Mohammadi v. City of Fresno CA5 ( 2023 )

Filed 7/24/23 Mohammadi v. City of Fresno 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
REZA MOHAMMADI,
F083633
Plaintiff and Respondent,
(Super. Ct. No. 16CECG01808 )
v.
CITY OF FRESNO et al., OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler
Tharpe, Judge.
Manning & Kass, Ellrod, Ramirez, Trester, Scott Wm. Davenport and Steven J.
Renick for Defendants and Appellants.
Jeremy M. Dobbins for Plaintiffs and Respondents.
-ooOoo-
Appellants/defendants City of Fresno (City) and Steven Wallace, a City employee,
(collectively, defendants) appeal from a judgment on special verdict (judgment) entered
against them and in favor of plaintiff/respondent Reza Mohammadi, and from the trial
court’s ruling on defendants’ motion for new trial and judgment notwithstanding the
verdict (posttrial ruling) which the court denied.
We affirm the judgment and the trial court’s posttrial ruling.
FACTUAL AND PROCEDURAL BACKGROUND
On June 6, 2016, Mohammadi filed his original complaint against defendants for
negligence in connection with a November 9, 2015, accident involving a City bus
operated by Wallace in the course of his City employment and a vehicle operated by
Mohammadi (the subject incident).
The original complaint was amended several times culminating in the operative
third amended complaint, which alleged two negligence causes of action in connection to
two separate accidents, the subject incident and an earlier, August 2015, accident
involving a Porsche driven by defendant Larry Matson and the car in which Mohammadi
and his son were travelling (the 2015 Porsche incident). The 2015 Porsche incident was
resolved before trial and this action proceeded to trial on Mohammadi’s claims against
defendants.
Trial commenced in September 2021. Defendants admitted fault in connection
with the subject incident. Thus, the issues to be determined at trial included (1) the total
amount of Mohammadi’s damages; (2) the percentage of fault to be attributed to
defendants, if any, after taking into account the fault of others, if any; and (3) the amount
of damages awarded, if any, against defendants.
Mohammadi had been involved in two additional motor vehicle accidents before
the subject incident and 2015 Porsche incident—a January 2010 accident that occurred in
Texas when Mohammadi and his spouse were driving on a congested highway and were
struck from behind by a pickup truck (2010 Texas incident), and a January 2014 accident
in which Mohammadi was in the waiting room of a medical office when a tow truck
crashed through the office wall and caused him to be pushed into another office wall
(2014 tow truck incident).
2.
In a special verdict, the jury found (1) defendants’ negligence was a substantial
factor in causing Mohammadi’s harm; (2) total damages after the subject incident
(without a reduction, if any, for damages resulting from prior incidents) were $175,000
for past noneconomic loss, and $900,000 for future noneconomic loss, for a total of
$1,075,000; (3) the driver of the other vehicle in the 2010 Texas incident was not
negligent; (4) the driver of the tow truck in the 2014 tow truck incident was not negligent;
(5) the driver of the Porsche in the 2015 Porsche incident was not negligent; and (6)
defendants were 100 percent responsible for Mohammadi’s harm.
On October 5, 2021, the trial court entered judgment against defendants and in
favor of Mohammadi in the amount of $1,075,000 with interest thereon at 10 percent
until paid.
On November 5, 2021, defendants filed their notice of the motion for a new trial
and for judgment notwithstanding the verdict (JNOV), and supporting papers for both.
The grounds for the two posttrial motions were largely the same as those presented in this
appeal.
In December 2021, the trial court issued its posttrial ruling denying both the
motion for new trial and the JNOV motion. Defendants timely appealed the judgment
and the posttrial ruling.
DISCUSSION
I. THE TRIAL COURT DID NOT ERR WITH REGARD TO DR. PAZOKI’S
TESTIMONY
Defendants contend it was error for the court to allow Mohammadi’s treating
chiropractor, Nicole Pazoki, “to provide expert biomechanical testimony and opine
regarding crash test videos which she obtained from the internet, even though she had not
been designated as an expert in this area nor had any training in this area.” Aside from
making this contention, defendants provide no legal authority or further discussion in
3.
their opening brief to support these contentions. In their reply brief, defendants devote a
single paragraph to these contentions, as follows:
“Turning first to Nicole Pazoki, while it is beyond dispute that [Dr. Pazoki]
was a treating chiropractor, this background does not give rise to the ability
to provide expert biomechanical testimony, a wholly unrelated specialty
which exceeds the scope of her training and experience. As the party
proffering this testimony, this was Mohammadi’s burden. See Evidence
Code [section] 720.”
The implied contention that Mohammadi was required to designate Dr. Pazoki as
an expert in the field of biomechanics is unsupported by defendants. “If an argument in
an appellate brief is supported by only an opinion or argument of appellant’s counsel
without ‘citation to any recognized legal authority,’ that argument may be deemed
waived for failure to present supporting substantive legal analysis.” (In re A.C. (2017) 13
Cal.App.5th 661, 672.) “It is not our place to comb the record seeking support for
assertions parties fail to substantiate.” (Howard v. American National Fire Ins. Co.
(2010) 187 Cal.App.4th 498, 534.)
Nicole Pazoki, DC was disclosed by Mohammadi as a nonretained expert. Under
Code of Civil Procedure section 2034.260, subdivision (b)(1), Mohammadi was required
to provide “[a] list setting forth the name and address of a person whose expert opinion
that party expects to offer in evidence at the trial.” This was done. Subdivision (c) of
said statute provides that, in the case of retained experts, additional disclosures are
required including, without limitation, a “brief narrative statement of the qualifications of
each expert” and a “brief narrative statement of the general substance of the testimony
that the expert is expected to give.” (Code Civ. Proc., §§ 2034.260, subd. (c)(1), (2),
2034.210, subd. (b).) Defendants do not provide legal authority to support their implied
contention that Dr. Pazoki, as a nonretained expert, was subject to heightened disclosure
requirements in addition to those imposed by Code of Civil Procedure section 2034.260,
subdivision (b)(1). As a result, we deem the contention waived.
4.
Similarly, defendants do not present on appeal any legal authority or cogent
argument as to why Dr. Pazoki should not have been allowed to opine regarding “crash
test videos which she obtained from the internet.” “ ‘In order to demonstrate error, an
appellant must supply the reviewing court with some cogent argument supported by legal
analysis and citation to the record.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC
(2019) 36 Cal.App.5th 142, 146.) We conclude defendants have forfeited any claim of
error as to Dr. Pazoki’s testimony concerning the crash test videos.
