Zuelke v. City of Modesto CA5 ( 2021 )

Filed 4/9/21 Zuelke v. City of Modesto CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
ROBERT ZUELKE,
F079299
Plaintiff and Appellant,
(Super. Ct. No. 2025944)
v.
CITY OF MODESTO et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Stanislaus County. John D.
Freeland, Judge.
Robert Zuelke, in pro. per., for Plaintiff and Appellant.
Arata, Swingle, Van Egmond & Heitlinger and Bradley J. Swingle for Defendant
and Respondent City of Modesto.
Mayall Hurley and Mark E. Berry for Defendant and Respondent The House
Modesto.
-ooOoo-
Plaintiff Robert Zuelke tripped and fell while walking on a public sidewalk
alongside a large pile of branches from a fallen tree. He saw the pile of branches as he
approached the area, but claimed he was momentarily blinded by the setting sun and got
his foot caught in a protruding branch. His personal injury lawsuit went to trial against
two defendants—the City of Modesto (the City), whose employee had worked at the site
earlier that day to cut and remove branches blocking the public sidewalk, and The House
Modesto (the House), the owner of the property whose tree had fallen. The jury found in
favor of both defendants; plaintiff recovered nothing, and a defense judgment was
entered by the trial court. Plaintiff appeals, arguing (i) the trial court erred in failing to
give a negligence per se jury instruction, (ii) the jury’s verdict was fatally defective or
inconsistent, and (iii) the special verdict form had flaws. We disagree with these
contentions and conclude that plaintiff has failed to demonstrate any reversible error.
Accordingly, the judgment of the trial court is affirmed.
FACTS AND PROCEDURAL HISTORY
Plaintiff’s Complaint
Plaintiff’s complaint for personal injury damages was filed on July 25, 2017.
Plaintiff alleged the House was liable based on general negligence and premises liability,
and plaintiff alleged the City was liable based on general negligence and alleged creation
of a dangerous condition on public property. Plaintiff’s trip and fall occurred on Friday,
July 29, 2016, between 7:00 p.m. and 8:00 p.m. in the evening, at the sidewalk in front of
property owned by the House on Norwegian Avenue in Modesto. After certain pretrial
and posttrial motions were made by each defendant, two causes of action remained:
general negligence against the House, and creation of a dangerous condition on public
property against the City.
The Trial
A jury trial of plaintiff’s case commenced on January 16, 2019, which was
conducted on nine separate days spread over a period of several weeks. Although
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plaintiff’s appeal does not challenge the sufficiency of the evidence to support the
verdict, we briefly highlight below some of the salient testimony, as background.
City employee David Ventura testified. He received a call on July 29, 2016, about
a downed tree or limb and drove to the location on Norwegian Avenue. He saw the fallen
tree and observed one limb was extending over the sidewalk and further over a grass area
and out into the parking lane. He observed it appeared to be a privately owned tree; but
in such cases the City will make the areas within its sphere of responsibility safe, such as
the sidewalk. He cut up and removed the branches that were on the sidewalk and stacked
the branches in the street near the curb (i.e., just outside the gutter pan) for subsequent
pick-up. When he left that evening, the sidewalk was clear of all branches and debris.
Placement of the branches in the street outside the gutter pan for pick-up was according
to City policy. He had arrived at the scene at approximately 4:30 p.m. and left between
5:30 and 6:00 p.m. Plaintiff, who was representing himself, showed a photograph to
Ventura that indicated the pile of branches, or some part of it, encroached onto the
sidewalk—at least at the time plaintiff’s photograph was taken. Ventura responded he
did not leave the branches the way they appeared in plaintiff’s photograph. Ventura was
certain that he would not, and did not, leave any branches on the sidewalk. Ventura
noted that, on some occasions, people in neighborhoods have been known to rummage
through woodpiles and move things around.
