Munoz v. County of Imperial CA4/1 ( 2021 )

Filed 1/20/21 Munoz v. County of Imperial CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
VERONICA MUÑOZ, D075805
Plaintiff and Appellant,
v. (Super. Ct. No. ECU09873)
COUNTY OF IMPERIAL et al.,
Defendants and Respondents.
APPEAL from a judgment and order of the Superior Court of Imperial
County, L. Brooks Anderholdt, Judge. Affirmed.
Scott Trial Lawyers, Timothy A. Scott and Nicolas O. Jimenez for
Plaintiff and Appellant.
Walker & Driskill, Steven M. Walker and Mitchell A. Driskill for
Defendants and Respondents.
Early one morning at a four-way intersection in El Centro, a pickup
truck driven by a county employee collided with a woman riding a bicycle.
The injured bicycle rider, Veronica Muñoz, sued the driver and the county for
negligence. At a trial where the driver’s statement to responding law
enforcement was excluded, the jury found him negligent but determined
Muñoz was contributorily negligent and 75 percent at fault. After trial, the
court denied Muñoz’s request for cost-of-proof sanctions (Code Civ. Proc.,
§ 2033.420). Appealing the judgment, Muñoz challenges the court’s
evidentiary ruling excluding the driver’s statement to police. As we explain,
although this statement should have been admitted as an adoptive
admission, its exclusion at trial was harmless. Muñoz also appeals the denial
of her motion for cost-of-proof sanctions, but we find no abuse of discretion by
the trial court. Accordingly, the judgment and order are affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Julian Lopez worked for the office of the Imperial County agricultural
commissioner. Around 6:00 a.m. on April 19, 2016, he was driving a county-
owned pickup truck with colleague Ramon Ortega in the passenger seat. On
his way to Calexico for work, Lopez drove east on Broadway Street. He came
to a complete stop at the intersection of Broadway and 6th Street, which was
flanked by stop signs on all sides. It was a clear day, and the sun was up.
Nothing obstructed Lopez’s view.
At that time, Muñoz was riding her bicycle south on 6th Street,
approaching the intersection at Broadway. As Lopez proceeded through the
intersection, his truck collided with Muñoz. Police arrived within minutes
and took statements from Lopez and Ortega. Paramedics treated Muñoz,
who was disoriented and complained of face and leg pain. She was airlifted
to a trauma center near Palm Desert.
Muñoz sued Lopez and Imperial County (County) for negligence and
negligence per se, alleging Lopez had entered the intersection after Muñoz
was already in it and had right-of-way. The case proceeded to a five-day jury
trial in early 2019. Muñoz admitted struggling with chronic substance abuse
and could not say whether she was sober at the time of the collision. Her
2
usual practice was to ride her bicycle against the direction of oncoming traffic
on the left side of the road and cross the intersection at Broadway via the
eastern crosswalk. As she had no memory of the collision itself, Muñoz cross-
examined Lopez and Ortega during her case-in-chief (Evid. Code, § 776, subd.
(a)).1 Both testified that Lopez looked both ways and saw no one on the road
before proceeding through the intersection.2
Several witnesses described Muñoz’s lingering health problems since
the crash. A neurosurgeon attributed continued symptoms a year later to a
traumatic brain injury, rejecting substance abuse as the cause. At the close
of Muñoz’s case, the court denied a defense nonsuit motion but indicated her
causation showing was tenuous.
Defendants examined two expert witnesses in their case-in-chief. A
medical expert disagreed with the neurosurgeon’s diagnosis and suggested
Muñoz’s memory problems could be explained by her chronic drug use. An
accident reconstruction expert considered rates of speed and the location of
impact to conclude that Muñoz most likely barreled into the intersection after
Lopez had already entered it. The expert believed Lopez could not have
stopped in time, but given her slower rate of speed, Muñoz might have been
able to avoid it.
Liability turned largely on who had right-of-way. Plaintiff’s counsel
argued in closing that Muñoz entered the intersection first and was in the
crosswalk when an inattentive Lopez “t-boned her, essentially.” Although
Lopez claimed to have looked each way, it was obvious that Muñoz “didn’t
1 Except as otherwise specified, further statutory references are to the
Evidence Code.
2 To avoid repetition, we discuss the testimony given by Lopez and
Ortega, as well as evidence excluded by the trial court, in our discussion.
3
come out of nowhere.” Defense counsel disagreed. Relying on percipient
accounts by Lopez and Ortega, as well as testimony by the accident
reconstruction expert, he suggested Muñoz shot through the intersection
after Lopez had already entered it.
