Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. GC033526/04C00783. John P. Doyle, Judge. Affirmed.
Sedgwick, Detert, Moran & Arnold, Christina J. Imre and Michele L. Flowers for Defendants and Appellants.
The Homampour Law Firm, Arash Homampour; Law Offices of David H. Greenberg, David H. Greenberg and Jeffrey A. Rudman for Plaintiffs and Respondents.
KRIEGLER, J.
This appeal arises out of a fatal traffic accident and the ensuing wrongful death action. Defendant Jonathan Wu was driving his parents’ Toyota Highlander sports utility vehicle on the night of October 10, 2003, when he collided with motorcyclist Michael Turner at the intersection of San Gabriel Boulevard and Duarte Road in San Gabriel. The action was brought by plaintiffs Barbara Turner, the decedent’s mother, and William R. Hodgkinson, the owner of the motorcycle, against Jonathan and his father Albert Wu. Following the liability phase of the jury trial, the jury returned special verdicts that Jonathan was negligent and his negligence was a substantial factor in causing Turner’s death. The jury also found Turner was negligent, but that his negligence was not a substantial factor in causing his own death. Following the damages phase, the jury found Mrs. Turner suffered damages of $2 million for the loss of her son’s companionship. The trial court denied defendants’ new trial motion and entered judgment in favor of plaintiffs.
For convenience, as the primary parties were Mrs. Turner and Jonathan, we shall generally refer to the parties in the singular. We also note a separate action against Jonathan was brought by Larry Lee arising out of damages to his vehicle, which was struck by Turner’s motorcycle after the initial collision. However, his claims were dismissed for failure to appear at trial.
Defendants timely appealed, contending (1) the trial court abused its discretion in refusing to permit California Highway Patrol Officer Bret Kwarta to testify as an expert witness as to the fatal collision’s point of impact, and in refusing to permit defense expert witness Kenneth Obenski to testify as to the standard of care applicable to motorcyclists, (2) plaintiffs’ counsel engaged in prejudicial misconduct, and (3) the jury’s special verdicts regarding Turner’s negligence amounted to irreconcilable and inconsistent determinations of material fact. As we explain, none of these contentions is well taken. We therefore affirm.
STATEMENT OF FACTS
Plaintiffs’ Evidence
Jonathan was called as plaintiffs’ first witness. He was 17 at the time of the accident. The SAT examination was coming up, and he had wakened that morning at approximately 6:30 a.m., having gone to sleep only a few hours before. After a full day of school, he went home and studied until 5:00 p.m. After relaxing for a few hours, but not sleeping, Jonathan left his house to deliver an SAT study book to his girlfriend Raquel Benito. The weather was clear, the pavement dry. It was dark, but the street lights were on.
Jonathan was driving his parents’ SUV. He was traveling southbound on San Gabriel Boulevard, approaching the intersection of Duarte Road, where he planned to make a left turn. He was very familiar with the intersection, having made that turn many times on the way to visiting Benito. (Unbeknownst to Jonathan, Benito was in a car with Christine DeSantis at that intersection at the same time. They were traveling eastbound on Duarte.) Jonathan entered the left turn lane three to five car lengths before the intersection, at approximately 15 to 20 miles per hour. Turner was in the number one northbound lane. Upon entering the left turn lane, Jonathan saw the traffic light change from green to yellow. When Jonathan made his left turn, “the closest [oncoming] headlights were at least a football field away.” Jonathan saw several oncoming cars at approximately that distance, in both lanes; he could not tell if one was a motorcycle. Jonathan made the left turn “very slowly.” The crash occurred “several seconds” after Jonathan began his left turn. Jonathan had been braking at the time he entered the left turn lane; at the time of the crash, he was coasting. Jonathan had seen the headlights of Turner’s motorcycle at least 100 yards away before entering the left turn lane; Jonathan saw the motorcycle again in the intersection less than a second before the crash.
When deposed prior to the trial, however, Jonathan testified that the time lapse was “less than a second” or at most two seconds.
Jonathan clarified that when he started his left turn, the oncoming headlights were 100 yards away and the light had just turned red. Jonathan never came to a complete stop before turning left. Jonathan looked in the direction of his turn when he began it; within a second, he saw Turner’s helmet and the impact. The light had turned red before Jonathan turned. The crash occurred in the northbound number one lane. Turner and his motorcycle struck the right passenger side of the SUV. The SUV’s right front tire was punctured by the impact; its right side mirror was torn off; and its front and back passenger side windows were shattered. Jonathan continued his turn and parked on Duarte.
At the scene, approximately 20 minutes after the accident, Jonathan told Officer Kwarta that he had approached the Duarte intersection at approximately 20 miles per hour, preparing to turn left. “As I approached the intersection the light turned yellow. I was slowing down for the turn, but I felt like I had plenty of time to make the light. I did not see any cars coming towards me as I started my left turn. I think I remember seeing the light change to red out of the corner of my eye. The next thing I know there’s a loud crashing noise. I really did not know what was going on. I pulled my car up a little ways and then stopped. I never saw any cars or anything coming. I don’t know where he came from.”
Jonathan believed Turner entered the intersection after the light turned red. According to Jonathan, the point of impact with Turner’s motorcycle was within the intersection, in front of the northbound number one lane, at approximately the center of the intersection’s southeast quadrant.
Officer Solomon Velazquez of the California Highway Patrol assisted in the accident investigation. The only physical evidence Officer Velazquez noted on his report was found within the north crosswalk across San Gabriel. Most of it, including a tire mark that appeared to have been caused by the accident, was in the number one lane of northbound San Gabriel and the left turn and number one lane of southbound San Gabriel. There was also a gouge mark from the motorcycle in that location. There were no tire, gouge, or scuff marks in the middle of the intersection. The officer, however, did see debris in the middle of the intersection.
On cross-examination, Officer Velasquez clarified that he saw a path of debris extending diagonally from the left turn lane of San Gabriel where Turner and the motorcycle had come to rest to the northern portion of the intersection in the number one lane and part of the number two lane of northbound San Gabriel.
