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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/personal injury case and its proceedings.)

FACTUAL BACKGROUND

On the date of the collision Plaintiffs had stopped at the intersection of White Road in the left turn lane where they waited for the red arrow signal to turn green. Upon the signal cycling to a green arrow, Sherrie Martin proceeded into her left turn in a normal course and speed.

Defendant Dan Brown was traveling westbound on S.R. 40 in his 2000 Ford F-150 dual-wheeled utility truck at approximately 60 miles-per-hour and failed to stop at the red light causing the collision. Brown was in the course and scope of his employment with the California Gas Company at the time of the collision.

The defendants’ Ford truck struck the Martins’ vehicle directly at the passenger side where Paul was seated. Brown admitted in deposition that he did not brake before the impact and that he was traveling at least 55 miles-per-hour. The deepest point of impact was the right-front grill of the Ford piercing through the passenger door and window area where Paul’s head was located.

Paul suffered life-threatening injuries on the scene including a severe head trauma, brain hemorrhage, collapsed lung, fractured pelvis, multiple fractured ribs, spleen and liver lacerations, internal bleeding, and other cuts and soft-tissue injuries. At the scene, Paul initially had a Glasgow Coma Scale of 13 which quickly fell to a 3 when he became completely unresponsive. Paul went into respiratory failure at the scene likely due to brain swelling (subdural bleed in bilateral frontal lobes) and/or aspiration.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)

Although Chance’s ten-year-old car accident failed to illuminate any issue before the jury, the information did help assuage any pangs the juror’s consciences may otherwise have felt for leaving her disabled and confused for the rest of her life without compensation. When they learned, again over Plaintiff counsel’s objection, that Ms. Chance concealed/forgot a 10-year-old automobile accident during which she broke her leg without head trauma and that Ms. Chance was treated at that time under a different name, she was the subject of jury speculation as to her character for lying and fraud.

However, under the influence of the aforementioned improper and fatally prejudicial testimony, the jury was motivated to and the majority of them did ignore the courts instructions and failed to deliberate any evidence inculpating Defendant of negligence. The jury was charged as its first task to answer the special verdict question: Was Defendant Davie of USA negligent? Instead of taking the trouble to consider three days of testimony, photographic evidence and law provided them to answer that question, as juror Mike Brown’s declaration makes clear, the jury majority jumped to the question Was Molly Chance negligent? which required no time or thought at all based on their vivid recollection of Police Officer Smith’s opinion and their newly acquired negative predisposition to a lying, “cheating” Chance.

C. There is insufficient evidence to support the jury’s verdict. (C.C.P. section 657(6))
In Hendricks v. Pappas (App. 1947) 82 Cal.App.2d 774, 187 P.2d 436, the trial court granted the plaintiffs new trial motion following a jury trial involving an action against a motorist by a pedestrian for injuries sustained by the pedestrian when struck by automobile while he was crossing street.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

DEFENDANT STACY GREENE CONSPIRED WITH EL MEXICANO RESTAURANT TO VIOLATE BUSINESS AND PROFESSIONS CODE SEC. 25602.1

Plaintiff’s Third Cause of Action alleges that Defendant Stacy Greene conspired with El Mexicano Restaurant and Bar to violate Business & Professions Code Sec. 25602.1. Conspiracy is a legal doctrine that imposes liability on persons who, although not committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. By participation in a civil conspiracy, a co-conspirator effectively adopts as his or her own the torts of other co-conspirators within the ambit of the conspiracy. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. 7 C.4th 503,510,511 (1994))

The elements of an action for civil conspiracy are the formation and operation of the conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of the common design… (Applied Equipment Corp. v. Litton Saudi Arabia Ltd supra. 7 C.4th at 511) DefendantStacy need not share the same duty as a licensed purveyor to sell alcohol to engage in a conspiracy to violate Business & Professions Code Sec. 25602.1 as defendant’s have erroneously argued. Defendant’s reliance on Doctors’ Co. v. Superior Court 49 Cal.3d 39, 47 (1989) is misplaced. There has never been an allegation that Stacy was acting as an agent for El Mexicano. Doctors’ Co. held that an alleged conspirator to an agreement was not personally bound by the duty if he was acting only as the agent or employee of the party who did have that duty. (Doctors’ Co. v. Superior Court supra. 49 Cal.3d at 47) El Mexicano, a corporation, is liable because the acts of selling or furnishing alcoholic beverages to an obviously intoxicated minor were ratified and approved by a corporate officer. (See Part 8 of 8.)

