Hernandez v. First Student, Inc. ( 2019 )

Filed 6/11/19; Certified for Publication 7/9/19 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
KAREN HERNANDEZ et al., B281161
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. Nos. BC513802,
v. BC514509)
FIRST STUDENT, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ruth Ann Kwan, Judge. Affirmed.
Carpenter, Zuckerman & Rowley, Nicholas Rowley; The
Rowley Law Firm and Courtney Rowley for Plaintiff and
Appellant Karen Hernandez.
Shegerian & Associates, Carney Shegerian, Anthony
Nguyen; Doumanian & Associates and Nancy P. Doumanian for
Plaintiff and Appellant Sergio Saravia.
Horvitz & Levy, Karen M. Bray, Scott P. Dixler; Wesierski
& Zurek, Thomas G. Wianecki and David M. Ferrante for
Defendants and Respondents.
_________________________
This appeal arises from a wrongful death action brought by
Karen Hernandez and Sergio Saravia (appellants), the parents of
13-year-old Jonathan Hernandez, after Jonathan was struck and
killed by a school bus while riding his bicycle in Glendale. The
school bus was owned by defendant and respondent First
Student, Inc., and driven by defendant and respondent Barbara
Calderon. The jury found Jonathan 80 percent liable for the
accident, and awarded $250,000 in damages. Jonathan’s parents
filed a lengthy and detailed motion for a new trial on the grounds
of juror misconduct, erroneous evidentiary and instructional
rulings and attorney misconduct. The trial court issued a 25-
page ruling denying the motion. This appeal followed.
Appellants make numerous claims of error in their
voluminous opening brief, but they have forfeited almost all those
claims. Appellants’ primary claim is that the trial court erred in
denying their motion for a new trial. While it is the duty of the
appellate court in reviewing the denial of a new trial motion to
review the entire record, it is the appellants’ duty to make a
cognizable argument on appeal as to why the trial court abused
its discretion in denying the motion and to support their
arguments with accurate and relevant record citations.
Appellants have not done so.
2
Assuming for the sake of argument that appellants
intended to raise the claims of error directly on appeal, we would
find almost all those claims forfeited as well, for similar reasons.
We consider only the following claims: (1) the trial court abused
its discretion in admitting evidence in the damages phase of
Hernandez’s use of crystal methamphetamine; (2) the trial court
abused its discretion in permitting retired police officer Charles
Smith to testify as an expert; (3) the trial court erred
prejudicially in limiting appellants to showing 10 photographs of
Jonathan to the jury; (4) the court erred in giving the jury special
instructions on the lawful operation of a bicycle in Glendale; (5)
defense counsel made a prejudicial personal attack on appellants’
trial counsel by referring to her as a card shark; (6) defense
counsel violated the trial court’s in limine rulings precluding
evidence about Hernandez’s immigration status and a witness’s
cancer treatment; and (7) defense counsel permitted Calderon to
commit perjury. We find no merit to these claims. We affirm the
judgment.
BACKGROUND
It was essentially undisputed at trial that Jonathan was
riding his bicycle on the sidewalk, and that he was hit by the bus
when he rode his bicycle into the street without stopping. The
accident occurred at the intersection of Columbus Avenue and
Riverdale Drive in Glendale. The intersection is a roundabout or
rotary: there is a raised circle in its center. All four approaches
to the intersection have stop signs.
About 2:00 p.m. on May 2, 2013, when the accident
occurred, Calderon had dropped off her last student and was
returning to the First Student lot. Michael Kennedy, an aide who
helped with the special needs students who rode the bus, was still
3
on board. Calderon stopped before proceeding into the
intersection. As she proceeded, she heard and felt her vehicle
collide with something. Calderon pushed on the brakes but took
her hands off the steering wheel.
Kennedy ran to the front of the bus and put the bus, which
had not yet stopped, into park. Thus, the bus travelled some
distance after hitting Jonathan.
Police soon arrived at the scene. Calderon spoke with
them. Among other things, she told police that she had seen
Jonathan riding his bicycle on the sidewalk, but did not see him
in the street before she hit him.
Officer Duncan believed Calderon was impaired, and
requested Calderon be evaluated. Calderon was taken to the
hospital. Certified Drug Recognition Expert Marc Tarzia arrived
at the hospital about 3:28 p.m. He performed a series of
assessment tests on Calderon, such as requesting her to stand on
one leg. She failed all the tests.
An emergency room doctor examined Calderon and
concluded she was not impaired.
The hospital took a blood sample. The initial blood screen
tested positive for the presence of benzodiazepines. The final test
results showed that Calderon had tramadol, alprazolam,
oxazepam and temazepam in her system. These are all
prescription medications.
Based on his field sobriety test and the blood test result,
Detective Tarzia concluded that Calderon was impaired by the
medications she was taking. Tarzia acknowledged that some of
Calderon’s difficulties with the sobriety tests may have been due
to Calderon’s obesity and knee problems; he still concluded she
was impaired by her medications.