Rendering its verdict, the jury found Lopez acted negligently,
determined his negligence was a substantial factor in causing harm, and
found he was a County employee acting within the scope of his employment
when the collision occurred. But it also found Muñoz to be contributorily
negligent, placing her 75 percent at fault. It accordingly awarded Muñoz only
one-fourth of the $120,000 in total damages.
Muñoz filed a motion for a new trial and requested cost-of-proof
sanctions related to the jury’s negligence and causation findings (Code Civ.
Proc., § 2033.420). The court considered both motions at an April 2019
hearing and denied them. Based on the court’s directive, defendants
consented to an additur for past pain and suffering, resulting in a total
judgment of $36,875 in Muñoz’s favor.
DISCUSSION
Muñoz appeals the judgment, arguing the trial court prejudicially erred
in excluding an adoptive admission made by Lopez. She also challenges the
denial of her request for cost-of-proof sanctions. We address these arguments
in turn, rejecting them both.
1. Exclusion of Lopez’s Adoptive Admission
Muñoz argues the court erred in excluding as hearsay a statement
attributed to Lopez in the accident report prepared by a member of the El
Centro Police Department. As we explain, although we agree the statement
was admissible as an adoptive admission, any error in excluding it was
harmless.
4
a. Additional Background
While examining Lopez at trial, plaintiff’s counsel sought to introduce
his statement to officers who responded to the scene of the collision. The trial
court excluded this evidence during an unreported sidebar. Understanding
Muñoz’s contention requires additional background as to the claimed
adoptive admission, Lopez’s trial testimony, and a discussion of the
evidentiary ruling in Muñoz’s new trial motion.
Officers arrived within minutes of the collision and interviewed both
Lopez and Ortega. A report prepared from that investigation attributed the
following statement to Lopez:
“[Lopez] was standing on the south sidewalk, 500 block of
Broadway Street. [Lopez] was identified with his
California driver’s license. [Lopez] related to me the
following: [Lopez] stated that he was driving V[ehicle]-1,
traveling eastbound in the number one lane, 600 block of
Broadway Street. [Lopez] stopped for the stop sign at the
intersection of South Sixth Street Avenue. [Lopez]
proceeded eastbound into the intersection and saw
[Muñoz]. [Muñoz] was riding V[ehicle]-2, traveling
southbound in the east crosswalk, at the intersection of
Broadway Street and South Sixth Street. [Lopez] swerved
V[ehicle]-1 to the right in attempt to avoid colliding into
V[ehicle]-2. V[ehicle]-1 collided into V[ehicle]-2.”
During his deposition a year later, Lopez was asked to review the police
report and indicated that the statement attributed to him in it was “a pretty
accurate summary of what happened.”3
At trial, Lopez testified he came to a complete stop at the intersection,
seeing no one to the left or right, and no vehicles approaching from ahead.
There appeared to be no one on the road in any direction of travel. The two
3 Lopez’s deposition testimony was presented to the court on Muñoz’s
new trial motion.
5
crosswalks in front of him were clear, and it did not seem like anyone was
about to enter either. At that point, Lopez stated he accelerated through the
intersection at 10 to 15 miles per hour. He and Ortega were likely engaging
in casual conversation at the time, but nothing was distracting him from the
road. As his truck proceeded past the eastern crosswalk, Lopez saw
movement and swerved right before colliding with something on the front left
side of his vehicle. Only after stepping out and seeing a woman with a bicycle
on the ground did he piece together what happened. He testified that he
never actually saw Muñoz before the collision and never saw her in the
crosswalk.
Ortega offered a similar account. By habit, Ortega looked left and right
from the passenger seat and saw nobody. But once they crossed the
intersection, he felt impact. Ortega asked Lopez what happened, and Lopez
replied, “I don’t know.” They immediately stopped and called for assistance.
When they stepped outside, it was clear that the pickup truck had collided
with a person.
Challenging this version of events, plaintiff’s counsel on cross-
examination attempted to show that Lopez had given police officers a slightly
different account right after the crash. Lopez stated he did not recall telling
the officer that he saw Muñoz riding her bicycle southbound in the eastern
crosswalk before the collision occurred. Counsel attempted to refresh his
recollection with the police report. Reviewing it, Lopez again denied telling
police that he had seen Muñoz traveling in the crosswalk; he merely
indicated that Muñoz must have been traveling south on 6th Street. Lopez
agreed that at his deposition, he described the statement contained in the
police report as “a pretty accurate summary of what happened.”
