Johnson v. Oakhurst Industries CA4/2
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Opinion
Filed 10/16/14 Johnson v. Oakhurst Industries CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
AARON JOHNSON, a MINOR, etc.,
Plaintiff and Respondent, E056044
v. (Super.Ct.No. RCVRS084985)
OAKHURST INDUSTRIES, INC., OPINION
Defendant, Cross-complainant and Appellant;
DEBRA JOHNSON,
Plaintiff, Cross-defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Ben T. Kayashima,
Judge. (Retired judge of the San Bernardino Super Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
Mardirossian & Associates, Inc., Garo Mardirossian, and Lawrence D. Marks, for
Plaintiffs and Respondents.
1 Hayes, Scott, Bonino, Ellingson & McLay, Mark G. Bonino, Miya R. Peard,
Donald Ross Franson III; Osman & Associates and Richard Scott; Koeller, Nebeker,
Carlson & Haluck and Gary Hoffman for Defendant and Appellant.
This is the second trial regarding an accident occurring on January 8, 2003 at the
transition road from the southbound Interstate 15 to the westbound Highway 210. In the
scope of his employment with defendant Oakhurst Industries, Inc. (Oakhurst), David
Avalos was driving an Oakhurst tractor-trailer on the transition road when he collided
with a Ford Explorer driven by Plaintiff Debra Johnson (Debra). Debra’s son, Plaintiff
Aaron Johnson, was in the passenger’s seat. The Ford rolled over several times and she
and Aaron sustained severe injuries. The sole issue of liability turned on whether Avalos
drifted into Debra’s lane or Debra veered into Avalos’s lane.
In the first appeal, the jury found against the Johnsons. We upheld the grant of the
Johnsons’ motion for new trial based on juror and attorney misconduct. (Aaron Johnson
v. Oakhurst Industries, Inc. [September 21, 2010, E047807], nonpub. opinion (Op.).)
Thus, a second trial was conducted and the jury found Oakhurst liable under a theory of
negligence and Debra and Aaron were entitled to damages in a bifurcated proceeding.
Oakhurst claims on appeal as follows:
1. Instruction to the jury on willful suppression of evidence (CACI 204) was
prejudicial and requires reversal of liability.
2. The trial court erred by making inconsistent rulings on the admission of the
responding officers’ opinions as to the cause of the accident.
2 3. The trial court erred by admitting a denial of a Request for Admissions
made by Avalos before the first trial.
4. Oakhurst is entitled to an offset of the award of damages to Debra based on
the settlement between her and Ford Motor Company.
We conclude that instruction to the jury with CACI No. 204 was prejudicial. As
such, we reverse the liability finding.1
I
PROCEDURAL BACKGROUND
On January 6, 2005, the Johnsons filed their complaint for personal injury
damages against Avalos, Penske Truck Leasing Corp., Ryder Truck Rental, Inc., Ford
Motor Company, and Bridgestone/Firestone North American Tire, LLC. According to
the complaint, the accident occurred when Debra’s Ford collided with a tractor and
connected trailer (tractor-trailer) driven by Avalos. The complaint alleged negligence on
behalf of Avalos. The complaint also alleged product negligence, products liability, and
breach of warranty against Ford Motor Company. It additionally alleged product
negligence, strict products liability, and breach of warranty against Bridgestone/Firestone
North American Tire, LLC.
The Johnsons settled with Ford Motor Company prior to trial for $250,000 and
Ford Motor Company was dismissed from the action. Penske Truck Leasing Corp.,
1 Since we reverse liability, the damages award is also reversed. As such, we need not address the issue of offset of damages.
3 Ryder Truck Rental, Inc. and Bridgestone/Firestone were dismissed. Avalos was also
dismissed.
The first trial was conducted and resulted in a defense verdict. The trial court
granted a motion for new trial on the grounds of juror misconduct and misconduct of
counsel. This court affirmed the trial court’s order granting a new trial. (Op.)