Richard Lopez testified that he was driving eastbound on Duarte at 20 to 24 miles per hour, intending to turn left (northbound) on San Gabriel. His light turned green when he was 100 to 150 feet from the intersection. Lopez did not see the crash. Nor did he see a motorcycle enter the intersection. He saw Jonathan’s SUV enter the intersection “at speed”—approximately 20 miles per hour—then “squiggle” while making a left turn onto Duarte and continue across the intersection. Lopez entered the intersection and saw Turner and his motorcycle down in the southbound left turn lane of San Gabriel. Lopez stopped his car, told his passenger to alert the “On Star” operator about the accident, and went to Turner’s assistance.
Officer Velasquez testified that he understood witness Lopez to have stated that Turner’s motorcycle had run the red light.
Steven Anderson, a mechanical engineer, testified as an expert in motor vehicle accident reconstruction. From the damage to both vehicles and the road debris, Anderson opined that the SUV was turning when it collided with the motorcycle, causing the motorcycle to “sideswipe” it—the SUV was in the early stage of its left turn at the time of impact. The motorcycle initially collided with the SUV’s front right fender, indicating that the SUV was just beginning its turn. As corroborated by the trail of debris, the skid mark from the motorcycle’s front tire indicated the point of impact, which was within the northern crosswalk across Duarte in the number one northbound lane of San Gabriel. The motorcycle and Turner’s body came to rest in the left turn lane of San Gabriel, after sliding across the SUV. That is, Jonathan never entered the intersection; he began his turn before entering the intersection, cutting across the double yellow line at the center median, into the oncoming traffic lane where the collision occurred. At the time of impact, the SUV had only crossed the first crosswalk line. Therefore, it was Turner who first entered the intersection—if he had run the red light, then so did Jonathan.
Plaintiffs’ expert explained why the physical evidence was inconsistent with the point of impact according to Jonathan’s testimony. Most significantly, there was no motorcycle debris in the middle of the intersection. The debris path would have been different if the collision had occurred in the middle of the intersection. Anderson opined that Jonathan was driving at 20 miles per hour and Turner at 40 miles per hour at the time of impact. Anderson testified the physical evidence “is 100 percent clear” that the point of impact was where he determined it to be, not where Jonathan and his defense accident reconstruction expert, Dr. Terence Honikman, testified and opined.
As we explain post, defendants had disclosed Dr. Honikman’s materials in advance of trial, and Anderson reviewed them in preparation for trial.
For car drivers, studies show that it takes 1.5 seconds from the time a driver recognizes a hazard to the time he or she applies the brake; for a motorcyclist, it is slightly quicker. Therefore, if the impact occurred within one or two seconds of Jonathan’s left turn, Turner would not have had a chance to brake. Anderson also disputed Jonathan’s testimony that he was driving as slowly as five miles per hour through the intersection. The expert opined that doing so would be contrary to normal driving practice, especially in light of Jonathan’s testimony that the road was clear of dangerous oncoming traffic.
Anderson also criticized the methodology employed by Dr. Honikman. For instance, Anderson pointed out that Dr. Honikman’s computerized animation of the accident ended at the point of impact. If the defense expert had not stopped the animation at that point, it would show that the motorcycle would not have come to rest where it actually did. Nor would the debris have been found where it was observed after the crash. In contrast, when Anderson ran his crash simulation computer program with the point of impact in the middle of the intersection, consistent with Jonathan’s testimony, the post-collision behavior of the motorcycle was inconsistent with the post-collision evidence such as the tire marks, the pattern of debris, and the motorcycle’s ensuing collision with Lee’s vehicle and its resting place.
Defense Evidence
DeSantis testified that she, Benito, and Jonathan were high school classmates. Benito was DeSantis’s best friend. Benito began dating Jonathan in their freshman year; the accident occurred in their senior year, after the two had stopped dating. DeSantis was driving eastbound on Duarte, approaching San Gabriel. She stopped for the red light at the intersection. Approximately 30 seconds later, her light turned green and she saw Turner’s motorcycle drive northbound through the intersection at 45 to 50 miles per hour and collide into the side of Jonathan’s SUV. The motorcycle was maintaining its velocity, not accelerating before impact. (The speed limit was 40 miles per hour.) When interviewed by the police at the scene, however, DeSantis said Turner was not speeding. The crash occurred no more than two seconds after Jonathan began his left turn. The point of impact was toward the middle of the intersection, approximately where Jonathan testified. Jonathan began his left turn from the middle of the intersection.
The CHP officer who interviewed her testified that DeSantis told him, “It didn’t look like it [the motorcycle] was speeding or anything.”
Kristy McCracken, an investigator from the Coroner’s Department, testified that she observed glass debris in the middle of the intersection during her investigation of the crash scene. She observed it farther south than Officer Velazquez did, toward the center of the intersection.
Witness Lee’s deposition testimony was admitted because he was unavailable at the time of trial. Lee was driving southbound on San Gabriel, approaching Duarte at approximately 35 miles per hour. The light turned yellow, so he began to slow down to stop at the intersection. Jonathan’s SUV was behind Lee at the time, but it passed him to make a left turn. Lee saw Turner’s motorcycle driving toward the intersection. Both Jonathan and Turner appeared to be trying to “beat[] the yellow light.” The SUV was in the middle of the intersection when it was making its left turn.
Officer Kwarta was the lead investigator of the accident. Witness Lee told him that defendant’s SUV was ahead of him, “creeping through the intersection” at approximately 15 miles per hour with its turn signal on. Lee said he saw the motorcycle coming, but “it looked like it was way down the street.” Lee did not remember what color the traffic light was. Officer Kwarta saw debris in the middle of the intersection, in the northbound lanes of San Gabriel, “close to the middle of the southeastern quadrant.” The debris in that area consisted of glass; the vehicle parts were found outside that area, in a northern direction. Turner’s helmet had come off. The motorcycle’s front end had been pushed back, into the body of the vehicle. The front tire was flat. The handle bars were bent and broken, and the front bearing had been broken and partially torn off. When the officer inspected Turner’s motorcycle, it was in third gear. The SUV’s front tire was flat.
