Opinion
A147123
02-02-2018
DUNG CHI HUYNH, Plaintiff and Appellant, v. CITY OF HAYWARD, et al. Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. RG10510409)
Dung Chi Huynh was hit by a car and injured as he rode his bike along the Winton Avenue overpass, above Interstate 880, in the City of Hayward (City). Huynh sued the City and the State of California, Department of Transportation (collectively, defendants) for dangerous condition of public property. The jury returned a special verdict for defendants and the trial court denied Huynh's posttrial motions.
A public entity may be "liable for injury caused by a dangerous condition of its property." (Gov. Code, § 835.) " 'Dangerous condition' means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used." (Gov. Code, § 830, subd. (a).)
Huynh appeals. He contends the court erred by refusing to give certain proffered special jury instructions, and by excluding several categories of "proper evidence." He also claims the special verdict form erroneously included the driver, who was not a party at the time of trial.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Huynh's factual recitation is largely unsupported by citations to the voluminous appellate record. Parties are "required to provide specific page citations to the record to support their factual recitations in their briefs. [Citations.] The court is not required to make an independent search of the record and may disregard any claims when no reference is furnished." (Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1406.) Additionally, Huynh has failed to summarize the testimony offered during the 11-day trial. While Huynh does not raise an insufficiency of the evidence claim, a summary of the evidence admitted at trial is necessary to place the issues in context, and to establish prejudicial error for the claims Huynh does raise. Our factual and procedural summary is based on evidence cited in defendants' briefs. (Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 556, fn. 1.)
The Accident and the Lawsuit
On a March 2009 morning, Huynh was riding his bicycle in a bike lane on the Winton Avenue overpass. Angelito Baliwag, who was driving along the overpass, struck and injured Huynh. In February 2010, Huynh's counsel interviewed Baliwag, and took his "statement under oath." Two months later, Huynh filed a lawsuit against defendants alleging they created and maintained a dangerous condition of public property, i.e. the Winton Avenue overpass. Defendants cross-complained against Baliwag. After Baliwag refused to appear for his deposition in violation of a court order, the trial court struck his answer to the cross-complaints and entered his default.
Trial
In March 2009, the westbound Winton Avenue overpass consisted of two through-travel lanes and an auxiliary, or merge, lane. The auxiliary lane allows motorists to move between the Interstate 880 on-ramps and off-ramps and the Winton Avenue travel lanes. At the time of the collision, Huynh was cycling along the dotted line between the number two lane on westbound Winton Avenue and the auxiliary lane. As Baliwag drove westbound on Winton Avenue in the number two lane, he struck the rear of Huynh's bicycle. Another bicyclist, who was riding eastbound along Winton Avenue, heard the collision and saw the scene immediately after the collision. A law enforcement officer took statements from that bicyclist and Baliwag, and included them in the traffic collision report.
Verdict and Posttrial Motions
In a special verdict form, the jury determined: (1) the State of California owned or controlled the property, but the property was not in a dangerous condition at the time of the accident; (2) the City did not own or control the property; (3) Huynh was not negligent; (4) Baliwag was negligent, and his negligence was a substantial factor in causing harm to Huynh; and (5) Huynh's damages were $5,951,452. The court denied Huynh's motions for judgment notwithstanding the verdict and new trial.
DISCUSSION
I.
The Court Did Not Err in Refusing Huynh's Special Jury Instructions
Huynh contends the court erred by refusing to give three proffered special jury instructions. "A party is entitled to an instruction on each viable legal theory supported by the pleadings and substantial evidence if the party requests a proper instruction. [Citations.] 'A court may refuse a proposed instruction that incorrectly states the law or is argumentative, misleading, or incomprehensible to the average juror, and ordinarily has no duty to modify a proposed instruction. [Citations.] A court may refuse a proposed instruction if other instructions given adequately cover the legal point. [Citation.]' [Citation.] Because an appealed judgment is presumed correct and an appellant has the burden to show error, we cannot conclude that the refusal to give an instruction was error absent an adequate showing that the proposed instruction was proper." (Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 80 (Bell).) Additionally, "[i]nstructional error in a civil case is not ground for reversal unless it is probable the error prejudicially affected the verdict." (Red Mountain, LLC. v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 359.) We determine whether the denial of Huynh's proposed jury instructions is prejudicial by analyzing "(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and (4) any indications by the jury itself that it was misled." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581 (Soule), fn. omitted.)