Prior to the second trial, the Johnsons brought several motions in limine (MIL).
We will discuss the relevant motions in more detail, post.
On September 30, 2011, the jury reached its verdict. The jury responded yes to
the question: “Was David Avalos, the employee of defendant, Oakhurst Industries, Inc.,
negligent?” As to Debra and Aaron, they also responded yes to the questions that
Avalos’s negligence was a “substantial factor in causing harm to Debra Johnson and
Aaron Johnson.” They found that Debra was not negligent.
After a damages trial, Debra was awarded $554,248 and Aaron was awarded
$2,100,728. Oakhurst filed a timely appeal. Oakhurst filed its notice of appeal on April
2, 2012.
II
FACTUAL BACKGROUND
A. Plaintiff’s Case
1. The accident
In 2003, Debra Johnson worked as a supervisor at a federal detention center in Los
Angeles. On the day of the accident, she picked up her son Aaron from school and was
driving to her father’s house in Los Angeles. Aaron stayed with Debra’s father while she
4 worked. Debra recalled driving on the connecting transition to the 210 freeway when she
was hit by a tractor-trailer. She did not recall anything that happened after that. The
accident occurred around 3:00 p.m.
Lloyd Vogel was transitioning from the southbound 15 onto the westbound 210.
He was in Lane 1. Vogel observed Debra’s Ford veer to the left off the road and roll over
in front of him. He did not see the Ford and tractor-trailer impact. He did not recall
seeing the tractor-trailer in the other lane. Lane 1 did not require a switch in lanes to
transition onto the 210 freeway.
Avalos was hired by Oakhurst in 1994. His regular route in 2003 was from
Commerce, California (where Oakhurst was headquartered) to Las Vegas, Nevada, and
back. In 2008, Avalos denied a request for admission that he was using his cellular
telephone at the time of the accident. At trial, Avalos admitted that he was on his cellular
telephone at the time of the accident. He believed it was in violation of company policy.
He was using a wireless headset.
CHP Officer Christopher Steven Forbes estimated that he investigated between 10
and 20 traffic collisions each month. He had investigated over 100 accidents involving
trucks and passenger vehicles. He responded to the scene of the accident. He wrote the
Traffic Collision Report (TCR).
Avalos told Officer Forbes that there were no passengers in his truck.2 Avalos
denied to Officer Forbes that he was using a cellular telephone at the time of the accident.
2 Avalos admitted at trial that Jose Magallenes was in the sleeping berth.
5 Avalos told Officer Forbes the accident occurred while he was driving southbound on the
I-15 freeway transitioning to the 210 freeway west. He was in Lane 2. Debra was in
Lane 1 and suddenly drifted into Lane 2. Her car hit the side of the trailer. Debra went
Free access — add to your briefcase to read the full text and ask questions with AI
Filed 10/16/14 Johnson v. Oakhurst Industries CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
AARON JOHNSON, a MINOR, etc.,
Plaintiff and Respondent, E056044
v. (Super.Ct.No. RCVRS084985)
OAKHURST INDUSTRIES, INC., OPINION
Defendant, Cross-complainant and Appellant;
DEBRA JOHNSON,
Plaintiff, Cross-defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Ben T. Kayashima,
Judge. (Retired judge of the San Bernardino Super Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Reversed.
Mardirossian & Associates, Inc., Garo Mardirossian, and Lawrence D. Marks, for
Plaintiffs and Respondents.
1 Hayes, Scott, Bonino, Ellingson & McLay, Mark G. Bonino, Miya R. Peard,
Donald Ross Franson III; Osman & Associates and Richard Scott; Koeller, Nebeker,
Carlson & Haluck and Gary Hoffman for Defendant and Appellant.
