Maleki v. County of Los Angeles CA2/2 ( 2014 )

Filed 1/6/14 Maleki v. County of Los Angeles CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
MAHNOOSH MALEKI et al., B246063
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC461629)
v.
COUNTY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Soussan G. Bruguera, Judge. Reversed and remanded.
Khashayar Law Group, Daryoosh Khashayar for Plaintiff and Appellant
Mahnoosh Maleki.
Semnar Law Firm, Babak Semnar for Plaintiff and Appellant Mehdi Maleki.
Office of County Counsel, Ruben Baeza, Jr., Assistant County Counsel, Adrian G.
Gragas, Principal Deputy County Counsel, Jessie Lee, Associate County Counsel, for
Defendants and Respondents.
___________________________________________________
Mahnoosh and Mehdi Maleki filed suit after colliding with a sheriff’s car in an
intersection, when the deputy drove through a red light while responding to a radio call.
Relying on provisions in the Vehicle Code, the trial court granted nonsuit at the close of
plaintiffs’ case against the County of Los Angeles and Deputy David Waishwile.1 We
reverse. The trial court improperly weighed conflicting evidence and judged witness
credibility, functions reserved to the jury. When viewed in the light most favorable to the
plaintiffs, the evidence could support a jury verdict for plaintiffs.
FACTS
Plaintiffs’ Testimony
Eighty-four-year-old Mehdi Maleki was a passenger in a car driven by his sister,
Mahnoosh Maleki. As they drove into an intersection on a green light, there was a truck
on their right side. The radio in the Malekis’ car was turned off. They were not
conversing. The windows were closed. Mr. Maleki did not hear a siren. In the
intersection, their car was hit by a police car, which Mr. Maleki did not see before the
collision. Less than five seconds lapsed from the time the light turned green until the
accident.
Mahnoosh Maleki testified that she was driving north on Parkway Calabasas in the
left lane. She passed a semi truck on her right that was not moving; she thought it was
making a right turn. Then, “as soon as I get into the intersection, boom. Accident
happened.” The green light was in her favor as she drove into the intersection. Prior to
the collision, Ms. Maleki did not hear a siren nor see emergency lights or a patrol car.
Ms. Maleki was driving the speed limit (40 or 45 miles per hour) or slower when
the accident happened. She did not see hazard lights on the truck, and did not recall
whether cars driving the opposite direction from her on Parkway Calabasas were stopped.
The accident occurred “in a split second.” Afterward, the deputy involved in the accident
came up to Ms. Maleki and said, “I’m sorry. It’s my fault.”
1 All unlabeled statutory references in this opinion are to the Vehicle Code.
2
Defendant Waishwile’s Testimony
Deputy Waishwile has been with the Sheriff’s Department for seven years,
including three and a half years on patrol. At 6:30 p.m. on August 13, 2010, while on
patrol with a ride-along passenger, Waishwile received a call from dispatch saying that
smoke was coming from a house two to five minutes away. He then drove up Parkway
Granada toward Parkway Calabasas, without activating his lights or siren.
Waishwile described three types of dispatch calls: (1) emergency calls (such as a
robbery in progress) that call for immediate activation of siren and lights; (2) priority
calls (such as a burglar alarm) in which “it’s customary not to have your red light and
siren on as you’re responding”; and (3) routine calls. He said, “I’ve handled calls of
houses on fire before. It’s a really dangerous and life-threatening situation.” In his mind,
it was an emergency call. As a result, Waishwile believed that at an intersection, he
should activate his lights and siren and clear the intersection to arrive at the call
expeditiously.
As Waishwile approached Parkway Calabasas, he faced a red stoplight. At a
distance of about 25 to 50 yards from the intersection, Waishwile activated his
emergency lights; at 10 to 25 yards from the intersection, he activated his siren. He has
four options for the siren: (1) an automatic continuous wail; (2) an automatic yelp; (3) a
manual wail; and (4) an air horn. On this occasion, Waishwile used the manual wail
switch, which he held with his right hand for “a second or two, let it go briefly, a fraction
of a second. Held it again for a second or two, let it go for a fraction of a second.” He
activated the siren approximately five times and came to a stop as he got to the
intersection, waiting for nearby cars to come to a complete stop.