4
Police searched Calderon’s home the night of the accident
because she could not remember what medications she was
taking. As the investigation into Jonathan’s death and discovery
in this civil action revealed, Calderon took more prescription
medications than the ones identified by the blood test. She did
not take them as prescribed.
For reasons that were disputed at trial, Calderon was
sleepy throughout the day of May 2. She returned home after her
first trip of the day about 8:30 a.m. and took a nap before
returning to work around noon. The morning nap was a habit of
hers. Calderon admitted to police that her medications could
make her groggy.
Jonathan’s mother and father, who were estranged from
each other, brought this wrongful death action against First
Student and Calderon. Trial of this matter was bifurcated.
During the liability phase, the parties presented conflicting
evidence and experts about whether Calderon was impaired at
the time of the accident. The parties also presented conflicting
evidence concerning whether Calderon could have avoided hitting
Jonathan, including the testimony of accident reconstruction
experts.
The jury found both Jonathan and Calderon negligent and
found that their negligence was a substantial factor in causing
Jonathan’s death.
In the damages phase of the trial, the jury learned that
Jonathan’s father had a limited relationship with him. Saravia
lived with Jonathan for only the first two years of the boy’s life.
He moved to Washington state when Jonathan was six years old.
Thereafter he saw Jonathon about twice a year. He spoke with
5
Jonathan about once a week in the six months before Jonathan’s
death.
The jury also learned Hernandez had been incarcerated six
times during Jonathan’s life. Hernandez acknowledged she has
used crystal methamphetamine since Jonathan was about a year
old; she maintained she did not consume the drugs in Jonathan’s
presence. There was evidence Hernandez’s drug use affected her
behavior when she was in Jonathan’s presence.
The jury awarded Jonathan’s parents $250,000 in damages.
This amount was adjusted to reflect Jonathan’s comparative
fault.
Jonathan’s parents moved for a new trial, which was
denied. This appeal followed.
DISCUSSION
I. New Trial Motion
Appellants’ brought a motion for a new trial based on (1)
jury misconduct and gross irregularities in jury proceedings; (2)
misconduct by defense counsel; and (3) erroneous orders of the
court concerning evidence and instructions which prevented
appellants from having a fair trial. The trial court denied this
motion.
Appellants have organized the argument in their opening
brief around these three areas, and mention that their claims of
juror and attorney misconduct and errors in the trial court’s
evidentiary and instructional rulings are grounds for granting a
new trial. They set forth various standards of review related to
the denial of a new trial motion. They do not, however, cite to or
quote the trial court’s written ruling on their motion or explain
why the trial court abused its discretion in making those rulings.
They do not cite to their memorandum of points and authorities
6
in support of their new trial motion. They frequently provide no
record or legal citations to support their claims of error.
“While it is the duty of the appellate court in reviewing the
denial of a new trial motion to review the entire record, on appeal
it is manifestly ‘the duty of a party to support the arguments in
its briefs by appropriate reference to the record, which includes
providing exact page citations. [Citations.]’ [Citations.]” (Nazari
v. Ayrapetyan (2009) 171 Cal. App. 4th 690, 694, fn 1.) A party’s
inaccurate or missing record citations “frustrates this court’s
ability to evaluate which facts a party believes support his
position.” (Ibid.)
Further, an appellant has a duty to make a “cognizable
argument on appeal as to why the trial court abused its
discretion in denying the motions.” (Hearn v. Howard (2009)
177 Cal. App. 4th 1193, 1207.) Mere repetition of the arguments
made in support of the motion in the trial court is not sufficient.
(Ibid.) “ ‘[A]n appealed judgment is presumed correct, and
appellant bears the burden of overcoming the presumption of
correctness.’ [Citation.] As a result, on appeal ‘the party
asserting trial court error may not . . . rest on the bare assertion
of error but must present argument and legal authority on each
point raised. [Citation.]’ [Citations.] When an appellant raises
an issue ‘but fails to support it with reasoned argument and
citations to authority, we treat the point as waived. [Citations.]’
[Citation.]” (Ibid.) By failing to provide adequate record
citations or make any cognizable claims of error concerning the
new trial motion, appellants have waived any challenge to the
denial of their motion for a new trial. (Ibid.)
7
Assuming for the sake of argument that appellants
intended to raise the claims of error directly on appeal, we would
find almost all those claims forfeited as well, for similar reasons.
“[T]o demonstrate error, an appellant must supply the
reviewing court with some cogent argument supported by legal
analysis and citation to the record.” (City of Santa Maria v.
Adam (2012) 211 Cal. App. 4th 266, 286–287.) “We are not obliged
to make other arguments for [appellant] [citation], nor are we
obliged to speculate about which issues counsel intend to raise.”