This is the second trial regarding an accident occurring on January 8, 2003 at the
transition road from the southbound Interstate 15 to the westbound Highway 210. In the
scope of his employment with defendant Oakhurst Industries, Inc. (Oakhurst), David
Avalos was driving an Oakhurst tractor-trailer on the transition road when he collided
with a Ford Explorer driven by Plaintiff Debra Johnson (Debra). Debra’s son, Plaintiff
Aaron Johnson, was in the passenger’s seat. The Ford rolled over several times and she
and Aaron sustained severe injuries. The sole issue of liability turned on whether Avalos
drifted into Debra’s lane or Debra veered into Avalos’s lane.
In the first appeal, the jury found against the Johnsons. We upheld the grant of the
Johnsons’ motion for new trial based on juror and attorney misconduct. (Aaron Johnson
v. Oakhurst Industries, Inc. [September 21, 2010, E047807], nonpub. opinion (Op.).)
Thus, a second trial was conducted and the jury found Oakhurst liable under a theory of
negligence and Debra and Aaron were entitled to damages in a bifurcated proceeding.
Oakhurst claims on appeal as follows:
1. Instruction to the jury on willful suppression of evidence (CACI 204) was
prejudicial and requires reversal of liability.
2. The trial court erred by making inconsistent rulings on the admission of the
responding officers’ opinions as to the cause of the accident.
2 3. The trial court erred by admitting a denial of a Request for Admissions
made by Avalos before the first trial.
4. Oakhurst is entitled to an offset of the award of damages to Debra based on
the settlement between her and Ford Motor Company.
We conclude that instruction to the jury with CACI No. 204 was prejudicial. As
such, we reverse the liability finding.1
I
PROCEDURAL BACKGROUND
On January 6, 2005, the Johnsons filed their complaint for personal injury
damages against Avalos, Penske Truck Leasing Corp., Ryder Truck Rental, Inc., Ford
Motor Company, and Bridgestone/Firestone North American Tire, LLC. According to
the complaint, the accident occurred when Debra’s Ford collided with a tractor and
connected trailer (tractor-trailer) driven by Avalos. The complaint alleged negligence on
behalf of Avalos. The complaint also alleged product negligence, products liability, and
breach of warranty against Ford Motor Company. It additionally alleged product
negligence, strict products liability, and breach of warranty against Bridgestone/Firestone
North American Tire, LLC.
The Johnsons settled with Ford Motor Company prior to trial for $250,000 and
Ford Motor Company was dismissed from the action. Penske Truck Leasing Corp.,
1 Since we reverse liability, the damages award is also reversed. As such, we need not address the issue of offset of damages.
3 Ryder Truck Rental, Inc. and Bridgestone/Firestone were dismissed. Avalos was also
dismissed.
The first trial was conducted and resulted in a defense verdict. The trial court
granted a motion for new trial on the grounds of juror misconduct and misconduct of
counsel. This court affirmed the trial court’s order granting a new trial. (Op.)
Prior to the second trial, the Johnsons brought several motions in limine (MIL).
We will discuss the relevant motions in more detail, post.
On September 30, 2011, the jury reached its verdict. The jury responded yes to
the question: “Was David Avalos, the employee of defendant, Oakhurst Industries, Inc.,
negligent?” As to Debra and Aaron, they also responded yes to the questions that
Avalos’s negligence was a “substantial factor in causing harm to Debra Johnson and
Aaron Johnson.” They found that Debra was not negligent.
After a damages trial, Debra was awarded $554,248 and Aaron was awarded
$2,100,728. Oakhurst filed a timely appeal. Oakhurst filed its notice of appeal on April
2, 2012.
II
FACTUAL BACKGROUND
A. Plaintiff’s Case
1. The accident
In 2003, Debra Johnson worked as a supervisor at a federal detention center in Los
Angeles. On the day of the accident, she picked up her son Aaron from school and was
driving to her father’s house in Los Angeles. Aaron stayed with Debra’s father while she
4 worked. Debra recalled driving on the connecting transition to the 210 freeway when she
was hit by a tractor-trailer. She did not recall anything that happened after that. The
accident occurred around 3:00 p.m.