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment/personal injury case and its proceedings.)

With respect to subject matter: The jury need not be wholly ignorant of the subject matter of the opinion . . . if that were the test, little expert opinion testimony would ever be heard, particularly in a sexual harassment matter like this. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would assist the jury. People v. McDonald (1984) 37 Cal.3d 351, 367 (overruled on other grounds in People v. Mendoza (2000) 23 Cal.4th 896, 914). Expert opinion testimony is excluded only when it would add nothing at all to the jury’s common fund of information. Id.

Otherwise admissible opinion testimony is not objectionable (simply) because it embraces the ultimate issue to be decided by the trier of fact (e.g., fault, causation, breach of contract, etc.). Evid. Code § 805 [parentheses added]. Thus, expert opinion about an ultimate issue (or any conclusion for that matter) is admissible if it assists the jury. Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1182-1183.

With respect to expert qualification in this type of personal injury case, there are no hard and fast rules. The determinative issue is whether the witness has sufficient knowledge, skill or experience in the field so that his or her testimony would be likely to assist the jury in its search for the truth. Mann v. Cracchiolo (1985) 38 Cal.3d 18, 37-38. Whether a particular person has sufficient expertise to testify as an expert witness depends upon the facts of the particular case, the questions propounded to the witness, and the witness’ specific qualifications. People v. Davis (1965) 62 Cal.2d 791, 80.

With respect to reliable matter, an expert’s opinion may be based on evidence whether or not admissible . . . if it is the kind of information experts reasonably rely upon in forming an opinion on the subject matter involved. Evid. Code § 801(b); People v. Hallquist (2005) 133 Cal.App.4th 291, 295-296. Therefore, expert witnesses are specifically permitted to state that they have reviewed, considered and relied upon inadmissible hearsay evidence as the basis for their opinion. The expert may not, however, testify as to the details of those matters if they are otherwise inadmissible. People v. Coleman (1985) 38 Cal.3d 69, 92 [He may not under the guise of reasons bring before the jury incompetent hearsay evidence.]

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The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this auto accident/personal injury case and its proceedings.)

As discussed above, awards in other cases are a useful benchmark for the Court in reaching a determination concerning the reasonableness of an award of pain and suffering. That is also true of an award for loss of consortium. A review of similar cases shows that the injuries to Ms. Ward’s marriage are qualitatively not of a kind which could justify the amount awarded her by the jury: See Mendoza v. Car Club, Inc., supra, 81 Cal.App.4th at pp. 292-293, 300 [court upholds jury award of $100,000 for loss of consortium to wife whose husband suffered a broken neck in accident involving golf cart]; Springmeyer v. Ford Motor Co., supra, 60 Cal.App.4th at pp. 1546-1547 [plaintiff’s arm severed by fan, resulting in permanent loss of use of dominant hand after reattachment, chronic and severe pain, and inability to work, jury awarded non-economic damages of $500,000 for loss of consortium];
Rosh v. Cave Imaging Systems, Inc., supra, 26 Cal.App.4th at pp. 1232-1233 [court confirms jury award of $1 million in non-economic damages to wife of plaintiff who suffered permanent paralysis from the waist down and chronic radiating pain as a result of being shot in the back]; Rodriguez v. McDonnell Douglas Corp., supra, 87 Cal.App.3d at pp. 641-642, 653-655, 664 [where 22-year old plaintiff was hit in the head and back with a 630-pound pipe, rendering him triplegic and in constant pain, but with normal life expectancy; court upholds $500,000 award to wife for loss of consortium]. Thus, by comparison to these awards for those injuries– tripleglic, paraplegic, loss of hand, broken neck–the $1,620,000 award to Ms. Ward for loss of consortium is not fair compensation and is thus excessive.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)