Ventura worked alone and no one from the House assisted Ventura in cutting or
moving tree limbs into the street to clear the public sidewalk. The House’s senior
associate pastor, Mike Trenton, testified the House was not involved in cutting up or
moving tree limbs on the date of plaintiff’s accident. If there was any minor work done
to remove branches by any employee of the House, it was not on July 29th. The House
did hire a tree service to remove the fallen tree, but that was later. According to Linda
Cosgrove, the director of facilities, maintenance and grounds for the House, she received
a call on a Friday afternoon between 3:00 and 4:00 p.m. from an aide at the House that a
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tree had fallen. Cosgrove believed it was a City tree and that it had fallen in the roadway
and needed to be cleared, so she called the City of Modesto tree department. It turned out
the House owned the tree, but she did not know that at the time. She did not personally
visit the property that day; she had called the City, and understood the City was taking
care of it. She did not herself remove any branches. She heard that another employee of
the House, Joe Spangler, may have removed a branch at one point, but she did not know
what day that took place. Spangler testified that he did not do any clean up or branch
removal on July 29, 2016. He has done some tree branch clearance work on other
occasions, but on July 29th he was not even aware that the downed limb and pile of
branches were there.
Plaintiff testified about his recollection of what happened when he fell. He was
walking on the sidewalk toward the west, and the sun was blinding. He saw something
ahead of him that at first looked like a “blob,” but as he approached, he could see that it
was a pile of branches that was occupying a part of the sidewalk. The left side of the
sidewalk appeared to be clear, so he walked in that direction to avoid the branches, but in
doing so he stepped on a twig that caused him to lose his footing, and then his ankle was
caught on an extended branch and he fell hard onto the sidewalk.
Proposed Jury Instruction Refused
Proposed jury instructions were discussed outside the presence of the jury. One of
the instructions requested by plaintiff was on the theory of negligence per se, as set forth
at CACI No. 418.1 The trial court denied the request and did not give the negligence per
se instruction to the jury.
The Jury’s Verdict
On February 4, 2019, the jury reached its verdict in the case using special verdict
forms that were approved by all parties. The verdict and findings of the jury were as
1 CACI is the Judicial Council of California Civil Jury Instructions.
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follows: On Special Verdict No. 1, regarding the claim against the City, the jury found
there was a dangerous condition of public property at the time of the incident, but also
found the dangerous condition was not a result of the negligence of City employee, David
Ventura, and that the dangerous condition was not a substantial factor in causing
plaintiff’s injury. On Special Verdict No. 2, regarding the claim against the House, the
jury found that the House was not negligent. Special Verdict No. 3 stated that plaintiff
was entitled to recover “zero” damages, and it also found that the City and the House
each were responsible for “zero” percent of the harm suffered by plaintiff, and that
plaintiff’s own negligence was responsible for “100 percent” of the harm.
Judgment on Verdict
On February 6, 2019, the trial court entered its judgment for defendants based on
the jury verdict. After plaintiff’s posttrial motion for new trial was denied, plaintiff filed
the instant appeal from the judgment. The City and the House each filed separate
respondent’s briefs herein.
DISCUSSION
I. Standard of Review
The question of whether the trial court erred in its instruction of the jury is
reviewed de novo. (Cumbre, Inc. v. State Comp. Ins. Fund (2010) 189 Cal.App.4th 1381,
1388.) A party is entitled to have the jury instructed as to its theory of the case provided
(1) that it requests and submits legally correct instructions, and (2) that there is sufficient
evidence to support the theory. (Thompson Pacific Construction, Inc. v. City of
Sunnyvale (2007) 155 Cal.App.4th 525, 547.) An erroneous refusal to instruct the jury is
reversible only if it is probable that the error prejudicially affected the verdict. (Taulbee
v. EJ Distribution Corp. (2019) 35 Cal.App.5th 590, 596; Galvez v. Frields (2001) 88
Cal.App.4th 1410, 1423.) We also review the validity of a special verdict de novo.
(Cumbre, Inc. v. State Comp. Ins. Fund, supra, 189 Cal.App.4th at p. 1388.)
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Where the construction of a statute or ordinance is at issue, we independently
review the question of statutory interpretation as a question of law, following well-settled
rules. (Kurz v. Syrus Systems, LLC (2013) 221 Cal.App.4th 748, 761.) The fundamental
objective of statutory interpretation is to ascertain and effectuate legislative intent.
(Burden v. Snowden (1992) 2 Cal.4th 556, 562.) In determining intent, we look first to
the language of the statute, giving effect to its plain meaning. (Ibid.) We give the words
their usual and ordinary meaning, while construing them in light of the statute as a whole
and the statute’s purpose. (Pineda v. Williams-Sonoma Stores, Inc. (2011) 51 Cal.4th
524, 529–530.) If there is no ambiguity in the language, we presume the Legislature
meant what it said, and the plain meaning of the statute governs. (Id. at p. 530; Microsoft
Corp. v. Franchise Tax Bd. (2006) 39 Cal.4th 750, 758.)