Lloyd Vogel was transitioning from the southbound 15 onto the westbound 210.
He was in Lane 1. Vogel observed Debra’s Ford veer to the left off the road and roll over
in front of him. He did not see the Ford and tractor-trailer impact. He did not recall
seeing the tractor-trailer in the other lane. Lane 1 did not require a switch in lanes to
transition onto the 210 freeway.
Avalos was hired by Oakhurst in 1994. His regular route in 2003 was from
Commerce, California (where Oakhurst was headquartered) to Las Vegas, Nevada, and
back. In 2008, Avalos denied a request for admission that he was using his cellular
telephone at the time of the accident. At trial, Avalos admitted that he was on his cellular
telephone at the time of the accident. He believed it was in violation of company policy.
He was using a wireless headset.
CHP Officer Christopher Steven Forbes estimated that he investigated between 10
and 20 traffic collisions each month. He had investigated over 100 accidents involving
trucks and passenger vehicles. He responded to the scene of the accident. He wrote the
Traffic Collision Report (TCR).
Avalos told Officer Forbes that there were no passengers in his truck.2 Avalos
denied to Officer Forbes that he was using a cellular telephone at the time of the accident.
2 Avalos admitted at trial that Jose Magallenes was in the sleeping berth.
5 Avalos told Officer Forbes the accident occurred while he was driving southbound on the
I-15 freeway transitioning to the 210 freeway west. He was in Lane 2. Debra was in
Lane 1 and suddenly drifted into Lane 2. Her car hit the side of the trailer. Debra went
back into Lane 1 but was out of control. Officer Forbes recalled that Avalos told him that
Debra went in front of him into Lane 2 and then back into Lane 1. Debra’s car then
started to overturn off the side of the roadway. Avalos immediately pulled over. A video
simulation of the accident was shown to the jury.
After the accident, Avalos went to the Johnsons’ car. Debra was badly hurt. She
had a gouge in her head. She was making gurgling sounds. Officer Forbes
acknowledged there was no physical evidence at the scene of an impact in Lane 2. Some
of the wheels on Debra’s Ford were knocked off during the rollover. The area where the
accident occurred and where the tire marks were located was a straight highway.
Officer Forbes did not recall Debra saying that she was running late.
CHP Officer Jeff Briggs took measurements of the skid marks. All of the tire
marks were in Lane 1. Debra had been partially scalped and there was a large amount of
blood coming from her wound when he arrived. A helicopter came to the scene to
transport Aaron. All the tire skid marks came from the Ford. Lane 1 of the transition
road merged into Lane 2.
Debra’s Ford was red. Officer Forbes did not recall any red paint transferred to
the trailer. Officer Forbes never saw Magallenes. There was no physical evidence that
was contrary to how Avalos stated the accident occurred.
6 Officer Briggs recalled that Debra mentioned she was now going to be late for
work. Officer Briggs found no evidence on the roadway that he was able to rely upon to
determine the area of impact.
CHP Officer Chad Kaplan had extensive experience in accident investigation. He
inspected the Ford Explorer after the accident. He completed a full inspection of the
mechanical workings on the Ford. The wheels on the passenger side of the vehicle had
come off during the rollover. The brakes did not fail. There were no mechanical issues
that would have caused an accident. 3
Kaplan determined that the Ford was out of alignment. However, Debra should
have been able to keep the Ford straight. If a person took their hands off of the steering
wheel while it was out of alignment, the vehicle could veer to the right or left, not
necessarily to the right. Three of the tires were worn enough that they should be
replaced.