THE TESTIMONY OF SANDY WHITE ESTABLISHED THAT THE DOG HAD BEEN TO DEFENDANT TOPP’S RESIDENCE AT LEAST 5-6 TIMES.

a. Sandy White, the owner of the dog testified that the dog had been to the defendant’s property on at least 5-6 prior occasions; and

b. That she had lied in her declaration under penalty of perjury dated 10-21-07 regarding how many times the dog had been to defendant Topp’s property.

TESTIMONY OF TORY BROWN

The testimony of Mr. Tory Brown further supported a finding by a preponderance of the evidence that the defendant Topp was liable under both strict liability and premises liability for the plaintiff’s injuries. Mr. Brown testified to the witnessing the following:

c. That two weeks before the plaintiff’s incident, he was attacked by the same dog that attacked plaintiff and that the dog came from the defendant’s property (front yard) without a leash and unsupervised; and

d. One week before the incident involving plaintiff, he again saw the same dog unleashed, unsupervised in the front yard of defendant’s property.

All of the testimony by Mr. Brown further supported Officer Samuel’s testimony that Ms. Cantor had been keeping the dog at the residence of defendant Topp’s for the last several months, because the attack on Mr. Brown happened within the same time frame as the dog was living at defendant Topp’s house.

A. Statutory Authority For Motion For New Trial
The principal statutory authority for a new trial is CCP 657. The verdict may be vacated… and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any one of several specified causes.”
A motion for new trial calls for reexamination of an issue of fact or law in the same court after a trial and decision by a jury, court or referee. CCP 656, 657; Fountain Valley Chateau Blanc Homeowner’s Ass’n v. Department of Veterans Affairs (1998) 67 CA4th 743, 750-753.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)

B. It was an abuse of discretion for the court to allow remote, irrelevant but highly prejudicial testimony to be admitted concerning Chance’s ten-year-old traffic accident and hospitalization. (C.C.P. section 657(1))

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will … (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Ev.C. § 352.

Defendant argued and the court ruled that the relevance of this information went to the veracity of the Chance but this analysis is flawed in two ways:

First, Ms. Chance’s “veracity” was never in issue. No fact or contention at trial was supported by her testimony and was never solicited by either party. Because of her brain injury and retrograde amnesia, she neither testified as to how the accident happened nor to the nature and extent of her injuries. A fortiori, both sides extensively tested her for signs of attempts to game the mental impairment evaluation process. On all occasions she passed with high scores for veracity. Brain damage is a significant part of Chance’s consequential damages as presented by multiple eminent mental health care professionals including defendant’s own designated neuropsychologist expert, Dean C. Delis, Ph.D., Professor of Psychiatry, UCSD School of medicine. The fact of her brain injury was also evidenced just days after the bus accident at the brain injury clinic referral in the initial emergency hospitalization discharge records. As such, Chance’s cognitive faculties were objectively proven to be permanently impaired including memory and judgment without any reliance on her direct testimony.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this bus accident/personal injury case and its proceedings.)

LEGAL STANDARD FOR MOTION

C.C.P. section 657 provides, in part: The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
2. Misconduct of the jury.
3. Insufficiency of the evidence to justify the verdict or other decision.