We now turn to defendants’ contention that Dr. Pazoki had insufficient expertise
to testify as to biomechanical issues. Evidence Code section 720 provides:
“(a) A person is qualified to testify as an expert if he has special
knowledge, skill, experience, training, or education sufficient to qualify
him as an expert on the subject to which his testimony relates. Against the
objection of a party, such special knowledge, skill, experience, training, or
education must be shown before the witness may testify as an expert.
“(b) A witness’ special knowledge, skill, experience, training, or education
may be shown by any otherwise admissible evidence, including his own
testimony.” (Evid. Code, § 720.)
“ ‘Whether a person qualifies as an expert in a particular case ... depends upon the
facts of the case and the witness’s qualifications.’ [Citation.] ‘[T]he determinative issue
in each case is whether the witness has sufficient skill or experience in the field so his
testimony would be likely to assist the jury in the search for truth.’ ” (Howard
Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1115.)
“The trial court is given considerable latitude in determining the qualifications of
an expert and its ruling will not be disturbed on appeal unless a manifest abuse of
discretion [is] shown.” (People v. Singh (1995) 37 Cal.App.4th 1343, 1377.) “The
sufficiency of the showing of qualifications of a witness to testify as an expert is a matter
resting largely in the discretion of the trial court, and its ruling will not be disturbed if
there is any substantial evidence to support it.” (Humiston v. Hook (1948) 86 Cal.App.2d
101, 105.)
5.
Here, the trial court conducted a hearing pursuant to Evidence Code section 402
(402 hearing) to determine whether Dr. Pazoki had the requisite qualifications of an
expert on biomechanics. Dr. Pazoki testified she took an in-person course consisting of
four modules in “Whiplash Injury: Biomechanics and Brain Traumatology.” She
continued, “[e]ach module is like a -- you would say 20 -- almost 24 hours.” She further
testified, “the whole principal of chiropractic is based on biomechanics. The forces apply
to the body. What is the cervical region is [sic] going to do when a force is being
applied, what is going -- the thoracic is going to do or the motion, whatever external
motion or a blow to the spinal cord. These are all biomechanics.” Dr. Pazoki also stated
that, to a lesser extent, “we study biomechanics from the get-go when we go through
chiropractic school” and explained how biomechanics relate to, and are used in,
chiropractic treatments.
Defendants’ categorical statements that biomechanics is a specialty “wholly
unrelated” to chiropractic therapy, that Dr. Pazoki had no training in biomechanics, and
that the field of biomechanics “exceeds the scope of [Dr. Pazoki’s] training and
experience” are not supported by the record on appeal. The evidence developed during
the 402 hearing shows that Dr. Pazoki had nearly 96 hours of training in the subject (i.e.,
four modules at almost 24 hours each) and that the field is related to the chiropractic care
Dr. Pazoki provides. Defendants provide no argument or authority to demonstrate that
Dr. Pazoki’s educational training is insufficient to qualify her as an expert in
biomechanics based on the facts in this case. Consequently, we conclude the trial court
did not abuse its discretion in denying defendants’ motion in limine to preclude such
testimony. Substantial evidence supports a determination Dr. Pazoki had sufficient
qualifications to provide such testimony.
We also reject defendants’ additional claim of error that Dr. Pazoki’s trial
testimony was prejudicial. However, defendants do not cite to any testimony of Dr.
Pazoki before the jury which they contend should not have been admitted or was
6.
prejudicial. The mere fact that the trial court denied defendants’ motion in limine to
preclude portions of Pazoki’s testimony does not demonstrate that her jury testimony was
objectionable and prejudicial. It was defendants’ burden to “affirmatively show
prejudicial error.” (Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370,
403, italics omitted.) Defendants have not carried their burden with respect to Dr.
Pazoki’s testimony.
II. THE TRIAL COURT DID NOT ERR WITH REGARD TO JON SHIN’S
TESTIMONY OR THE DEMONSTRATIVE EVIDENCE HE PREPARED
Defendants next contend the trial court erred with respect to the introduction of
expert testimony over their objection by allowing Mohammadi’s witness, Jon Shin,
retained as an accident reconstruction expert, to testify concerning a computer generated
animation he prepared to reconstruct the subject incident. Defendants argue the
animation was without foundation and not tethered to the facts.
Defendants point to Mr. Shin’s testimony during a 402 hearing that his animation
did not take into account “the real world weight of the vehicles”; “was not to scale”; “did
not take into account what biomechanics did”1; and “depicted a direct force animation
despite the fact that the accident in question was not a bumper-to-bumper accident and,
instead, caused a spinning rotation.” They argue prejudice is demonstrated because “a
video-graphic reconstruction is compelling evidence which is hard for a lay jury to
disregard” and the prejudicial impact of the evidence outweighed its probative value. We
disagree.
“A trial court’s decision to admit … demonstrative evidence is reviewed for abuse
of discretion.” (People v. Duenas (2012) 55 Cal.4th 1, 21 (Duenas).) Moreover, “A trial
court’s decision to admit demonstrative evidence under section 352 will be upheld on
1 We presume Defendants’ contention that Mr. Shin’s testimony “did not take into
account what biomechanics did” is a reference to Mr. Shin’s testimony that he did not
work with a biomechanical engineer in developing the animation.
7.
appeal unless the prejudicial effect of the evidence clearly outweighs its probative value.”
(People v. Rivera (2011) 201 Cal.App.4th 353, 362–363.) Such evidence “ ‘is admissible
only where (1) the demonstration is relevant, (2) its conditions and those existing at the
time of the alleged occurrence are shown to be substantially similar and (3) the evidence
will not consume undue time or confuse or mislead the jury.’ ” (Id. at p. 363.)
“Courts and commentators draw a distinction between computer animations and
computer simulations. [Citation.] ‘Animation is merely used to illustrate … testimony
while simulations contain scientific or physical principles requiring validation.
[Citation.] Animations do not draw conclusions; they attempt to recreate a scene or
process, thus they are treated like demonstrative aids. [Citation.] Computer simulations
are created by entering data into computer models which analyze the data and reach a
conclusion.’ [Citations.] In other words, a computer animation is demonstrative
evidence offered to help a jury understand … testimony or other substantive evidence
[citation]; a computer simulation, by contrast, is itself substantive evidence.” (Duenas,
supra, 55 Cal.4th at p. 20.) “Courts have compared computer animations to classic forms
of demonstrative evidence such as charts or diagrams that illustrate … testimony.
[Citations.] A computer animation is admissible if ‘ “it is a fair and accurate
representation of the evidence to which it relates....” ’ ” (Ibid.)
