Opinion
B233360 Super. Ct. No. MC019871
12-14-2011
JENNIFER MARIE WHITE, Petitioner, v. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent; DINA A. BARKUS, Real Party in Interest.
Tharpe & Howell, LLP, Stephen J. Beaton, Eric B. Kunkel, and Roger W. Backlar for Petitioner. No appearance for Respondent. Law Offices of Olaf Landsgaard and Olaf Arthur Landsgaard for Real Party in Interest.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
ORIGINAL PROCEEDING in mandate. Randolph A. Rogers, Judge. Petition granted.
Tharpe & Howell, LLP, Stephen J. Beaton, Eric B. Kunkel, and Roger W. Backlar for Petitioner.
No appearance for Respondent.
Law Offices of Olaf Landsgaard and Olaf Arthur Landsgaard for Real Party in Interest.
INTRODUCTION
After a jury rendered a defense verdict in this wrongful death case, the trial court granted judgment notwithstanding the verdict (JNOV) and a new trial on damages unless defendant paid an additur of $254,000. Because substantial evidence supported the jury's verdict, it was error to grant JNOV. Because it was error to order JNOV, it follows there can be no "new trial" on damages based on a defense verdict. For that reason, and because the trial court's posttrial orders did not comply with the new trial statutes, we grant the petition for writ of mandate and order that the jury's verdict be reinstated.
FACTUAL AND PROCEDURAL BACKGROUND
Dina A. Barkus sued Jennifer Marie White for the wrongful death of her son, Logan Trent Barkus, who died after he was struck by White's vehicle while walking on a dark road in the City of Lancaster at 1:00 am. White was 18 years old at the time; Logan was 17. One of the main issues in the case was Logan's location on the roadway when he was struck and whether White was negligently driving off the roadway. Another was whether White used the proper lighting from her vehicle's headlights (low or high beam) to illuminate the roadway.
The evidence adduced at trial, viewed in the light most favorable to White, i.e., the party securing the verdict (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770), is as follows: A. White's Testimony
White, who had just graduated from high school before this incident, testified that she was on her way home from working at a local movie theatre. She traveled her normal southbound route on 27th Street West, which is separated by a fairly wide raised median, and has two lanes northbound and two southbound. White was driving in the number one lane, the lane closest to the median. The speed limit on the street was 45 miles per hour, but White was beginning to slow down for an upcoming stop sign and therefore was traveling about 35 to 40 miles per hour.
White glanced at the radio for less than a second, looked up again and did not see anybody on the road or near the median. While looking straight ahead, White suddenly struck something with the front, left side of the vehicle. Her vehicle's headlights were on and working perfectly, but she never saw Logan before striking him. After realizing her vehicle hit something, White made a U-turn. White then saw Logan lying on the median. He was wearing dark clothing. White later learned that Logan died. B. Deputy Wagner's Testimony
Sheriff Deputy Dennis Wagner, a traffic accident investigator for the City of Lancaster, was on the scene shortly after the accident. He testified that based upon his investigation, White "was lawfully in the roadway." He also said the damage to White's vehicle was consistent with her testimony (and statement to him at the scene) that she was traveling at 35 miles per hour (in a 45 mph zone).
From all of the evidence, including White's statement, the debris field, and conversations with the fire department on the scene concerning Logan's injuries, Wagner concluded Logan was walking west from the median when he entered the roadway, and White was heading southbound on 27th Street West. He also concluded Logan had stepped off the median and onto the roadway. White never saw Logan prior to the collision.
On cross-examination, Wagner admitted it was "possible" Logan was struck while walking south along the median and hit on his right side.
Wagner was then asked about the point of impact, i.e., where Logan was located when he was struck by White's vehicle. He said that based upon his investigation and road measurements (including the location of debris and the victim's clothing left on the road) he determined Logan was struck 441 feet north of the south curb line of Lancaster Boulevard and 23 feet east of the west curb line of 27th Street West. Wagner explained that the width of the two southbound lanes taken together were 24 feet, 8 inches.
Wagner further testified that the point of impact was "approximately 1 foot" from the western curb of the median. When the court asked whether the point of impact was to the left of the solid yellow line running alongside the median (i.e., the median side) or to the right side of the yellow line (i.e., the lane side), Wagner said it was towards the lane side of the yellow line. The yellow line designates the lane or the edge of the roadway. Wagner indicated that walking on the raised median (which is considered part of the roadway) was unlawful and that a pedestrian was required to yield to approaching traffic.
Wagner also stated on cross-examination that he did not measure the distance from the raised median to the yellow line, and that it was "possible" that the point of impact could have been on the median side of the yellow line.