4. Error in law, occurring at the trial and excepted to by the party making the application.

ARGUMENT

A. Ignoring the Court’s Limiting Instruction as to the Import of Officer Smith’s Determination of Chance’s Violation of the Vehicle Code was Misconduct of the Jury, as Was their Refusal to Deliberate the Foundational Facts of Officer Smith’s Opinion (C.C.P. section 657(2))

Following Officer Smith’s testimony opining Chance was in violation of the vehicle code by her failure to yield right of way to oncoming traffic outside a crosswalk (CVC 219548(a)) aka jaywalking ) the court gave the jury a limiting instruction as follows: The officer’s determination that Ms. Chance violated the vehicle code does not mean that she’s at fault. He is not saying who is at fault for the accident, so that everyone is aware of that. (Reporter’s Transcript ( RT ) of Smith’s Testimony, April 28, 2008, 31:5-8.) According to the declarations of Jurors Mike Brown and Alice Greene, the jury disregarded that instruction instead treating Smith’s opinion as a finding of fault inculpating Chance of the accident. Compounding that misconduct, the jury then refused to deliberate the evidence that contradicted Smith’s opinion despite exhortations of the jury foreman to do so. In Bormann v. Chevron USA, Inc. (1997) 56 Cal.App.4th 260, 65 Cal.Rptr.2d 321, the cour: explained that the jury must deliberate collectively. In that case, prior to deliberations, one juror wrote out a statement of her opinions and read it to the other jurors. The Court explained that this was permissible only if that juror was willing to continue with deliberations as required by C.C.P. section 611. The trial court accurately explained to the jury that A position on paper does not add or detract from anything, except that you may not simply say, Here. Read this, I have nothing else to say,’ because, if you do that, you are not deliberating. Id. at 262.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)

TESTIMONY OF PLAINTIFF SANDY WHITE
A. Testimony from plaintiff White indicated that the dog that attacked her (twice) on the day of the incident not only came from the defendant Topp’ residence, but that the dog could not be controlled by the residents of Topp home who were home at the time of the attack.

B. White’s testimony was further supported by his deposition testimony wherein, White ‘ testimony remained consistent and truthful.

TESTIMONY OF DEFENDANT DIANA TOPP

A. The testimony from defendant Topp was clearly perjurious and false as to the most basic and crucial of facts in this accident such as:

a. What type of dog it was that was at her property;
b. How many times she had seen the dog;
c. Who the dog had come to visit;
d. How many times had the dog been to her property;

e. What were the propensities of the dog:

B. The defendant clearly lied in her deposition as exposed during her trial testimony that was completely inconsistent with her deposition testimony.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/personal injury case and its proceedings.)

Since the Greenes had assumed an affirmative duty to protect, control and supervise him on the night and early morning of December 19, 20, 2006. [t]he finding of a duty to provide assistance depends upon a showing of special factors such as would give rise to an expectation that assistance would be provided and a showing that due to these factors the victim detrimentally relied upon that expectation or was otherwise dependent upon the defendant for assistance. (cf.Andrews v. Wells supra, 204 Cal.App.3d at 540) However, the Greenes breached their duty by allowing Paul to ride home with a drunk driver.

In Tarasoff v. Regents of University of California 17 C.3d 425,435 (1976) our California Supreme Court held that “as a general rule, one person owed no duty to control the conduct of another, nor to warn those endangered by such conduct,” the courts have carved out an exception to this rule in cases in which the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. (Citations omitted) If the defendant enters upon an affirmative course of conduct affecting the interests of another, he is regarded as assuming a duty to act, and will thereafter be liable for negligent acts or omissions… (Brockett v. Kitchen Boyd Motor Co. 264 C.A.2d 69,72 (1968) (citing Valdez v. Taylor Automobile Co. 129 Cal.App.2d, 810,817 (1954).)

The case of Brockett v. Kitchen Boyd Motor Co. was an action for personal injuries by occupants of an automobile against the employer of a minor who became intoxicated at a Christmas party, drove his vehicle, which collided with the plaintiff’s causing them injuries. The lower court sustained defendant’s demurrer without leave to amend and was reversed by our Court of Appeal. The Court held that It is our view that the alleged relationship between the minor Huff and Kitchen Boyd Motor Company was such that the defendant had assumed the responsibility for the well-being and proper conduct of the minor in the circumstances here for not only the minor’s protection, but also for the protection of the general public through the exercise of ordinary care. (Brockett v. Kitchen Boyd Motor Co. supra. 264 C.A.2d, at 72.)

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