On Waishwile’s left, at the intersection, was an 18-wheel semi truck, moving in
the right lane on northbound Parkway Calabasas. When the truck came to a stop,
Waishwile’s view of the other northbound lane was partially blocked by the truck. He
paused for three to six seconds, then entered the intersection on the red light.
Waishwile proceeded slowly into the intersection, continuously looking in all
directions. As he neared the middle of the intersection, he was looking to the right for
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southbound traffic on Parkway Calabasas. He heard the truck honk. Just then, his ride-
along passenger said, “Watch out.” Waishwile turned his head to the left and saw a
northbound black Mercedes approaching. Within two or three seconds, the Mercedes
struck the front of the patrol car at the driver’s side front tire. Waishwile did not recall
making an evasive maneuver to avoid a collision.
Independent Eyewitness Testimony
Three independent eyewitnesses described the accident.
Louis Vasquez is a security guard at an entry booth for a residential community at
the intersection of Parkway Calabasas and Parkway Granada, where the accident
occurred at 6:32 p.m. on August 13, 2010. The window of his office was half open. He
had an unobstructed view of the accident from his desk.
Vasquez saw a sheriff’s car stopped at a red light at the intersection. When he first
looked at the patrol car, the emergency lights and siren were not activated. About 20
seconds later, the deputy’s red and blue emergency lights went on, and he “put his siren
on and he yelp[ed] it, and he moved out once, twice, and then on the third time is when
he started to accelerate. That’s when the black Mercedes came right down and hit it.”
The patrol car was approaching the middle of the intersection when it began to accelerate.
Vasquez added, “I saw him accelerate into the intersection with the siren.” The accident
occurred “fast,” within two or three seconds after the patrol car accelerated.
Vasquez saw the officer and a passenger in the patrol car looking both ways for
three to five seconds as they inched into the intersection with the emergency lights and
siren activated. The siren was “fairly loud,” or at least loud enough to grab Vasquez’s
attention. Stopped in the right-hand turn lane was a big supermarket semi truck that
blocked the officer’s view of oncoming traffic on Parkway Calabasas. The black
Mercedes came alongside of the semi truck, in a northerly direction, and entered the
intersection on a green light. The two cars collided. The patrol car did not make any
maneuvers to avoid the accident. Vasquez estimated that the length of time from when
the siren was activated to the moment of the collision was five to 10 seconds.
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Eyewitness Joseph Rinck was traveling southbound on Parkway Calabasas and
stopped at a red light; he was the first car in the lane closest to the turn lane. When Rinck
initially noticed the patrol car on Parkway Granada, it was stopped and its emergency
lights and siren were not activated. Within 30 to 40 seconds, Rinck saw the emergency
lights activate, though “I don’t recall hearing the sirens.” Rinck stayed where he was,
although he had a green light, because he saw the emergency lights.
Rinck observed a black Mercedes traveling northbound on Parkway Calabasas, as
well as a semi truck in the far right lane. As the Mercedes came down the hill, the light
turned green, but the semi truck did not move into the intersection. The patrol car
crossed Parkway Calabasas against the red light and collided with the Mercedes in the
middle of the intersection.
Rinck estimated that the emergency lights were on for about five to 10 seconds
before the collision. Rinck thought the officer entered the intersection in a continuous
motion “pretty fast”—about 10 or 15 miles per hour—rather than creeping slowly. Rinck
did not know if the officer turned his head left or right or whether there was a car horn
before the accident. The collision occurred about 10 seconds after the deputy began to
enter the intersection.
