Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIE032642, Laura W. Halgren, Judge.
BENKE, J.
In this wrongful death case the plaintiffs' decedent lost control of his motorcycle on a two-lane road as he attempted to avoid colliding with a water truck which was in the course of making a left turn on to the road. The decedent and his motorcycle struck the water truck and the decedent was killed. In a bifurcated trial of plaintiffs' claims against the driver of the water truck and the owner of the truck, the jury, by a vote of 10 to 2, found that neither the driver nor the owner of the truck was negligent. The trial court thereafter denied the plaintiffs' motion for judgment notwithstanding the verdict (JNOV) or in the alternative a new trial. The trial court also denied the plaintiffs' motion to tax costs and entered judgment in favor of the defendants.
On appeal the plaintiffs argue they established as a matter of law the truck driver was negligent and that in any event members of the jury were guilty of prejudicial misconduct. Plaintiffs also contend the trial court abused its discretion in bifurcating the trial and in awarding defendants' their expert witness fees under Code of Civil Procedure section 998.
We affirm in part and reverse in part. As the defendants point out, the record was sufficient to show the driver acted reasonably under the circumstances. In particular, the driver, corroborated by a third party witness, testified he stopped at the stop sign at the intersection for a significant period of time, rolled forward slowly, looked both ways, and began making his left turn only when it appeared safe to do so. This testimony was sufficient to rebut any presumption of negligence which might have arisen by virtue of the fact that because there was no limit line at the intersection, Vehicle Code section 21450 required the driver stop at the entrance of the intersecting road rather than at the stop sign.
All further statutory references are to the Vehicle Code unless otherwise specified.
However, our review of the record does not establish the defendants successfully rebutted the presumption of prejudice which arose by virtue of the juror declaration submitted by plaintiffs. In particular, a juror's statement that he would not find the defendants' liable because he did not want to give millions of dollars "to those people" was an unmistakeable reference to the plaintiffs' African-American heritage and at least in that juror's mind was directly related to the finding of liability which the jury was considering. Because the plaintiffs were entitled to 12 unbiased jurors and because of the inherently destructive nature of such statements and the bias they represent, a new trial is required.
FACTUAL AND PROCEDURAL BACKGROUND
On Sunday, June 27, 2004, at approximately 11:40 a.m. plaintiffs' decedent, Michael Kennedy, was riding his modified 2002 Honda motorcycle southbound on Japatul Valley Road, north of a "T" intersection with Japatul Lane, near Alpine. Kennedy was riding just ahead of a good friend, Robert Laird, who was also riding a motorcycle. At the scene of the accident, Laird told a police officer that as he and Kennedy were coming around a long wide bend in the road headed toward Japatul Lane, he was going 80 miles an hour and Kennedy was pulling away from him. A second friend of Kennedy, Sean Stewart, was riding a motorcycle immediately behind Laird. According to Stewart, he, Kennedy, Laird, and a fourth rider who he only knew as "Steve," had been doing "spirited riding," that morning, although not at the time they were coming around the curve toward Japatul Lane. Stewart testified that "spirited riding" means "going fast." Stewart further testified that, shortly before they were approaching Japatul Lane, the group of four, including Kennedy, had broken off from a larger group of motorcycle riders because the larger group was riding slower than the four wanted to ride.
At about the time the group of four was riding south toward Japatul Lane at a high rate of speed, defendant Daniel Patrick Cummings was stopped on Japatul Lane at its intersection with Japatul Valley Road. Cummings was heading east on Japatul Lane and was planning to turn left onto northbound Japatul Valley Road. Cummings was driving a 1977 Ford water truck owned by his employer, defendant Development Contractor, Inc. (DCI). The truck was filled with water and according to Cummings was very slow to accelerate. He had previously borrowed the truck to fill a well at his residence and was doing so again on the morning of the accident. After stopping for a lengthy period of time a few feet in front of stop sign at the intersection, Cummings let the truck roll forward a few feet so that he could get a better view of southbound traffic. As Cummings had approached the intersection, he saw four or five motorcycles pass quickly through the intersection. Cummings was somewhat apprehensive because he knew that on weekends a number of motorcycles, motorcycle clubs, and sports car clubs traveled through the vicinity at high rates of speed. Cummings looked to his left, then to his right, and then to his left again. Cummings did not see any vehicles and began moving onto Japatul Valley Road.