In determining the admissibility of the animation, the trial court stated, “there are
certainly some deficiencies in its preparation. It’s not the best evidence. I’m going to
allow that to be shown to the jury, admitted into evidence, and the deficiencies can be
argued to the jury as to the weight of the evidence.” Defendants were advised by the
court they could “augment and bring in [a] reconstructionist to point out the deficiencies
in the video.” However, the record on appeal does not include testimony from an
animator or reconstructionist called by defendants.
The record on appeal does not contain trial testimony from Mr. Shin—only
testimony from the 402 hearing. Thus, it appears defendants’ argument goes to the
8.
admission of the animation itself rather than the testimony of Mr. Shin. Notably, the
animation itself was not designated as part of the record on appeal.
When Mr. Shin was asked at the 402 hearing how he made his calculations
concerning “the speed or any angle of rotation or any rate of movement”, he responded,
“this is keyframe animation.[2] So, similar to traditional animation, a key point, the
positions and rotations of the vehicles involved are placed, and the initial things that are
fed into the computer are, of course, the speed of both the vehicles, and effort was made
to try to match that as closely as possible to the known facts based on that video
primarily, as well as the police report and the eyewitness accounts of what happened.
And as far as individual angles, those were keyframed by hand. So, as in, you know, just
placed there in an effort to make things look physically realistic, based on the principals
of animation, action, reaction, and those kind of dynamic motions. So, not every single
angle would be precisely what it actually was, of course, because there’s limited data
involved. But where possible, effort was made to match it to the known facts.” When
asked how he obtained “the scale for the individual vehicles,” he responded “So, the
vehicles were the purchased off the online marketplace. I also personally happen to drive
a Corolla similar to the one involved in the case. So, I was able to check the
measurements of [sic] lining up to real world measurements.”
Mr. Shin testified that the City bus had “some cameras, as well as a record of the
speed it was going at the time of the accident” and that he “gathered [information] from
the video taken and produced” by defendants. He also considered photos and police
2 Oxford Reference defines “keyframe,” as follows: “1. In animation, the drawings
that define the start and end of an action: for example, if a figure raises their hand, the
first keyframe would be the hand by the figure’s side and the next would be the hand
fully extended. Inbetween frames are frames that fill in all the points between. [¶] 2. In
computer special effects, a set of programmable markers that define a point in a transition
between two states so that the computer can generate inbetween frames: see
also interpolation.” ( [as of Jun. 28, 2023])
9.
reports in developing the animation. He was asked, “Do you know if the actual video of
the accident is consistent with the animation—or what the animation depicts?” He
responded, “Yes, to the extent that it can be. I mean the bus video shows the bus, you
know, approaching and getting closer to the car. And so, after it was made to make it
match as closely as possible, given that it’s a different angle, and there are things seen in
the animation that are not seen in the -- from the bus.” Mr. Shin’s 402 hearing testimony
established the animation was not a computer simulation as described in Duenas and was
intended to be demonstrative evidence that adhered to the known facts in the case.
Witness Andrey Grinko testified he was traveling southbound on freeway 41 in the
middle lane at the time of the subject incident. The City bus was in the right hand lane
some six or seven car lengths ahead of him. The driver of the City bus was drifting in
and out of his lane, into the middle lane, and then toward the shoulder of the freeway.
Mr. Grinko saw Mohammadi’s car change lanes as if to exit on Shaw Avenue in Fresno
and saw it “spinning out in front of the bus.” He pulled over and noticed Mohammadi’s
car “was pretty beat up,” that there was damage to the “driver’s side quarter panel, rear
quarter panel,” that “the wheel was torn off,” and that the side and front airbags had
deployed.
Mr. Grinko was asked, “[n]ow, understanding that this is obviously not the actual
bus and the actual car, it’s a re[-]creation, it’s an animation, is it still -- is it representative
of the collision that you saw that night?” Mr. Grinko replied in the affirmative. He was
asked, “[i]n what way?” to which he responded, “I remember seeing the -- the car get
rear-ended similar in that fashion, and I specifically remember the car spinning out on the
freeway.” He was then asked, “would you say it’s an accurate depiction of the accident
from your perspective?” to which he replied, “Yes. Yeah.”
Defendants do not cite any case law or other authority that requires demonstrative
evidence be drawn to scale. “Even if not drawn to scale, [demonstrative evidence] may
still be admissible as a graphic aid to testimony (e.g., a witness’ drawing of an
10.
intersection). But the judge will need to caution the jury regarding this fact. It is
opposing counsel’s responsibility to ask (or remind) the judge to so inform the jury.”
(Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2022)
¶ 4:66.) Defense counsel has not directed this court to any attempt on their part to request
a cautionary instruction concerning the scale of the animation. No compelling argument
has been made to suggest that differences between the animation’s scale and the actual
scale rendered the evidence misleading. Similarly, defendants do not cite any case law or
other authority, and make no compelling argument, to suggest that the “real world weight
of the vehicles” needed to be used, or that a biomechanical engineer needed to be
consulted, in the preparation of the animation.
Most notably, Mr. Grinko indicated the animation was an accurate depiction of the
subject incident from his perspective and stated Mohammadi’s car was “rear-ended in a
similar fashion” to that depicted in the animation.
The trial court did not abuse its discretion in admitting the animation. The
animation was relevant and depicted the salient details of the accident from Mr. Grinko’s
perspective. Although defendants contend the animation was misleading and unduly
prejudicial, they have not shown it to be either.
III. NO PREJUDICIAL ERROR HAS BEEN DEMONSTRATED WITH REGARD
TO DR. BRICE’S TESTIMONY
Defendants contend the trial court erred by allowing Dr. Brian Brice, M.D., a
physiatrist or physical medical rehabilitation specialist, to “improperly expand[] on his
prior deposition testimony at trial” and by allowing Dr. Brice to provide “testimony
which was not only hearsay and in violation of People v. Sanchez (2016) 63 Cal.4th 665[(Sanchez)], but also contrary to a defense motion in limine.” We disagree.
11.
A. Defendants Failed to Demonstrate Dr. Brice Improperly Expanded on His
Prior Deposition Testimony
Defendants contend “Dr. Brice gave deposition testimony in which he specifically
testified that he had formed the professional opinion that Mohammadi’s injuries were
cumulative in nature; however, at … trial, Dr. Brice recanted this testimony and testified
that Mohammadi had fully recovered from any prior injuries in violation of the motion in
limine.” (Italics omitted.)