Eyewitness Mardiros Mouradian, a Ralphs delivery truck operator, was driving his
68- to 72-foot-long rig northbound on Parkway Calabasas on August 13, 2010. As
Mouradian approached Parkway Granada, he noticed from about 200 yards away a police
car stopped in the left-hand turn lane of Parkway Granada, with its emergency lights on
and a siren going on and off. The siren made a deep “honk honk” sound that Mouradian
heard clearly, though his window was closed.
Mouradian slowed down even though he had a green light. He saw two cars
coming up behind him, so he turned on his hazard lights to give warning to the
approaching cars. One of the cars slowed and stopped. The other car was a black
Mercedes, which did not slow or stop. He saw the deputy, who was about 20 feet away,
look in both directions for oncoming traffic while driving “very, very slow.” Mouradian
honked his horn to warn the deputy: the deputy looked at Mouradian, who was indicating
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to stop, but just then the collision occurred. Only two or three seconds elapsed from the
time the deputy entered the intersection with the siren on until the impact. Mouradian
heard skidding and saw the Mercedes driver try to go left to avoid the collision. He
estimated the car’s speed at about 40 miles per hour.
Investigating Deputy Bunch’s Testimony
Deputy Sheriff Brent Bunch works in the traffic unit in Lost Hills. During his
seven years as a deputy, he has responded to over 2,000 auto accidents and has been
responsible for investigating 450 to 500 collisions, which requires him to determine the
cause of the accident. Bunch was called to the scene of the accident involving plaintiffs
and Deputy Waishwile.
Bunch interviewed witnesses as part of his investigation. The truck driver and a
husband and wife who were behind the truck told Bunch that they heard a siren. They
stopped but plaintiffs’ car went through the intersection without slowing or stopping and
collided with the patrol car.2 Eyewitness Rinck told Bunch “he was unsure” whether he
heard a siren. A ride-along passenger in the patrol car told Bunch that Waishwile slowly
drove into the intersection, lane by lane, with lights and siren on, and heard the truck
driver blast his horn. There were no skid marks before the point of impact, indicating no
attempt by the Mercedes driver to stop or avoid the broadside collision.
Bunch interviewed Deputy Waishwile, who stated that “he was responding to a
priority call.” Waishwile did not tell Bunch that he was responding to an emergency call.
Waishwile pressed his “yelp button” as he entered the intersection, while creeping past
the semi truck. Waishwile heard his ride-along passenger say “Watch out” and saw a
black car coming.
Bunch determined that plaintiffs’ car failed to yield to an emergency vehicle, and
violated the Vehicle Code by having a handicap placard dangling from the rearview
mirror, impairing visibility. Bunch also determined that the Mercedes proceeded at an
2 The couple behind the truck thought that the patrol car drove through a green light.
6
unsafe speed for the conditions, because other drivers slowed for the patrol car. He did
not ticket Ms. Maleki because “she seemed to be having a bad enough day as it was.”
Plaintiffs’ Expert Witness
Plaintiffs called to the stand William Rahn, who worked as a deputy for 28 years
at the Riverside County Sheriff’s Department and is now a private investigator. He was a
field training officer for over seven years, and made sure that new employees understood
“Code 3” emergency procedures. Rahn is familiar with the Los Angeles County Sheriff’s
Department procedures relating to “Code 3.”
At this point, the trial court called the attorneys into chambers to ask about the
qualifications of the witness. Plaintiffs’ counsel represented that Rahn has reviewed the
codes and procedures for Riverside and Los Angeles Counties, and they are identical.
The court decided that Rahn is not qualified to testify about Los Angeles procedures and
Riverside procedures are not relevant. Plaintiffs also proposed to have Rahn testify that
Deputy Waishwile did not use due care because the semi truck was blocking plaintiffs’
perception of the patrol car’s lights and siren. The court announced, “I’ve made a legal
decision that he will not be able to testify. His testimony will not be necessary.”
