LEVY, Acting P.J.
This appeal arises from a multiple vehicle traffic accident. Plaintiff, Hector Francisco Sanchez, first collided with a tractor-trailer rig driven by defendant, Jorge Alberto Molina, as Molina was crossing an intersection under limited visibility conditions. Traffic was controlled by a stop sign for Molina but not for Sanchez. A few minutes later, a Donald P. Dick Air Conditioning van driven by Juan Carlos Contreras hit Sanchez's vehicle forcing it completely under the tractor-trailer rig. Thereafter, Sanchez filed a personal injury complaint against Donald P. Dick, Contreras, Molina and Molina's employer, defendant Adonis Transport.
Following settlement with Donald P. Dick and Contreras, trial proceeded against Molina and Adonis Transport. The jury found that Molina was negligent. However, the jury also found that Molina's negligence was not a substantial factor in causing harm to Sanchez. Accordingly, judgment was entered in favor of Molina and Adonis Transport. Pursuant to Code of Civil Procedure
Sanchez argues he was denied a fair trial. The alleged trial court errors include the refusal to give a modified jury instruction on causation, the admission of certain expert opinions, and the denial of a mistrial following defense counsel's alleged misconduct. Sanchez further contends that the judgment is not supported by substantial evidence. In their cross-appeal, Molina and Adonis Transport contend that they should be awarded expert witness fees as part of their costs.
As discussed below, Sanchez was not denied a fair trial and the record supports the judgment. Further, the trial court did not abuse its discretion in refusing to award expert witness fees as costs to Molina and Adonis Transport. Accordingly, the judgment will be affirmed.
On a foggy March morning in 2005, Sanchez was driving his 1996 Corvette along Manning Avenue. Visibility was limited to approximately 150 feet. At the same time, Molina was crossing Manning Avenue at Bethel Avenue in his 73 foot long tractor-trailer rig. Traffic on Bethel Avenue was controlled by stop signs. Traffic on Manning Avenue was uncontrolled.
As Sanchez approached the intersection, he slammed on his brakes, skidded, and collided with the rear tires of Molina's trailer. Sanchez's expert accident reconstruction engineer, Dr. Matthew King, estimated that Sanchez was traveling between 38 and 44 miles per hour when the Corvette started skidding and that the Corvette's speed at impact with the trailer was 6 to 14 miles per hour. Similarly, Molina's expert accident reconstruction engineer, Mark Whelchel, estimated that Sanchez was traveling at approximately 38 miles per hour when the Corvette started skidding and that the speed at impact with the trailer was in the range of 5 to 10 miles per hour.
Immediately after this first collision, Molina exited his truck and walked back to check on Sanchez. Molina testified that he spoke with Sanchez and suggested that they move their vehicles off the road to avoid danger from other traffic. However, Sanchez did not want to move. According to Molina, Sanchez had no blood on his head, face or body. Sanchez complained of chest pain but had no visible injuries.
After speaking with Sanchez, Molina began to direct traffic around the accident scene. He also telephoned his employer to report the accident. A few minutes after the first collision, the Donald P. Dick Air Conditioning van driven by Contreras collided with the Sanchez Corvette. This collision pushed the Corvette completely under the trailer, sheared off the Corvette's roof, and crushed and deformed the roll bars. Sanchez's expert, King, testified that the van was traveling at a minimum of 44 miles per hour before it started braking and that it impacted the Corvette at 20 or 25 miles per hour. Molina's expert, Whelchel, also testified that the impact speed for the second collision was 20 to 25 miles per hour.
After the second collision, Molina again went to assist Sanchez. Molina testified that Sanchez's face was bleeding. Sanchez was thereafter removed from the Corvette and transferred by ambulance to the hospital. Sanchez suffered a fractured eye, fractured nose, facial lacerations and a closed head injury.
At some point during these collisions, Sanchez's shoulder belt broke. Neither accident reconstruction expert had enough information to give an opinion on whether this occurred during the first or the second collision. Sanchez's expert, King, testified that he would not expect a seat belt in good condition to tear in a 6 to 14 mile per hour collision. Rather, with a person of Sanchez's size, almost 300 pounds, King testified that such a failure would require an impact of approximately 30 miles per hour. Whelchel similarly testified that he would not expect a shoulder belt in good condition to tear during a 6 to 14 mile per hour impact. Whelchel noted when a 1984 Corvette was tested at an impact speed of 35 miles per hour the seat belt did not break.
John Brault, a biomechanical engineer, testified as an expert on Sanchez's behalf. According to Brault, Sanchez's facial and head injuries occurred in the first collision between the Corvette and the rear tires of Molina's trailer. Brault further testified that Sanchez's seat belt broke in the first collision.