6
On further questioning from defense counsel, Lopez clarified that he
saw Muñoz only a split second before the collision and denied ever seeing her
in the eastern crosswalk. He recalled that at his deposition, he was asked to
draw a circle on an aerial map to indicate where the collision occurred.
Consistent with his testimony at trial, he had drawn the circle to show that
the collision occurred east of the eastern crosswalk. Lopez denied telling the
police officer anything different. Resuming cross-examination, plaintiff’s
counsel established that Lopez drew the circle at his deposition, after being
sued and long after speaking with officers at the scene.
Ultimately the statement attributed to Lopez in the police report was
never admitted as evidence or presented to the jury. While questions posed
by both sides’ counsel hinted at a potential discrepancy between it and
Lopez’s trial testimony, the court instructed the jury that only witness
answers, and not attorney questions, were evidence.
Following the jury’s verdict, Muñoz moved for a new trial. (Code Civ.
Proc., § 657.) As pertinent here, she challenged the trial court’s exclusion of
the statement attributed to Lopez in the police report. (§ 1221.) Attaching
deposition excerpts, Muñoz argued the statement was admissible against
Lopez as an adoptive admission. Had it been admitted, she claimed it would
have established that Muñoz had right-of-way; impeached Lopez’s testimony;
and rebutted the timeline given by the defense’s accident reconstruction
expert.
Opposing the new trial motion, defendants claimed Lopez never
adopted the statement in the police report. Although he said at deposition
that it was a “ ‘pretty accurate summary of what happened,’ ” he was never
asked to adopt the specific sentence concerning Muñoz’s presence in the
crosswalk. Elsewhere at his deposition, Lopez had testified that the collision
7
occurred past the crosswalk. Moreover, defendants claimed Muñoz suffered
no prejudice because she presented no evidence she entered the intersection
before Lopez or had right-of-way.
At the hearing, the court gave a tentative ruling denying the new trial
motion. It noted that despite its exclusion of the police report during an
unreported sidebar, both parties asked Lopez about his statement to police.
“And so the information in the police report was provided to the jury. One
way or the other, it came in.” The court then invited argument from the
parties. When Muñoz questioned the extent to which the information came
in, the court stated it had also considered Muñoz’s failure to lay foundation
for the police report at trial. To this, Muñoz replied that the officer who
authored the report had retired, and his testimony was in any event
unnecessary given Lopez’s adoption of the hearsay statement as his own.
Defense counsel urged the court to adopt its tentative. He recalled the
police report being discussed on “several occasions”—first in chambers before
trial began and again during trial, once it became clear plaintiff’s questions
would refer to it. As he remembered the court’s ruling, it was clear that
Muñoz could ask Lopez, “ ‘Well, didn’t you tell the police this?’ ” If Lopez
denied it, Muñoz could bring in an impeaching witness. Muñoz was aware
that to use the police report, she would need to lay foundation for its use;
“And that simply didn’t happen.” Aside from foundational issues, defense
counsel claimed Lopez never adopted the statement in the police report as his
own. Earlier in the deposition, Lopez “testified repeatedly and clearly that
the collision took place just past the crosswalk.” Thus, it was incumbent
upon Muñoz to establish that Lopez manifested agreement with the specific
line in the police report’s statement suggesting he saw her traveling in the
crosswalk before the collision occurred.
8
The court adopted its tentative ruling. It reasoned that there was
ample evidence apart from the police report for the jury to determine
liability. Muñoz had no memory of the collision, and testimony from Lopez,
Ortega, and the defense expert suggested Lopez had glimpsed Muñoz only at
the last second as she rode her bicycle southbound. Further, in the court’s
view, “it was apparent to all of us here that what Mr. Lopez had stated to the
police at the time was different than what he was stating in the courtroom.”
b. Legal Principles
Hearsay evidence is generally inadmissible, absent a recognized
exception to the rule. (§ 1200.) Direct and adoptive admissions by a party
opponent offer two such exceptions. Section 1220 allows the admission of an
out-of-court statement by a party to the action. Section 1221 applies where a
party adopts another person’s declaration as his or her own and applies to a
statement “of which the party, with knowledge of the content thereof, has by
words or other conduct manifested his adoption or his belief in its truth.”
Adoptive admissions are permitted on the theory that “ ‘the hearsay
declaration is in effect repeated by the party; his conduct is intended by him
to express the same proposition as that stated by the declarant.’ ” (6 Witkin,
Cal. Evidence (5th ed. 2018) Hearsay, § 103; see Jazayeri v. Mao (2009) 174
Cal.App.4th 301, 326.)