Wagner's final assessment was that the cause of the accident was a "pedestrian in the roadway." When asked for the premise of the assessment, Wagner said, "The area of impact, and she was legally on the roadway." C. Stein Husher's Testimony
Stein Husher testified as an expert in reconstructing vehicle versus pedestrian accidents. He inspected the scene of the accident during the day and also at night. Based upon the distance Logan was thrown from the point of impact and the physical evidence, Husher testified White was traveling about 30 miles per hour, plus or minus "two or so" miles per hour. Also, based upon the physical evidence and the traffic collision report prepared by Wagner, Husher estimated Logan was thrown about 33 to 35 feet.
When asked about the point or area of impact, Husher opined Logan was struck from one to three feet from the edge of the roadway, which he explained was one to three feet from the yellow line. Husher said this area was outward of the concrete gutter area next to the curb and in the "dark asphalted area," i.e., on the roadway. Husher admitted that his opinion varies "a little bit" from Wagner's conclusion because "we have to have a bit of a range because of the dimension of the person." The area of the point of impact is more than 400 feet away from the closest street light.
Husher indicated he did not completely agree with Wagner's measurements and thought the area of impact was farther into the asphalt roadway. He based his opinion upon Wagner's diagram in his report, Logan's shoe left on the roadway, the debris pattern, and the fact that during the impact there has to be "a little bit of motion before those things get deposited" and one has to work outwards along the trajectory from the area of impact to where the object comes to rest. He said the shape of the front of White's vehicle (which is curved) also has to be taken into consideration. This shape has an angular effect and tends to push the pedestrian off to the left of the vehicle. It was Husher's opinion that the point of impact was a range rather than a single point.
Husher indicated the "cement apron" or gutter around the center median (along which the yellow line runs) was about one foot in width from the raised curb, and that the yellow line was four inches wide. He said one can get an idea about the width of the concrete gutter based upon the width of the yellow line. When the court asked whether the concrete gutter was "a little more than a foot," Husher said, "not much" because you could stack about three of the yellow lines in the span of the gutter. Husher admitted he had not taken a physical measurement of the distance between the curb at the median and the end of the concrete gutter. But he indicated he had measured the distance between the curb and the "RPMs" which are adjacent to the edge of the concrete gutter.
"RPMs" are raised pavement markers - the yellow reflector lights glued to the asphalt. They are just to the right of the yellow line.
The court again asked Husher whether the point of impact would be on the concrete portion if the distance between the curb and the edge of the concrete gutter was "a little more than a foot." Husher said yes, but if it's exactly a foot, then the point of impact is on the seam of the concrete as it touches the asphalt. Husher again reiterated his point of impact was one to three feet from the yellow line, to the right of the RPMs. And, even if the point of impact was one foot from curb, it would still be to the right of the yellow line.
Husher further opined Logan was walking west when he was struck by White's vehicle and that his right foot was leading as he stepped into the roadway. He said his opinion was based upon a number of factors, including the injury pattern described in the medical records, the interaction with the vehicle, and the front curvature of White's car.
On cross-examination, Husher testified it is not unreasonable to sometimes look away from the roadway when driving because "we have to manage various parts of the vehicle, we have to look at speedometers, things like that that involve glancing away . . . ." He also said that if Logan had been walking along the median and hit from behind the injury pattern would have been different.
Husher also testified-he did not do an analysis of how far the headlights from White's vehicle projected while traveling 30 miles per hour. But he estimated that on his vehicle (a BMW 325) the low beam lights would project 100 to 150 feet. He had no evidence of whether White was using her vehicle's low or high beam lights at the time of the accident. D. Anthony Stein's Testimony
Stein testified as an expert on human factors. In other words, his expertise concerns how humans interact with their environment. His specialty is how impairments in the transportation system affect the human operator. Stein did two on-site inspections of the accident scene to determine visual conditions, one of which was when the moon was at the same position as it was during the night of the accident.
Stein said headlights on vehicles are purposefully aimed low and to the right to avoid blinding oncoming traffic. If at nighttime something is to the left of the vehicle, there is a very sharp cut-off of light, and a person would see very little unless the object is very close. A person's ability to react is based upon his or her expectation of a pending stimulus. If a person expects that he or she will need to respond, the person will do it faster. A pedestrian's clothing has an impact on a driver's ability to perceive them at nighttime. Darker clothing will not be detected. A person needs to get closer to get enough light coming back to get the contrast necessary to see a pedestrian.
