFA No. 7: "The sidewalk displacement pictured in Exhibit '1' constituted a hazard as of Plaintiff's date of injury (i.e. June 2, 2007)."
RFA No. 31: "The sidewalk displacement pictured in Exhibit '1' constituted a dangerous and defective condition of the sidewalk in question as of Plaintiff's date of injury (i.e. June 2, 2007)."
RFA No. 33: "After dark the 'uplifted area' in question in Exhibit '1' constitutes a dangerous and defective condition of public property."
RFA No. 41: "That on or about September 19, 2006, a large part of the tree in question that was in the parkway between the curb and the sidewalk next to 6305 Cedros Avenue, Van Nuys, California, fell on electrical wires. On or about September 19, 2006, the land owner at 6305 Cedros Avenue, Van Nuys, California, gave notice to the City Street Maintenance that part of the tree had fallen on electrical wires by 6305 Cedros Avenue, Van Nuys, California."
RFA No. 42: "That on September 26, 2006, the City of Los Angeles came to said property [and] trimmed and removed part of the tree in question. That on September 26, 2996, the City did nothing to repair the sidewalk hazard in question."
Defendant opposed plaintiff's motion on the grounds that it had a reasonable basis to deny the requests or, alternatively, the requests were not of substantial importance. "A request for admission has 'substantial importance when the matter requested for admission [is] central to disposition of the case.' " (Laabs, supra, 163 Cal.App.4th at p. 1276.) "In evaluating whether a 'good reason' exists for denying a request to admit, 'a court may properly consider whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial.' " (Ibid.)
The trial court did not state the specific reasons for its denial of the motion. We presume the trial court's order was correct and assume the trial court denied the motion on both grounds argued by defendant. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
With respect to RFA Nos. 7, 31 and 33, defendant contends it had good reason to challenge plaintiff's claim the sidewalk constituted a dangerous or hazardous condition. Although the accident location was in an area of heavy pedestrian traffic—near apartment buildings, businesses, schools and a community center—there had been no lawsuits arising from an accident at that location in the previous five years. This evidence has probative value in evaluating the dangerousness of the accident location. (Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1435 [the fact that there were no other accidents at a public beach despite decades of intensive use "was properly considered by the court in evaluating the dangerousness of this particular beach and the notice to defendants"].) The trial court therefore did not abuse its discretion in denying plaintiff's motion based on RFA Nos. 7, 31 and 33 because defendant denied those RFA's in good faith.
RFA Nos. 41 and 42 related to the City's notice of the alleged dangerous condition. The City, however, admitted it received notice. The trial court, moreover, did not ask the jury to adjudicate whether the City had notice. The trial court therefore did not abuse its discretion in denying plaintiff's motion based on RFA Nos. 41 and 42 because those RFAs were not of substantial importance.
10. The Trial Court Did Not Erroneously Deny Plaintiff's Motion for JNOV
Plaintiff contends the trial court should have granted its motion for JNOV on the ground that post-verdict juror testimony "contradicts" the jury's finding that the City's failure to repair the sidewalk was reasonable. But as we have explained, there is no admissible evidence to support plaintiff's assertion. We thus find no error in the trial court's denial of plaintiff's motion for JNOV.
DISPOSITION
The judgment, the order denying plaintiff's motion for JNOV and the order denying plaintiff's motion for recovery of attorney fees under Code of Civil Procedure section 2033.420, are affirmed. The City is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
We concur:
CROSKEY, Acting P. J.
ALDRICH, J.