In trial testimony cited by defendants, Dr. Brice stated that, with respect to the
2014 tow truck incident, Mohammadi was “in a lot of pain afterwards”; “had multiple
complaints that need[ed] to be checked out”; and those complaints “were thoroughly
evaluated in the emergency room.” With regard to the 2015 Porsche incident, Dr. Brice
testified “there was a lot of stuff going on with regard[] to [Mohammadi’s] complaints.
And he -- I feel that he never really got better. I mean I feel like, you know he was in the
process of rehabilitating his spine, and the last event [presumably a reference to the
subject incident] actually made things a lot worse.” Defendants objected on grounds this
testimony violated their motion in limine No. 1 to prohibit “designated experts from
offering opinions not disclosed at the time of their respective depositions.”
The deposition testimony defendants contend demonstrates the trial testimony
violated motion in limine No. 1 reads:
Q. “What are the opinions and conclusions you intend to opine in this
matter?”
A. “Okay. Well, I intend to express that, you know, from the information
that I was able to obtain and based on the evaluation of -- direct evaluation
of the claimant that he sustained a serious injury that affected his spine, and
that it was due to the motor vehicle crashes.”
Q. “What motor vehicle accident?”
A. “My position is that it was cumulative. So, there were multiple motor
vehicle accidents according to the records, and I feel as I read the records
and the treatments that were provided to him, you know, his, once again,
12.
his medical trajectory was a synergistic[] effect whereby he was in one
accident, and he had certain baseline of issues that were treated, and they
sort of stabilized. And then he was in another accident, and seems thing to
light up a bit, and he required an extensive amount of treatment which, you
know, at some point stabilized and waxed and waned, and then he went into
another accident which kind of lit things up again. And then he went
through an extensive course of additional treatment that proved to not really
get him back to a pre[-]accident condition.”
We do not see any inconsistency between the cited deposition and trial testimony of Dr.
Brice. The testimony does not support defendants’ contention that Dr. Brice recanted his
deposition testimony or that Dr. Brice testified Mohammadi had fully recovered from his
prior injuries.
Defendants also cite to trial testimony in which Dr. Brice was asked to comment
on a report provided by defense expert, Dr. Thomas E. Hoyt, M.D., a neurological
surgeon. Defendants objected again based on their motion in limine number one and the
objection was overruled. Dr. Brice then testified he felt Dr. Hoyt had difficulty obtaining
“information … needed to construct … the basis of the injury” and Dr. Brice “didn’t
really see a—what [he] would consider a thorough spinal exam.” He said Dr. Hoyt did a
thorough medical records review and recounted some of Dr. Hoyt’s medical findings.
Dr. Brice testified that Dr. Hoyt “basically stated that the [subject incident] did not cause
or affect in any way the patient’s problems” which Dr. Brice felt was a hard
determination to arrive at; that Dr. Hoyt was of the opinion that Mohammadi would have
had to have undergone “all of the surgeries and all of the procedures that he underwent”
even if the subject incident had not occurred; and that it was “impossible to really know
that, because it did occur, and it was a serious accident.” Dr. Brice said that Mohammadi
“had serious complaints that required him to go to the emergency room following that
accident”; that he might be able to accept Dr. Hoyt’s opinion that the subject incident was
not responsible for any of Mohammadi’s complaints if it had been an “innocuous
accident”; and that “on par with all the other accidents, you know, [the subject incident]
was more serious because of the high speed velocity.”
13.
Defendants also cite to testimony where Dr. Brice was asked to express an opinion
on a report written by another of defendants’ experts, Dr. Michael Robert Klein, Jr., an
orthopedic surgeon. This drew another objection by defense counsel based again on
defendants’ motion in limine No. 1, which the trial court overruled. Dr. Brice then
testified Dr. Klein did a “really good job of summarizing some of the conflicts that were
occurring during the course of making surgical decisions” for Mohammadi. Dr. Brice
said he “took exception to [Dr. Klein’s] comment that … Mohammadi was embellishing
his symptoms, … and was a malingerer.” He was skeptical how a doctor could come to
that conclusion based solely on a medical records review.
The above referenced testimony does not support the contention that Dr. Brice
recanted his deposition testimony that Mohammadi’s “injuries were cumulative in
nature.” Nor does it support the contention that Dr. Brice testified Mohammadi had fully
recovered from prior injuries. Although defendants have contended, generally, that Dr.
Brice was allowed to expand on his deposition testimony, they do not provide argument
in support of the contention (aside from that already discussed).3 Assuming defendants
contend the above testimony constituted such an expansion, they have not provided this
court with an adequate record upon which to make such a determination. No deposition
testimony has been provided to the court (beyond that discussed above). Absent an
adequate record, any such contention by defendants must be resolved against them.
(Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
3 At trial, and out of the presence of the jury, defense counsel told the court that in
Dr. Brice’s deposition “he was asked if he was going to do any additional work or
express any additional opinions, and the only answer was he may opine on future
treatment.” However, defendants’ briefing on appeal does not discuss this contention.
Moreover, the deposition testimony defense counsel purportedly relied upon was not
recited on the record before the trial court or included in the record on appeal, nor were
deposition transcripts provided to the trial court or this court to assess the referenced
question posed to Dr. Brice and his answer thereto.
14.
We conclude the trial court did not err in overruling defendants’ objections based
on motion in limine No. 1.
B. Testimony in Violation of Sanchez, If Any, Was Not Prejudicial
Defendants contend that certain testimony of Dr. Brice violated the holding in
Sanchez, supra, 63 Cal.4th 665. “In Sanchez, our Supreme Court clarified the limits on
the extent to which an expert witness can relate and rely upon hearsay in support of an
opinion, based upon the distinction between ‘ “case-specific hearsay” ’ and hearsay
which is ‘part of the “general background information” acquired by the expert through
out-of-court statements as part of the development of his or her expertise.’ ” (People v.
McVey (2018) 24 Cal.App.5th 405, 416.) “Sanchez defined case-specific facts as ‘those
relating to the particular events and participants alleged to have been involved in the case
being tried,’ and held that an expert is prohibited from testifying to such facts if they are
outside the expert’s personal knowledge and do not fall under an exception to the hearsay
rule or have not been independently established by competent evidence.” (Ibid., citing
Sanchez, supra, 63 Cal.4th at pp. 676–677.)
Defendants contend the following testimony of Dr. Brice in response to the
following question by plaintiff’s counsel violated the holding in Sanchez:
“Q. Dr. Brice, you’re familiar -- or in your record review, there’s
the two surgeries that we referenced, and then there’s the October June -- or
June 24th of 2020 surgery where a guide wire or a -- I’m sorry, a nerve
stimulator was put into his spine. And then it was removed a year later.