Stein testified that a motorist in White's situation with low beam lights would not be able to perceive a pedestrian to the left of her until that person was about 60 feet away. If the high beams were on, then the distance would be 200 feet. Stein stated that even if, while traveling at 30 miles per hour, White had not looked at her radio, she would not have been able to avoid striking Logan. That is because reaction time is 2.2 seconds and at 30 miles per hour she would have been traveling 45 feet per second, or a total of 110 feet, but she could not detect Logan until he was 60 feet away.
Relying on what he recalled from White's deposition testimony, Stein indicated she had her low beams on at the time of the accident. But later, Stein was allowed time to look through her deposition transcript and admitted he misspoke and there is no indication of whether she was using her low or high beam lights. The court then said, "[T]he previous testimony given that there was [sic] foundation for doing low-beam calculations based on Jennifer White's deposition is stricken."
Nonetheless, Stein stated his opinions about the distance one travels and the visibility with low beams lights were both accurate. He based his analysis on the assumption that White was using her low beam headlights at the time of the accident. E. Verdict and Post-Trial Motions
On March 30, 2011, after a week-long trial and deliberating for two days, the jury found White was not negligent in operating her vehicle. The jury also found Logan's own negligence was a substantial factor in causing his death. After the jury was polled, counsel for Barkus made an oral motion for JNOV and/or new trial. The court immediately responded:
"Well, I'd be inclined to grant both, frankly. . . . [¶] I just can't believe it. So I knew they were conservative up here, but I can't even believe it. So if you all don't work something out, I'm going to be granting a motion for new trial at a minimum. . . . [¶] . . . I really believe that if the pedestrian in this case had been a 17-year-old Jennifer White and the driver had been 18-year-old Logan Barkus, everything would have been different from the officer's investigation all the way through the course of this trial. I believe that this verdict is infected by socioeconomic bias, which is something they're specifically instructed not to consider. And that's what I believe based on everything I've heard. And there's no point in arguing it because you aren't going to change my mind."
On April 7, Barkus filed a motion for JNOV and for a new trial. On April 21, the trial court on its own motion issued an order to show cause why JNOV and new trial should not be granted, setting the matter for hearing on April 28. In the order to show cause, the court essentially concluded White was not entirely in her own lane, was required to have her vehicle's high beams on at the time, was negligent and caused Logan's death. The court stated it would order a new trial unless White paid Barkus an additur of $254,000, and that "the verdict is against the law."
The court's order to show cause also directed defendant to show cause why the following should not be entered: "Judgment Notwithstanding the Verdict shall be Ordered pursuant to CCP §629, and if the additur is not accepted, a New Trial shall be Ordered pursuant to CCP §657 on the issue of damages due to insufficiency of the evidence to justify the verdict; the verdict is against the law; damages are inadequate; and errors of law occurred that were excepted to by Plaintiff."
Simultaneously, the trial court also issued a statement of decision on Barkus's motions, i.e., before the hearing on the order to show cause, and before hearing any oral argument. In the statement, the court discussed in more detail why the court thought that "as a matter of law" White was negligent and caused Logan's death. The court concluded Wagner's testimony was speculative and without foundation, that Husher's testimony was without foundation and entitled to no weight, and that Stein's testimony was without foundation and should not have been admitted.
On April 28, the trial court started the order to show cause hearing by taking judicial notice, on its own motion, "that the concrete curb is in excess of one foot." White's counsel tried to persuade the court regarding Wagner's conflicting testimony on the issue, but the court said, "You are wasting your breath. . . . Take it up with the Second District." The hearing was short and the court granted JNOV and a new trial on damages.
White filed a mandate petition challenging the trial court's rulings. We stayed the trial on damages, received briefing, and subsequently issued an alternative writ of mandate.
DISCUSSION
White contends, among other things, that (1) the trial court overstepped its authority in granting JNOV because there was substantial evidence to support the jury's verdict, (2) the trial court erred in taking judicial notice of the length of the concrete curb in order to grant JNOV, and (3) the trial court's order granting a new trial violated Code of Civil Procedure section 657. We agree with each of these contentions.
All Code references are to the Code of Civil Procedure, unless otherwise indicated.
White also argues the trial court erred because Barkus's motions were both procedurally defective, and because her right to due process was violated as a result of the trial judge's bias. Because we conclude the trial court erred on the grounds discussed, we do not address these additional arguments.
A. The Motion for JNOV
1. Standard of Review
"'The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict [citations]. The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] "A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied." [Citation.]'" (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877-878, see also Garretson v. Harold I. Miller (2002) 99 Cal.App.4th 563, 568 ["The trial court's discretion in granting a motion for [JNOV] is severely limited"].)