(Opdyk v. California Horse Racing Bd. (1995) 34 Cal. App. 4th
1826, 1830-1831, fn. 4; In re Marriage of Falcone & Fyke (2008)
164 Cal. App. 4th 814, 830 [“We are not bound to develop
appellants’ arguments for them.”].) We may and do “disregard
conclusory arguments that are not supported by pertinent legal
authority or fail to disclose the reasoning by which the appellant
reached the conclusions he wants us to adopt.” (City of Santa
Maria v. Adam, supra, at p. 287.)
Finally, “[w]e will not ordinarily consider issues raised for
the first time in a reply brief. [Citation.] An issue is new if it
does more than elaborate on issues raised in the opening brief or
rebut arguments made by the respondent in respondent's brief.
Fairness militates against allowing an appellant to raise an issue
for the first time in a reply brief because consideration of the
issue deprives the respondent of the opportunity to counter the
appellant by raising opposing arguments about the new issue.
[Citation.]” (American Indian Model Schools v. Oakland Unified
School Dist. (2014) 227 Cal. App. 4th 258, 275–276.)
II. Juror Misconduct
A trial court undertakes a three-step process to evaluate a
motion for new trial based on juror misconduct. (Barboni v.
8
Tuomi (2012) 210 Cal. App. 4th 340, 345.) The trial court must
first determine whether the declarations supporting the motion
are admissible under Evidence Code section 1150. Second, if all
or part of the declarations are admissible, the trial court
determines whether the facts establish misconduct. If the trial
court finds misconduct occurred the trial court then determines
whether the misconduct was prejudicial. (Barboni, at p. 345.)
On review from a trial court’s denial of a new trial motion
based on juror misconduct on the ground no misconduct occurred,
“ ‘ “[w]e accept the trial court’s credibility determinations and
findings on questions of historical fact if supported by substantial
evidence.” ’ ” (Barboni v. Tuomi, supra, 210 Cal.App.4th at
p. 345.)
While appellants provide record citations to the conduct or
statements which they contend constitute juror misconduct, they
ignore both the requirement that those declarations be
admissible and the trial court’s ruling sustaining objections to
significant portions of the juror declarations offered by
appellants. They also ignore the trial court’s rulings on juror
credibility, and this court’s obligation to defer to such credibility
findings when support by substantial evidence.1 Finally, they
1 For example, appellants contend Juror Rogers intentionally
concealed during voir dire the fact that he was involved in a
(second) work related traffic accident. Juror Rogers later brought
his omission to the court’s attention. The trial court conducted
an inquiry during trial and determined Juror Rogers was credible
when he stated that the reason he did not mention a traffic
accident during voir dire was that he forgot about the accident
until he received a text from his supervisor during trial.
Appellants in no way address the court’s credibility
determination or explain why it lacked substantial evidence.
9
ignore the trial court’s rulings applying the law to the facts as
found by the jury. Accordingly, they have forfeited their claim
the trial court erred in denying the new trial motion on the
ground of juror misconduct.
To the extent appellants are attempting to raise their
claims of juror misconduct directly on appeal, those claims would
suffer from the same inadequacies. Juror misconduct claims,
however raised, are almost invariably dependent on the
admissibility of juror declarations under Evidence Code section
1150 and the trial court’s credibility determinations. The claims
are forfeited.
III. Evidentiary Rulings
Appellants identify 12 “flawed evidentiary rulings” by the
trial court which they contend prevented a fair trial and resulted
in a miscarriage of justice. We consider the evidentiary issues
related to appellants’ claim of instructional error separately, in
section IV below. Appellants have forfeited eight of the
remaining 11 claims.
A. Appellants Have Forfeited Their Claim That The Trial
Court Erred In Delaying Its Rulings On Bifurcation And
The Admissibility Of Hernandez’s Drug Use
Appellants contend the trial court erred in deferring its
ruling on bifurcation of liability and damages until after voir dire
was completed and its ruling on the admissibility of Hernandez’s
drug use until shortly before the damages phase of the trial.
Appellants have not cited any legal authority to show the trial
court was required to decide such issues earlier and have not
provided any record citations to show that they were unaware the
court intended to delay the rulings. Appellants assert they were
prejudiced by the delay, do not explain the nature of the prejudice
10
which arose from the timing of the court’s decision. They have
forfeited these claims.
To the extent appellants are attempting to insert a claim
that the trial court erred in admitting domestic violence and
incarceration evidence related to Hernandez in the liability phase
of the trial, that claim is forfeited by appellants’ failure to provide
record or legal citations or develop supporting legal authority and
by their failure to include this claim in the heading of their brief.
(See Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 [“Failure
to provide proper headings forfeits issues that may be discussed
in the brief but are not clearly identified by a heading.”].)