II. Trial Court Properly Refused to Give Negligence Per Se Instruction
Plaintiff contends he was entitled to a negligence per se instruction—also referred
to as CACI No. 418—based on defendants’ purported violation of a provision of the
Modesto Municipal Code that requires branches, leaves or other green waste material to
be placed for collection in the parking lane of the street outside of the curb or gutter. As
explained below, the trial court properly refused to give the subject instruction.
Where the doctrine of negligence per se is applicable, the standard of conduct
established by a relevant statute or ordinance is adopted as the duty of care for purposes
of a negligence cause of action. (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1210.) In
such cases, where the statute or ordinance is violated it creates a rebuttable presumption
of negligence. (Ibid.)
The negligence per se doctrine is codified in Evidence Code section 669,
subdivision (a), under which a presumption of negligence arises if the plaintiff establishes
four elements: (1) the defendant violated a statute, ordinance, or regulation; (2) the
violation proximately caused the plaintiff’s injury; (3) the injury resulted from the kind of
occurrence the statute, ordinance, or regulation was designed to prevent; and (4) the
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plaintiff was one of the class of persons for whose protection the statute, ordinance, or
regulation was adopted. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256,
1285; Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th
1502, 1526; accord, Taulbee v. EJ Distribution Corp., supra, 35 Cal.App.5th at p. 596.)
The last two elements are determined by the court as a matter of law. (Quiroz v. Seventh
Ave. Center, supra, 140 Cal.App.4th at p. 1285; Galvez v. Frields, supra, 88 Cal.App.4th
1410, 1420.) “That is, the trial court decides whether a statute or regulation defines the
standard of care in a particular case.” (Jacobs Farm/Del Cabo, Inc. v. Western Farm
Service, Inc., supra, 190 Cal.App.4th at p. 1526.)
Here, the crux of the dispute was whether the City of Modesto Municipal Code
provisions in question (i.e., sections 4-7.1101 through 4-7.1103 thereof) satisfied the last
two elements for application of negligence per se. Plaintiff argues negligence per se was
applicable because the defendants allegedly failed to comply with the above Municipal
Code provisions relating to the placement of green waste (e.g., branches, tree limbs,
leaves) in the street for the City’s collection. These Municipal Code provisions explicitly
address “systemizing the collection of large green waste, small green waste and leaves in
the City.” (§ 4-7.1101.) Section 4-7.1103 thereof governs the “placement” of the green
waste in the street for the purpose of collection. The section provides that branches and
other large green waste shall be placed in the street at least one and one-half feet away
from the foot of the curb, or if curbs do not exist, one and one-half feet from the point of
the gutters, “so as to permit drainage.” (§ 4-7.1103(a)(1)(ii).) Similar distance rules (i.e.,
one and one-half feet from curb or gutter “so as to permit drainage”) are stated for
placement of additional leaves and other small green waste in the street for collection
when, from the period of November 1 through December 31 of each year, the organic
recycling container is full. (§ 4-7.1103(a)(2).) Large green waste shall not extend into
the street more than three feet, and leaf piles shall not extend into the street more than
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four feet. (§ 4-7.1103(a).) No large green waste trimming piles or leaf piles may be
placed near sewer clean-outs or drains. (§ 4-7.1103(b).)
In rejecting plaintiff’s request that a negligence per se instruction be given, the
trial court explained its decision was based on its “obligation as a matter of law to
determine whether the statute was enacted by the City for the express purpose of ensuring
the public safety of pedestrians.” We agree with the trial court that the Municipal Code
provisions in question have nothing to do with the safe condition of sidewalks or of the
protection of pedestrians using the sidewalks. This conclusion follows from the clear
terms of said Municipal Code provisions, which are limited to the proper placement of
green waste in the street for collection purposes. Based on the express wording and
context thereof, it appears that the placement requirements for the collection of green
waste are intended to prevent interference with drainage at the curb or gutter areas, and
also to prevent the extension of green waste too far into the street. Furthermore, nothing
in these Municipal Code provisions mentions either sidewalks or the safety of sidewalk
pedestrians.