Dr. Arthur Ginsburg testified as defendants’ visibility expert. He opined that DeSantis was in a better position to make accurate observations than Lopez. Dr. Ginsburg testified that when Jonathan entered the left turn lane and saw the headlights of oncoming traffic, he would not be able to distinguish the motorcycle’s headlight from those of the cars behind it. Based on the expert’s attempt to reconstruct the incident at nighttime, he opined that Jonathan would have approximately 1.8 to 2.1 seconds to perceive the motorcycle “break out” of the other headlights—to recognize that the motorcycle was a separate vehicle, even if he was purposefully looking for it. That is, due to a phenomenon called “masking headlights,” it would be very difficult for Jonathan to distinguish the motorcycle’s headlight from those of the cars behind it, which were stopping for the traffic light. Jonathan’s testimony that he perceived the oncoming headlights at a distance safe enough for him to turn left was “very plausible.” Turner would have had the best opportunity to avoid the collision because he had the best view of the intersection, the yellow traffic light, and Jonathan’s car in the left turn lane; Jonathan’s attention, in contrast, would be divided between checking the oncoming traffic and the crosswalk in the direction in which he was planning to turn.
Obenski testified as a motorcycle expert. He was knowledgeable about the type of motorcycle driven by Turner, a Suzuki GSXR 1000. It is a racing bike, one of the fastest available on the consumer market. It can accelerate from zero to 60 in three seconds. Regarding braking capacity, from a speed of 40 miles per hour, the motorcycle can stop in three seconds, traveling 120 feet. That estimate includes time for the driver’s “perception reaction.” In third gear, the vehicle will travel from 25 to 118 miles per hour. Its top speed was 177 miles per hour. The riding position is leaning forward in “a racing crouch.”
Over plaintiffs’ objection, Obenski testified that, assuming a highly skilled driver approaching a five-second yellow light, the Suzuki could stop within 141 feet from a speed of 70 miles per hour. The trial court sustained objections as to why Obenski, who regularly rode motorcycles, did not ride this type and whether the Suzuki “can come out of nowhere quickly.” But the trial court permitted the expert to explain why the bike could accelerate “so quickly”—because its ratio of horsepower to weight was so great. Regarding the distance at which Jonathan testified he first saw Turner’s motorcycle, Obenski explained that the Suzuki could “close that gap” much quicker than a car because it is capable of such “extreme acceleration.”
David Royer, a traffic highway engineer, offered expert testimony concerning the traffic signals at the relevant intersection. The yellow light for north and southbound traffic on San Gabriel was five seconds long, which is longer than usual. Royer testified that there was no delay feature for cross traffic, which was contrary to Anderson’s testimony concerning the existence of an all-red clearance feature. That is, at the time of the accident, when Jonathan’s light turned red, the light for cross traffic would have turned green.
Dr. Honikman opined: (1) witnesses are generally unreliable as to estimations of time, distance, or speed—unless their observations are made in relative terms, such as whether one vehicle was behind or in front of another; (2) the point of impact between the motorcycle and SUV was “near the middle of the intersection”; (3) Jonathan entered the intersection on a yellow light; (4) the light turned red “very soon” thereafter; (5) Turner entered the intersection after Jonathan; and (6) the physical evidence alone does not support a reliable opinion as to the color of the traffic light when the vehicles entered the intersection, but if the most reliable witness testimony and physical evidence were considered together, it is likely Turner entered the intersection when the light was red.
Dr. Honikman based his point of impact opinion on the presence of shattered glass in the middle of the intersection and the other vehicle debris in the northern part of intersection, near the northern crosswalk. The expert calculated where the impact must have occurred based on the resting position of the SUV’s right side mirror, which be believed had been torn off by Turner’s body shortly after impact. He also based his opinion on the observations of witnesses Lee, Lopez, and DeSantis.
Dr. Honikman disputed the expert opinion and methodology of plaintiffs’ expert on a variety of grounds. For instance, Dr. Honikman believed Anderson’s use of crash simulation software was improper because the program is designed for cars and does not account for the unpredictable manner in which forces act on motorcycles. Dr. Honikman believed the gouge mark in the road was caused by the motorcycle’s rear tire and, likely, its peg, after the initial impact with the SUV, when it was sliding toward Lee’s vehicle.
DISCUSSION
Expert Witness Rulings
Defendants argue the trial court abused its discretion and prevented a fair trial by excluding Officer Kwarta as an expert as to the point of impact and by preventing Obenski from offering expert testimony as to the standard of care for motorcyclists. We disagree. The trial court’s rulings as to the expert witness testimony were well within its legitimate discretion to limit cumulative testimony, promote judicial economy, and prevent undue prejudice and issue confusion. In any event, defendants fail to show prejudice from the adverse rulings. Finally, as to the Obenski claim, the record does not show the trial court excluded or prevented defendants from offering the kind of evidence on which they ground their appellate claim.
The applicable legal standards are well established. Evidence Code section 352 grants trial courts broad discretion “to limit the number of competing experts, or to exclude cumulative or confusing expert testimony altogether.” (People v. Stoll (1989) 49 Cal.3d 1136, 1159, fn. 20; see also Evid. Code, § 723 [“The court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party”].) The court also has the power to exclude expert testimony if it is cumulative, will waste time, create undue prejudice, confuse the issues, or mislead the jury. (Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371; Evid. Code, § 352.) That is, “[w]hen expert opinion is offered, much must be left to the trial court’s discretion.” (People v. Carpenter (1997) 15 Cal.4th 312, 403.) Accordingly, such evidentiary rulings will not be overturned absent an abuse of that discretion. (E.g., People v. Kipp (2001) 26 Cal.4th 1100, 1121; People v. Minifie (1996) 13 Cal.4th 1055, 1070; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; Korsak v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523.) The trial court’s exercise of discretion in admitting evidence under Evidence Code section 352 will not be disturbed unless the court acted in an arbitrary, capricious, or patently absurd manner resulting in a miscarriage of justice. (People v. Yovanov (1999) 69 Cal.App.4th 392, 406.) More fundamentally, the erroneous exclusion of evidence does not justify reversal of a judgment unless the record reflects that “[t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means” and the exclusion resulted in a miscarriage of justice. (Evid. Code, § 354, subd. (a).) Absent the required record support, we will not assume error. (People v. Ramos (1997) 15 Cal.4th 1133, 1177.)