PROCEDURAL HISTORY
After plaintiffs’ government claim was denied on March 16, 2011, they filed a
negligence suit against the County of Los Angeles, the Sheriff’s Department, and Deputy
Waishwile. The case was tried by a jury in June 2012. When plaintiffs rested, the
defense made an oral motion for nonsuit on the grounds that there is no evidence of
negligence and the sole cause of the accident was Ms. Maleki’s failure to yield to
emergency lights and sirens, in violation of the Vehicle Code. Further, the deputy
proceeded with reasonable care and slowly entered the intersection. Plaintiffs opposed
the motion, arguing that the eyewitness testimony showed that Deputy Waishwile did not
act reasonably or carefully, presenting a triable issue for the jury. Further, the jury could
decide that the emergency lights were not visible and the siren was only briefly activated.
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THE TRIAL COURT’S RULING
The motion for nonsuit was granted on June 28, 2012. On December 19, 2012, the
trial court entered judgment for defendants. The court found that plaintiffs’ evidence is
insufficient for a jury to find in their favor, entitling defendants to judgment as a matter
of law. First, the court determined that Deputy Waishwile is absolutely immune from
liability: he reasonably believed an emergency existed because someone reported seeing
smoke, and the accident occurred while he was responding to the perceived emergency.
Second, the court concluded that Waishwile did not breach a duty of care because he
looked both ways and slowly entered the intersection before accelerating. Plaintiffs did
not see emergency lights or hear a siren, even though other witnesses did. There was no
evidence presented regarding the Sheriff’s Department policy and procedures. Third,
Mahnoosh Maleki caused the accident and violated the Vehicle Code by failing to yield
to emergency lights and a siren. Plaintiffs promptly appealed from the judgment.
DISCUSSION
1. Standard of Review
After a plaintiff’s presentation of evidence, the defendant may move for nonsuit to
challenge the sufficiency of the evidence. (Code Civ. Proc., § 581c; Campbell v. General
Motors Corp. (1982) 32 Cal. 3d 112, 117.) Motions for nonsuit pose issues of law for the
trial court and the reviewing court; therefore, we review a grant of nonsuit de novo.
(Khajavi v. Feather River Anesthesia Medical Group (2000) 84 Cal. App. 4th 32, 43.)
“Because a grant of the motion serves to take a case from the jury’s consideration,
courts traditionally have taken a very restrictive view of the circumstances under which
nonsuit is proper. The rule is that a trial court may not grant a defendant’s motion for
nonsuit if plaintiff’s evidence would support a jury verdict in plaintiff’s favor.
[Citations.] [¶] In determining whether plaintiff’s evidence is sufficient, the court may
not weigh the evidence or consider the credibility of witnesses. Instead, the evidence
most favorable to plaintiff must be accepted as true and conflicting evidence must be
disregarded. The court must give ‘to the plaintiff[’s] evidence all the value to which it is
legally entitled, . . . indulging every legitimate inference which may be drawn from the
8
evidence in plaintiff[’s] favor . . . .’” (Campbell v. General Motors Corp., supra, 32
Cal.3d at pp. 117-118; O’Neil v. Crane Co.(2012) 53 Cal. 4th 335, 347.)
2. Governmental Liability and Immunity Laws Concerning Emergency Vehicles
Section 17004 immunizes individual law enforcement officers for deaths or
injuries “resulting from the operation, in the line of duty, of an authorized emergency
vehicle while responding to an emergency call . . . or when responding to but not upon
returning from a fire alarm or other emergency call.” (Italics added.) It is a question of
fact for the jury whether an officer “was responding to an ‘emergency’ call at the time
that the accident happened,” even if the officer testified that “‘All calls are urgent.’”
(Hopping v. City of Redwood City (1936) 14 Cal. App. 2d 360, 364.) Nearby drivers must
yield to emergency vehicles using a siren and red lights visible from a distance of 1,000
feet to the front. (§ 21806, subd. (a)(1).)