Applying these principles, we may uphold the order granting JNOV only if, after reviewing all the evidence in the light most favorable to White, resolving all conflicts and drawing all inferences in her favor, and deferring to the implicit credibility determinations of the jury, there was no substantial evidence to support the jury's verdict in her favor. (Begnal v. Canfield & Assoc., Inc. (2000) 78 Cal.App.4th 66, 72-73.) If the evidence is conflicting or if several reasonable inferences may be drawn, the court erred in granting the motion and we must reverse. (Ibid.)
2. There was Substantial Evidence White was Lawfully on the Roadway
In its statement of decision, the trial court concluded, "The court finds that the evidence establishes that as a matter of law . . . White . . . was not entirely in her own lane as required by Vehicle Code section 21658 at the time she struck pedestrian, Logan Barkus, with her vehicle; that her failure to remain within her own lane was negligence per se; and that her negligence was a substantial factor in causing the death of the pedestrian, Logan Barkus." Not only is there no basis for this conclusion, but the statement demonstrates that rather than looking at whether there was substantial evidence to support the jury's verdict, the court was making different factual findings. (Campbell v. Cal-Guard Surety Services, Inc. (1998) 62 Cal.App.4th 563, 570 [in ruling on motion for JNOV court may not make different factual findings].)
Vehicle Code section 21658 provides, in relevant part: "Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction . . . . [a] vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety."
Deputy Wagner testified that based upon his investigation he determined Logan was struck 441 feet north of the south curb line of Lancaster Boulevard and 23 feet east of the west curb line of 27th Street West. Wagner explained that the width of the two southbound lanes taken together were 24 feet, eight inches. Husher testified that each side of the two lanes had a curb and gutter, and that the gutter was about one foot wide.
These measurements, when taken together, mean the distance from the west curb line of 27th Street West to the center median's west curb face was about 26 feet, eight inches. If Logan was struck 23 feet from the west curb line, as Wagner testified, then he would have been about three feet eight inches from the median's west curb face. This would put Logan within the roadway in the number one lane (and White's vehicle properly within the lane), and is consistent with Husher's testimony that the point of impact was about one to three feet from the yellow line. The trial court's statement of decision essentially contradicts the evidence before the jury.
Even assuming, without deciding, that Wagner and Husher's testimony was somehow speculative and without foundation (as the trial court indicated in its statement of decision), it was admitted without objection and therefore may be used to support the jury's verdict. (See Evid. Code, § 140, Law Rev. Comment ["when inadmissible hearsay or opinion testimony is admitted without objection, this definition [i.e., evidence] makes it clear that it constitutes evidence that may be considered by the trier of fact"]; People ex rel. Dept. of Public Works v. Alexander (1963) 212 Cal.App.2d 84, 98 ["evidence that is technically incompetent and immaterial . . . if offered and received without proper objection or motion to strike may be considered in support of a judgment"]; Greenfield v. Insurance Inc. (1971) 19 Cal.App.3d 803, 811.)
In its statement of decision, the trial court cited Solis v. Southern Cal. Rapid Transit Dist. (1980) 105 Cal.App.3d 382 to support the rejection of Husher's opinion testimony as lacking foundation. But in Solis, the opinion testimony was admitted over the plaintiff's objection. In contrast, Husher's testimony was admitted without objection.
Wagner's testimony on the point of impact was indeed conflicting. While the calculations above show the point of impact was about three feet and eight inches from the median's curb, Wagner also repeatedly testified the point of impact was about one foot from this curb. Nonetheless, when asked by the trial court whether the point of impact was to the left (i.e., the median side) of the solid yellow line or the right side of the yellow line (i.e., the lane side and on the roadway), Wagner said it was towards the lane side of the yellow line. Based upon this determination, Wagner concluded White was lawfully on the roadway. This conclusion was consistent with Husher's testimony that even if the point of impact was one foot from the curb, it would still be to the right of the yellow line, i.e., on the roadway. Therefore, the trial court was required to view the evidence in the light most favorable to White, which demonstrated that substantial evidence supported the jury's verdict. (See Evid. Code, § 312 [it is for the trier of fact to determine the effect and value of the evidence presented, including the credibility of the witnesses].)
3. The Trial Court Erred in Taking Judicial Notice in order to Grant JNOV
White contends the trial court failed to comply with the Evidence Code in judicially noticing facts that were not presented to the jury. White asserts the court did this by inappropriately taking judicial notice of the width of the concrete gutter or apron that borders the center median on 27th Street West, in order to support its conclusion that White was negligent per se for traveling outside of her lane.