We conclude the subject Municipal Code sections were not enacted to protect
pedestrians from being injured while walking on public sidewalks, nor do they create a
standard of care concerning the safe condition of sidewalks. (See, e.g., Selger v. Steven
Brothers, Inc. (1990) 222 Cal.App.3d 1585, 1590 [ordinance did not create a duty of care
to third persons regarding the sidewalk’s condition because the ordinance did not clearly
so provide].) Therefore, this was not an appropriate case for application of the
negligence per se doctrine, and the trial court correctly refused to give an instruction on
that theory.
The City presents an additional or separate argument for affirming the trial court’s
decision to refuse CACI No. 418: the specific instruction does not apply to a public
entity. The argument is technically correct. Where a public entity is the defendant, the
more accurate instruction would be CACI No. 423, which is an analogous instruction to
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CACI No. 418 applicable to public entities. Thus, the failure to propose the correct
instruction regarding the City is an additional ground for upholding the trial court’s
decision as to the City. (See Thompson Pacific Construction, Inc. v. City of Sunnyvale,
supra, 155 Cal.App.4th at p. 547 [party must have requested and presented a legally
correct instruction].)
We note the minor differences between the two instructions are apparently due to
the distinct statutory basis for liability against public entities and do not impact our
analysis or conclusion. The concept of negligence per se can be applied to public entities
under the specific statutory framework of Government Code section 815.6. It has been
recognized that Government Code section 815.6 “applies to public entities the familiar
rule of tort law that violation of a legislatively prescribed standard of care creates a
rebuttable presumption of negligence.” (Lehto v. City of Oxnard (1985) 171 Cal.App.3d
285, 292; see also Alejo v. City of Alhambra (1999) 75 Cal.App.4th 1180, 1185, fn. 3
[Gov. Code, § 815.6 “applies the negligence per se doctrine to public entities”].) Under
this section, “the government may be liable when (1) a mandatory duty is imposed by an
enactment, (2) the duty was designed to protect against the kind of injury allegedly
suffered, and (3) breach of the duty proximately caused injury.” (State Dept. of State
Hospitals v. Superior Court (2015) 61 Cal.4th 339, 348.) The trial judge decides the
issues of whether the statute imposes a mandatory duty on the public entity and whether
it was designed to protect against the type of harm suffered. (Haggis v. City of Los
Angeles (2000) 22 Cal.4th 490, 499.) Generally, because of the close parallel to the
analysis under Evidence Code section 669, “[d]iscussions of whether a mandatory duty
exists under Government Code section 815.6 and whether a standard of care has been
legislatively prescribed under Evidence Code section 669 are … interchangeable.”
(Brenneman v. State of California (1989) 208 Cal.App.3d 812, 816–817, fn. 2.)
Here, our analysis and conclusion that the subject Municipal Code sections do not
create a duty of care to plaintiff clearly apply with equal force to both defendants—the
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City as well as the House. As we have stated, this was not a proper case for instructing
the jury on the negligence per se theory; and that would be true regardless of which
version of the instruction were considered. The trial court did not err in refusing to
instruct the jury on that theory.
III. Special Verdict Was Not Fatally Defective or in Violation of Law
As noted above, the jury found by means of special verdict that (i) the House was
not negligent and (ii) the City’s actions were not a substantial factor in causing plaintiff’s
harm. Therefore, plaintiff took nothing. Plaintiff attacks the legal validity or consistency
of certain aspects of the special verdict. As explained below, plaintiff has failed to
demonstrate the existence of any error, much less reversible or prejudicial error.
A. Overview of Special Verdict
We first summarize in greater detail the nature and effect of the special verdict that
was reached by the jury. As noted, in making its findings, the jury utilized three special
verdict forms that were agreed to by the parties, identified as Special Verdict No. 1,
Special Verdict No. 2 and Special Verdict No. 3.2 Special Verdict No. 1 addressed the
cause of action against the City for dangerous condition of public property; Special
Verdict No. 2 addressed the cause of action against the House for general negligence; and
Special Verdict No. 3 concerned damage amounts and comparative negligence.