Though law enforcement officers may be immune under section 17004, their
employer does not enjoy derivative immunity. (Hernandez v. City of Pomona (2009) 46
Cal. 4th 501, 519-520; Brummett v. County of Sacramento (1978) 21 Cal. 3d 880, 883-885
(Brummett).) “A public entity is liable for death or injury to person or property
proximately caused by a negligent or wrongful act or omission in the operation of any
motor vehicle by an employee of the public entity acting within the scope of his
employment.” (§ 17001.)
To avoid liability, the public entity must show that its employee acted “with due
care.” (Brummett, supra, 21 Cal.3d at p. 886.) An emergency vehicle driver is exempt
from following traffic rules if the vehicle is being driven “in response to an emergency
call” and he “sounds a siren as may be reasonably necessary and the vehicle displays a
lighted red lamp visible from the front as a warning to other drivers and pedestrians.”
(§ 21055, subds. (a)-(b).) However, “Section 21055 does not relieve the driver of a
vehicle from the duty to drive with due regard for the safety of all persons using the
highway, nor protect him from the consequences of an arbitrary exercise of the privileges
granted in that section.” (§ 21056.)
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The operative standard is, “what would a reasonable, prudent emergency driver do
under all of the circumstances, including that of emergency” in order to “not impose upon
others an unreasonable risk of harm.” (Torres v. City of Los Angeles (1962) 58 Cal. 2d
35, 47, 51.) “‘“[D]ue regard” for the safety of others means that he should, by suitable
warning, give others a reasonable opportunity to yield the right of way.’” (Reed v.
Simpson (1948) 32 Cal. 2d 444, 450.) Giving a suitable warning depends on the
surrounding circumstances—as described by eyewitnesses—to determine whether there
was an arbitrary exercise of the officer’s traffic privileges. (Id. at pp. 450-451. Accord:
Raynor v. City of Arcata (1938) 11 Cal. 2d 113, 117-118; Duff v. Schaefer Ambulance
Service, Inc. (1955) 132 Cal. App. 2d 655, 685.)
An emergency vehicle driver’s use of due care “presents a question of fact for the
jury. [Citation.] If the circumstances permit a reasonable doubt whether defendants’
conduct violated the boundaries of due care, the doubt must be resolved as an issue of
fact by the jury rather than of law by the court.” (Brummett, supra, 21 Cal.3d at p. 887.)
In Brummett, two police cars traveling at 80 to 90 miles per hour while chasing a robbery
suspect struck plaintiffs’ vehicle in an intersection. (Id. at p. 882.) One of the officers
acknowledged that under police practices he should cease pursuit “‘if there was a
problem’” due to traffic conditions. (Id. at p. 887.) “Based upon the evidence in the
record concerning the speed of the officers’ cars, the vehicular traffic at the time of the
accident, one officer’s lack of awareness of the color of the light at the intersection, and
their instructions on when to discontinue pursuit, there existed sufficient evidence of the
officers’ negligence to require that a jury weigh the facts.” (Ibid.)
In another example, a city patrol car was chasing a motorist who “rather stupidly
decided to continue running red lights in the hopes of getting away.” (City of Sacramento
v. Superior Court (1982) 131 Cal. App. 3d 395, 399.) The fleeing motorist collided in an
intersection with a CHP officer in a cruiser, who was unaware of the pursuit. (Ibid.) The
CHP officer sued for his injuries. There was conflicting evidence as to whether the
police activated their red lights and siren and, if so, at which point. (Id. at p. 402.) The
individual officers were immune as a matter of law under section 17004. (City of
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Sacramento, at p. 400.) However, their employer was not entitled to summary judgment
because “a jury could well conclude that the officers are negligent in failing to flash their
red lights or sound their siren in order to alert other innocent parties to the approaching
danger” and enable the CHP driver to take evasive action. (Id. at pp. 405-406. Accord:
Cruz v. Briseno (2000) 22 Cal. 4th 568, 572-574 [officer immunized during “immediate
pursuit” of a lawbreaker, but his employer could be liable if he failed to act with due
care]; City of San Jose v. Superior Court (1985) 166 Cal. App. 3d 695, 697, 701 [city’s
liability for a fatal accident arising from its officers’ high-speed pursuit in a residential
neighborhood presents a question of fact on the issue of negligence].)