The court declined to give Special Instruction No. 2, which provided: "Role of Heavy Traffic in Creating a Dangerous Condition: Heavy traffic can combine with other factors to create a dangerous condition. (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 440 [Brenner])." Huynh's opening brief does not explain why the court erred by rejecting this instruction, nor articulate how the failure to give the instruction prejudicially affected the verdict. Huynh does not analyze the Soule factors; instead, he simply states: "[w]ith this instruction, the jury would have understood that placing a . . . bike path across a busy intersection . . . was perhaps not the best approach." We consider this cursory argument a waiver of the contention. We are not required "to examine undeveloped claims, nor to make arguments for parties." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
In any event, the court did not err by declining to give Special Instruction No. 2, because the instruction is incorrect. (See Bell, supra, 209 Cal.App.4th at p. 82.) The special instruction cites to Brenner, which held a complaint failed to state a claim for dangerous condition of public property. The Brenner court determined an allegation regarding the "volume and speed of vehicular traffic" did not permit a finding of a dangerous condition without an additional allegation that physical characteristics made the road unsafe when used by motorists and pedestrians exercising due care. (Brenner, supra, 113 Cal.App.4th at p. 440.) Because Special Instruction No. 2 does not accurately state the rule from Brenner, the court properly refused the instruction. (Arato v. Avedon (1993) 5 Cal.4th 1172, 1189 [court should refuse instruction that incorrectly states the law].) The court properly refused Special Instruction No. 2 for the additional reason that CACI No. 1102—which defined "dangerous condition"—adequately covered the legal point in the special instruction. "It is not error . . . to refuse to give an instruction requested by a party when the legal point is covered adequately by the instructions that are given." (Arato, at p. 1189, fn. 11.)
The court also declined to instruct the jury with Special Instruction No. 3, which provided: "Due Care: The plaintiff need not show the property was actually being used with due care at the time of the injury, either by himself or by a third party. (Alexander v. State of California ex rel. Department of Transportation (1984) 159 Cal.App.3d 890, 899.)" Without citing any authority, Huynh argues the court should have given this instruction, to highlight "to the jury that whether or not Mr. Baliwag was being attentive, the City could still be liable." This cursory argument does not establish the court prejudicially erred in declining to give the instruction. "An appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority." (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685.) Moreover, the special instruction was unnecessary because the court adequately instructed the jury how to evaluate whether the property presented a dangerous condition. (See Asahi Kasei Pharma Corporation v. Actelion Ltd. (2013) 222 Cal.App.4th 945, 965 [no error in refusing special instruction where jury properly instructed on elements of the plaintiff's claims].)
Finally, the court refused to give Special Instruction No. 5, which stated: "Negligence of a Third Party is Allowed: A condition of property can be dangerous to foreseeable users who sustained injury as a result of the combination of a condition of the property and negligent conduct of others. (Baldwin v. State (1972) 6 Cal.3d 424.) A dangerous condition can combine with third-party negligence to cause injury; the public entity will still be liable. (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799.)" The court did not prejudicially err in declining to give this argumentative instruction, which misstates the holding in Peterson. Huynh does not persuasively argue otherwise.
We conclude the court did not err by refusing to give Huynh's proposed special jury instructions.
II.
The Court Properly Excluded Baliwag's Hearsay Statements
Huynh argues the court erred by excluding statements made by Baliwag in the collision report, and in a "statement under oath." We review the court's evidentiary rulings for abuse of discretion, and will not "overturn an evidentiary ruling . . . unless 'the trial court exceeded the bounds of reason, all of the circumstances before it being considered.' " (Public Employees' Retirement System v. Moody's Investors Service, Inc. (2014) 226 Cal.App.4th 643, 683.)