So, of those four surgeries, do you feel that … Mohammadi had any benefit
from those?
“A. Based on reading the records, there was a period of time that
was reported by Dr. Paquette that indicated that he was doing better for a
while, which, you know, preceded -- just make sure I’m speaking correctly
here. Okay. So, that was conservative -- we call conservative
management, we try to do the least amount of invasive procedures. The
surgeries follow that when it was considered he failed those conservative
measures, and he was still having a lot of pain and disability.
15.
“The first surgery, once again, was minimally invasive. It was felt
that that surgery didn't do its job. And the thought was that he had a
condition called spinal stenosis,[4] which I mentioned earlier. And they
were trying to open up the area to decrease the pressure. And it was
apparent from the records that following that surgery, there was mild
improvement over a period of time. And then things got worse again.
“And then they re-explored the next minimally invasive procedure,
which was the implantation of a neurostimulator around the spinal cord to
disrupt the pain signal going to the brain.
“And it usually happens in two steps. Generally, it happens first
with a temporary implant where the nerve stimulator is placed in, and the
actual machine is left outside the body, and we turn the stimulation to a
certain level in order to decrease pain at the area of the spine. That’s going
to signal going to the brain that is sort of scrambled. And after a trial
period, it’s determined that if it worked or didn’t work, a conclusion is
made. And if it works, then a permanent implant is placed, and that --
that’s a surgical procedure. And so, they have to put the machine under the
skin in order to keep it safe and contained.
“That process apparently didn’t work. There were lots of follow-up
visits trying to adjust the machine. The wires that are on the spinal cord
apparently moved. And he was not getting the relief … that he was
expecting. And then based on the records, the patient made the decision
that he wanted it removed.
“So, that was another surgical procedure where it had to be removed
from beneath the skin, and the wires had to be extracted.”
Following the above response, defense counsel objected on grounds of hearsay
and that the testimony is not admissible under Sanchez, and moved to strike Dr. Brice’s
testimony “to the extent that he’s relying on and reading the medical record.” The trial
court overruled the objection.
“[I]t is a fundamental principle of appellate procedure that a trial court judgment
[or order] is ordinarily presumed to be correct and the burden is on an appellant to
4 “Spinal stenosis, a narrowing of the spaces in your spine, can compress your
spinal cord and nerve roots exiting each vertebrae.” ( [as of June 16, 2023].)
16.
demonstrate, on the basis of the record presented to the appellate court, that the trial court
committed an error that justifies [its] reversal ….” (Jameson v. Desta (2018) 5 Cal.5th
594, 608–609; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) To meet this
burden, an appellant must provide the reviewing court with an adequate record (Jameson,
at p. 609) and support each claim of error with argument and citations to the record
(Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 276–277). In addition to
demonstrating error, an appellant must also demonstrate that prejudice resulted from the
error. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) A judgment
may not be overturned “unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.” (Cal. Const., art. VI, § 13.)
The record on appeal does not include the medical record Dr. Brice is alleged to
have read from. Nor have defendants indicated which portion of the above referenced
testimony purportedly relied upon, or was read from, the medical record. Without this
information, the objection, which was expressly limited “to the extent [Dr. Brice was]
relying on and reading the medical record,” is ambiguous. Notwithstanding, we note the
information contained in the testimony was largely testified to, without objection, by
other witnesses (including Drs. Hoyt and Klein) or in other testimony by Dr. Brice.
Specifically, numerous witnesses (including, without limitation, Drs. Hoyt and
Klein) testified to the number of surgeries Mohammadi underwent. Both defense experts
testified regarding the implantation of a neurostimulator and its subsequent removal. Dr.
Klein testified regarding Mohammadi’s treatment with epidural steroid injection(s), the
narrowing of Mohammadi’s spinal disks, the discectomy Mohammadi underwent, and the
return of Mohammadi’s pain as documented in medical records. Dr. Pazoki discussed the
transition from conservative care (e.g., physical therapy, pain management, epidural and
similar injections) to surgical intervention in Mohammadi’s treatment, and the narrowing
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of Mohammadi’s foramen.5 In other testimony, Dr. Brice said Mohammadi “had a
degree of fairly moderate spinal stenosis.” In addition, Mohammadi, Mohammadi’s son,
and Mohammadi’s spouse also testified regarding the number and type of surgical and
nonsurgical treatments Mohammadi underwent and their ineffectiveness in resolving
Mohammadi’s pain. Similarly, Mohammadi testified, without objection, he was told the
reason his neurostimulator had ceased to eliminate or reduce his pain was that the wires
had shifted. Thus, the information disclosed in the challenged testimony of Dr. Brice was
independently established and verified by other testimony.
Defendants contend the aforementioned testimony of Dr. Brice “impacted the
jury’s determination that Mohammadi’s injuries [were] 100% attributable to the City of
Fresno.” Yet, the record on appeal demonstrates the jury’s determination in this regard
was premised on the express findings that the drivers of the other vehicles in the 2010
Texas incident, 2014 tow truck incident, and 2015 Porsche incident, were not negligent
and therefore, impliedly, not responsible for any harm to Mohammadi following the
subject incident. The jury was not asked to apportion liability on any other basis.
Assuming, without deciding, that the trial court erred in overruling defense
counsel’s Sanchez objection to Dr. Brice’s testimony, the error was harmless.
IV. THE TRIAL COURT DID NOT ERR IN ALLOWING MOHAMMADI’S
ATTORNEY TO DISCUSS MOHAMMADI’S NATIONALITY AND
RELATED EXPERIENCES DURING CLOSING ARGUMENTS
Defendants contend the trial court erred by allowing plaintiff’s counsel to mention
Mohammadi’s nationality and related experiences during closing argument over
defendants’ objection. They contend the following argument was “improper in its own
right” and violated orders in limine sought by Mohammadi.
5 “Foraminal stenosis is narrowing that happens in certain places around the nerves
that come out of [the] spinal cord. It’s a type of spinal stenosis ….”
( [as of July 6,
2023].)
18.
“But I’d like to tell you a little bit about [Mohammadi’s] life, and
you can judge what kind of character he is.
“So, the testimony reflected that he and his wife and son came to the
United States in 2007. They talked about that he came from Iran, and he
was a mechanic there. So, is his family there is well-known. They are
known as very radical, liberal family. Radical liberal in Iran means direct --
let me direct you to some of the things he testified about; that you split all
the duties with your wife in the house. You should wash dishes together.