Special Verdict No. 1 and Special Verdict No. 2 each contained a series of
questions that correlated to the essential elements of the respective cause of action under
consideration. On Special Verdict No. 1, the jury responded “no” to question No. 5,
which asked: “[w]as the dangerous condition a substantial factor in causing harm to
[plaintiff].” Thus, the jury found that an essential element of plaintiff’s case against the
2 We refer to the entire verdict of the jury as simply the verdict or special verdict;
we refer to the discrete parts of the verdict and/or the special verdict forms by the title
given to each—i.e., Special Verdict No. 1, Special Verdict No. 2 and Special Verdict
No. 3.
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City was not established. (See Milligan v. Golden Gate Bridge Highway &
Transportation Dist. (2004) 120 Cal.App.4th 1, 9 (Milligan) [causation an essential
element]; Gov. Code, § 835 [“a public entity is liable for injury caused by a dangerous
condition of its property if the plaintiff establishes … the injury was proximately caused
by the dangerous condition” (italics added)].) To prove the element of causation,
plaintiff was required to show that “the dangerous condition in question was a substantial
factor in causing his … harm.” (Milligan, supra, 120 Cal.App.4th at pp. 8–9; accord,
CACI No. 1100; CACI No. 430.) The jury was properly instructed on the meaning of
what constitutes a substantial factor for purposes of causation (see CACI No. 430), and
found it was not shown. There is no liability on a cause of action for dangerous condition
of public property where, as here, the plaintiff fails to establish causation by proving the
defendant’s conduct was a substantial factor in bringing about his harm. (Bowman v.
Wyatt (2010) 186 Cal.App.4th 286, 312, 314.)
On Special Verdict No. 2, the jury responded “no” to question No. 1, which asked
“[w]as [the House] negligent?” Since the only cause of action against the House was for
negligence, the finding of no negligence manifestly defeated any potential liability
against the House for plaintiff’s injuries. In short, the jury unequivocally found that
neither the City nor the House were liable to plaintiff.
In addition, Special Verdict No. 1 and Special Verdict No. 2 both specifically
instructed the jurors that if any one of the necessary elements (such as negligence or
causation) of the cause of action was not found—i.e., if the jurors answered “no” to those
questions—the number “zero” should be inserted next to the respective defendant’s name
in question No. 3 of Special Verdict No. 3. Question No. 3 of Special Verdict No. 3
involved the “percentage of responsibility for [plaintiff’s] harm” assigned to each party,
or comparative fault. As instructed, the jury inserted the number zero (i.e., zero percent
fault or responsibility) next to the House and the City. Special Verdict No. 3 also found
that plaintiff was 100 percent at fault for his accident.
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After the above verdict was announced, the jury was polled. Each of the above
findings of the jury were reached by the agreement of at least nine of the 12 members of
the jury, as required by law. (Code Civ. Proc., § 618; Cal. Const., art. I, § 16.)
B. Plaintiff’s Challenge to Special Verdict Without Merit
We review the legal validity of a special verdict de novo. (Singh v. Southland
Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358.) A special verdict is inconsistent if
there is no possibility of reconciling its findings on the essential issues. (Fuller v.
Department of Transportation (2019) 38 Cal.App.5th 1034, 1038.) If a special verdict is
not fatally inconsistent or otherwise hopelessly ambiguous, the court may interpret the
verdict from its language considered in connection with the pleadings, evidence and
instructions in the record. (Ibid.; Woodcock v. Fontana Scaffolding & Quip. Co. (1968)
69 Cal.2d 452, 456–457; see also Zagami, Inc. v. James A. Crone, Inc. (2008) 160
Cal.App.4th 1083, 1092; All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212,
1223.) Even if a defect in the special verdict is shown, we apply a harmless error
analysis. (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1244.)
Plaintiff argues a fatal inconsistency existed in the special verdict because, in
response to question No. 1 of Special Verdict No. 3, four jurors indicated when polled
that they stated a dollar amount of $2,700 as the medical expenses incurred by plaintiff.3
The other eight jurors answered zero to that question on medical expenses. We reject
plaintiff’s assumption that this circumstance caused the findings on the special verdict to
be fatally inconsistent. As the trial court observed shortly after the jury was discharged,
the jurors proceeded to answer the question on medical expenses or damages because,
under the written special verdict forms, they were not told to do otherwise. Thus,
although the question of damages was clearly superfluous in light of the jury’s prior
3 Attorneys for the City and the House argued in closing argument the only possible
damage amount shown by plaintiff at trial for medical expenses was $2,700 for his
chiropractic bills.