At trial, Sanchez testified that he had very little recollection of the accident. He was not sure how his injuries occurred. However, approximately two months after the accident, Sanchez wrote an accident description stating "`My injuries occurred when the second truck rear-ended me. My face hit the passenger side door and window.'"
The jury returned a special verdict in favor of the defense. The jury found that Molina was negligent but that Molina's negligence was not a substantial factor in causing harm to Sanchez.
Molina and Adonis Transport filed a memorandum of costs. They sought recovery of various costs as the prevailing parties, including approximately $21,000 in expert fees, under section 998. The trial court granted Sanchez's motion to tax the expert witness costs. The court found that the $10,000 settlement offer made by Molina and Adonis Transport was not reasonably calculated to encourage settlement. The court therefore exercised its discretion to deny recovery of the expert witness fees.
Regarding the term "substantial factor" in the context of causation, the trial court instructed the jury with CACI No. 430 as follows:
Sanchez requested that CACI No. 430 be modified by adding the following paragraph:
The court, however, denied Sanchez's request.
During deliberations, the jury requested the "official definition of a `substantial factor.'" The court responded by telling the jury that the definition of "substantial factor" is contained within CACI No. 430 and that the jury had that instruction before it.
Following the verdict, the jury was polled. When each juror was asked whether the jury's response of "no" to the question "Was Jorge Alberto Molina's negligence a substantial factor in causing harm to Hector Francisco Sanchez, Jr.?" was that juror's personal verdict, Juror No. 6 responded "I agree that there was no substantial or significant — does that answer the question?" Juror No. 6 later stated "If I may, I need to clarify myself. I do not believe that Mr. Molina was negligent. Therefore, I do not believe that his actions caused any — what's the word? Substantial, significant — does that clarify my answer?"
In support of his motion for a new trial, Sanchez submitted a declaration from one of the jurors. This juror stated that, during deliberations, "the jurors discussed the substantial versus significant factor regarding the injuries to [Sanchez]."
Sanchez contends that the trial court erred in not giving his modified instruction on "substantial factor." According to Sanchez, the omission of his requested addition misdirected the jury. Sanchez argues that because the jury was confused over the definition of "substantial" and changed "substantial" to "significant," his burden of proof as the plaintiff was raised from a preponderance of the evidence to "beyond a reasonable doubt."
A party is not entitled to have the jury instructed in any particular phraseology and may not complain if the court correctly gives the substance of the applicable law. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 336.) In this case, Sanchez's requested addition did nothing more than repeat the CACI No. 430 definition of "substantial factor" with slightly different language. Instead of stating that the substantial factor must be "more than a remote or trivial factor," Sanchez's proposed addition states that it "be more than negligible or theoretical." Accordingly, no instructional error occurred.
Moreover, the fact that the jurors used both "substantial" and "significant" when discussing causation is inconsequential. In this context, both words mean "important." (Webster's New World Dict. (3d college ed. 1989) pp. 1248, 1336.) In fact, "substantial" and "significant" are synonyms. (Webster's New World Thesaurus (rev. ed. 1985) p. 377.)
As noted above, the jury found that Molina was negligent but that his negligence was not a substantial factor in causing harm to Sanchez. Sanchez contends the evidence is insufficient to support this verdict.
When the jury returned this defense verdict, it implicitly concluded that Sanchez, as the plaintiff, did not carry his burden of proving causation. In this situation, i.e., an appeal of a judgment that was based on a failure of proof, it is somewhat misleading to characterize the issue as whether substantial evidence supports that judgment. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 279.) This is because the problem before this court is not whether Sanchez proved by a preponderance of the evidence that Molina was negligent. That was a question for the jury and it was resolved against Sanchez. The question for this court is whether the evidence compels a finding in favor of Sanchez as a matter of law. (Roesch v. De Mota (1944) 24 Cal.2d 563, 570-571; Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at p. 279.) "Specifically, the question becomes whether [Sanchez's] evidence was (1) `uncontradicted and unimpeached' and (2) `of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.'" (Shaw v. County of Santa Cruz, supra, 170 Cal.App.4th at p. 279.) The answer here is no on both counts.
With respect to the cause of the first collision, both accident reconstruction experts testified that Sanchez was unable to bring his vehicle to a stop before colliding with the trailer's back tire because he was driving too fast for the conditions. Therefore, there is evidence from which the jury could have concluded that Molina's negligence did not substantially contribute to this first collision.
Further, there was evidence that Sanchez's head injuries were caused in the second collision when his Corvette was pushed under the trailer. Molina testified that Sanchez had no visible injuries and was conscious after the first collision. Thus, there is evidence from which the jury could have concluded that Sanchez was injured only because Contreras was driving too fast for the conditions.
In sum, the record does not contain uncontradicted evidence of such character and weight as to compel a finding that Molina's negligence was a substantial factor in causing harm to Sanchez as a matter of law. Accordingly, the record supports the verdict.