Cummings's version of events was corroborated by Amber Holmes, who was traveling behind Cummings on Japatul Lane. Holmes testified that when she arrived at the intersection, a group of motorcycles were coming through the intersection and were very loud. According to Holmes, Cummings waited at the intersection for almost a minute and did not attempt to make his left turn until the intersection was quiet. Holmes stated that after the water truck began making its turn, she saw a group of motorcycles headed south on Japatul Valley Road traveling at a high rate of speed. Holmes did not hear the motorcycles before she saw them. Holmes saw Kennedy's motorcycle attempt to stop and Kennedy go up on the front wheel.
For his part, midway through his turn, Cummings saw three blurs in the southbound lane approaching him at a high rate speed; in response Cummings accelerated in an attempt to clear the southbound lane. Cummings saw the lead motorcycle lock up its rear wheel in an attempt to stop.
According to Laird and Stewart, upon seeing the water truck as they rounded the bend, Kennedy tried to move to the left of the truck and locked up his front wheel in an attempt to brake; Kennedy's motorcycle then went over on its left side before colliding with the side of Cummings's truck. Instead of attempting to move to the left of the truck, Laird and Stewart tried to move to the right of the water truck and were able to successfully stop behind the truck.
Kennedy's heirs filed a wrongful death complaint against Cummings and DCI. The defendants moved to bifurcate the trial of liability and damages and the trial court granted their motion. At trial, in addition to testimony from Cummings and the other witnesses, the defendants presented testimony from an accident reconstruction expert. Based on witness reports, physical evidence, and an investigation of the scene, the expert concluded Kennedy was not in Cummings's view when Cummings began making his turn and that Cummings had established his right-of-way when he began making his turn. Based on witness statements and damage to the frame of Kennedy's motorcycle, the expert concluded that Kennedy was driving faster than the maximum 55 mile per hour speed limit. As we indicated at the outset, by a vote of 10 to 2, the jury found Cummings and DCI were not negligent and the trial court denied the plaintiffs' posttrial motions.
DISCUSSION
I
In their first argument on appeal, plaintiffs contend they established Cummings was negligent as a matter of law and the trial court therefore erred in denying their motion for a JNOV. Where we are considering an order denying a JNOV motion, "[t]he scope of appellate review is to determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury's conclusions, and where so found, it is proper for the trial judge to deny a motion for judgment notwithstanding the verdict." (Gordon v. Strawther Enterprises, Inc. (1969) 273 Cal.App.2d 504, 511; see also Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 515.)
Plaintiffs contend that notwithstanding the fact that Cummings stopped at the stop sign and looked both ways before entering Japatul Valley Road, section 24150 required that he stop a second time at the entrance of Japatul Valley Road and his failure to do so was negligence per se. We find no error. Where as here, the record shows a defendant acted reasonably under the circumstances and that the violation of a statute was not a substantial factor in causing harm, the doctrine of negligence per se does not give rise to any presumption of negligence.
Evidence Code section 669 codifies the negligence per se doctrine and provides:
"(a) The failure of a person to exercise due care is presumed if:
"(1) He violated a statute, ordinance, or regulation of a public entity;
"(2) The violation proximately caused death or injury to person or property;
"(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and
"(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.
"(b) This presumption may be rebutted by proof that:
(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or
"(2) The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications."
The trial court instructed the jury on the doctrine of negligence per se with CACI No. 418. CACI No. 418, which is based on Evidence Code section 669, provides: "I will be reading to you several statutes. If you decide one, that the defendants and/or decedent violated any of these laws, and two, that the violation was a substantial factor in bringing about the harm, then you must find that the defendants and/orthe decedent were negligent, unless you also find that the violation was excused. If you find that defendants and/or decedent did not violate any of these laws or that the violation was not a substantial factor in bringing about the harm or if you find the violation was excused, then you must still decide whether defendants and/or decedent were negligent in light of the other instructions."
One of the statute's the trial court provided to the jury was section 22450, which states: "(a) The driver of any vehicle approaching a stop sign at the entrance to, or within, an intersection shall stop at a limit line, if marked, otherwise before entering the crosswalk on the near side of the intersection.