3. Nonsuit as to Deputy Waishwile
Plaintiffs argue that Deputy Waishwile is not immunized from liability because he
was not “responding to an emergency call” within the meaning of section 17004.
“Whether a vehicle is driven in response to an emergency call depends on the nature of
the call received and the situation as presented to the mind of the driver and not upon
whether there is an emergency in fact. [Citations.] The driver, of course, should have
reasonable grounds to believe that there is an emergency.” (Gallup v. Sparks-Mundo
Engineering Co. (1954) 43 Cal. 2d 1, 5.)
“[T]he controlling thing is the nature of the call as it was communicated to the
driver” of the emergency vehicle. (Head v. Wilson (1939) 36 Cal. App. 2d 244, 248, 251.)
Thus, if an ambulance driver was instructed by his employer that all calls from an
institute for alcoholics should be treated as emergencies and the log book completed
before a collision in an intersection showed an “E” for emergency, the jury could
reasonably find that the driver believed he was responding to an emergency call. (Gallup
v. Sparks-Mundo Engineering Co., supra, 43 Cal.2d at pp. 6-8.) A conflict in the
evidence as to whether there was an emergency call presents a jury question.
(Washington v. City & County of S.F. (1954) 123 Cal. App. 2d 235, 241.)
There is a conflict in the evidence as to whether Deputy Waishwile believed, at the
time, that he was responding to an emergency call. When interviewed by Deputy Bunch
soon after the accident, Waishwile stated that “he was responding to a priority call.” He
11
did not tell Bunch that he was responding to an emergency. At trial, Waishwile testified
that in his mind, it was an emergency call; however, he drove down Parkway Granada
after receiving the dispatch call without illuminating his lights or sounding a siren,
though emergencies call for immediate activation of those devices. Given the
opportunity, plaintiffs could have argued—and the jury could have believed—that
Waishwile’s trial testimony was an after-the-fact rationalization to avoid liability, and
that his initial reaction to the call and statements to the investigator are more credible
because Waishwile did not know (at that point) that he would be personally sued.
It bears repeating that on a motion for nonsuit, the court cannot consider witness
credibility and must indulge every legitimate inference in plaintiffs’ favor. (Campbell v.
General Motors Corp., supra, 32 Cal.3d at p. 118.) The jury could have decided that
Waishwile’s trial testimony is not credible: just because he said something about his
state of mind does not mean that the jury was obliged to believe it. The trial court
invaded the province of the jury by declaring that Deputy Waishwile’s testimony
conclusively establishes his reasonable belief that there was an emergency call. The jury
could have rejected that testimony in its entirety. Or the jury could have credited
statements Waishwile made at the time of the accident, which did not mention an
emergency. Nonsuit was improperly granted as to Waishwile.
4. Nonsuit as to the County of Los Angeles
To avoid liability, the County must establish that its employee Deputy Waishwile
acted “with due care” like “‘a reasonable, prudent emergency driver,’” given all of the
circumstances, to be exempt from following traffic rules. (Brummett, supra, 21 Cal.3d at
p. 886; Torres v. City of Los Angeles, supra, 58 Cal.2d at p. 51.) The exercise of due care
generally presents a jury question. (Brummett, at p. 887.) This case is no exception to
the rule.