“ ‘In determining whether a statement is admissible as an adoptive
admission, a trial court must first decide whether there is evidence sufficient
to sustain a finding that: (a) the defendant heard and understood the
statement under circumstances that normally would call for a response; and
(b) by words or conduct, the defendant adopted the statement as true.’ ”
(People v. Charles (2015) 61 Cal.4th 308, 322−323.) “For the adoptive
admission exception to apply, it is sufficient that the evidence supports a
9
reasonable inference that an accusatory statement was made under
circumstances affording a fair opportunity to deny the accusation; whether
defendant's conduct actually constituted an adoptive admission becomes a
question for the jury to decide.” (Kincaid v. Kincaid (2011) 197 Cal.App.4th
75, 83 (Kincaid), italics added; see People v. Richards (1976) 17 Cal.3d 614,
618 [“Whether defendant’s response actually constituted an adoptive
admission was a question for the jury to decide.”].)
Unless it turns on a question of law, we generally review a ruling on
the admissibility of evidence for abuse of discretion. (Zhou v. Unisource
Worldwide (2007) 157 Cal.App.4th 1471, 1476 (Zhou).) A trial court abuses
its discretion in excluding evidence if, “in light of the applicable law and
considering all of the relevant circumstances, the court’s decision exceeds the
bounds of reason.” (Coyne v. De Leo (2018) 26 Cal.App.5th 801, 814.) Where
error is found, it “is grounds for reversing a judgment only if the party
appealing demonstrates a ‘miscarriage of justice’—that is, that a different
result would have been probable if the error had not occurred.” (Zhou, at
p. 1480; San Diego Gas & Elec. Co. v. Schmidt (2014) 228 Cal.App.4th 1280,
1301−1302; see Evid. Code, § 354; Cal. Const., art. VI, § 13.)
c. The statement was admissible as an adoptive admission.
Muñoz argues Lopez adopted the statement attributed to him in the
police report at his deposition, rendering that statement admissible under
section 1221. She disputes the trial court’s finding that the information was
otherwise before the jury, noting that Lopez alone was shown the report to
refresh his recollection, and he denied making the specified statement to
police.
At the outset, the fact the evidentiary ruling occurred at an unreported
sidebar complicates our review. “Before an appellate court can
10
knowledgeably rule upon an evidentiary issue presented, it must have an
adequate record before it to determine if an error was made.” (In re Mark C.
(1992) 7 Cal.App.4th 433, 445; see Tudor Ranches, Inc. v. State Comp. Ins.
Fund (1998) 65 Cal.App.4th 1422, 1433 [party claiming evidentiary error
must “develop the fullest possible evidentiary record before seeking review”].)
Nevertheless, defendants acknowledged the prior ruling at a hearing that
was reported, and they do not argue the appellate record is inadequate to
consider Muñoz’s claim. Drawing from other parts of the record (see Medical
Operations Mgt., Inc. v. National Health Labs., Inc. (1986) 176 Cal.App.3d
886, 890, fn. 3), we therefore proceed with the understanding that Muñoz
sought to admit the statement attributed to Lopez in the police report as an
adoptive admission, and the trial court denied her request.4
Turning to the merits, Muñoz is correct that the proffered statement
was admissible as an adoptive admission. Excerpts of Lopez’s deposition
were submitted with Muñoz’s new trial motion. Plaintiff’s counsel focused
heavily on statements in the police report during Lopez’s deposition. Reading
the last line that Lopez swerved to avoid collision, he asked whether Lopez
recalled events the same way. Lopez said he did. Counsel then asked
whether “the rest of the officer’s statement”—meaning the statement
attributed to Lopez in the report—was accurate. Lopez answered, “Yes.”
A couple of minutes later, plaintiff’s counsel asked Lopez if what he told
officers was reflected in the police report; again, Lopez said “Yes.” Following
4 As was clear to the trial court, Muñoz never sought to admit the entire
police accident report. She sought admission of the paragraph in the report
that purports to reflect Lopez’s statement to the police officer who arrived at
the scene. Had the evidence been permitted at trial, it is only this paragraph,
and not the entire report, that would have been read into the record or
otherwise presented to the jury. We therefore disregard defendants’
argument that police accident reports are generally inadmissible.