Sanchez's mother, Jo Ann Sanchez, testified regarding her son's accomplishments and behavior both before and after the accident. According to Mrs. Sanchez, her son changed after the accident. He was more distant and quiet and less social.
On cross-examination, defense counsel asked Mrs. Sanchez about events before and after the accident. Counsel asked "Prior to this, this motor vehicle accident, your son's accident, did you have any altercation with your son that involved the cutting of a utility line or telephone line?" Mrs. Sanchez responded "I don't remember that." Counsel than asked "Say, in October of 2006, was there any incident where you were not allowed to report a crime?" and Mrs. Sanchez responded "No." Sanchez's counsel did not object to these questions. Following a sidebar, defense counsel asked "Ms. Sanchez, we've had a few minutes since the last question. Do you happen to recall that there was an incident or altercation or disagreement between you and your son Hector in about October of 2000?" Sanchez's counsel objected and the objection was sustained.
In a subsequent sidebar, defense counsel apologized if he misunderstood the court's ruling on this evidence. The court acknowledged that it was "a fair misunderstanding." Sanchez's counsel then moved for a mistrial on the ground that this credibility evidence was inappropriate. This motion was denied.
Sanchez contends the court abused its discretion when it denied his mistrial motion. Sanchez argues that defense counsel injected evidence that he knew would never be admitted into evidence in an attempt to prejudice Sanchez in the eyes of the jury.
Asserted misconduct of counsel may support a mistrial. (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 794.) However, attorney misconduct implies a dishonest act or attempt by an attorney to persuade the court or jury by the use of deceptive or reprehensible methods. Further, bad faith must be shown to establish the existence of misconduct. (People v. Romero (1977) 68 Cal.App.3d 543, 548.)
A mistrial motion may properly be denied where the court is satisfied that the asserted misconduct did not result in prejudice and that the verdict was not the result, in whole or in part, of the charged misconduct. (Grimshaw v. Ford Motor Co., supra, 119 Cal.App.3d at p. 794.) Whether a particular incident is incurable by admonition or instruction is by its nature a speculative matter and is best evaluated by the trial court. (People v. Collins (2010) 49 Cal.4th 175, 198.) Accordingly, the trial court is vested with considerable discretion in ruling on mistrial motions. (Ibid.) Moreover, such determinations by the trial court may not be disturbed on appeal unless they are patently wrong. (Grimshaw v. Ford Motor Co., supra, 119 Cal.App.3d at p. 794.)
Here, there was no evidence of bad faith on the part of defense counsel when he questioned Mrs. Sanchez about the "incident or altercation" with her son. The trial court acknowledged that counsel's misunderstanding of the trial court's ruling on that evidence was "fair." The court further noted that Mrs. Sanchez's denial of any incident with her son mitigated the effect of this line of questioning. Under these circumstances, the trial court did not abuse its discretion. We cannot say that the trial court's assessment of the effect of the charged misconduct on the verdict was patently wrong.
Generally, a trial court's ruling on the admissibility of evidence is reviewed for abuse of discretion. (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317.) Thus, the ruling is subject to reversal on appeal only where the trial court exceeded the bounds of reason. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.)
Sanchez sought to present a videotape showing Molina's route of travel to the accident scene and then to his destination. This tape was taken in November 2008, approximately three and one-half years after the accident. The court excluded the tape finding that it would take an undue consumption of time and had minimal probative value. Instead, the court permitted Sanchez to present still photographs taken from the video.
Sanchez contends the trial court abused its discretion in excluding the video. According to Sanchez, this tape would have shown that Molina's claims that he took this route to save time and that it was a truck route were "ridiculous." Sanchez argues that exclusion based on undue time consumption for a 30 to 40 minute videotape during an 11 day trial is "simply incredulous."
Contrary to Sanchez's position, the trial court's ruling did not exceed the bounds of reason. Witnesses presented by Sanchez testified regarding the route of travel with the still photographs. The 30 minute video would have been redundant. Further, a video taken over three years after the accident had minimal relevance. Moreover, this issue has no bearing on the appeal. Sanchez offered the videotape to prove that Molina was negligent and the jury so found.
Sanchez argues the trial court erred in granting a posttrial hearing on the reasonableness of his medical bills and in permitting Molina's clinical psychologist expert, Dr. Allen Hedburg, to testify that Sanchez did not suffer any type of cognitive brain injury. However, because the jury found against Sanchez on causation, it did not reach the issue of damages. Accordingly, these alleged errors have no bearing on this appeal.
Sanchez contends that the trial court abused its discretion in allowing defense expert, Mark Whelchel, to give certain testimony. Sanchez argues that Whelchel's opinions that the Corvette hit the trailer at 5 to 10 miles per hour, that the shoulder belt would not tear in a 5 to 10 mile per hour collision, and that the shoulder belt would not tear in a 6 to 14 mile per hour collision, were not admissible because they were not given by Whelchel at his deposition. Sanchez further asserts that Whelchel should not have been permitted to testify that Molina had the right of way to cross the intersection and that Molina could safely travel on Bethel Avenue at 26 miles per hour.