B. Appellants Have Forfeited Their Claims That The Trial
Court Erred In Not Allowing Them To Call Calderon In
Their Case-In-Chief Or In Rebuttal
Appellants contend the trial court erred in refusing to allow
them to call bus driver Calderon live in their case-in-chief or in
rebuttal and then telling the jury that appellant Saravia had
chosen not to call her as a live witness. Appellants contend the
trial court also erred in refusing to allow them to play police
audio recordings of Calderon to impeach her.
Appellants do not provide a single citation to the record or
legal authority to support their claims. They have forfeited these
claims.
C. Appellants Have Forfeited Their Claims That The Trial
Court Erred In Limiting Discovery And Trial Testimony
Concerning Calderon’s Medical And Prescription Drug
History
Appellants’ claim of error here is two-fold: (1) the trial
court should not have limited discovery of Calderon’s medical
history to 30 days prior to the accident and her prescription
11
history to 90 days before the accident; and (2) the trial court
erred in permitting defense counsel to argue that Calderon had
“ ‘years and years of safe driving’ ” while taking her medications,
and so she was not impaired by the medication. Appellants
assert this information was false and was based on medical
records which the court had ordered be returned to the medical
provider.
Appellants offer no argument or legal authority to support
their claim that the trial court abused its discretion in limiting
the scope of medical discovery. The relevant inquiry was
Calderon’s condition and medication usage at the time of the
accident. While some limited history was needed to give context
to those facts, appellants do not explain how medical information
from a year before the accident would have had the potential to
help their case. This claim is forfeited.
To the extent appellants are attempting to insert a claim
that defense counsel violated the trial court’s in limine order by
claiming in closing argument that Calderon had been taking
medication “for ‘years and years’ ” and/or committed misconduct
by making that argument without evidentiary support,
appellants have forfeited those claims by failing to identify them
in their heading, which asserts only that the trial court erred in
limiting discovery and evidence concerning Calderon’s medical
and prescription history. (See Pizarro v. Reynoso, supra,
10 Cal.App.5th at p. 179 [“Failure to provide proper headings
forfeits issues that may be discussed in the brief but are not
clearly identified by a heading.”].)
In light of appellants’ repetition of this claim in their
misconduct arguments, we will exercise our discretion to consider
it here in a more helpful context.
12
First, appellants have forfeited the claim that the
argument lacks evidentiary support by failing to object to the
argument in the trial court. This is a separate and distinct
argument from their assertion respondents violated an in limine
order by mentioning Calderon’s medical and/or prescription
history outside the temporal restrictions imposed by the court.
Second, appellants have forfeited their claim that the
argument violates the court’s in limine ruling by failing to
provide record citations to support their claims and by failing to
object in the trial court.
A pretrial motion in limine may eliminate the need for a
subsequent objection, but this is not an invariable rule. (See
People v. Rodrigues (1994) 8 Cal. 4th 1060, 1174 [in limine ruling
is necessarily tentative because trial court retains discretion to
make a different ruling as the evidence unfolds]; see also Rufo v.
Simpson (2001) 86 Cal. App. 4th 573, 608 [noting that events at
trial may change the context of the ruling and require a renewed
objection].)
Here, appellants’ arguments suggest there was some
change in the evidentiary context as trial unfolded. Appellants
mention arguing that defense counsel “ ‘opened the door’ ” on the
subject of Calderon’s medical history, a position the court
rejected. If appellants had objected to closing argument on the
ground it violated the court’s in limine ruling, and if the court
agreed, defense counsel’ argument could have been stricken. If
the trial court did not agree that the argument violated its ruling
in light of developments at trial, this would have been clarified
for the record. They did not make a renewed objection and so
have forfeited this claim.
13
D. Appellants Have Forfeited Their Claim The Trial Court
Erred In Allowing Hearsay News Reports
Appellants contend the trial court erred in allowing the
defense to read portions of the transcript of news footage of
eyewitness Amanda Arista, which they contend was hearsay.
Appellants do not provide cites to the pages of the reporter’s
transcript where this reading took place or show that the
portions used fell outside their stipulation that some portions of
the interview could be played in front of the jury.2 Further,
appellants have provided no legal authority beyond a bare
citation to Evidence Code section 352. Not every out-of-court
statement is inadmissible hearsay. Appellants have forfeited
their claim.
E. Appellants Have Forfeited Their Claim That The Trial
Court Erred In Not Compelling The Defense To Produce
Stephen Zieder
Appellants contend the trial court erred in not compelling
defendants to produce Stephen Zieder, a former employee of First
Student. They complain attorney Ferrante represented Zieder at
his deposition and agreed to make him available at trial.3 They
2 Appellants also contend respondents did not “identify” the
news footage in discovery or before trial; respondents reply they
provided appellants with the full video clip. This factual dispute
should have been raised and resolved in the trial court.
Appellants provide no record citation for such a claim and
resolution, yet another reason appellants have forfeited this
claim.
3 We note in the interval between the deposition and trial
Zieder retired and was no longer a client of Ferrante.