There is a conflict in the evidence with respect to when Deputy Waishwile
sounded a siren and activated his emergency lights. He testified that he did so when he
was 25 to 50 yards (lights) and 10 to 25 yards (siren) from the intersection; however, two
eyewitnesses agreed that Deputy Waishwile’s vehicle was already stopped at the red light
12
when it began displaying lights or sounding a siren. This is a significant discrepancy. If
the jury were to believe that Waishwile drove half the length of a football field with his
emergency lights on and a quarter of that distance with his siren on as well, it might
decide that Ms. Maleki should have seen or heard the patrol car. On the other hand, if the
jury were to believe the eyewitnesses, it might find that Waishwile imprudently
accelerated into the intersection with so little warning that someone driving the speed
limit through a green light, alongside a 70-foot-long truck, could not possibly register the
danger and yield the right of way in time.
The issue was whether Waishwile acted in a reasonable and prudent manner under
the circumstances. One circumstance was that the siren “yelped” for only five to 10
seconds according to witness Vasquez. This is consistent with Waishwile’s testimony
that he manually held down the siren approximately five times, for a second or two each
time. On the other hand, witness Mouradian, who was closest to the deputy’s car,
described two or three seconds of siren before the collision. The other critical
circumstance was that Mouradian’s semi truck prevented Ms. Maleki and Waishwile
from seeing each other. According to eyewitnesses Vasquez and Rinck, who had an
unobstructed view, the patrol car briefly deployed its emergency features, moved into the
intersection, then started to accelerate, at which time Ms. Maleki came alongside the semi
and entered the intersection on a green light at the speed limit of 40 or 45 miles per hour.
According to Waishwile, he was looking to his right at the southbound traffic as he
crossed the northbound lane of traffic, and did not look left until truck driver Mouradian
honked at him. By then, it was too late to avoid a collision.
Based on the testimony, neither this Court nor the trial court can determine, as a
matter of law, that Waishwile drove in a reasonable and prudent manner under all the
circumstances, giving Ms. Maleki “‘a reasonable opportunity to yield the right of way.’”
(Reed v. Simpson, supra, 32 Cal.2d at p. 450.) If the eyewitness testimony is credited (as
it must on nonsuit), Ms. Maleki could not have seen the deputy activate his lights, due to
the bulk of the semi truck between her and the patrol car stopped at the red light. A jury
could find that it was not reasonable to accelerate into an intersection on a red light after
13
using the siren for a few seconds, when the deputy could not see through or around the
truck blocking his view of oncoming traffic.
Here again, the trial court invaded the province of the jury, whose job is to decide
what is reasonable and what is not. (Brummett, supra, 21 Cal.3d at p. 887.) The court
weighed conflicting evidence, which is not allowed on nonsuit. (Campbell v. General
Motors Corp., supra, 32 Cal.3d at pp. 117-118.) With respect to whether Ms. Maleki
failed to yield to an emergency vehicle, the jury could consider that Deputy Bunch did
not cite Ms. Maleki for violating the Vehicle Code, and that Deputy Waishwile
apologized for causing the accident. Further, even if a Vehicle Code violation were
found, it could serve to establish Ms. Maleki’s negligence, thereby reducing the damages
after the jury assesses the comparative degree of fault. The trial court improperly granted
nonsuit as to the County of Los Angeles.
5. Other Rulings
Appellants question the propriety of the trial court’s rulings regarding the
exclusion of their expert witness, William Rahn, and the court’s refusal to allow them to
cross-examine Deputy Bunch regarding emergency dispatch calls. Further, they
challenge the trial court’s decision to treat appellants’ two attorneys as one during
questioning. We need not reach the merits of these rulings because we have determined
that nonsuit was improperly granted and a new trial must be conducted.3
3 Plaintiffs may make a peremptory challenge if the case is assigned to the same
trial judge, and seek a new trial before a different judge. (Code Civ. Proc., § 170.6, subd.
(a)(2); Paterno v. Superior Court (2004) 123 Cal. App. 4th 548, 556; Stubblefield
Construction Co. v. Superior Court (2000) 81 Cal. App. 4th 762, 764-766.)
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DISPOSITION
The judgment is reversed and the case is remanded for a new trial. Appellants are
entitled to recover their costs on appeal by way of a motion in the trial court.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
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