Mark Rafferty had been employed by Oakhurst for 10 years as a distribution
transportation manager. In 2003, Avalos was subject to certain rules and regulations
provided by the company. Rafferty had provided the fleet safety manual in response to a
request by the Johnsons that it give all company manuals preceding the accident. In
2007, Oakhurst provided the current safety manual to the Johnsons that was promulgated
3 Oakhurst objected to this question and answer but the objection was overruled. The trial court explained it was different from the other opinions and conclusions because it dealt with the components of the vehicle. It did not amount to testimony that Debra was at fault which was the other opinions.
7 on September 11, 2006. (Exhibit 100.) Rafferty agreed it was not a good idea to talk on
a cellular telephone while driving a tractor-trailer.
Rafferty indicated that a truck driver was required to report to his or her supervisor
any accident causing property damage or personal injury. Rafferty provided that an
accident report kit must be prepared and the drivers are subject to drug testing. Exhibit
100, rule 26 of the 2006 manual, also stated that a driver was not to use a cellular
telephone while driving the tractor or any company vehicle.
Rafferty stated an accident report kit included a form, disposable camera and
pencil. Avalos did not complete a kit for this accident. Avalos was required to submit to
alcohol and drug tests within 32 hours of an accident; he did not. Preserving the details
of an accident was important for Oakhurst.
The tractor-trailer in the accident was a diesel truck. Rafferty was not aware if the
engine had a data recording device or “black box.” The tractor-trailer did have a Teletrac
system which was used to keep track of the location of trucks. Teletrac data was kept by
another company which would have purged the data after six months. Rafferty never
thought to preserve the Teletrac data. Teletrac would not provide which lane the truck
was in. The data was not purged by Oakhurst. Rafferty indicated that Oakhurst leased all
of its trucks from Ryder and Penske.
Avalos did not put the accident on his driver’s log which he must complete for
each trip. Avalos signed a fleet safety manual in 2000. Avalos was not an employee of
Oakhurst in 2006. No new safety manual was in place between 2000 and 2006. The
8 2000 rules provided nothing about cellular telephone use. The 2000 rules also did not
require an accident report kit be completed or drug and alcohol testing.
2. Accident reconstruction expert testimony
Steven Bellino was an expert in traffic accident reconstruction. He had
reconstructed over 4,000 accidents. He had qualified as an expert in court over 200
times. Bellino was hired by the Johnsons to reconstruct the accident. Bellino reviewed
the TCR including all of the tire marks and skid marks.
He created a layout of the marks and lanes based on the TCR. He also reviewed
Avalos’s deposition testimony, Avalos’s driving log, Avalos’s cellular telephone records,
and the 2006 fleet safety manual which provided for drug and alcohol testing, accident
reports and prohibited cellular telephone use. Bellino looked at the photographs from the
scene taken by CHP officers. He also looked at Magallenes’s testimony and the defense
experts’ testimony from the first trial. He looked at the weight of each vehicle.
Bellino concluded that it was more probable that the accident occurred when
Avalos made an unsafe lane change from Lane 2 to Lane 1 and struck the Ford Explorer.
The Ford Explorer was forced out of control and Debra tried to regain control. She was
unable to gain control and the vehicle rolled off the roadway. Bellino relied on the
contact damage. Based on the damage, the tractor-trailer was traveling faster (60 miles
per hour) than the Ford (50 miles per hour) and was passing the Ford when the collision
occurred. The Ford was struck at the right side mirror.
It was clear that the Ford lifted off to the side which would have only been caused
by the heavy weight of the tractor-trailer pushing into the Ford. Bellino concluded that
9 Avalos’s use of a cellular telephone would have caused him to have divided attention and
was a contributing factor to the accident.
Computer animation of the accident was presented to the jury and was based on
Bellino’s opinion as to how the accident occurred. It showed the tractor-trailer drift into
the Ford’s lane. Debra’s car was moved to the left then she corrected to the right, and
then she tried to correct to the left to avoid the tractor-trailer and the rollover began.