14
contend “[t]o avoid trial delays Appellants were unable to call
this witness.”
The record shows Zieder appeared at the courthouse on
November 21 in response to a subpoena from appellants.
Appellants’ trial counsel announced she would not call Zieder
“right now” but acknowledged the court had ordered him to
remain under subpoena in case he was needed. Appellants point
to nothing in the record showing this date was “too late” to use
Zieder as a witness or that they tried but were unable to recall
Zieder at a later date. Accordingly, appellants have forfeited this
claim.
F. Appellants Have Forfeited Their Claim That The Trial
Court Erred In Allowing The Defense To Play Videotape
Excerpts Of Hernandez’s And Rios’s Depositions
Appellants contend the trial court erred in allowing the
defense to play video clips from the depositions of Saravia,
Hernandez, and Hernandez’s ex-boyfriend Rios about Jonathan’s
training in riding a bicycle. They contend the court had
previously ruled the evidence was irrelevant to liability, the
mother and Rios “came across as undesirable gang members,”
and the mother’s deposition was taken in prison.
Appellants have not provided any record citations to
support this claims, cited any legal authority or developed any
legal argument to support their claims of error. They have
forfeited this claim.
G. The Trial Court Did Not Abuse Its Discretion In
Permitting Evidence Of Hernandez’s Drug Abuse During
The Damages Phase
Appellants contend evidence of Hernandez’s use of crystal
meth had little evidentiary value, but enormous potential to
15
create an emotional bias among the jury members and so the
trial court abused its discretion in failing to exclude the evidence
under Evidence Code section 352.
We agree Hernandez’s use of crystal meth had potential to
be prejudicial, but it was also quite relevant to her wrongful
death damages claim. Factors such as the closeness of a family
unit, the depth of their love and affections, and the nature of the
personal relationship between decedent and the survivors are
proper considerations for a jury assessing noneconomic damages.
(See, e.g., Soto v. BorgWarner Morse TEC Inc. (2015)
239 Cal. App. 4th 165, 201; Benwell v. Dean (1967) 249 Cal. App. 2d
345, 349.)
While a survivor’s drug use or abuse may not be a factor in
every case, it was here. Although Hernandez testified that she
never used crystal meth in Jonathan’s presence, she
acknowledged she remained under its influence for days, and was
under its influence while parenting Jonathan. The drug
sometimes cause her to stay awake for 72 hours straight.
Hernandez acknowledged the drug could make her ”aggressive”
and she was imprisoned for assaulting Rios in Jonathan’s
presence with a pair of scissors and for making physical threats.
Appellants are correct the evidence showed Hernandez’s
parental rights were never terminated and Jonathan was a
successful student. This favorable evidence was relevant, but it
does not preclude the jury from hearing unfavorable evidence as
well. It is a jury’s task to weigh all the evidence and make a
decision, in this case on the amount of damages.
Appellants’ reliance on Hernandez v. County of Los Angeles
(2014) 226 Cal. App. 4th 1599 and Winfred D. v. Michelin North
America, Inc. (2008) 165 Cal. App. 4th 1011 to show prejudicial
16
error is misplaced. In both cases the trial court admitted
evidence with substantial potential for undue prejudice but no
probative value at all. In Hernandez, the trial court erred in
admitting evidence of marijuana use because “the experts could
not identify any manner in which marijuana use contributed to
the accident that injured Randy or his decision to exit the Land
Rover, [and so] the evidence was not relevant to the issues and
had no probative value.” (Hernandez, supra, at p. 1615.) In
Winfred, the trial court erred in admitting evidence of the
plaintiff’s extramarital affairs because it had no bearing on
plaintiff’s personal injury lawsuit against the manufacturer of an
allegedly defective product. (Winfred, supra, at p. 1038.) As we
have explained, Hernandez’s drug use was relevant to damages
here.
As for the potential prejudicial effect of the evidence, the
trial court instructed the jury that the evidence of Hernandez’s
drug use was admitted for the limited purpose of “determining
the quality of her relationship with Jonathan Hernandez with
respect to damages. You are not to consider it for any other
purpose.” We presume the jury followed this instruction.
(Cassim v. Allstate Ins. Co. (2004) 33 Cal. 4th 780, 803-804.) The
trial court did not abuse its discretion in admitting the drug use
evidence.
H. Appellants Have Forfeited Their Claims That The Trial
Court Erred In Not Allowing them to Impeach Calderon
With Recordings Of Her Statements To Police
Appellants contend the trial court erred in not allowing
playback of portions of police audio recordings of Calderon’s
statements to police. Appellants’ counsel appears to have agreed
with this ruling in the trial court. In addition, appellants provide
17
no record citations or legal authorities and do not make any legal
argument. Appellants have forfeited this claim.