11
up, counsel inquired if anything was left out “in terms of any details you
might have provided them that they might have forgotten to write in there,
or is that a pretty accurate summary of what you told them?” Lopez replied,
“I’d say that’s a pretty accurate summary of what happened.” Lopez was
given a chance to review his deposition transcript and did not make any
changes.
This record supports a reasonable finding that Lopez manifested his
intent to adopt the statement as his own. He was asked in several different
ways whether it was complete and reflected what he told officers, but he
raised no concerns. It is true, as defendants suggest, that Lopez was not
specifically asked whether he saw Muñoz in the crosswalk before the
collision. And Lopez testified earlier at deposition that the accident occurred
past the crosswalk. But these facts merely suggest ambiguity as to whether
he meant to adopt every sentence in the statement in describing it as “pretty
accurate.” That ambiguity was the jury’s to resolve. (See Kincaid, supra, 197
Cal.App.4th at p. 85 [in wrongful death suit against plaintiff’s former
husband alleging that his sexual abuse and torture caused her daughter’s
suicide, ex-husband’s prior denials of abuse were merely “a factor for the jury
to consider” in evaluating his later adoptive admission].)
As Muñoz suggests, In re Automobile Antitrust Cases I & II (2016)
1 Cal.App.5th 127 is instructive. Plaintiffs there sued various auto
manufacturers and trade associations, alleging a conspiracy to restrict
exports of lower-priced Canadian vehicles into the U.S. market. (Id. at
pp. 132−133.) Ford moved for summary judgment, arguing the plaintiffs
could not prove a conspiracy. (Id. at p. 137.) The trial court sustained Ford’s
hearsay objection to minutes from a trade association’s “ ‘Export Sales
Meeting’ ” that was attended by representatives of several manufacturers.
12
(Id. at p. 148.) The appellate court reversed, deeming the minutes
“a ‘textbook example’ ” of an adoptive admission. (Id. at p. 149.) They were
drafted by an employee of the trade association who attended the meeting,
and forwarded to an executive at Ford Canada for review and comment. The
executive made only minor revisions and “stated that he felt the minutes
‘generally captured the sense of what went on at the meeting’ and were
‘pretty accurate.’ ” (Id. at p. 149.) As the court reasoned, “by engaging in this
review and revision process, [the executive] clearly manifested his belief in
the accuracy of the meeting minutes. Presumably, had he seen any errors,
he would have corrected them.” (Ibid.)
Similarly, Lopez was given a chance to review the police accident
report. He was asked to comment on the statement attributed to him. By
stating it reflected a “pretty accurate summary of what happened,” Lopez
manifested his belief in the statement’s accuracy. It is immaterial that he
“was not involved in the preparation, review, or editing of the Police Report
before it was finalized or published,” as defendants suggest. He heard and
understood the statement under circumstances that plainly called for a
response and adopted the statement as true. No more is required. (See
People v. Charles, supra, 61 Cal.4th at pp. 322−323.) Accordingly, the
proffered statement was admissible against Lopez as an adoptive admission,
and it was error to exclude it.
d. The error was harmless.
For reversal to be warranted, Muñoz must establish that there was a
reasonable probability of a more favorable verdict absent the error. (Zhou,
supra, 157 Cal.App.4th at p. 1480.) A “reasonable probability for these
purposes does not mean an absolute probability; the likelihood that the error
affected the outcome need not be greater than the likelihood that it did not.”
13
(Sabato v. Brooks (2015) 242 Cal.App.4th 715, 725.) Here, the jury found in
favor of Muñoz on the question of Lopez’s negligence. And as we explain,
although the adoptive admission is relevant to the contextual question of
where the collision occurred, given Lopez’s otherwise consistent deposition
testimony it would have added little to the evidence already before the jury
on that question. In particular, there is no reasonable likelihood that receipt
of Lopez’s statement would cause the jury to evaluate the question of
comparative negligence differently. The trial court’s error in excluding
Lopez’s adoptive admission was therefore harmless.
Muñoz’s entire argument focuses on these four lines of the Lopez’s
statement to police:
“[Lopez] proceeded eastbound into the intersection and saw
[Muñoz]. [Muñoz] was riding [a bicycle], traveling
southbound in the east crosswalk, at the intersection of
Broadway Street and South Sixth Street. [Lopez] swerved
[his pickup truck] to the right in attempt to avoid colliding
into [the bicycle]. [The truck] collided into [the bicycle].”