The admission of expert opinion evidence is reviewed on appeal for an abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 131.) However, a party's expert may not offer testimony at trial that exceeds the scope of his or her deposition testimony if the opposing party has no notice or expectation that the expert will offer new testimony. (Easterby v. Clark (2009) 171 Cal.App.4th 772, 780.)
Contrary to Sanchez's position, Whelchel expressed the opinion that the Corvette hit the trailer at 5 to 10 miles per hour and that the shoulder belt would not tear at such a speed during his deposition.
The admission of Whelchel's opinion that Molina had the right of way to cross the intersection and could safely travel at 26 miles per hour in the fog, even if error, was harmless. That testimony was relevant to the issue of Molina's negligence, an issue the jury decided in favor of Sanchez.
Sanchez contends he should have been permitted to recall his accident reconstruction expert, King, to rebut the foundational facts Whelchel relied on when Whelchel testified that he would not expect the shoulder belt to tear in the first collision. However, King had already testified that the impact speed for the first collision was 6 to 14 miles per hour and that he would not expect a seat belt to tear in such a collision. Thus, the court did not abuse its discretion in refusing Sanchez's request to recall King.
Molina and Adonis Transport served a section 998 settlement offer on Sanchez in the amount of $10,000. Approximately two months later, Sanchez served his own section 998 settlement offer on Molina and Adonis Transport in the amount of $124,999.99. At the same time, Sanchez also served a section 998 settlement offer on Contreras and Donald P. Dick in the amount of $249,999.99. Contreras and Donald P. Dick settled with Sanchez for this amount and the settlement was found to be in good faith.
Molina and Adonis Transport filed a memorandum of costs that included approximately $21,000 for expert witness fees. Sanchez moved to tax costs.
The court granted Sanchez's motion in part and taxed the expert witness fees. The court noted that, at the time Molina and Adonis Transport made this offer, Sanchez had no settlement funds and, according to counsel, incurred over $80,000 in costs. The court further stated that "[t]he injuries were not insignificant, and the jury did find that these defendants were negligent, if not actually responsible for plaintiff's damages. The amount sought at trial was in excess of $700,000, and the settling defendants were willing to pay $249,999.99 to avoid facing the possibility of liability at trial." The court found that, under these circumstances, the offer made by Molina and Adonis Transport "was not reasonably calculated to actually encourage settlement, but was a nominal offer designed to create a basis for defendants to recover expert fees, should they prevail at trial." The court therefore exercised its discretion and denied Molina and Adonis Transport recovery for the expert fees sought.
Under section 998, subdivision (c)(1), if a plaintiff does not accept a defendant's settlement offer and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff must pay the defendant's postoffer costs. In addition, the court, in its discretion, may require the plaintiff to pay a reasonable sum to cover expert witness fees.
Section 998 is a cost-shifting statute, the purpose of which is to encourage pretrial settlements and avoid needless litigation. (Barba v. Perez (2008) 166 Cal.App.4th 444, 451.) Where, as here, the offering defendants obtain a judgment more favorable than their offer, the judgment constitutes prima facie evidence that the offer was reasonable. (Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 117.)
Nevertheless, the courts must apply section 998 in a manner that best promotes its purpose. (Guerrero v. Rodan Termite Control, Inc. (2008) 163 Cal.App.4th 1435, 1440.) This purpose is not accomplished by permitting the defendant to recover costs in every case where the plaintiff fails to recover more than the defendant's section 998 offer. (Guerrero, supra, at p. 1440.) Rather, to accomplish the legislative purpose of encouraging settlement, a good faith requirement must be read into section 998. Thus, the defendant must submit an offer that is realistically reasonable under the circumstances. (Guerrero, supra, at p. 1440.) Whether the offer was reasonable and made in good faith is a matter left to the sound discretion of the trial court. (Barba v. Perez, supra, 166 Cal.App.4th at p. 450.) Accordingly, the trial court's ruling will not be reversed on appeal except for a clear abuse of discretion. (Ibid.)
As noted by the trial court, when Molina and Adonis Transport made their $10,000 settlement offer, Sanchez did not have any settlement money, was seeking over $700,000 in damages and had incurred considerably more than $10,000 in costs. Moreover, the jury found that Molina was negligent. Under these circumstances, the trial court did not exceed the bounds of reason in concluding that Molina and Adonis Transport's settlement offer was not made in good faith. Accordingly, the order taxing the expert witness fees will be affirmed.
The judgment and order are affirmed. No costs on appeal are awarded.
CORNELL, J. and DETJEN, J., concurs.