I. The Trial Court Did Not Abuse Its Discretion In
Permitting Retired Police Officer Charles Smith To Testify
As An Expert Witness
Appellants contend the trial court erred in allowing defense
witness Charles Smith to testify as an expert on whether
Calderon was impaired, medication management, and medication
side effects -- “a host of topics about which he had no foundation
or knowledge.” They complain Smith did not have a college
degree or medical training and had never been certified as a drug
recognition expert. We see no error in the trial court’s decision.
“A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his
testimony relates.” (Evid. Code, § 720, subd. (a).)
“The trial court's determination of whether a witness
qualifies as an expert is a matter of discretion and will not be
disturbed absent a showing of manifest abuse. [Citation.]
‘ “Where a witness has disclosed sufficient knowledge of the
subject to entitle his opinion to go to the jury, the question of the
degree of his knowledge goes more to the weight of the evidence
than its admissibility.” ’ [Citation.]” (People v. Bolin (1998)
18 Cal. 4th 297, 321–322.) “ ‘[N]o hard and fast rule can be laid
down which would be applicable in every circumstances.’ ”
(Mann v, Cracchiolo (1985) 38 Cal. 3d 18, 38 overruled on other
grounds by Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 543.)
Smith had 25 years of experience and extensive training as
a former police officer in Florida. He was certified and recertified
18
multiple times throughout his career in standard field sobriety
tests and the drug recognition program. Smith worked for
several years on a multiple agency DUI task force. He taught the
standard field sobriety test, breath test, and DRE program at the
Dade County Police Academy. Although Smith was not certified
in California, he testified there were national standards for field
sobriety tests and he applied those standards in his opinion
testimony in this case.
Smith was clearly qualified to opine about Detective
Tarzia’s DRE evaluation and why he formed the opinion that
Calderon was not impaired. Smith’s testimony about drugs was
limited: he testified about how long impairing drugs had an
effect after they were ingested and whether tests showing the
presence of drugs in a person’s system always indicated
impairment. These topics were well within his area of expertise.
J. The Trial Court Did Not Err In Limiting To 10 The
Number Of Photographs Of Jonathan Appellants Could
Admit Into Evidence.
Appellants contend the trial court erred in limiting
appellants to 10 photographs of Jonathan during the damages
phase of the trial. While this could be considered a small number
of photographs, appellants do not provide any legal authority
showing this number is unreasonably small. They speculate the
small number of photographs encouraged the jury to believe
Hernandez did not take very many photographs of Jonathan and
was therefore an unfit mother who did not care about her child.
Appellants point to nothing in the record to support such a
reaction by jurors. Their claim fails.
19
K. Appellants Have Forfeited Their Claim The Trial Court
Erred In Permitting Detective Tarzia To Be Impeached
With “Rolling Logs”
Appellants make a one sentence claim that the trial court
erred in allowing Detective Tarzia to be impeached by “ ‘Rolling
Log’ ” which merely house statistical information on DUI arrests.
Appellants have forfeited this claim by failing to develop an
argument on this point, cite any legal authorities, or explain how
they were prejudiced by this ruling.
IV. Instructional Error
Appellants contend the trial court erred in giving the jury
special instructions 1 through 5 about the proper operation of a
bicycle. Appellants argument focuses on Instruction No.4, which
states:
“Glendale Municipal Code, Section 10.64.025 ‘No person
shall ride or operate a bicycle upon any public sidewalk in
any business district within the city . . .’
“California Vehicle Code Section 235 states: A ‘business
district’ is that portion of a highway and the property
contiguous thereto (a) upon one side of which highway, for
a distance of 600 feet, 50 percent or more of the contiguous
property fronting thereon is occupied by buildings in use for
business, or (b) upon both sides of which highway,
collectively, for a distance of 300 feet, 50 percent or more of
the contiguous property fronting thereon is so occupied.’
“In determining whether a highway is within a business
district under California Vehicle Code 235, all churches,
20
apartments, hotels, multiple dwelling houses, clubs, and
public buildings, other than schools, shall be deemed to be
business structures.
“If a cyclist is prohibited from riding on the sidewalk he
must ride on a roadway in the direction of traffic and must
use the bike lane if one is provided.”
Appellants contend the applicability of the instruction was
disputed, it contained ambiguous terms, and respondents did not
offer any expert testimony on zoning or the meaning of “business
district.”
We see no ambiguity in the instruction, although the
excerpt from Vehicle Code section 235 requires a careful reading.
Respondents offered the testimony of Officer Fernandez that
more than 70 percent of the buildings in the area abutting the
accident intersection were apartment buildings and multi-unit
residences which extended more than 600 feet from the
intersection. This is ample evidence to support the instruction.
There was no need for a zoning expert. The trial court did not err
in giving this instruction.
V. Attorney Misconduct
“A party ordinarily cannot complain on appeal of attorney
misconduct at trial unless the party timely objected to the
misconduct and requested that the jury be admonished.