You should cook together. You should clean together. All the duties of our
home he believed they should do together. He believed that women should
be allowed to drive; that she should be able to go to college; that everything
should be able to worship to the dictate of their own heart.
“For these beliefs, his brother, who was more vocal than him, was
thrown into an Iranian prison.”
Defense counsel objected: “Your Honor, objection, motion in limine, and no
evidence.” The trial court overruled the objection. Mohammadi’s counsel continued
without further objection:
“His brother was thrown into an Iranian prison; and soon after,
[Mohammadi] got word that he was going to be next unless he renounced
the views that his brother held. He said, no, I will not. This is what we
believe, and that’s it.
“However, he had a young wife and young son, and he wasn’t about
to allow the things that might happen to them, that would be horrible,
happen to them if he were to be thrown into prison. So, in the cold of night,
they escaped Iran. And they fled to Turkey. For two years, they lived in
the slum -- the worst slums that there are in Turkey. They lived there
because he didn’t have anything. They left everything in a pretty intense
situation.
“After being there for two years of trying to come to the United
States, and they weren’t able to come, his brother was -- was killed in an
Iranian prison because he wouldn’t bend, he wouldn’t renounce those
beliefs.
“At that point, the United Nations be lobbied for [Mohammadi] and
his family to come to the United States, and he was granted the ability to
come here as a -- as a refugee. They came here, and they built a life here.
And it was hard, as you heard.”
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“A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶]
(a) There appears of record an objection to or a motion to exclude or to strike the
evidence that was timely made and so stated as to make clear the specific ground of the
objection or motion; and [¶] (b) The court which passes upon the effect of the error or
errors is of the opinion that the admitted evidence should have been excluded on the
ground stated and that the error or errors complained of resulted in a miscarriage of
justice.” (Evid. Code, § 353.)
Two initial points are worth comment. First, defense counsel’s objection based on
an unspecified motion in limine arguably does not meet the criteria of making “clear the
specific … objection” relied upon.6 (Evid. Code, § 353.) Notwithstanding, below we
review defendants’ contentions on the merits. Second, plaintiff’s counsel’s subsequent
argument was not objected to and, to the extent it contained additional information not
previously objected to, it may not form the basis of an appeal. (Ibid.; Warner Constr.
Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 303.)
A. Defendants Have Not Demonstrated Reversible Error in Connection With
Any Alleged Violation of Orders in Limine
On appeal, defendants assert the argument violated the court’s orders granting
motions in limine Nos. 6 and 7. Motion in limine No. 6 sought to preclude “[m]ention of
any lawsuits in which plaintiff or plaintiff’s family were named as a party [versus] the
Islamic Republic of Iran.” Motion in limine No. 7 sought to preclude “mention of the
plaintiff[’]s or any witness[’] national origin or any questions that [elicit] a response
where the plaintiff or any witness must respond that they are from Iran or any other
middle eastern country.”
6 The record on appeal contains 21 motions in limine.
20.
Counsel’s statements during closing argument did not reference a lawsuit between
Mohammadi or his family members against the Islamic Republic of Iran. Thus, there was
no violation of the order granting motion in limine No. 6.
With regard to the order granting motion in limine No. 7, the record on appeal
demonstrates that both defense counsel and plaintiff’s counsel mentioned, or elicited
testimony concerning Mohammadi’s nationality in front of the jury. For example,
defense counsel read from Mohammadi’s deposition in which he was questioned about
complaints he had concerning “things that happened back in Iran”—i.e., “a flood that’s
taking over Iran.” Defense counsel read from Mohammadi’s deposition testimony
wherein he stated, “We Iranians, the men works [sic].” Similarly, Mohammadi testified,
without objection that “in Iran, [he] had a very nice mechanic shop, and [his] dream was
to do the same here.” In addition, Mohammadi’s spouse testified, without objection, that
she and Mohammadi “had a tough life as refugee[s].”
Thus, defense counsel, herself, elicited testimony concerning Mohammadi’s
nationality and any alleged error in that regard was invited through her own questioning.
(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [“ ‘Where a party by his conduct
induces the commission of error, he [or she] is estopped from asserting it as a ground for
reversal’ on appeal.”]).
We conclude defendants have not demonstrated reversible error in connection with
any alleged violation of orders granting motions in limine Nos. 6 and 7.
B. Defendants Have Not Demonstrated Reversible Error in Connection With
Any Alleged Reference to Matters Outside the Evidence
An appellate court will affirm a judgment unless it concludes “it is reasonably
probable that a result more favorable to the appealing party would have been reached in
the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836; Cassim v.
Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) Our state high court has “ ‘made clear that
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a “probability” in this context does not mean more likely than not, but merely a
reasonable chance, more than an abstract possibility.’ ” (Cassim, at p. 800.)
As demonstrated above, evidence was introduced showing Mohammadi and his
family were from Iran and that they were refugees. In addition, Mohammadi’s son
testified his uncle (presumably, Mohammadi’s brother or brother-in-law) was killed by
the Iranian government. There was also testimony that Mohammadi was committed to
helping his wife with household chores and duties (e.g., cooking, cleaning, vacuuming,
washing dishes), that he “was known for how much [he] helped [his] wife” and that he
“really fe[lt] that [he] should always be helpful to her.” Although plaintiff’s counsel
embellished these details somewhat by noting that the family had fled to Turkey, that
Mohammadi’s brother was in prison when, as Mohammadi’s son testified, he was killed
by the Iranian government, and that Mohammadi’s commitment to helping his wife with
chores was radically liberal in the eyes of the Iranian government, we cannot say that
these added details caused prejudice in the eyes of the jury. The salient details—i.e.,
their Iranian nationality, their refugee status, Mohammadi’s brother’s death at the hands
of the Iranian government, and Mohammadi’s commitment to helping his wife with
household chores were already before the jury. Moreover, it is common knowledge that
the government of Iran takes a different view of the rights of women and considers them
subservient to men. An attorney may reference during closing argument “matters not in
evidence that are common knowledge, or are illustrations drawn from common
experience, history, or literature.” (People v. Sandoval (1992) 4 Cal.4th 155, 193.)
We conclude there is no reasonable chance defendants would have obtained a
more favorable verdict in the absence of that portion of the closing argument defendants
have objected to. The main details were already presented to the jury either by defense
counsel, or without objection from defense counsel. No prejudicial error has been shown.
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V. SUBSTANTIAL EVIDENCE SUPPORTS THE DAMAGES AWARD
Defendants contend sufficient evidence does not support Mohammadi’s
$1,075,000 noneconomic damage award. We disagree.