Both Wagner and Husher testified that the distance between the median's curb and the edge of concrete apron or gutter was about one foot. While no one ever physically measured it, Husher testified he had measured the distance between the curb and the RPMs which are adjacent to the edge of the concrete gutter. Husher also said one can get an idea about the width of the concrete gutter based on the width of the yellow line, which is four inches , and that one could stack about three of the yellow lines in the span of the gutter. From this evidence, and the photographs of this area admitted into evidence, the jury could reasonably determine the width of the gutter was about one foot and that the point of impact was in the roadway, to the right of the yellow line, as Wagner and Husher had testified.
Despite this evidence, and just seconds prior to granting JNOV on the day of the hearing for the order to show cause, the trial judge announced he was taking judicial notice of the width of the concrete gutter. He simply declared that "the concrete curb is in excess of one foot." The court erred in doing so.
Pursuant to Evidence Code sections 455 and 458, the trial court was required to (1) give each party a reasonable opportunity to present to the court information about the propriety of taking judicial notice and the tenor of the matter to be noticed, (2) indicate the source of the judicially noticed information, and (3) place the information on the record. That did not happen in this case.
Evidence Code section 455 provides, "With respect to any matter specified in Section 452 or in subdivision (f) of Section 451 that is of substantial consequence to the determination of the action:
"(a) If the trial court has been requested to take or has taken or proposes to take judicial notice of such matter, the court shall afford each party reasonable opportunity, before the jury is instructed or before the cause is submitted for decision by the court, to present to the court information relevant to (1) the propriety of taking judicial notice of the matter and (2) the tenor of the matter to be noticed.
"(b) If the trial court resorts to any source of information not received in open court, including the advice of persons learned in the subject matter, such information and its source shall be made a part of the record in the action and the court shall afford each party reasonable opportunity to meet such information before judicial notice of the matter may be taken." (Italics added.)
Evidence Code section 458 permits a court to judicially notice facts "in subsequent proceedings" as long as the requirements of the judicial notice statutes have been satisfied.
The trial judge did indicate he would temporarily interrupt the hearing, allow White's counsel to go out to the scene, quickly measure the concrete gutter, and immediately come back for the second call of his calendar. But this was not a "reasonable opportunity" for White to present any relevant information to the court as to the propriety of taking judicial notice and the tenor of the matter to be noticed.
Finally, section 455, subdivision (b), required the trial court to make a part of the record "any source of information not received in open court." The trial court did not comply with this provision because it merely declared "the concrete curb is in excess of one foot," without indicating the source of that information.
4. The Trial Court Improperly Concluded White Violated the Vehicle Code Headlight Requirements "as a Matter of Law"
In its statement of decision the trial court also concluded, "The court finds that the evidence establishes as a matter of law that . . .White . . . was required to have her high beams on at the time of the accident as required by Vehicle Code [section] 24409, and that if she did not, she was negligent per se and her negligence was a substantial factor in causing the death of the pedestrian, Logan Barkus; and if she did, she failed to use reasonable care to avoid striking the pedestrian, Logan Barkus." Barkus thus argued the issue of negligence per se during closing arguments. But, as White correctly points out in her papers, Vehicle Code section 24409 is phrased in terms of using beams of light to reveal persons at a "safe distance" in advance of the vehicle, without defining "safe distance." A safe distance will necessarily vary depending upon the conditions at the time. There was simply no evidence at trial as to whether or not White was using her vehicle's low or high beam lights at the time of the accident or that her headlights prevented her from seeing a pedestrian at a safe distance. There was similarly no evidence of what type of lights she should have been using at the time she struck Logan, or that the lights on her vehicle were not functioning as specified in Vehicle Code section 24407.
Vehicle Code section 24409 provides, in relevant part: "Whenever a motor vehicle is being operated during darkness, the driver shall use a distribution of light, or composite beam, directed high enough and of sufficient intensity to reveal persons and vehicles at a safe distance in advance of the vehicle . . . ."
Also, Vehicle Code section 24407 provides: "Multiple-beam road lighting equipment shall be designed and aimed as follows:
"(a) There shall be an uppermost distribution of light, or composite beam, so aimed and of such intensity as to reveal persons and vehicles at a distance of at least 350 feet ahead for all conditions of loading.
"(b) There shall be a lowermost distribution of light, or composite beam so aimed and of sufficient intensity to reveal a person or vehicle at a distance of at least 100 feet ahead. On a straight level road under any condition of loading none of the high intensity portion of the beam shall be directed to strike the eyes of an approaching driver."