[Citation.] The purpose of these requirements is to allow the trial
court an opportunity to remedy the misconduct and avoid the
necessity of a retrial; a timely objection may prevent further
misconduct, and an admonition to the jury to disregard the
offending matter may eliminate the potential prejudice.
21
[Citations.] The failure to timely object and request an
admonition waives a claim of error unless the misconduct was so
prejudicial that it could not be cured by an admonition [citations],
an objection or request for admonition would have been futile
[citation] or the court promptly overruled an objection and the
objecting party had no opportunity to request an admonition
[citation]. Attorney misconduct is incurable only in extreme
cases. [Citations.]” (Rayii v. Gatica (2013) 218 Cal. App. 4th 1402,
1411–1412.)
Attorney misconduct can justify a new trial only if it is
reasonably probable that the party moving for a new trial would
have obtained a more favorable result absent the misconduct.
(Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 801-802.)
A. Appellants Have Forfeited Their Claim Defense Counsel
Committed Misconduct During Opening Statement
Appellants contend defense counsel committed misconduct
when he made remarks in opening statements concerning the
training, screening and supervision of Calderon. Appellants
claim defense counsel knew such statements could not be proven
at trial because appellants had dismissed their negligent hiring,
training and supervision claims before trial.4
Appellants neither objected to these statements nor
requested the jury be admonished; they have forfeited the claim.
(Rayii v. Gatica, supra, 218 Cal.App.4th at pp. 1411–1412.)
Although appellants contend generally all their attorney
4 We note appellants also make a passing reference in this
section to defense counsel “repeatedly” commenting on Calderon’s
“ ‘years and years of taking medication’ ” in violation of the
court’s ruling. We considered this claim in section III.C, ante,
and found it to be forfeited.
22
misconduct claims fall under some exception to the forfeiture
rule, they do not apply the general rule to the specifics of this
claim. Accordingly, the claim is forfeited
Even if the claim were not forfeited for this reason, it would
be forfeited due to appellants’ failure to provide adequate record
citations to support their claims. They provide only one record
citation; the cited pages support only some of appellants’
assertions about defense counsel statements. Relying on the
summary provided by appellants in their opening brief, evidence
of training and supervision are not the sort of topics which arouse
the passions and prejudices of a jury. A timely objection would
have limited the remarks and an admonishment would have
cured any harm.
Appellants raise a similar claim of error in “discussing” bus
driver training in another section of their opening brief entitled
“G. Misconduct by defense counsel in discussing bus driver
training when such a claim was not at issue.” Appellants provide
different statements about training in this section. Judging by
the tense of those statements, they were made in closing
argument. They fail to provide specific record cites for the
statements or even to indicate generally when such statements
were made. Appellants have forfeited any claim of misconduct
based on these statements.
B. Appellants Have Forfeited Three Of Their Four Claims
That Defense Counsel Personally Attacked Appellants’
Trial Counsel; They Have Not Shown Prejudice In The
Fourth Claim
Appellants contend defense counsel Wianecki’s personal
attacks on appellants’ trial counsel Rowley consisted of both
statements and non-verbal conduct.
23
Appellants first claim defense counsel disparaged Rowley,
“throughout trial by rolling his eyes when counsel spoke, by
making speaking objections, by making aggressive prefatory
comments that were not legal objections when counsel was
examining a witness, and by filing unorthodox in limine motions
personally attacking Mr. Rowley and impugning his integrity and
skill in the presence of a trial judge with which he was
unfamiliar” Appellants have not provided any record citations to
support these claims and so they are forfeited.
Appellants next identify three specific instances where they
claim personal attacks occurred. They can be summarized as the
lottery, circus, and card shark remarks. Appellants’ objected to
only one such instance, which involves the “card shark” remarks.
The full statement is “You know, Plaintiff’s tactics in this
case have been entirely theatrical and these theatrical tactics
need to be called and recognized for what they are. We are being
played. The attempt is being made that we are being played like
pawns in a chess game. This is a gigantic game, much the way
you would have a card shark at the poker table.” Appellants’
trial counsel Rowley objected that the remarks were “impugning
the integrity of an officer of the court.” The trial court
admonished counsel not to personalize the argument.
Even assuming this remark amounts to a personal attack,
it is not likely to inspire strong emotions in a listener or prejudice
the jury against appellants’ trial counsel or appellants
themselves. Appellants contend the fact that the jury returned
the amount of damages suggested by defense counsel establishes
prejudice. It does not. This was a lengthy trial with many
contested issues.
24
Appellants did not object to the lottery and circus remarks
and so have forfeited the claims. Appellants contend generally
they were not required to object to the misconduct because no
admonition could cure the prejudice generated by the remarks.
We do not find the lottery and circus remarks so prejudicial
they could not have been cured by an admonition. Neither were
direct attacks on appellants’ trial counsel. In context, the lottery
reference was tied to a reminder that damages must be based on
appellants’ relationship with their son, referring to the measure
of damages, not anyone’s character. The circus remark was
coupled with a unicorn reference and in context was primarily a
colorful way of saying appellants’ assessment of their relationship
with their son was not realistic.