It is undisputed that the key issues before the jury were who entered the
intersection first and what each should have seen. Muñoz claims the four
quoted lines would have established that Lopez saw Muñoz before the
collision; that Muñoz was riding her bicycle in the crosswalk when Lopez
struck her; that Muñoz was already in the crosswalk with the right-of-way at
the time Lopez collided with her; and that Lopez was the one who collided
with Muñoz, and not the other way around. She further claims the evidence
would have impeached Lopez’s testimony as to when and where he saw
Muñoz, as well as undercut the accident reconstruction expert’s timeline of
events. All of this, in her view, makes it reasonably probable that the jury
would have evaluated her comparative fault differently and increased her
ultimate award.
14
We disagree. Nothing in the adoptive admission establishes who was
in the intersection first. Lopez testified at trial that he did not see Muñoz at
any point before entering the intersection. He instead claimed to see her a
split second before impact and pieced together what happened after the fact.
That testimony is entirely consistent with his admission that he “proceeded
eastbound into the intersection and saw [Muñoz].” In other words, the
adoptive admission would not challenge Lopez’s trial testimony that he first
saw Muñoz a mere second before the collision. Muñoz’s strongest argument
was the rhetorical one raised by her counsel at closing—she had to have come
from somewhere, and Lopez did not see her because he was admittedly
conversing with Ortega.
Lopez’s testimony did differ in one factual respect from his admission—
regarding Muñoz’s location at the time of the collision. Lopez told police that
Muñoz was riding her bicycle “southbound in the east crosswalk.” At trial, he
denied ever seeing Muñoz in the crosswalk and claimed the collision
happened past the crosswalk. But this discrepancy has little bearing on the
question of comparative fault. As the trial court commented during the
conference on jury instructions, the real question was not Muñoz’s precise
location on the road but rather “who got there first” to have right-of-way.
Muñoz was not a pedestrian walking across the street. She was a cyclist
riding through the intersection on the wrong side of the road without
stopping at a stop sign. Significantly, the jury was instructed on the right-of-
way statute (Veh. Code, § 21800, subd. (a)), but not on rules governing
crosswalks. Impeaching Lopez on this collateral matter would not reasonably
have led the jury to find that Muñoz was less responsible.
Moreover, Lopez merely described the statement as being “pretty
accurate.” Had the adoptive admission been introduced at trial, defense
15
counsel could have explored what that meant. As the deposition excerpts in
our record reveal, shortly before Lopez adopted the police statement as
“pretty accurate,” he drew a circle to show that the collision happened past
the crosswalk. Defense counsel indeed focused on that aspect of his
deposition testimony at trial and elicited that Lopez had shown the officer
exactly where the collision occurred. When plaintiff’s counsel pressed Lopez
to answer why the police report placed Muñoz in the crosswalk, Lopez had a
plausible contextual answer: he had been telling the officer that Muñoz must
have been traveling north to south, not that she was in the crosswalk. It was
the jury’s role to decide what Lopez meant when he described the statement
as “pretty accurate”—i.e., whether he adopted it in whole or only in large
part. (See Kincaid, supra, 197 Cal.App.4th at p. 83.) Based on testimony
given at trial and evidence that could have been elicited based on the
deposition testimony had the admission come in, a jury would likely conclude
that Lopez did not believe that the police report’s description of Muñoz’s
position in the crosswalk was “pretty accurate.”
Given Lopez’s consistent testimony at his deposition that the accident
took place outside the crosswalk, and the fact that Muñoz’s precise
whereabouts were collateral to the primary issues of who entered the
intersection first and what they should have seen, there is no reasonable
likelihood that admitting the evidence would have produced a larger verdict.
2. Denial of Cost-of-Proof Sanctions
Muñoz challenges the court’s denial of her request for cost-of-proof
sanctions on issues of negligence and legal causation. As we explain, the
court did not abuse its discretion.
16
a. Additional Background
As noted, the jury found Lopez negligent and concluded his negligence
was a substantial factor in causing Muñoz’s harm. It reduced Muñoz’s
recovery, however, finding her 75 percent contributorily negligent. Following
the verdict, Muñoz filed a motion under Code of Civil Procedure section
2033.420 seeking cost-of-proof sanctions related to her proof of negligence and
legal causation. Attached to her motion were discovery requests she
propounded on the County in August 2017 and the County’s responses a
month later. Specifically, Muñoz asked the County to “Admit that the
VEHICLE Defendant LOPEZ was driving during the INCIDENT struck the
PLAINTIFF during the incident” (request No. 3). The County denied request
No. 3 on the ground that it lacked “sufficient information or belief as to the
movement of either vehicle or biomechanic [sic] of the accident at the time of
the collision.” Muñoz also asked the County to “Admit that Defendant
LOPEZ’[s] conduct during the INCIDENT was NEGLIGENT” (request No. 4).