Whether White's headlights were of sufficient intensity at the time of the accident was a question to be considered by the jury in determining whether she was negligent, and not one which in this case could be decided as a matter of law. (See, e.g., Barry v. Maddalena (1944) 63 Cal.App.2d 302 [whether vehicle's lights were of sufficient intensity to reveal a person at a distance of 100 feet ahead was one to be considered by jury in determining whether negligence of deceased pedestrian in being struck and killed in the lane east of the white line of a highway was such as to preclude recovery for his wrongful death]; Martindale v. Atchison, T. & S.F. Ry. Co. (1948) 89 Cal.App.2d 400 [it was for jury to determine in action against railroad, whether, in exercise of ordinary care, driver should have had lights on high beam so as to reveal objects on highway at distance of at least 350 feet ahead]; Anderson v. I. M. Jameson Corp. (1936) 7 Cal.2d 60 [in actions to recover damages for personal injuries received when automobile driven by plaintiff collided with cow, it was for jury to consider and weigh evidence as to condition of darkness, character of highway, speed at which plaintiff driver was traveling, and approach of another vehicle from opposite direction, necessitating depressing of plaintiff's headlights].)
In his statement of decision, the trial judge further stated, "Vehicle Code section 24407 requires low beams to 'reveal a person or vehicle at a distance of at least 100 feet ahead' and requires high beams to do so 'at a distance of at least 350 feet ahead.' The Vehicle Code permits no exception for dark clothing. Case law establishes that if, as testified by Dr. Stein, Ms. White's low beams in fact only illuminated 60 feet ahead and her high beams only illuminated 200 feet, and, as testified by Dr. Stein, the lack of illumination contributed to Ms. White's inability to avoid the accident, then Ms. White would be negligent per se as a matter of law."
The case law the court referred to was Hutchinson v. Miller & Lux, Inc. (1922) 60 Cal.App. 1. That case provides that a defendant may be negligent per se when there is evidence he or she violated a provision of the Vehicle Code. (Id. at p. 4.) As noted, Barkus did not present any such evidence in this case.
There are at least two problems with this conclusion. First, Stein did not testify as to the actual condition of the headlights on White's vehicle at the time of the accident. There was simply no evidence whatsoever on whether the headlights on White's vehicle failed to comply with Vehicle Code 24407 or whether she failed to use low or high beam lights as required by Vehicle Code section 24409. Stein merely testified concerning a hypothetical motorist in White's situation, without ever knowing the actual condition of her vehicle, whether she had high or low beams on at the time of the accident, or whether her headlights were functioning as required. Second, the trial court struck this entire testimony, ruling: "[T]he previous testimony [by Stein] given that there was a [sic] foundation for doing low-beam calculations based on Jennifer White's deposition is stricken." White did not object. Having struck the testimony during trial, the trial judge was not free to later use it to support his rejection of the jury's verdict.
It is evident from the record that the jury found for White on the issue of her use of headlights under Vehicle Code sections 24407 and 24409 because of a failure of proof. Barkus simply did not present any evidence on this issue. In this respect, McCallum v. Howe (1952) 110 Cal.App.2d 792 (McCallum) is instructive and applicable. In that case, the two plaintiffs were injured when the defendant driver hit them as they crossed a street (not at a crosswalk) while holding hands. It was dark at the time and the evidence showed the driver did not see the plaintiffs before striking them with his vehicle. The evidence further showed the vehicle's headlights were on low beam and shone only 15 feet instead of the 100 feet required by the Vehicle Code. The jury rendered a verdict for the driver. On appeal, the plaintiffs argued the driver was negligent per se for violation of the Vehicle Code. The appellate court disagreed:
"As pointed out in respondent's brief it is not established that there was a violation of the regulation in question, and even if such violation were present, 'lack of adequate or lawful lights on respondent's vehicle could not have been the proximate cause of appellants' injuries, for there is no evidence that they were within the beam of the lights on respondent's vehicle, or ever were in front of his vehicle before they were hit.' [¶] Whether there was a violation of law and whether such violation proximately contributed to appellants' injuries, were, under the evidence in the instant case, questions of fact within the jury's province to decide. These questions were decided in favor of the respondent and the decision is supported by substantial evidence and reasonable inferences therefrom. That there was evidence from which other and contrary inferences might have been drawn does not alter the situation in so far as appellate review is concerned." (McCallum, supra, 110 Cal.App.2d at p. 794, italics added.)
As in the McCallum case, Barkus did not present any evidence that White violated Vehicle Code sections 24407 and 24409 and that such a violation proximately caused Logan's death. The jury decided these questions in White's favor, and it was error for the trial court to grant JNOV on this basis.
Citing Bove v. Beckman (1965) 236 Cal.App.2d 555, Barkus argues the JNOV was justified because White "did not rebut the presumption that [Logan] was not negligent." Such a presumption applies when the decedent was killed in an accident. (Id. at p. 558.) Barkus' argument is without merit for at least two reasons. First, Barkus never asked the jury to be instructed on the presumption. Reference to the presumption appears for the first time in the trial court's statement of decision. The trial court had no obligation to give this instruction sua sponte. (See Hyde v. Avalon Air Transport, Inc. (1966) 243 Cal.App.2d 88, 93.)