There was no physical evidence on the roadway that Avalos had applied his brakes
forcefully. Avalos’s phone records show he was on his cellular telephone during times
that he put on his log that he was in the sleeping berth.
The factors Bellino considered in determining that Avalos hit Debra was that there
was only physical evidence in Lane 1, Lane 2 ended, Avalos was on his cellular phone
which distracted him, Avalos was late, Avalos had little room in his lane to negotiate,
Avalos did not complete an accident report kit, Avalos may have been alone in the
tractor-trailer, the electronic data from the truck had been erased, and Avalos refused a
drug test.
Bellino discounted Avalos’s version of the events. Debra’s car would have left
marks in Lane 2 if it occurred the way he stated. There was no physical evidence
supporting Avalos’s statement. Also Bellino said the defense experts only relied upon
Avalos’s statements and improper calculations. The maneuvers that Debra would have
had to make in their simulations were impossible.
Bellino explained that a black box from a diesel engine would record the distance,
speed and time stopped. Bellino admitted that there was no physical evidence in any lane
10 at the time of impact. His opinion that Avalos was going faster was based on the scrapes
on the tractor-trailer which he could evaluate based on his training and experience. The
rise of the Ford was evidenced by the scrapes on the tractor-trailer. It was the first time at
trial that he made this statement. Prior to trial he stated there was no direct or
circumstantial evidence supporting the impact.
Avalos would have approached behind the Ford and then drifted into the lane.
Bellino did not believe the alignment or tires on the Ford contributed to the accident.
B. Defense Case Regarding Liability
Debra did not recall any problems with her brakes prior to the accident. Debra
previously testified that she was having trouble with the brakes on the Ford. Since Debra
bought the Ford in 2000, she had replaced the tires three times leading up to the accident.
Debra admitted that she first said the truck that hit her was yellow but the Oakhurst
tractor-trailer was white.
Debra did not recall telling officers at the scene that she remembered nothing
about the accident. She recalled that she felt a jolt when the tractor-trailer hit her Ford.
Debra had a recent inspection of the Ford prior to the accident and everything was
working normally.
Tim Long, an expert in accident reconstruction, was hired by Oakhurst to create a
3-D model of the scene with the vehicles and the physical evidence. In creating his
model and animation, he looked at the photographs, the TCR and other animations that
had been created by both parties. Long had recently visited the scene and took 3-D
pictures. He was able to recreate where the tire marks were located. Long put the Ford
11 Explorer in the model of the scene to match how it would move through the tire marks.
Long believed that the model created by the Johnsons had the first tire mark in the wrong
place.
Edward Phillips testified as the reconstruction expert for Oakhurst. He was hired
in 2005 to look at the case. Phillips had reviewed the work performed by the Johnsons’
experts and had inspected the tractor-trailer and the Ford.
The impact occurred somewhere west of the first tire mark. There was no physical
evidence of impact. The merge sign for Lane 2 into Lane 1 was about 470 feet from the
point of impact. The first tire mark was made by the left rear tire of the Ford Explorer. It
was placed while Debra was trying to correct the Ford back to the right. The tire mark
allowed Phillips to determine the speed of the Ford and where it came from. Phillips
concluded that the impact occurred in Lane 2. The first tire mark was inconsistent with
the theory that the tractor-trailer moved into Lane 1 and hit the Ford. The marks would
have been left further to the side of Lane 1 if she was impacted while still in Lane 1. The
impact occurred between one and five feet into Lane 2.
As the Ford moved back from the first tire mark, it would be heading back toward
the tractor-trailer. The second and third tire marks were made by the right tires of the
Ford. The animation of the reconstruction (prepared by Long) was played for the jury.
All of the tire marks were left by the Ford. At the time of impact, there was not enough
force on the tires to leave any mark.
The point of impact on the Ford was the passenger side view mirror. Phillips
discounted Bellino’s theory that the Ford lifted up upon impact by the tractor-trailer as
12 the 3,900 pound Ford could not be lifted up by the mirror. The contact was brief.