A. Background
At the scene of the accident, Baliwag provided a statement to a law enforcement officer. The officer's collision report included this statement from Baliwag: "Today I was driving my car to work. I was driving an 02 Saturn SL, . . . . I was traveling westbound on W. Winton Ave. I was coming up over the overpass which crosses the 880 freeway. I was in the number 2 lane (right lane). I started to switch lanes because I needed to get into the 880 [freeway southbound] on ramp. I switched into the on ramp lane (far right lane). As I switched lanes I saw a bicycle in front of my car. I applied my brakes hard attempting to avoid hitting the bicycle. I was unable to stop, and struck the rear of the bicycle with the front of my car. I think I was going about 30 mph prior to hitting the bicycle. After striking the bicycle, the rider flew up in the air, landing in my windshield. . . . [¶] This is a true statement."
Two months before filing the lawsuit, Huynh's attorney interviewed Baliwag under oath. Defendants, who had no notice of the interview, were not present. During the interview, Baliwag described the accident in response to leading questions asked by Huynh's counsel. A court reporter transcribed the interview and prepared a 39-page transcript. Before trial, Huynh moved in limine to admit Baliwag's statement in the collision report, arguing it was a declaration against interest (Evid. Code, § 1230) and a past recollection recorded (Evid. Code, § 1237). The court excluded Baliwag's statement. Huynh also moved in limine to admit the interview transcript. The court excluded the transcript, determining the interview was akin to a deposition and, as a result, the transcript could not be used against defendants, who were not present at, and had no notice of, the deposition (Code Civ. Proc., § 2025.620).
Undesignated statutory references are to the Evidence Code.
B. No Error in Excluding Baliwag's Statement in the Collision Report
Huynh claims the court erred by excluding Baliwag's statement in the collision report. This argument fails for several reasons. First, in his opening brief, Huynh has not established the relevance of Baliwag's statement. "Only relevant evidence is admissible. [Citation.] Evidence is relevant if it has 'any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' " (Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599, 1613.) Baliwag's statement described the accident, i.e., that he was trying to change lanes when he hit Huynh. But Baliwag's description of the accident—which pertained to whether Baliwag used due care—was not relevant to whether the property was a dangerous condition. Whether the property is in a dangerous condition is to be determined without regard to whether the plaintiff or the third party exercised, or failed to exercise, reasonable care when using the property. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 768; Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1069-1070 (Salas).) And, subject to an exception not relevant here, "the happening of the accident which results in the injury is not in and of itself evidence that public property was in a dangerous condition." (Gov. Code, § 830.5, subd. (a).)
Second, and assuming the relevance of Baliwag's statement, the collision report is hearsay, making Baliwag's statement double hearsay. "Double hearsay is admissible if each level falls within an exception to the hearsay rule." (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 680.) Huynh has not established the collision report falls within an exception to the hearsay rule. (See, e.g., Carlton v. Department of Motor Vehicles (1988) 203 Cal.App.3d 1428, 1432, 1433 [officer's accident report not admissible under the business records or official records exceptions to the hearsay rule].) Even if the collision report itself falls within an exception to the hearsay rule, Huynh has not demonstrated Baliwag's statement—the second level of hearsay—comes within an exception to the hearsay rule. Huynh relies on section 1220, which provides an exception to the hearsay rule for statements offered against the declarant in an action to which he is a party. (See Simons, Cal. Evidence Manual (2017) § 2:28, p. 102.) But here, Baliwag's statement was offered against defendants, not Baliwag, and Baliwag was not a party to the action at the time of trial. (See Derby v. Rounds (1879) 53 Cal. 659, 660 [admissions of defendant named in the complaint, but not served, were not admissible against other defendants at trial]; compare People v. Becerrada (2017) 2 Cal.5th 1009, 1024 [evidence came within section 1220 where the "defendant was a party, and the testimony was offered against him"].)
