Hernandez v. First Student, Inc.

249 Cal. Rptr. 3d 681, 37 Cal. App. 5th 270
California Court of Appeal, 5th District·Decided June 11, 2019·No. B281161·Published·Cited by 206 cases

Opinion

STRATTON, J.

*273This appeal arises from a wrongful death action brought by Karen Hernandez and Sergio Saravia (appellants), the parents of 13-year-old Jonathan Hernandez, after Jonathan was struck and killed by a school bus while riding his bicycle in Glendale. The school bus was owned by defendant and respondent First Student, Inc., and driven by defendant and respondent Barbara Calderon. The jury found Jonathan 80 percent liable for the accident, and awarded $250,000 in damages. Jonathan's parents filed a lengthy and detailed motion for a new trial on the grounds of juror misconduct, erroneous evidentiary and instructional rulings and attorney misconduct. The trial court issued a 25-page ruling denying the motion. This appeal followed.

Appellants make numerous claims of error in their voluminous opening brief, but they have forfeited almost all those claims. Appellants' primary claim is that the trial court erred in denying their motion for a new trial. While it is the duty of the appellate court in reviewing the denial of a new trial motion to review the entire record, it is the appellants' duty to make a cognizable argument on appeal as to why the trial court abused its discretion *274in denying the motion and to support their arguments with accurate and relevant record citations. Appellants have not done so.

Assuming for the sake of argument that appellants intended to raise the claims of error directly on appeal, we would find almost all those claims forfeited as well, for similar reasons. We consider only the following claims: (1) the trial court abused its discretion in admitting evidence in the damages phase of Hernandez's use of crystal methamphetamine; (2) the trial court abused its discretion in permitting retired police officer Charles Smith to testify as an expert; (3) the trial court erred prejudicially in limiting appellants to showing 10 photographs of Jonathan to the jury; (4) the court erred in giving the jury special instructions on the lawful operation of a bicycle in Glendale; (5) defense counsel made a prejudicial personal attack on appellants' trial counsel by referring to her as a card shark; (6) defense counsel violated the trial court's in limine rulings precluding evidence about Hernandez's immigration status and a witness's cancer treatment; and (7) defense counsel permitted Calderon to commit perjury. We find no merit to these claims. We affirm the judgment.

*689BACKGROUND

It was essentially undisputed at trial that Jonathan was riding his bicycle on the sidewalk, and that he was hit by the bus when he rode his bicycle into the street without stopping. The accident occurred at the intersection of Columbus Avenue and Riverdale Drive in Glendale. The intersection is a roundabout or rotary: there is a raised circle in its center. All four approaches to the intersection have stop signs.

About 2:00 p.m. on May 2, 2013, when the accident occurred, Calderon had dropped off her last student and was returning to the First Student lot. Michael Kennedy, an aide who helped with the special needs students who rode the bus, was still on board. Calderon stopped before proceeding into the intersection. As she proceeded, she heard and felt her vehicle collide with something. Calderon pushed on the brakes but took her hands off the steering wheel.

Kennedy ran to the front of the bus and put the bus, which had not yet stopped, into park. Thus, the bus travelled some distance after hitting Jonathan.

Police soon arrived at the scene. Calderon spoke with them. Among other things, she told police that she had seen Jonathan riding his bicycle on the sidewalk, but did not see him in the street before she hit him.

*275Officer Duncan believed Calderon was impaired, and requested Calderon be evaluated. Calderon was taken to the hospital. Certified Drug Recognition Expert Marc Tarzia arrived at the hospital about 3:28 p.m. He performed a series of assessment tests on Calderon, such as requesting her to stand on one leg. She failed all the tests.

An emergency room doctor examined Calderon and concluded she was not impaired.

The hospital took a blood sample. The initial blood screen tested positive for the presence of benzodiazepines. The final test results showed that Calderon had tramadol, alprazolam, oxazepam and temazepam in her system. These are all prescription medications.

Based on his field sobriety test and the blood test result, Detective Tarzia concluded that Calderon was impaired by the medications she was taking. Tarzia acknowledged that some of Calderon's difficulties with the sobriety tests may have been due to Calderon's obesity and knee problems; he still concluded she was impaired by her medications.

Police searched Calderon's home the night of the accident because she could not remember what medications she was taking. As the investigation into Jonathan's death and discovery in this civil action revealed, Calderon took more prescription medications than the ones identified by the blood test. She did not take them as prescribed.

For reasons that were disputed at trial, Calderon was sleepy throughout the day of May 2. She returned home after her first trip of the day about 8:30 a.m. and took a nap before returning to work around noon. The morning nap was a habit of hers. Calderon admitted to police that her medications could make her groggy.

Jonathan's mother and father, who were estranged from each other, brought this wrongful death action against First Student and Calderon. Trial of this matter was bifurcated.

During the liability phase, the parties presented conflicting evidence and experts about whether Calderon was impaired at the time of the accident. The parties also presented conflicting evidence concerning whether Calderon could have avoided hitting *690Jonathan, including the testimony of accident reconstruction experts.

The jury found both Jonathan and Calderon negligent and found that their negligence was a substantial factor in causing Jonathan's death.

*276In the damages phase of the trial, the jury learned that Jonathan's father had a limited relationship with him. Saravia lived with Jonathan for only the first two years of the boy's life. He moved to Washington state when Jonathan was six years old. Thereafter he saw Jonathon about twice a year. He spoke with Jonathan about once a week in the six months before Jonathan's death.

The jury also learned Hernandez had been incarcerated six times during Jonathan's life. Hernandez acknowledged she has used crystal methamphetamine since Jonathan was about a year old; she maintained she did not consume the drugs in Jonathan's presence. There was evidence Hernandez's drug use affected her behavior when she was in Jonathan's presence.

The jury awarded Jonathan's parents $250,000 in damages. This amount was adjusted to reflect Jonathan's comparative fault.

Jonathan's parents moved for a new trial, which was denied. This appeal followed.

DISCUSSION

I. New Trial Motion

Free access — add to your briefcase to read the full text and ask questions with AI

Hernandez v. First Student, Inc., 249 Cal. Rptr. 3d 681, 37 Cal. App. 5th 270 (Cal. Ct. App. 2019).

249 Cal. Rptr. 3d 681 (Hernandez v. First Student, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Larson v. The Regents of the U. of Cal. CA3
California Court of Appeal, 2025
Sugerman v. L.A. Unified School District CA2/2
California Court of Appeal, 2025
Nesbit v. Green Hills Subway CA2/1
California Court of Appeal, 2025
Thompson v. Ito CA4/3
California Court of Appeal, 2024
Pfeiffer v. Smart CA3
California Court of Appeal, 2024
Urrutia v. Wallens CA2/8
California Court of Appeal, 2024
Perez v. Graham CA1/1
California Court of Appeal, 2024
Gonzalez v. Anthem CA2/1
California Court of Appeal, 2024
County of Sonoma v. Stavrinides CA1/1
California Court of Appeal, 2024
Harsini v. Rahimi CA2/3
California Court of Appeal, 2024
Pogosyan v. An CA4/2
California Court of Appeal, 2024
Vaughn v. Jaber-Malek CA6
California Court of Appeal, 2023
People v. Montgomery-Sansome CA1/5
California Court of Appeal, 2023
People v. Un CA3
California Court of Appeal, 2023
In re B.B. CA2/6
California Court of Appeal, 2023
Marriage of Lin CA2/3
California Court of Appeal, 2023
Akona v. Hupp CA4/2
California Court of Appeal, 2023
Said v. Cedars-Sinai Medical Group CA4/2
California Court of Appeal, 2023