Second, even assuming the presumption applied, the cases referenced in the trial court's statement of decision provide that the decedent is presumed to be in compliance with the applicable standard of care. They do not create a presumption that the defendant was negligent. (See Greene v. Atchinson, T. & S.F.R. Co. (1953) 120 Cal.App.2d 135, 139; Staggs v. Atchinson, T. & S.F.R. Co. (1955) 135 Cal.App.2d 492, 506 ["There is no presumption that the [defendant] was negligent. Unless some negligent act or omission on the part of defendant was a proximate cause of plaintiff's injuries, defendant is not liable in damages"].) Barkus had the burden of proving White's negligence. Thus, even with the presumption, the jury was entitled to find White was not negligent. (See Wahrenbrock v. Los Angeles Transit Lines (1948) 84 Cal.App.2d 236, 241.)
A. Motion for New Trial
1. Procedural Facts
Before addressing White's contention, we recount some of the procedural facts leading up to the posttrial orders. On March 30, 2011, the day the jury returned its verdict, the trial judge stated on the record that he disbelieved White's experts and would invite a motion for JNOV and new trial motion. Barkus accepted the invitation first by an oral motion before the court, and then on April 7, by formal written motions for JNOV and new trial. The grounds specified by Barkus for a new trial were (1) insufficiency of the evidence, (2) accident or surprise, (3) misconduct of the jury, and (4) inadequate damages.
On April 21, the trial court issued an order to show cause why JNOV and new trial should not be granted, setting the matter for hearing on April 28. Simultaneously, the trial court also issued a statement of decision which addressed some of the points of the order to show cause that had just been served on the parties. The statement of decision explains the court's rationale for its subsequent grant of JNOV. While the statement of decision referenced the earlier made motion for new trial, the court's statement neither granted nor denied a new trial.
At the hearing on April 28, the trial court issued a minute order indicating a hearing on the "court's order to show cause re: why the court should not enter judgment NOV and for new trial" had been conducted. The order then stated it was taking judicial notice the concrete curb was in excess of one foot and noted, "Trial of damages is continued to June 3, 2011 at 8:30 am in this department. The court otherwise grants Judgment NOV per OSC/Motion of April 21, 2011."
Much like the statement of decision, the minute order did not contain an express ruling on the motion for new trial. We nonetheless construe the trial court's statement setting a date for a "trial of damages" as granting a new trial on damages, but only on that ground. The only reasonable interpretation of the court's April 28 order is that it was granting JNOV, thus establishing liability in Barkus's favor. But since the jury had awarded no damages - it could not with its defense verdict - the trial court was granting a new trial on damages only, liability having already been established by the grant of JNOV. The minute order did not state the court granted a new trial because of the insufficiency of the evidence, and, for that reason, we do not address the propriety of such a ruling.
2. Standard of Review
When the trial court provides a statement of reasons for ordering a new trial, as required by section 657, the appropriate standard of review is one that defers to the trial court's resolution of conflicts in the evidence and inquires only whether the court's decision was an abuse of discretion. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 636 (Oakland).) But when the trial court fails to provide a statement of reasons for granting a new trial, the order is reviewed de novo. (Id. at p 640.)
3. The Trial Court's Order Granting a New Trial on Damages was Defective and Essentially is Now Moot
Citing Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689 (Miller), White argues the trial court's order granting a new trial is defective because the court failed to specify any ground upon which the new trial was granted or the reason for granting the new trial, as required by section 657. This argument is persuasive.
Section 657 provides, in relevant part: "When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated. . . . [¶] The order passing upon and determining the motion must be made and entered as provided in Section 660 and if the motion is granted must state the ground or grounds relied upon by the court, and may contain the specification of reasons. If an order granting such motion does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk. The court shall not direct the attorney for a party to prepare either or both said order and said specification of reasons." (Italics added; see Oakland, supra, 41 Cal.4th at pp. 633-635 [section 657 strictly requires a written order from the judge specifying the grounds and reasons for granting a new trial]; Thompson v. Friendly Hills Reg'l Medical Ctr. (1999) 71 Cal.App.4th 544, 549 [oral recitation granting new trial insufficient].)
The trial court's minute order refers to the "OSC/Motion of April 21, 2011" to support the granting of JNOV. But there are no statements indicating the reason the court granted a new trial on damages. Even if we were to view the minute order broadly and conclude the court was referring to both the "OSC/Motion of April 21, 2011" and the "Statement of Decision on OSC/Motion re Judgment NOV and New Trial," the court did not refer to either document in granting a new trial. Miller indicates that a part of an order granting JNOV cannot serve to comply with the requirements of section 657 if the portion of the order discussing the grounds for granting a new trial does not specify the reasons for granting a new trial.