Contrary to Huynh's claim, Baliwag's statement does not come within the past recollection recorded exception to the hearsay rule. That exception, codified in section 1237, subdivision (a), permits the use of evidence of a testifying witness' writing as substantive proof of the contents where the witness presently has insufficient memory to testify fully and accurately to the facts contained in the writing. (See Simons, supra, at § 2:44, pp. 134-135.) The exception has several foundational requirements, none of which were satisfied here. (See § 1237, subd. (a)(1)-(4).) Huynh's reliance on Sherrell v. Kelso (1981) 116 Cal.App.3d Supp. 22 does not alter our conclusion. There, the declarant testified, thereby satisfying one of the several "strict requirements" required before the statement could be read into evidence; here, Baliwag did not testify. (Id. at pp. 32-33.) Finally, even if we assume the court erred by excluding Baliwag's statement in the collision report, Huynh has not demonstrated prejudicial error. (§ 353, subd. (b).)
C. No Error in Excluding the Interview Transcript
Huynh's claim that the court erred by excluding the interview transcript fares no better. Assuming the relevance of the entire 39-page transcript, Huynh has not established the court erred by excluding it. In his opening brief, Huynh argues: "Then there is the statement that Mr. Baliwag made under oath before a certified court reporter with his attorney present. The trial court felt that this evidence was a deposition improper because the City of Hayward's counsel was not present. See Code Civ. Proc. § 2025.620. But this too was error. Any statement of a party to a case is admissible as an exception to the hearsay rule as long as the statement is an admission of a party. And the test for whether a statement is an 'admission' is far different from whether it is a 'statement against interest.' "
This conclusory argument, unsupported by reasoned analysis, fails to demonstrate error. (Independent Roofing Contractors v. California Apprenticeship Council (2003) 114 Cal.App.4th 1330, 1339 [argument "waived for want of adequate briefing"].) In his reply brief, Huynh presents a more developed argument, but " '[o]bvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.' " (In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1477-1478.) In any event, the arguments in Huynh's reply brief fail to establish the court erred by excluding the transcript.
III.
Huynh Has Not Established the Court Erred by Excluding
Evidence of Other Collisions
Next, Huynh argues the court erred by excluding "prior collisions that showed the intersection where [he] was seriously injured." According to Huynh, the court excluded "at least 65 merging fender benders and 7 bicycle encounters." We conclude Huynh has not demonstrated the prior accidents were the same or substantially similar to the one at issue. "It is well-settled that before evidence of previous accidents may be admitted to prove the existence of a dangerous condition, it must first be shown that the conditions under which the alleged previous accidents occurred were the same or substantially similar to the one in question. [Citations.] The question of admissibility of other accidents is primarily one for the trial court and is confined to its sound discretion. [Citation.] [¶] While there must be substantial similarity to offer other accident evidence for any purpose, a stricter degree of substantial similarity is required when other accident evidence is offered to show a dangerous condition; ' "the other accident must be connected in some way with that thing." ' " (Salas, supra, 198 Cal.App.4th at p. 1072.) Huynh acknowledges the court's discretion to determine the admissibility of other accidents; Huynh's disagreement with the court's conclusion does not establish an abuse of that discretion. We conclude court did not abuse its discretion in excluding other accidents. (Id. at p. 1073.)
At oral argument, Huynh argued the court erred by excluding subsequent similar accidents. We decline to consider this argument because it "was not raised in [his] opening brief." (Charney v. Standard General, L.P. (2017) 10 Cal.App.5th 149, 154-155, fn. 6.) We have considered and rejected Huynh's contention that the court erred by "refusing to allow" his proffered "demonstrative evidence," and his purported challenge to the denial of his posttrial motions.
IV.
Huynh's Claim Regarding the Special Verdict Form Fails
Huynh's final contention is the "verdict form should not have required the jury to assess liability or damages as to Baliwag." According to Huynh, including Baliwag on the verdict form suggested to the jury that he would recover damages from Baliwag. We reject this argument for the reasons discussed above: Huynh has not cited to a portion of the record where he objected to the special verdict form. "A party who fails to object to a special verdict form ordinarily waives any objection to the form." (Behr v. Redmond (2011) 193 Cal.App.4th 517, 530.) Second, and assuming Huynh preserved this argument on appeal, his reliance on a single case, Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, does not establish the inclusion of Baliwag on the verdict form was erroneous. Vasey, which concerned an appeal from a default judgment, has no application here.
DISPOSITION
The judgment is affirmed. The City of Hayward and the State of California, Department of Transportation are entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.