A. Substantial Evidence Supported the Jury’s Determination of Total
Damages
The jury found that defendants’ negligence was a substantial factor in causing
harm to Mohammadi. Defendants do not challenge this finding on appeal. On the issue
of damages, the jury was provided with a special verdict form that requested the jury
answer the following question: “What are … Mohammadi’s total damages after
November 9, 2015? Do not reduce the damages based on the fault, if any, of …
Mohammadi or others.” In response, the jury found Mohammadi’s past noneconomic
loss was $175,000 and future noneconomic loss was $900,000, for a total of $1,075,000.
Civil Code section 1431.2 defines “non-economic damages” as “subjective, non-
monetary losses including, but not limited to, pain, suffering, inconvenience, mental
suffering, emotional distress, loss of society and companionship, loss of consortium,
injury to reputation and humiliation.” (Civ. Code, § 1431.2, subd (b)(2).) The special
verdict form defined “noneconomic loss” as including “physical pain, mental suffering,
loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief,
anxiety, humiliation, [and] emotional distress.”
“ ‘There are no fixed or absolute standards by which an appellate court can
measure in monetary terms the extent of the damages suffered by a plaintiff as a result of
the wrongful act of the defendant. The duty of an appellate court is to uphold the jury
and trial judge whenever possible. [Citation.] The amount to be awarded is “a matter on
which there legitimately may be a wide difference of opinion” [citation].’ ” (Bigler-
Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 299 (Bigler-Engler).)
“The difficulty inherent in assessing damages is plainly evident when
noneconomic damages such as pain and suffering are at issue: ‘ “One of the most
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difficult tasks imposed upon a jury in deciding a case involving personal injuries is to
determine the amount of money the plaintiff is to be awarded as compensation for pain
and suffering. No method is available to the jury by which it can objectively evaluate
such damages, and no witness may express his subjective opinion on the matter.
[Citation.] In a very real sense, the jury is asked to evaluate in terms of money a
detriment for which monetary compensation cannot be ascertained with any demonstrable
accuracy.” ’ [Citations.] Moreover, ‘[n]oneconomic damages do not consist of only
emotional distress and pain and suffering. They also consist of such items as invasion of
a person's bodily integrity (i.e., the fact of the injury itself), disfigurement, disability,
impaired enjoyment of life, susceptibility to future harm or injury, and a shortened life
expectancy.’ ” (Bigler-Engler, supra, 7 Cal.App.5th at p. 300.)
“The measure of damages suffered is a factual question and as such is a subject
particularly within the province of the trier of fact…. [W]e adhere to the previously
announced and historically honored standard of reversing as excessive only those
judgments which the entire record, when viewed most favorably to the judgment,
indicates were rendered as the result of passion and prejudice on the part of the jurors.”
(Phipps v. Copeland Corp. LLC (2021) 64 Cal.App.5th 319, 344.)
“ ‘A party who challenges the sufficiency of the evidence to support a particular
finding must summarize the evidence on that point, favorable and unfavorable, and show
how and why it is insufficient. [Citation.]’ [Citation.] Where a party presents only facts
and inferences favorable to his or her position, ‘the contention that the findings are not
supported by substantial evidence may be deemed waived.’ ” (Schmidlin v. City of Palo
Alto (2007) 157 Cal.App.4th 728, 738 (Schmidlin).)
Defendants’ brief provides a summary of evidence favorable to its own argument
including medical expert testimony regarding injuries and treatment following the 2010
Texas incident, the 2014 tow truck incident, and the 2015 Porsche incident; and sub rosa
video evidence it contends shows Mohammadi “smiling, laughing, and behaving in a
24.
manner … contrary to the testimony at trial.” Omitted from defendants’ brief, however,
is a discussion of the evidence showing Mohammadi’s injuries and treatment from the
subject incident. Defendants do not discuss testimony from Mohammadi or others that he
suffered extreme pain which interferes with his activities of daily living and his frequent
inability to do the most menial of tasks (e.g., showering, using the facilities, cleaning,
washing dishes, etc.) without assistance or debilitating pain; that Mohammadi’s injuries
have had an adverse impact on his social life, have made him irritable, agitated, and
impatient, and have caused him sadness, distress and depression; that Mohammadi finds
it difficult to sleep and has frequent nightmares; that Mohammadi suffered from “muscle
spasm, leg weakness, headache, [and] anxiety”; that Mohammadi’s pain was such that he
underwent physical therapy, received numerous injections, and underwent a series of
surgeries to alleviate his pain; or that, as a result of his debilitation, his relationship with
his wife suffered to the point where they had to sleep in separate beds or the contention
that his debilitation is a reason his wife filed for divorce. As the trial court noted in its
ruling on the posttrial motions, testimony from a plaintiff and family members is
sufficient in this case to support a claim for noneconomic damages.
On this record, we cannot conclude the jury’s determination of total damages was
unsupported by substantial evidence or the product of passion or prejudice. Moreover,
defendants’ failure to summarize evidence favorable to the judgment waived their
contention that substantial evidence does not support the determination. (Schmidlin,
supra, 157 Cal.App.4th 728, 738.) Accordingly, we uphold the jury’s determination of
total damages.
B. The Verdict Form Request for Special Findings on the Comparative Fault
of Other Non-Parties was Not Error
Defendants argue CACI No. 406 does not require that a defendant bear the burden
of establishing that a third-party was negligent. Rather, the instruction may be properly
modified such that a finding is based on either negligence or fault, and it was error for the
25.
trial court to not have sua sponte included this modification in the verdict form submitted
to the jury, citing Lysick v. Walcom (1968) 258 Cal.App.2d 136, 157–158. We disagree.
In response, Mohammadi argues defense counsel “advocated and pushed” for the
use of CACI No. 406 with specific wording of negligence to be used, and therefore any
alleged error was invited by defendants. This contention is confirmed by comments of
the trial court during the hearing on defendants’ posttrial motions.7 Notably, defendants
did not make this sua sponte duty argument to the trial court in their posttrial motions.