"If there is no limit line or crosswalk, the driver shall stop at the entrance to the intersecting roadway."
If, as we are required to do, we accept Cummings's and Holmes's testimony, we must conclude Cummings stopped at the intersection, waited until it was safe to proceed, moved slowly forward, and before Kennedy's motorcycle could be seen or heard, began his turn onto Japatul Valley Road. Cummings's and Holmes's testimony are sufficient by themselves to establish Cummings acted reasonably under the circumstances. Indeed, the courts in Hefner v. County of Sacramento (1988) 197 Cal.App.3d 1007, 1016 [disapproved on other grounds Cornette v. Deptartment of Transportation (2001) 26 Cal.4th 63, 74, fn. 3], and Smith v. Pellissier (1955) 134 Cal.App.2d 562, 570-571, expressly endorsed as reasonable the practice of stopping before entering an intersection and inching forward to get a better view of oncoming traffic: "[T]he driver of the car about to enter a through highway must stop in accordance with section 577, Vehicle Code, to observe traffic conditions, but if the point where he stopped is distant from the actual crossing of the travel lanes he may move up to that point carefully if he can do so without danger and decide there whether he can enter or cross the through highway without any car then moving on the through highway causing an immediate danger." (Smith v. Pellissier, supra, 134 Cal.App.2d at p. 570.)
Laird's testimony about Kennedy's high rate of speed is also pertinent because it explains why, although Cummings looked to his left before beginning his turn, he was unable to see or hear Kennedy's approaching motorcycle. This conclusion was reached by the defense expert, who concluded Kennedy was riding at a high rate of speed and that Cummings would not have been able to see Kennedy when Cummings began his turn onto Japatul Valley Road.
We recognize, as plaintiffs point out, that according to Cummings, he stopped at the stop sign, waited there and then rolled slowly forward to Japatul Valley Road, but did not stop a second time. We also recognize there is no limit line at the intersection and that the stop sign on Japatul Lane is set back approximately 22 feet from the eastern edge of Japatul Valley Road. As plaintiffs note, where there is a stop sign, but no limit line, section 21450, subdivision (a), requires that a driver stop at the "entrance of the intersecting roadway." Given these circumstances, plaintiffs contend Cummings violated section 21450, subdivision (a), as a matter of law and that the violation gave rise to a presumption of negligence.
There are three reasons plaintiffs' reliance on section 21450 is unavailing: First, the jury was given no instruction as to where the entrance of Japatual Valley Road began and as was the case in Smith v. Pellissier, supra, 134 Cal.App.2d at page 570, the jury could have understood that, notwithstanding its distance from the edge of the highway "the entrance to the highway" was in fact at the stop sign where Cummings stopped and hence no violation occurred. Secondly and more importantly, by showing Cummings acted reasonably under all the circumstances, the defendants rebutted any presumption of negligence that might arise by virtue of Cummings's failure to stop a second time. (Evid. Code, § 669, subd. (b)(1).) Finally, the evidence of Kennedy's high rate of speed offered by Laird and the defense expert provided yet further rebuttal of the presumption of negligence because it supported the conclusion that even if, instead of waiting at the stop sign, Cummings had waited at the edge of the roadway, he would not have been able to see Kennedy approaching the intersection. Thus the record shows Cummings not only acted reasonably, but that any violation of section 21450 was not a substantial factor in causing the collision. (CACI No. 418.)
In sum, where as here, the jury was not required to find a statute was violated, the record shows the defendant nonetheless acted reasonably under the circumstances and any statutory violation, if it occurred, played no substantial part in causing harm, negligence was not established as a matter of law. Thus the trial court did not err in denying plaintiffs' JNOV motion.
Because the jury found Cummings was not negligent and its finding is supported by substantial evidence, plaintiffs' negligent entrustment claim also fails.
II
In moving for a new trial, the plaintiffs relied upon a declaration in which juror Klemaske set forth what plaintiffs believed were instances of misconduct by other jurors. After reviewing the admissible portions of Klemaske's declaration and the admissible portions of responsive declarations from jurors Klecha and Franklin, the trial court found that the misconduct established by Klemaske's declaration was not serious and had not prejudiced plaintiffs. As we explain, we agree with plaintiffs that the trial court should have granted the motion for a new trial.