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findings of nonliability on Special Verdict No. 1 (no causation) and Special Verdict No. 2
(no negligence), the jurors were simply following the trial court’s general instructions to
address each question unless told not to do so. The trial court explained: “The Court
finds that [the verdict is] in order because they should have never got to damages
because, number one, they found [the House] not negligent. And although they found the
City negligent, they also found that it was not a substantial factor in causing [plaintiff’s]
harm. So technically they shouldn’t have gotten to the damages portion. [¶] But the
verdict was simplified so that they wouldn’t—if we had given written instructions, that
would have told them what to do in terms of going to the damages or not going to the
damages. I think it would have been too cumbersome. And so everyone approved the
verdict form as is.” We agree with the trial court’s reasonable interpretation of the
verdict. Additionally, we note the complete wording of question No. 1 of Special Verdict
No. 3 reflects that any medical expenses indicated could be entirely due to plaintiff’s own
fault; therefore, the mere fact that a dollar amount was inserted would not in any way
indicate who was liable.4 Finally, the fact that there were not nine votes for any
particular amount of medical expenses meant the jury never reached agreement for
making any finding on that issue. On the other hand, the jury did reach agreement on
lack of causation (as to the City) and on lack of negligence (as to the House), which
findings were fully dispositive of the action and meant that nothing remained for the
court but to enter judgment for defendants. (See, e.g., Contreras v. Goldrich (1992) 10
Cal.App.4th 1431, 1433–1434 [failure of jury to reach agreement on negligence issue on
special verdict was not ground for reversal where the jury did find a lack of causation,
which was dispositive]; accord, Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156,
1189.) For all of the foregoing reasons, we find no fatal inconsistency in the verdict.
4 Question No. 1 of Special Verdict No. 3 specifically stated that the jurors should
“not reduce the damages based on the fault, if any, of [plaintiff] ….”
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Based on the same assumptions, plaintiff also argues that inasmuch as four jurors
had indicated $2,700 in medical expenses were incurred, while the other eight answered
zero, that portion of the verdict violated the legal requirement of three-fourths agreement.
(Code Civ. Proc., § 618; Cal. Const., art. I, § 16.) We disagree. Because the medical
expense issue was rendered superfluous once defendants’ nonliability was established by
the prior findings in Special Verdict No. 1 and Special Verdict No. 2, the issue no longer
had any relevance to the case and so jury assent on that issue was unnecessary.
We conclude that plaintiff has failed to demonstrate the special verdict was fatally
inconsistent or otherwise legally invalid.
IV. No Prejudicial Error as to Special Verdict Form
Lastly, plaintiff argues the special verdict form was incomplete and invalid
because it did not allow the jury to make a separate finding of plaintiff’s negligence in the
portion of Special Verdict No. 3 that addressed comparative fault. Question No. 2
thereof asked the jury if “[plaintiff’s] negligence [was] a substantial factor in causing his
harm[,]” but failed to first ask whether he was negligent. Plaintiff argues this omission
violated the rule that a special verdict is fatally defective if it does not allow the jury to
resolve every controverted issue. (See Trejo v. Johnson & Johnson (2017) 13
Cal.App.5th 110, 136–137 [necessary element of failure to warn theory improperly
omitted from special verdict].) We reject plaintiff’s contention because the error, if any,
was clearly not prejudicial. (Taylor v. Nabors Drilling USA, LP, supra, 222 Cal.App.4th
at p. 1244 [harmless error standard applies to special verdict issues].) The purported
error was nonprejudicial because in the jury’s findings under Special Verdict No. 1 and
Special Verdict No. 2, both defendants were not liable to plaintiff as a matter of law
based on the failure by plaintiff to prove essential elements of his claims against them.
Thus, comparative fault did not come into play in this case, as neither defendant had any
legal responsibility for plaintiff’s injury. That being so, any defect in the special verdict
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form relating to comparative fault was manifestly harmless. (See Cal. Const. art. VI,
§ 13; Code Civ. Proc., § 475.)
DISPOSITION
The judgment of the trial court is affirmed. Defendants are awarded costs on
appeal.
LEVY, Acting P.J.
WE CONCUR:
FRANSON, J.
PEÑA, J.
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