CACI No. 406, as presented to the jury, was a correct statement of the law on
determining the comparative fault of other non-parties to a plaintiff’s injuries and
damages. There is no evidence in the record that defendants objected to CACI No. 406
as given. The special verdict form, which defendants supported, incorporated this
instruction. At trial defendants argued that trial evidence supported a finding of
negligence by the non-parties. Mohammadi’s counsel argued there was no such
evidence. The trial court’s statements during the posttrial hearing confirmed the lack of
evidence to support the other drivers’ negligence, and suggested other reasons for the
prior accidents. If defendants had proven to the jury’s satisfaction that those other
drivers’ negligence contributed to Mohammadi’s harm, defendants would have been
7 The trial court stated that CACI No. 406 “was requested by the defense” (italics
added) and then asked defense counsel whether any evidence of negligence on the part of
the other drivers was presented to the jury. In response, defense counsel stated, “I think
that there can be an attribution made by the defendants’ status as to where the damages
arose from. It’s often the case that an individual is able to point to one of the defendants
or openly share some other alternative cause. That’s not my understanding of the law,
that we’re required to present evidence regarding the forces or actions rather than where
the harm has been caused by.” In response, the court stated, “that’s the verdict form that
the defendants advocated and pushed to be given to the jury, specific findings, I think it
was questions 3, 5 and 7, that those other drivers were negligent. In [CACI No.] 406,
advocated by the defense, where the defense undertook … the obligation on a burden of
proof had to convince the jury that those other drivers were negligent.” (Italics added.)
26.
entitled to a reduced share of liability. (See Sagadin v. Ripper (1985) 175 Cal.App.3d
1141, 1167.)
Moreover, our state high court has stated, “ ‘ “ ‘In a civil case, each of the parties
must propose complete and comprehensive instructions in accordance with his [or her]
theory of the litigation; if the parties do not do so, the court has no duty to instruct on its
own motion.’ ” ’ ” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130–
1131; Starrh & Starrh Cotton Growers v. Aera Energy (2007) 153 Cal.App.4th 583, 601
[5th Dist. Ct. App.]; Moreno v. Bassi (2021) 65 Cal.App.5th 244, 263 [5th Dist. Ct.
App.]; West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 864 [6th
Dist. Ct. App.].)
Based on the record on appeal and in the absence of any evidence to the contrary,
we conclude defendants requested the special verdict form that was given (see Regalado
v. Callaghan (2016) 3 Cal.App.5th 582, 593) and that, to the extent defendants contend
this was error, it was invited by them.
In addition, defendants did not object to the special verdict form before the jury
was discharged. “ ‘ “Failure to object to a verdict before the discharge of a jury and to
request clarification or further deliberation precludes a party from later questioning the
validity of that verdict if the alleged defect was apparent at the time the verdict was
rendered and could have been corrected.” [Citation.]’ [Citation.] ‘The obvious purpose
for requiring an objection to a defective verdict before a jury is discharged is to provide it
an opportunity to cure the defect by further deliberation. [Citation.]’ [Citation.] ‘The
rule is designed to advance efficiency and deter gamesmanship.’ ” (Taylor v. Nabors
Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1242, italics omitted (Taylor).)
Once the jury’s findings in the special verdict form were made known to
defendants and defense counsel, they were on notice that the jury had not found the
drivers in the pre-subject incidents to be negligent. If defendants believed the special
verdict form should have also asked the jury to determine the non-negligent fault of
27.
others as a basis for comparative liability, it was incumbent upon them to seek
modification of the special verdict form and to do so before the jury was discharged.
(Taylor, supra, 222 Cal.App.4th at p. 1242.) They did not do so, even in their posttrial
motion for a new trial. A “trial court has no duty to instruct on its own motion, nor is it
obligated to modify proposed instructions to make them complete or correct.”
(Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 526.)
We conclude the trial court did not err in submitting the special verdict form, as
urged by defendants, to the jury. To the extent defendants contend it was error, it was
invited by them and they have waived the right to appeal the issue.
C. Sufficient Evidence Supports the Jury’s Finding of No Apportionment
Based on Comparative Liability
We now turn to defendant’s contention that insufficient evidence supported the
jury’s finding of no apportionment based on comparative liability.
It was defendants’ burden to prove by a preponderance of evidence that “ ‘some
nonzero percentage of fault is properly attributed to the plaintiff, other defendants, or
nonparties to the action.’ ” (Phipps v Copeland Corp. LLC, supra, 64 Cal.App.5th at p.
332.) “ ‘[W]here the issue on appeal turns on a failure of proof at trial [to sustain a
burden of proof], the question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically,
the question becomes whether the appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.” ’ ” (Sonic Manufacturing
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466.)
Here, the special verdict form included a number of findings the jury needed to
make in order to apportion liability to other drivers in connection with the 2010 Texas
incident, the 2014 tow truck incident, and the 2015 Porsche incident. Those questions
read, as follows: “3. Was the driver in the 2010 [Texas incident] negligent?”; “5. Was
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the driver in the 2014 [tow truck incident] negligent?”; and “7. Was the driver [in] the
[2015 Porsche incident] negligent?” The jury answered “no” to each of these questions.
Upon answering “no” to each of the foregoing questions, the jury was then instructed to
“insert the number zero” next to the corresponding driver in question 9 of the special
verdict form. As a result, question 9, as drafted and as completed by the jury read, as
follows:
“9. What percentage of responsibility for … Mohammadi’s harm after
November 9, 2015, do you assign to the following? Insert a percentage for
City of Fresno and only those who received “yes” answers in questions 3, 5
or 7:
“City of Fresno 100%
“2010 [Texas incident] [d]river 0%
“2014 [t]ow [t]ruck [incident] [d]river 0%
“The driver [in] the [2015] Porsche [incident] 0%
“TOTAL: 100%”
The question we must therefore answer is whether, as a matter of law, a different
percentage of apportionment is required for any of the drivers in the 2010 Texas incident,
2014 tow truck incident, or the 2015 Porsche incident.
On appeal, defendants rely on the following facts to demonstrate negligence on the
part of the other drivers: (1) the 2010 Texas incident involved a rear-end collision with
Mohammadi’s vehicle; (2) the 2014 tow truck incident involved a tow truck “ramm[ing]
through a building and pinn[ing] Mohammadi to a wall”; and (3) the 2015 Porsche
incident involved a car that “came out of nowhere at a speed of 30 to 35 mph” and side-
swiped Mohammadi’s vehicle.
The evidence defendants point to does not demonstrate negligence, as a matter of
law, on the part of the other drivers. As the trial court suggested, those accidents may
have been caused by other factors other than the negligence of the other drivers (e.g., a
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medical emergency, a blown tire, or a non-negligent collision with a third vehicle). As a
result, we cannot say that any of those drivers were negligent as a matter of law.
DISPOSITION
The judgment and the trial court’s posttrial ruling are affirmed in their entirety.
Costs on appeal are awarded to plaintiff and respondent Mohammadi.
FRANSON, Acting P. J.
WE CONCUR:
PEÑA, J.
SMITH, J.
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