A recitation of the salient facts from the record demonstrates that the trial court’s exclusion of Officer Kwarta as an expert was reasonable. The parties had waived the statutory notice requirements and deadlines regarding pretrial expert witness disclosures, agreeing in advance of trial that parties could challenge expert testimony during trial by means of Evidence Code section 402 hearings to be conducted before each expert testified. Officer Kwarta, however, was not listed on defendants’ witness list. Indeed, he was never retained as an expert. Both parties had believed Officer Kwarta would be unavailable to testify at trial. During opening statement, defendant identified Dr. Honikman as his accident reconstruction expert. Specifically, Dr. Honikman was going to testify as to the point of impact based on the physical evidence at the scene.
On the Friday before trial, defense counsel informed the trial court that plaintiffs planned to call Officer Kwarta as a percipient witness, representing the officer was training in San Diego, but could appear. The parties resolved that issue by stipulating to the testimony the officer would offer from his police report.
At the start of Anderson’s testimony, plaintiff objected on hearsay grounds to anticipated cross-examination of Anderson based on Officer Kwarta’s opinion concerning the point of impact. Defense counsel represented that he would not elicit that information. The trial court ruled that law enforcement opinions would not be admissible, but facts developed by law enforcement and relied on by an expert would be admissible. On the second day of plaintiffs’ case, defense counsel represented that he planned to call Officer Kwarta as a percipient witness. As of the afternoon of Wednesday, January 18, at the Evidence Code section 402 hearing for defense expert Dr. Ginsberg, the parties and the court understood that the defense accident reconstruction expert was to be Dr. Honikman. The court was concerned that Dr. Ginsberg’s testimony would overlap that of Dr. Honikman’s, making it cumulative; it intended to limit the former’s testimony to vision-related issues.
Officer Kwarta’s report, incorporated by the coroner, listed glass debris found in the middle of the intersection, which would help impeach plaintiffs’ expert Anderson, who said there was no debris there.
The issue of Officer Kwarta’s testifying as a defense expert was first broached the following morning—the fifth day of the presentation of evidence at trial. At that time, the defense requested an Evidence Code section 402 hearing to establish the officer’s qualifications to testify as an accident reconstruction expert on the point of impact. In response to plaintiffs’ objection, the trial court initially found the proposed testimony cumulative in light of Dr. Honikman’s anticipated testimony, along with aspects of the other defense experts’ testimony. Also, pursuant to the trial court’s Evidence Code section 352 analysis, it found the probative value of Officer Kwarta’s expert testimony would be outweighed by the likelihood that it would require an undue consumption of time. The trial court also believed that given the number of other defense experts offering related opinions, another accident reconstruction expert created the substantial danger of jury confusion. The trial court was concerned that plaintiffs would be unduly prejudiced by the last minute expert witness designation, since Anderson had already been prepared to respond to Dr. Honikman’s data and testimony, and there would be little if any time to prepare a response to a new expert. Additionally, the trial court had serious concerns about the effect any delay would have on retaining a complete jury because the trial had already lasted longer than the estimate given to the jurors. The court and parties were aware that one juror would have to abandon the trial the following day because of his spouse’s health issues, and there was a concern that one of the two alternates would not be able to complete the trial.
Defense counsel responded that presentation of Officer Kwarta would allow the defense to omit examination of Honikman on point of impact. According to defense counsel, Officer Kwarta had “determined point of impact hundreds of times before.” Defense counsel also pointed out that it had sent a letter to plaintiffs’ counsel a month before trial mentioning the possibility of calling Officer Kwarta as an expert.
The trial court found the defense arguments unpersuasive. Despite the absence of a formal expert witness exchange between the parties, the trial court and parties engaged in substantial pretrial motion work based on Dr. Honikman’s point of impact expert testimony. It found the last-minute expert designation was untimely and unfair to plaintiffs because the defense had provided plaintiffs with a large amount of expert witness material from Dr. Honikman, and plaintiffs spent a large amount of time preparing their case in light of it. The trial court also found defense counsel’s pretrial letter did not give sufficient notice to avoid unfairness to plaintiffs. Finally, there was a significant danger that any substantial delay in the trial would result in a loss of the jury. Accordingly, the trial court sustained plaintiffs’ objection to the expert witness testimony of Officer Kwarta, but permitted him to testify as a percipient witness.
We find those justifications were appropriate under Evidence Code section 352 and were supported by the record. Defendants argue the trial court had no reason to find defendants’ last-minute designation untimely because the parties had stipulated not to be bound by the statutory deadlines for expert witness disclosures. That argument misses the point. The trial court’s ruling was based on the fairness concerns inherent in Evidence Code section 352, not on the deadlines imposed by the Code of Civil Procedure. The former empowers the trial court to exercise its discretion to exclude evidence that “create[s] substantial danger of undue prejudice.” (Evid. Code, § 352.) As the record shows, plaintiffs had invested a great amount of time and effort in preparing Anderson to respond to Dr. Honikman and the copious materials the defense expert had used in formulating his point of impact opinion. It cannot be deemed arbitrary, capricious, or patently absurd for the trial court to have found it unfair to require plaintiffs to prepare for a new expert after trial had already begun.