The County denied that request as well, stating it “call[ed] for a legal
conclusion.”
In her motion, Muñoz argued the County lacked reasonable grounds at
the time it responded to believe it would prevail on the negligence or
causation issues encompassed in requests No. 3 and No. 4. At that time, the
County would have seen the police accident report, which blamed Lopez for
the collision and indicated he violated the right-of-way statute (Veh. Code,
17
§ 21800, subd. (a)).5 It would also have been aware of the dent in Lopez’s
work vehicle. Defendants’ accident reconstruction expert was not hired until
the eve of trial. Muñoz asserted that although the jury found her to be
contributorily negligent, the County had no reasonable basis to deny its own
negligence.
Defendants opposed the motion, arguing they had a reasonable and
good faith belief at the time they denied the requests that Lopez was not
negligent and that Muñoz had collided with him. In support of their position,
they submitted a declaration by attorney Mitchell Driskill, stating in relevant
part:
“2. In September 2017 Defendants were aware of only two
witnesses to the accident, Julian Lopez and Ramon Ortega.
Both testified that they had proceeded through the
intersection of Broadway and North Sixth Street after
stopping at the stop sign and after making sure the
intersection was clear of vehicles, pedestrians, and
bicyclists. Both testified that the collision occurred after
they cleared the intersection and both crosswalks. Lopez
testified that he only saw something out of the corner of his
eye an instant before the collision took place. Both Lopez
and Ortega identified the same location as the place of the
collision - East of the eastern crosswalk. There was no
evidence that Lopez violated any statute, ordinance, or
regulation or was the legal cause of Plaintiff’s injuries.
“3. These facts, the geography of the intersection, and the
time of the accident led Defendant’s [sic] to the following
preliminary inferences and conclusions:
5 The police accident report was attached as the final exhibit to Muñoz’s
cost-of-proof motion. Summarizing what occurred, the report stated that
Lopez proceeded through the intersection after Munoz was already in it and
did not see her in time to avoid the collision. It determined that Lopez
“caused this collision” by failing to “yield the right-of-way to any vehicle
which has entered the intersection from a different highway,” as required by
Vehicle Code section 21800, subdivision (a).
18
“a. That Plaintiff had likely been traveling southbound
on North Sixth Street against traffic or on the sidewalk;
“b. That as Plaintiff approached the intersection of
North Sixth Street and Broadway she was either
inattentive or impaired;
“c. That if Plaintiff had been paying attention to traffic
at all, she would have been paying attention to traffic
coming from the East on Broadway, not traffic coming
from the West, since the westbound traffic would pose
the most immediate and direct threat to her given her
path of travel;
“d. That Plaintiff likely darted into the intersection at a
speed that made it unlikely for Lopez to see her or avoid
her before the accident.
“e. That Plaintiff likely ran into the path of Defendant's
truck, striking the truck on the side of the front quarter-
panel, not the front bumper. . . .
“4. In September 2017 we had not yet retained expert
witnesses or determined what experts were required.”
At the hearing, the court indicated its tentative to deny cost-of-proof
sanctions. Noting that liability was disputed at trial, it highlighted trial
testimony by the accident reconstruction expert and the jury’s finding of
contributory negligence. In the court’s view, deposition testimony by Lopez
also supported the denials. The court indicated the nonsuit motion at the
close of plaintiff’s case “was about as close a call as I’ve had in a trial,” though
ultimately there was just enough evidence to warrant a jury finding. Both
parties submitted on the tentative, and the court adopted it as its ruling.
b. Legal Principles
During discovery, a party may request an admission from the other
side regarding an issue in controversy. (Code Civ. Proc., § 2033.010.)
Requests for admission serve to narrow the issues for trial. (Bloxham v.
Saldinger (2014) 228 Cal.App.4th 729, 752 (Bloxham).) “ ‘For this reason, the
19
fact that the request is for the admission of a controversial matter, or one
involving complex facts, or calls for an opinion, is of no moment.’ ” (Ibid.)
“[A] request may ask a party for a legal conclusion.” (Grace v. Mansourian
(2015) 240 Cal.App.4th 523, 529 (Grace).) Because a responding party has a
duty to make reasonable investigation of the facts, requests for admission can
seek information outside the responding party’s personal knowledge. (Ibid.)