" 'In ruling on a request for a new trial based on jury misconduct, the trial court must undertake a three-step inquiry. [Citation.] First, it must determine whether the affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible, the trial court must determine whether the facts establish misconduct. [Citation.] Lastly, assuming misconduct, the trial court must determine whether the misconduct was prejudicial. [Citations.] A trial court has broad discretion in ruling on each of these issues, and its rulings will not be disturbed absent a clear abuse of discretion. [Citations.][¶]... [¶]
" '[J]ury misconduct is not reversible per se. Although jury misconduct does give rise to a presumption of prejudice, the presumption may be rebutted by the prosecution on the basis of the entire record. [Citation.] In deciding whether misconduct was prejudicial, the trial court must determine whether there exists a substantial likelihood that some extrinsic material or information improperly influenced the vote of one or more jurors. This is an objective standard. "... 'In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror.' [Citation.]" [Citation.]' [Citations.]" (Sierra View Local Health Care Dist. v. Sierra View Medical Plaza Associates (2005) 126 Cal.App.4th 478, 484.)
With respect to juror Balderston, juror Klemaske stated she had heard him say he did not want to find negligence because he did not want "those people" to get millions of dollars. This aspect of Kelmaske's declaration was unrebutted. Two of the three plaintiffs, Kennedy's children, are African-American and plaintiffs contend this statement demonstrated racial bias. According to Klemaske, juror Archuleta stated that he would not find the defendants financially responsible because no one had acted intentionally. Finally, Klemaske stated that two other jurors had made statements to the effect that water trucks were not difficult to drive. In finding that notwithstanding these statements, any presumption of prejudice had been overcome, the trial court relied largely on the strength of the defense case.
It is of course true that in determining whether the presumption of prejudice has been rebutted, juror misconduct in considering extraneous evidence or principles of law not provided by the trial court must be judged against the overall record in the case and the issues the jury was required to consider. (See In re Carpenter (1995) 9 Cal.4th 634, 653-654.) Were the misconduct disclosed on this record limited to juror Archuleta's statement about the need for intentional conduct on the part of the defendants and the other jurors' reference to the skill needed to drive water trucks, we would have little difficulty deferring to the trial court's determination that in light of the weight of the defense case, any misconduct was not prejudicial. However, such analysis does not assist us in considering juror Balderston's statement.
We note that the trial court attempted to dismiss Balderston's statement as "isolated comments regarding damages, which was not even the issue before the jury." With due respect to the trial court, we cannot so easily dismiss Balderston's statement. Where as here, the decedent and his two surviving children are African-American, and no African-American was on the jury or otherwise within earshot, we cannot interpret a white juror's reference "to those people" and his unwillingness to find negligence because they might "get millions of dollars," as anything but an expression of Balderston's racial bias. Moreover, on its face the statement is not limited to the question of damages, but instead is Balderston's explanation for his unwillingness to find liability.
The unrebutted evidence of Balderston's racial bias requires a new trial because plaintiffs were entitled to 12 impartial jurors and the record shows that Balderston was not impartial. " 'The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to trial by jury guaranteed by the Constitution.' " (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 110.) "The guarantee is to 12 impartial jurors." Clemens v. Regents of University of California (1971) 20 Cal.App.3d 356, 360.) In addition to the fact that the record shows the plaintiffs did not get 12 impartial jurors, the record also shows that Balderston in fact injected race into the jury's deliberations. As the court in Tapia v. Barker (1984) 160 Cal.ApP.3d 761, 766, noted, such a discussion is most destructive and insidious and there is no place for it anywhere in California's courts.
In sum in light of the unrebutted evidence of racial bias on the part of one of the jurors and its impact on his consideration of the case, the trial court should have granted the plaintiff's motion for a new trial.
In light of the fact that a new trial must occur on remand, plaintiffs' contention with respect to bifurcation and the award of expert fees are now moot.
DISPOSITION
The trial court's order denying plaintiffs' JNOV is affirmed; however, the order denying the plaintiffs' motion for a new trial is reversed and remanded with instructions that it be granted.
Plaintiffs to recover their costs of appeal.
WE CONCUR: McCONNELL, P. J., NARES, J.