Nor do we accept defendants’ assertion that the trial court had no basis for finding Officer Kwarta’s proposed expert opinion cumulative because the officer had not yet offered the basis of his point of impact opinion and the defense proposed that it would defer all point of impact testimony to Officer Kwarta, instead of Dr. Honikman. As the trial court must have understood, it would make little sense in this trial for an accident reconstruction expert to testify without reference to point of impact. As defendants repeatedly insist in their appellate briefing, the point of impact was a critical fact. One of the pillars of Dr. Honikman’s expert testimony was his placement of the point of impact at the center of the intersection. It defies reason to think that he could be effectively examined (by either party) without reference to that aspect of his opinion. Moreover, to the extent Officer Kwarta’s opinion or methodology differed from that of Dr. Honikman’s, plaintiffs would have been entitled to cross-examine the new expert with Dr. Honkiman’s findings and data, which would have likely resulted in delay and potential jury confusion.
Finally, we see no reasonable likelihood of prejudice resulting from Officer Kwarta’s exclusion. Not only did he testify favorably for the defense as a percipient witness, but Dr. Honikman was a highly qualified accident reconstruction expert who provided the jury with a plausible basis for rejecting plaintiffs’ case. It would be entirely speculative to think the addition of Officer Kwarta would have affected the trial’s outcome. To the extent the officer’s opinion was consistent with Dr. Honikman, it would have been cumulative; to the extent it differed, defendants would have had the unwelcome prospect of having one of their accident reconstruction experts impeach the other.
Defendants’ argument concerning expert witness Obenski fares no better. In essence, defendants assert the trial court abused its discretion in preventing Obenski from testifying as to “custom and practice” evidence concerning special risks affecting motorcyclists when approaching yellow lights and that motorcyclists should know they are less visible to other motorists at night, and therefore especially vulnerable. The record, however, shows that defendants failed to preserve that claim for appellate review. The defense did not make an offer of proof, or otherwise alert the trial court, that Obenski intended to offer such testimony. Nor did the trial court exclude any such evidence.
Before Obenski began testifying, plaintiffs objected to his anticipated testimony concerning a special duty of care applicable to motorcyclists, different from that applicable to motorists in general. The defense conceded that the expert could not properly testify as to what a reasonable motorcycle driver would do under the circumstances of the accident, but asserted that it would be proper to offer testimony as to the special risks facing motorcyclists because such concerns are not common knowledge. In response, the trial court did not preclude Obenski from offering expert testimony concerning motorcycle operation. Rather, it cautioned the defense that it believed extensive testimony concerning the special tests and licensing required for motorcycle operation would be potentially prejudicial, misleading, and require an undue consumption of time under Evidence Code section 352 because it would lead to extraneous testimony concerning whether Turner had received any specialized training or certification. Also, based on the responses from prospective jurors during voir dire, the trial court found that extensive testimony on racing bikes and their capabilities would potentially inflame jurors’ passions against Turner and lead to juror confusion. The trial court also agreed with plaintiffs’ position that it would be improper to use a motorcycle expert to create the misimpression that motorcyclists were legally subject to a different or higher negligence standard from that applicable to automobile drivers.
We find the trial court did not prospectively exclude testimony concerning special risks affecting motorcyclists, but rather permitted examination on a question-by-question basis. The record does not show that the defense sought to elicit testimony about nighttime visibility. The defense identified no specific “custom and practice” evidence regarding the risks or duties of motorcyclists when approaching intersections. Nor did the defense identify a “special risk” outside the jurors’ common knowledge that it wanted to present through Obenski. Obenski was permitted to testify as to the extreme braking and acceleration capabilities of Turner’s bike and that the riding position is leaning forward in “a racing crouch.” Most significantly, on direct examination, Obenski was permitted to testify over objection that a motorcyclist on the same bike as Turner should “start slowing down for a stop” if he approached a five-second yellow light from a distance of 141 feet. Indeed, the expert clarified his response to explain that the motorcyclist should begin to stop before that distance. We therefore find defendants forfeited their evidentiary claims as to Obenski by failing to make a sufficient record. (See Evid. Code, § 354, subd. (a); People v. Ramos, supra, 15 Cal.4th at p. 1177.)
In any event, we find no reasonable likelihood of prejudice. The fact that a motorcyclist is particularly vulnerable in a collision with an automobile requires no special knowledge; any motorist can perceive that a motorcyclist lacks the protection available to drivers of automobiles and trucks. Indeed, as our colleagues in the Fourth District explained in a decision upholding California’s Mandatory Motorcycle Helmet Law, “[w]e discern the existence of a nationwide concern, obviously shared by the Legislature of the State of California, for the safety and welfare of motorcyclists and their passengers.” (Buhl v. Hannigan (1993) 16 Cal.App.4th 1612, 1627-1628.) As to lack of visibility, defense expert Dr. Ginsburg testified in detail as to the scientific reasons why oncoming motorcycles are particularly difficult to perceive at night. He even provided video illustrations of the “masking” phenomenon to the jury. (Of course, the fact that Turner was wearing a helmet and reflective clothing at the time of the collision tends to show he had some awareness of vulnerability and visibility issues.) Finally, Obenski himself offered testimony, admitted over objection, that a hypothetical motorcyclist in circumstances like those faced by Turner should not continue through the intersection at a steady rate of speed, but should slow and stop in response to the yellow light. In short, the defense did present the jury with expert testimony that Turner could and should have avoided the collision.
Attorney Misconduct
Defendants contend plaintiffs’ counsel engaged in serious and pervasive misconduct, resulting in a miscarriage of justice. In essence, defendants argue plaintiffs’ counsel “launched a campaign” to inflame the jury’s passions and prejudices by making improper statements to impugn Jonathan’s character, along with the character of his counsel and witnesses. This alleged campaign reached fruition in the closing argument by plaintiffs’ counsel. However, as we explain, not only did defendants’ failure to interpose timely objections and request admonitions result in the forfeiture of this claim on appeal, but we find no reasonable likelihood of prejudice even assuming misconduct.
In Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794 (Cassim), our Supreme Court summarized the longstanding governing law. “‘Generally, to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial.’ [Citation.] In addition to objecting, a litigant faced with opposing counsel’s misconduct must also ‘move for a mistrial or seek a curative admonition’ [citation] unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice [citation]. This is so because ‘[o]ne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial.’ [Citation.] The rule is the same for civil and criminal cases. [Citation.]” (Id. at pp. 794-795; see also, e.g., Saret-Cook v. Gilbert, Kelly, Crowley & Jennett (1999) 74 Cal.App.4th 1211, 1230 [failure to object to improper argument at trial results in waiver of the issue].) However, the absence of a request for a curative admonition does not forfeit the issue if the court immediately overrules an objection to alleged attorney misconduct and as a consequence the defendant has no opportunity to make such a request. (Cassim, supra, 33 Cal.4th at p. 795.) This exception has been referred to as the “futility exception”—a defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. (People v. Hill (1998) 17 Cal.4th 800, 820; People v. Zambrano (2004) 124 Cal.App.4th 228, 237 (Zambrano).)
Most of the allegedly disparaging statements by plaintiffs’ counsel were made during the course of his closing argument. In that context, “attorneys for both sides have wide latitude to discuss the case.” (Cassim, supra, 33 Cal.4th at p. 795.) Counsel may vigorously argue all reasonable inferences from the record. “An attorney who exceeds this wide latitude commits misconduct. For example, ‘[w]hile a counsel in summing up may indulge in all fair arguments in favor of his client’s case, he may not assume facts not in evidence or invite the jury to speculate as to unsupported inferences.’ [Citation.] Nor may counsel properly make personally insulting or derogatory remarks directed at opposing counsel or impugn counsel’s motives or character.” (Id. at p. 796.)
In assessing whether attorney misconduct requires reversal, we apply the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (Cassim, supra, 33 Cal.4th at p. 801.) Accordingly, we must examine the entire case, including the evidence adduced, the instructions delivered to the jury, and the allegedly improper statements by plaintiffs’ counsel to determine whether it is reasonably probable defendant would have achieved a more favorable result in the absence of the alleged misconduct. (Id. at p. 802.)
As defendants concede, they objected to few of the statements they now challenge as misconduct. Indeed, as to the instances defendants identify in which counsel objected during voir dire and opening statement, our review shows that their objections were mainly sustained or otherwise effective. To avoid forfeiture, defendants invoke the futility rule, asserting the trial court discouraged the making of such objections, which would have been futile in any event. They also assert that under the circumstances, no curative admonition would have been effective. We disagree.
“[T]he futility exception to the rule requiring an objection and request for curative admonition is to be applied only in ‘unusual circumstances.’ (People v. Hill, supra, 17 Cal.4th at p. 821; People v. Riel (2000) 22 Cal.4th 1153, 1212-1213 [(Riel)].)” (Zambrano, supra, 124 Cal.App.4th at p. 237.) In Riel, our Supreme Court indicated that the futility exception should be reserved for “extreme case[s]” such as Hill, where defense counsel made a number of objections, but did not continually object to pervasive misconduct, and “the prosecutor’s ‘continual misconduct, coupled with the trial court’s failure to rein in her excesses, created a trial atmosphere so poisonous’ that continual objections ‘would have been futile and counterproductive to his client.’ [Citations.]” (Riel, supra, 22 Cal.4th at p. 1212.) Defendants’ case does not present unusual circumstances meriting application of the futility exception.
The trial atmosphere in this case cannot in any serious way be considered “poisonous.” Nor can it be said the trial court failed to control counsel’s excesses since defense counsel did not provide the court with timely notice of the concerns defendant later voiced in the new trial motion and on appeal. As we noted, the trial court repeatedly sustained defense counsel’s “argumentative” objections during plaintiffs’ opening statement and, contrary to defendants’ assertion, prior to closing argument, the trial court neither stated nor implied that objections to improper attorney comments would be disfavored, much less disregarded. To the contrary, before closing arguments began, the trial court advised both counsel of their duty to object on the ground that a statement “misstates the evidence” if counsel believes his “counterpart is out in left field” with respect to a given argument. The fact that the trial court also cautioned against making such objections to appropriate arguments because they would merely waste time cannot be reasonably construed as a directive against objecting to attorney misconduct. Additionally, at the start of argument, the trial court reminded the jury that “what the attorneys say in their respective closing arguments is not evidence.” The jury was similarly instructed at the start of trial and before deliberations.
Our review of the record reveals no practical impediment to objecting to statements by plaintiffs’ counsel. Indeed, even if defense counsel had been loath to interpose misconduct objections in front of the jury, nothing prevented him from doing so at sidebar. Throughout the trial, the court liberally granted such requests. Moreover, there were two instances when defense could have objected and requested an admonition outside the jury’s presence when the trial court interrupted the defense argument for jury breaks, and there was another such foregone opportunity just after the start of plaintiffs’ rebuttal argument, where plaintiffs’ counsel had characterized the defense argument as a “total fraud on the law and on the facts,” consisting of “low blows,” “cheating,” and “try[ing] to trick [and] confuse you.”
Nevertheless, when defense counsel interposed an improper argument objection in response to a reference by plaintiffs’ counsel to the bifurcated damages phase, the trial court sustained the objection. When, during rebuttal argument, defense counsel first objected on the ground that plaintiffs’ argument was an improper personal attack, plaintiffs’ counsel immediately withdrew the challenged statement and apologized. Similarly, when defense counsel objected during the damages phase closing argument on the ground that plaintiffs’ counsel’s statements were inappropriate, the trial court sustained the objection. Rather than discouraging counsel from interposing such objections, the trial court’s rulings displayed its receptivity to considering them. As such, defendants’ authorities are unavailing. For instance, in Love v. Wolf (1964) 226 Cal.App.2d 378, 392, the court found the failure to continue to object and request an admonition was excused where serious and repeated misconduct occurred after the trial court had overruled misconduct objections. In sum, nothing in the record suggests it would have been futile to object to the statements by plaintiffs’ counsel that defendants challenge on appeal.