In Miller, the jury had found for the plaintiff and against two government defendants. Nonetheless, the trial court granted one of the defendant's motion for new trial, although it denied that same defendant's motion for JNOV. The appellate court considered the new trial ruling where the trial court had identified the grounds for granting a new trial (insufficiency of the evidence), but had failed to adequately specify the reasons. (Miller, supra, 8 Cal.3d at pp. 694-696.) The defendant argued the trial court complied with section 657 because it had essentially specified a reason elsewhere in the same order discussing issues concerning the denial of defendant's JNOV - where the trial court discussed the weakness of plaintiff's witnesses on a certain issue. The appellate court rejected that argument and held, "[T]he statement of reasons for the new trial order makes no reference to any other portions of the order. . . . [¶] Since 'it shall be conclusively presumed that said [new trial] order as to such ground was made only for the reasons specified' (Code Civ. Proc., § 657), and the ground of insufficiency of the evidence is unsupported by a proper specification of reasons, we conclude that the order granting a new trial must be reversed. Consequently the judgment in favor of plaintiffs and against the [defendant] will be automatically reinstated." (Miller, supra, 8 Cal.3d at p. 699, fn. 8 and text; see also Mercer v. Perez (1968) 68 Cal.2d 104, 118 ["As the motion for a new trial finds both its source and its limitation in the statutes [citation], the procedural steps prescribed by law for making and determining such a motion are mandatory and must be strictly followed].)
The trial court's April 28 minute order did not provide the grounds for granting a new trial (other than saying it was "on damages"), nor did it specify any reasons. Without reasons, the order may stand only if the new trial could have been granted on the grounds of accident, surprise, or jury misconduct. (Malkasian v. Irwin (1964) 61 Cal.2d 738, 745 [new trial can only be granted on a ground specified in the moving party's motion].) But, as White correctly points out in her papers, these grounds require supporting affidavits, and there were none. (See § 658.) There is nothing in the April 28 order that addresses accident, surprise or jury misconduct, only damages.
Recognizing that his April 28 order did not comply with section 657, the trial judge issued a nunc pro tunc order on November 1 which purports to remedy the problem by putting the April 21 order to show cause and statement of decision, and the April 28 minute order, into a single document. We grant Barkus's request that we take judicial notice of this new order. Nonetheless, it has no effect on our decision.
Generally, a court has the inherent power to correct clerical errors in the court's records in order to make them reflect the true facts. (See In re Candelario (1970) 3 Cal.3d 702, 705.) But clerical error must be distinguished from judicial error, and any attempt to revise deliberately exercised judicial discretion in the guise of correcting clerical error is not permitted. (Ibid.) The record here does not permit a finding that the November 1 order was an attempt by the trial judge to correct clerical error. Rather, the trial judge was attempting to correct his own error in failing to comply with the requirements of section 657. In addition, the trial court had no authority to issue the November 1 order because its jurisdiction to do so had long expired pursuant to sections 657 and 660. (See Fergus v. Singer (2007) 150 Cal.App.4th 552, 563, 565566 [nun pro tunic order granting new trial not allowed to frustrate the time limits of section 657]; SanchezChorea v. Bank of America (1985) 38 Cal.3d 892, 903.)
In a typical case, when the grant of a plaintiff's new trial motion on damages is reversed, the remedy is reinstatement of the original amount of damages awarded by the jury. (See Miller, supra, 8 Cal.3d at pp. 699, fn. 8 and text [new trial ruling not complying with section 657 required reinstatement of jury verdict]; Bigboy v. County of San Diego (1984) 154 Cal.App.3d 397, 405 [order granting new trial on the basis of excessive damages was insufficient as a matter of law, requiring reinstatement of jury verdict]; Stewart v. Truck Ins. Exchange (1993) 17 Cal.App.4th 468, 484 [reversing new trial order as to punitive damages where "the trial court assigned no ground therefor and gave no reasons whatever"].) Here, of course, the jury did not award Barkus damages as it rendered a defense verdict. Since we reverse the JNOV order, and there are by definition no damages to retry, our reversal of the JNOV essentially moots the limited grant of a new trial on damages.
DISPOSITION
The petition is granted. The trial court is ordered to vacate the April 28, 2011 order granting JNOV and new trial. The jury verdict is reinstated. White is to recover her costs in this writ proceeding.
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RUBIN, Acting P.J.
WE CONCUR:
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FLIER, J.
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GRIMES, J.