A failure to admit opens the door to cost-of-proof sanctions. “If a party
fails to admit the genuineness of any document or the truth of any matter
when requested to do so . . . , and if the party requesting that admission
thereafter proves the genuineness of that document or the truth of that
matter, the party requesting the admission may move the court for an order
requiring the party to whom the request was directed to pay the reasonable
expenses incurred in making that proof, including reasonable attorney’s fees.”
(Code Civ. Proc., § 2033.420, subd. (a).) The statute requires an award of fees
and costs unless: (1) an objection to the request was sustained or a response
to it was waived, (2) the admission was of no substantial importance, (3) the
responding party reasonably believed it would prevail on the matter, or
(4) there was other good reason not to admit. (Id., subd. (b).) Whether these
exceptions apply is left to the trial court’s sound discretion, and we do not
disturb its ruling denying cost-of-proof sanctions unless it exceeds the bounds
of reason. (Bloxham, supra, 228 Cal.App.4th at p. 753.) “It is a deferential
standard of review that requires us to uphold the trial court’s determination,
even if we disagree with it, so long as it is reasonable.” (Ibid.)
c. No abuse of discretion occurred.
Muñoz argues the court applied improper criteria in denying her
request for cost-of-proof sanctions. Criticizing the court for focusing on the
evidence presented at trial, she argues the relevant inquiry is instead
20
whether the denials were reasonable when made. According to Muñoz, there
was no evidence to support a reasonable belief in 2017 that Lopez was not
negligent or that his negligence did not cause the accident. Muñoz points to
the fact that Lopez had yet to be deposed and the police report determined he
had caused the collision by failing to yield the right-of-way. In response,
defendants argue they reasonably believed they would prevail on issues of
negligence and causation. They suggest cost-of-proof sanctions may be
denied so long as they reasonably entertained a good faith—albeit ultimately
mistaken—belief that they would prevail. (See, e.g., Miller v. American
Greetings Corp. (2008) 161 Cal.App.4th 1055, 1066.)
Defendants have the better argument. Although worded imprecisely,
the attorney declaration submitted with their opposition brief reflects that
the County formed preliminary impressions of the case by September 2017
based on accounts given by Lopez and Ortega. These preliminary accounts
were consistent with later testimony given at trial. Based on these accounts,
the time of day, and the location of the incident, defendants believed Lopez
was not negligent and was not the legal cause of Muñoz’s injuries. These
denials corresponded with defendants’ answer, filed two months before,
pleading affirmative defenses that Muñoz “acted as to proximately cause and
contribute to the happening of the accident complained of,” and that
defendants were not the legal cause of her damages.
Defendants’ proffer amounted to more than mere “hope or a roll of the
dice.” (Grace, supra, 240 Cal.App.4th at p. 532.) On our record, the trial
court could fairly conclude that the County had a good faith belief it would
prevail at trial on negligence and causation issues at the time it refused to
admit that Lopez was negligent or the legal cause of Muñoz’s harm. (See
Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1277.) Cases in
21
which the defendant proffered no contemporaneous evidence to justify its
denial are inapposite. (See Wimberly v. Derby Cycle Corp. (1997) 56
Cal.App.4th 618, 638 [the only reasonable inference that could be drawn from
counsel’s actions was that defendant “had no reasonable belief it could prevail
on the causation and defect issues”]; Brooks v. Am. Broad. Co. (1986) 179
Cal.App.3d 500, 511 [it is not enough for the responding party to “ ‘hotly
contest’ ” the issue; “there must be some reasonable basis for contesting the
issue in question before sanctions can be avoided”].)
As Muñoz points out, Lopez and Ortega had yet to testify when the
County denied requests No. 3 and No. 4. And she is correct that the trial
court focused on what happened at trial in denying her motion. But as we
read it, the court was relying on events at trial to implicitly find it reasonable
for defendants to believe they would ultimately prevail on contested issues of
negligence and legal causation. (See Grace, supra, 240 Cal.App.4th at p. 531
[“[T]he mere fact defendants presented evidence at trial is not an automatic
justification for denial of the requests. Rather, the issue is whether, in light
of that evidence, defendants could reasonably believe they would prevail.”
(Italics added.)].) Granting due deference to the trial court, no abuse of
discretion occurred.
22
DISPOSITION
The judgment and order denying cost-of-proof sanctions are affirmed.
Defendants are entitled to their appellate costs.
DATO, J.
WE CONCUR:
IRION, Acting P. J.
GUERRERO, J.
23