Nor do we find an admonition would have been inadequate under the circumstances. It is speculation to assert, as defendants do, that the trial court would have overruled any such objections or that plaintiffs’ counsel would have persisted in making objectionable comments in the face of sustained objections and admonishments. Certainly, it would not have been particularly difficult for the jurors to follow instructions to disregard statements found to constitute personal insults directed at opposing counsel or defendant. Nor would it have been difficult to disregard references to defendants’ supposed failure to accept responsibility for his actions—but, again, the defense never sought any such admonition. As noted above, the jury was repeatedly instructed that attorney argument was not evidence and the applicable law would be given by the court. “‘[It is] the almost invariable assumption of the law that jurors follow their instructions.’ [Citation.] ‘[We] presum[e] that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instructions in a criminal case and strive to understand, make sense of, and follow the instructions given them.’ [Citations.]” (United States v. Olano (1993) 507 U.S. 725, 740.)
In any event, even assuming the challenged statements by plaintiffs’ counsel amounted to misconduct, defendants fail to show prejudice under the Watson standard. From the record, it appears that defense counsel made a tactical choice not to respond to opposing counsel’s invective. Defense counsel began his argument by telling the jury that it is not his “personal style to attack the other side.” His theme was “the truth needs no argument.” One can infer from the record that defense counsel reasonably chose to adopt a gentlemanly, positive approach in his argument as a deliberate contrast to the negative and hyperbolic—if not histrionic—approach that plaintiffs’ counsel adopted.
It is also important to note that the trial court was sensitive to potential misconduct, but did not believe plaintiffs’ counsel strayed from the legitimate bounds of advocacy. During a sidebar discussion near the start of the defense argument, the trial court characterized defense counsel’s argument as a vigorous response to the “hard hitting closing argument on the plaintiff[s’] side.” In denying defendants’ new trial motion based on these same allegations of misconduct, the trial court found no miscarriage of justice: “This particular trial was hard-fought. In closing arguments, counsel on both sides argued with conviction and did not mince words. On balance, the Court finds that the disputed segments of plaintiffs’ counsel’s closing argument are not together sufficient to weigh in favor of a new trial.”
Our independent review accords with the trial court’s finding. Our Supreme Court’s decision in Cope v. Davison (1947) 30 Cal.2d 193, 202-203 is on point: “The record in the present case shows no assignment of misconduct and the trial court was not asked to instruct the jury to disregard the challenged remarks. The point may not, therefore, be considered upon appeal. Furthermore, these matters were presented to the trial court in support of the motion for a new trial. The motion was denied. A trial judge is in a better position than an appellate court to determine whether a verdict resulted wholly, or in part, from the asserted misconduct of counsel and his conclusion in the matter will not be disturbed unless, under all the circumstances, it is plainly wrong. [Citations.] The showing made by the appellant falls far short of meeting that requirement.”
Inconsistent Verdicts
Defendants contend the special verdicts that Turner was negligent, but that his negligence was not a substantial factor in causing his own death, were inconsistent and irreconcilable under the facts of this case. We disagree. As we explain, the proscription against inconsistent verdicts does not apply to this case because the jury was not called upon to specify the manner of Turner’s negligence, and defendants can only speculate that the jury made contradictory findings on the same evidence. Applying the proper standard of review, we find the instructions and the facts permitted the jury to make the reasonable inference that Turner’s negligence—for instance, entering the intersection without slowing for the yellow light—was inconsequential in light of Jonathan’s negligent conduct in making an unexpected and unsafe left turn into oncoming traffic.
Inconsistent verdicts are “against the law” and are grounds for a new trial. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344; Code Civ. Proc., § 657, subd. (6); see Morris v. McCauley’s Quality Transmission Service (1976) 60 Cal.App.3d 964, 973.) “‘The inconsistent verdict rule is based upon the fundamental proposition that a factfinder may not make inconsistent determinations of fact based on the same evidence. The rule finds parallel expression in the law relating to court findings: “Where the findings are contradictory on material issues, and the correct determination of such issues is necessary to sustain the judgment, the inconsistency is reversible error.”’ [Citations.] An inconsistent verdict may arise from an inconsistency between or among answers within a special verdict [citation] or irreconcilable findings. [Citation.] Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law. [Citation.] The appellate court is not permitted to choose between inconsistent answers. [Citations.]” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 682 (Horton).)
Initially, we note defendants do not argue the jury was improperly instructed or the verdict forms were improper. Here, the jury was instructed as to the basic standard of care for negligence, pursuant to Judicial Council of California Civil Jury Instruction (CACI) No. 400, and that the negligence of defendant and/or Turner must be a substantial factor in causing the harm, pursuant to CACI No. 430. The trial court instructed that plaintiffs had the burden of proving defendants’ negligence, Mrs. Turner’s harm, and that Jonathan’s negligence was a substantial factor in causing that harm. The trial court also instructed that “[m]ore than one person’s negligence, including Michael Turner’s, may have been a substantial factor in causing Barbara Turner’s harm.”
As to defendants’ affirmative defense, the trial court instructed that defendants “claim[] that Michael Turner’s death was caused in whole or in part by Michael Turner’s own negligence.” It was defendants’ burden to prove (1) Turner was negligent and (2) his negligence “was a substantial factor in causing his death.” A “substantial factor in causing harm” was defined, consistent with CACI No. 430, as “a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.” As the directions for use to CACI No. 430 explain, “this definition of ‘substantial factor’ subsumes the ‘but for’ test of causation, e.g., plaintiff must prove that but for defendant’s conduct, the same harm would not have occurred. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239–1240.) The first sentence of the instruction accounts for the ‘but for’ concept. Conduct does not ‘contribute’ to harm if the same harm would have occurred without such conduct.” (CACI No. 430 (Jan. 2006); Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1094.)