Appellants’ claim that defense counsel displayed improper
PowerPoint images is not supported by their record citations.
That claim is forfeited for that reason as well. Given this second
forfeiture, we are unable to consider whether an admonition
could have cured any harm.
C. Defense Counsel Did Not Violate The Motions In Limine
Concerning Hernandez’s Immigration Status Or A
Witness’s Cancer
Appellants contend defense counsel committed misconduct
by deliberately violating two of the court’s in limine motions, both
precluding references to Hernandez’s immigration status and to
bus attendant Michael Kennedy’s cancer treatment. Appellants
contend specifically: (1) defense counsel asked Hernandez
questions “intended to elicit her testimony that she was on an
immigration hold”; and (2) defense counsel failed to tell Kennedy
not to discuss his health and Kennedy later “blurted out” this
information.
25
Defense counsel asked Hernandez if she had “just been
released” in December. We see no misconduct in asking this
straightforward question, which was part of a series of questions
concerning Hernandez’s relationship with her children.
Hernandez replied that she was released in May, but picked up
by immigration and held for six months. Hernandez could have
simply answered no, or stated that she was released from “CIW”
in May.
As for Kennedy’s cancer, appellants’ counsel asked the trial
court to exclude the evidence. The trial court agreed and asked
appellants’ counsel to tell Kennedy of the ruling. Counsel agreed
to do so. Thus, if any blame attaches to Kennedy’s volunteered
statement, it would attach to appellants’ counsel, not defense
counsel.
D. Appellants Have Forfeited Their Claim Defense Counsel
Argued Matters Not In Evidence
Appellants contend defense counsel argued matters not in
evidence and unsupported by the evidence in closing argument in
the liability phase. Appellants have provided a record citation for
only one instance of such conduct. They did not object and
request an admonition and so have forfeited this claim. To the
extent they contend an objection would have been ineffective, we
do not agree.
The complained argument is: “You know, there’s only one
witness who actually measured whether or not Barbara Calderon
was impaired by those drugs. Those medications that she was
taking. We acknowledge that they were in her system. Of course
they were in her system. But the issue was, was she impaired.
And only Dr. Clardy measured individually, as well as
collectively, what those concentrations were. Dr. Mcintyre didn't
26
do that work. The toxicologist from the hospital didn't do that.
Dr. Ohanian didn't do that.” This is only part of defense counsel’s
description of Dr. Clardy’s testimony. We question whether a
reasonable jury would have understood the quoted comments as
asserting that Dr. Clardy actually tested Calderon’s blood and
determined the levels of drug concentrations in that blood.
Defense counsel’s argument describes Dr. Clardy as calculating
the drug levels based on the half-life of the drugs.
Regardless of how this argument is understood, statements
related to Dr. Clardy’s measurement of drug concentration levels
is not the sort of topic which arouses the passions and prejudices
of a jury. A timely objection and admonishment cured any
possible harm.
E. There Is No Evidence Defense Counsel Suborned
Perjury.
Appellants contend defense counsel engaged in misconduct
by allowing their client Calderon to deceive the jury about
whether she spoke with police at the scene of the accident.
An attorney has a duty to attempt to dissuade a client from
committing perjury. (People v. Johnson (1998) 62 Cal. App. 4th
608, 621.) Further, if an attorney “knowingly present[s] lies to a
jury,” he may not “then sit idly by while opposing counsel
struggles to contain this pollution of the trial.” (U.S. v. LaPage
(9th Cir. 2000) 231 F.3d 488, 492.)
Calderon denied speaking to police in response to a
question on cross-examination by appellants’ counsel. Counsel
immediately followed up, asking “to be clear, at the scene . . . you
never spoke to the police . . . is that your testimony?” Calderon
replied, “I do not remember.”
27
Appellants point to no evidence which would support an
inference that defense counsel knew Calderon would testify she
did not speak with police. Calderon’s next answer suggests she
herself did not mean to make such a claim. Further, soon after
this testimony, defense counsel stipulated Calderon gave a
statement to police at the scene of the accident.
DISPOSITION
The judgment is affirmed. Respondents to recover their
costs on appeal.
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
28
Filed 7/9/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
KAREN HERNANDEZ et al., B281161
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. Nos. BC513802,
v. BC514509)
FIRST STUDENT, INC., et al., ORDER CERTIFYING
OPINION FOR PUBLICATION
Defendants and Respondents. [NO CHANGE IN JUDGMENT]
THE COURT:
The opinion in the above-entitled matter filed on June 11,
2019, was not certified for publication in the Official Reports. For
good cause it now appears that the opinion should be published in
the Official Reports and it is so ordered.
[There is no change in the Judgment.]
____________________________________________________________
BIGELOW, P. J. GRIMES, J. STRATTON, J.
1