Defendants contend any theory of Turner’s negligence supportable by the evidence necessarily compelled a finding of causation under the substantial factor test. We disagree. As plaintiffs point out, there was substantial evidence that Jonathan suddenly turned into Turner’s lane from an unexpected location, giving Turner no opportunity to avoid a collision—even if Turner had been somehow negligent in entering the intersection. Plaintiffs’ accident reconstruction expert explained how the physical evidence at the crash scene supported the reasonable inference that Jonathan, rather than executing a proper left turn from the middle of the intersection, cut across the double yellow line at a high rate of speed. That testimony, coupled with testimony from Jonathan himself and DeSantis as to the very short amount of time between the commencement of the left turn and the collision, supported the inference that after Turner had entered the intersection, the SUV crossed into Turner’s path less than two seconds before impact. A reasonable juror could therefore find the same harm to Turner would have occurred even if, for instance, the motorcyclist had been negligent in failing to slow for the yellow light.
Indeed, the jury was given a number of instructions dealing with a driver’s duty of care upon entering intersections. With regard to the duty of yielding the right of way to another vehicle, the trial court instructed that “[e]ven if [the driver] has the right of way, [he] must use reasonable care to avoid an accident.” More specifically, a “driver who is attempting to make a left turn must make sure that no oncoming vehicles are close enough to be a hazard before he or she proceeds across each lane.” Again, the evidence below supported the reasonable inference that Jonathan made his left turn unexpectedly, without ensuring the absence of hazardous oncoming traffic, with the result that no precaution by Turner—short stopping at the intersection in anticipation of the red light—would have prevented the fatal collision.
As such, defendants’ reliance on the Horton decision is entirely misplaced. Horton was an eminent domain action in which the jury was tasked with making special findings as to the subject property’s fair market value based on valuations provided by the parties’ competing experts. When the jury reached its special verdicts, the trial court found it clear the jurors implicitly made inconsistent findings on the same material fact—the property’s fair market value prior to the development of a bisecting freeway project. In answer to one special verdict, the jury found the parcel to be worth $445,000 per acre. In answer to another, however, the jury found the same parcel at the same point in time to be worth $850,000 per acre. (Horton, supra, 126 Cal.App.4th at pp. 682-683.) Nothing remotely similar occurred in this case. As we have explained, the verdicts in defendants’ case did not specify the factual bases for the negligence or the causation findings. Unlike the situation in Horton, we cannot use simple mathematics to reconstruct the jury’s reasoning process. (See ibid.) Here, it would be a matter of pure speculation to infer the existence of irreconcilable jury findings of material fact. Accordingly, we have no legal or factual basis for applying the strict, nondeferential standard of review appropriate to reviewing inconsistent special verdicts. (See id. at pp. 678-679.)
As plaintiffs correctly argue, this case is materially indistinguishable from a recent decision by our colleagues in Division Six. In Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, the plaintiff was badly injured at a construction site when a scaffolding plank fell on his foot. The plaintiff sued Cruz Masonry, the subcontractor responsible for disassembling the scaffolding at the time of his injury, alleging its negligence caused his injury. (Id. at p. 22.) The jury found Cruz Masonry negligent, but that its negligence was not a substantial factor in causing the plaintiff’s harm. (Id. at p. 24.) There was evidence presented that the Cruz Masonry employees attempted to warn the plaintiff, but he was so engrossed in a cell phone conversation that he did not
Jonkey also sued the general contractor for negligence, but the jury found no negligence. (Jonkey, supra, 139 Cal.App.4th at p. 24.)
react to the warnings. (Id. at p. 23.) The plaintiff presented evidence that the subcontractor’s disassembly method—dropping the planks after a warning to those below—was unsafe under the circumstances. (Ibid.) The Jonkey jury “factually found Cruz Masonry was negligent without specifying the way in which it was negligent.” (Id. at p. 25.)
Although the plaintiff in Jonkey did not frame his appellate challenge in terms of inconsistent special verdicts, his claim that the judgment was not supported by substantial evidence was essentially the same as plaintiffs’ in this case. “In our view, appellant is saying that the general finding of negligence in these circumstances required the jury, as a matter of law, to find causation. This ignores the fact-finding power of the jury. In all probability the jury decided that defendant was only negligent on a failure to warn theory. In this way, the jury’s factual findings are not inconsistent and logically follow. On appeal, we are required to draw all inferences in favor of the judgment, ruling, order or verdict. (Howard v. Owens Corning [(1999)] 72 Cal.App.4th [621,] 631; Ketchum v. Moses [(2001)] 24 Cal.4th [1122,] 1140.)” (Jonkey, supra, 139 Cal.App.4th at p. 25.) The Jonkey court found substantial evidence in the record to support verdicts of non-causative negligence.
Moreover, in doing so, the Jonkey court cogently explained why reversal would be improper based on the same kind of argument plaintiffs advocate here—the identification of a theory of negligence that logically compels a finding of causation, but does not necessarily support the verdict. While such an analysis has some appeal as a matter of abstract theory, it “is at variance with the time-honored rules rearticulated in Howard v. Owens Corning, supra, 72 Cal.App.4th at page 631 and Ketchum v. Moses, supra, 24 Cal.4th at page 1140 and cannot be sustained on appeal. Where, as here, there is no special finding on what negligence is found by the jury, the jury’s finding is tantamount to a general verdict. As long as a single theory of negligence is lawfully rebutted on a lack of causation theory, it matters not that another theory of negligence is not so rebutted.” (Jonkey, supra, 139 Cal.App.4th at pp. 25-26.)
We find the reasoning of Jonkey compelling and dispositive on the facts before us. The special verdicts as to Turner were not inconsistent, but rather supported by the record.
DISPOSITION
The judgment is affirmed. Plaintiffs are awarded their costs on appeal.
We concur: ARMSTRONG, Acting P. J., MOSK, J.