Phillips opined that if the tractor-trailer had moved into the Ford’s lane, there would have
been more contact between the vehicles on the sides because the tractor-trailer could not
change its location on the roadway as quickly as the Ford.
The Teletrac system on the tractor-trailer could not provide the point of impact.
The black box would not have shown positions of the vehicles at the time of the collision.
Phillips believed Avalos’s description of the accident because it was consistent
with the ground evidence. Phillips had not seen any driving log books prepared by
Magallenes. When Phillips reached his opinion in 2008, he did not know Avalos was on
his phone at the time of the accident. Phillips had asked about any data recording system
on the tractor-trailer when he was hired, but there was no information available on the
subject. It was Phillips’s opinion that the information from the data recording would not
contradict the ground evidence. Phillips said the physical evidence did not support that
the Ford went into Lane 2 in front of the tractor-trailer.
Stephen Werner was a mechanical engineer. He worked exclusively analyzing
various types of accidents. Werner was hired by Oakhurst to review Officer Kaplan’s
evaluation of the Ford and the alignment. Werner was asked to determine whether the
measurements of tire tread and determination that the vehicle was out of alignment would
have caused the Ford to drift in a particular direction. The tire wear showed that the Ford
was not properly aligned on the front end. Werner concluded that the Ford would drift to
the right if the steering wheel was not held to make the vehicle go straight. He could not
conclude it caused the accident.
13 Avalos was recalled. He started driving for Oakhurst in 1994. The tractor-trailer
he was driving was leased. He had been driving the route from Commerce to Las Vegas
for seven years.
Avalos left Commerce at 6:00 p.m. on January 7. He and Magallenes switched off
driving all night. Avalos used a headset with his phone while driving. Magallenes used
his cellular telephone during the trip. Avalos called Oakhurst twice after the accident.
Avalos was driving in Lane 2. Avalos called his wife prior to entering the
transition road and was on a headset. He first saw the Ford Explorer in his left side
mirror. It drifted into his lane. The Ford then hit the trailer. The Ford hit the trailer on
the right front side and the front mirror. Avalos slowed down. He lost sight of the Ford
but then saw it again coming toward him in the driver’s side mirror. Avalos applied the
brakes. He then observed the Ford roll over twice. Avalos pulled over to the shoulder
and stopped. Avalos never told Officer Forbes that the Ford came into his lane in front of
him.
Avalos had no drugs or alcohol in his system. Avalos never refused to take a drug
or alcohol test of any type after the accident. Avalos tried to call Oakhurst several times
while at the accident scene but was unable to get through. Avalos reported the accident
to his supervisor.
Avalos signed the fleet safety rules on July 14, 2000. These rules said nothing
about cellular telephone use. He had not signed any other safety rules.
14 Jose Magallenes was still employed by Oakhurst. Magallenes oftentimes
borrowed Avalos’s cellular telephone during the trips.4 They switched off driving and
sleeping. Magallenes was sleeping when the accident happened. Magallenes felt the
truck stop. He asked Avalos why they had stopped and he told him there had been an
accident. Magallenes kept copies of his driving logs for one month and then threw them
away in the normal course of habit. He gave originals to Oakhurst. Magallenes stated at
one point he had not talked to any officers but later stated he showed the log book to
Officer Forbes. Avalos told Magallenes that the Ford came into his lane. Prior to trial,
Magallenes had stated, “He said the SUV cut in front of him and that he hit it and then
the SUV lost control and he hit it a second time.” However, another time at a deposition,
Magallenes said Avalos told him the Ford came into his lane but he was not sure if it was
in front or the middle.
III
WILLFUL SUPPRESSION INSTRUCTION (CACI No. 204)
Oakhurst first contends that the jury was improperly instructed with CACI 204
involving willful suppression of evidence as to four items: the black box device on the
tractor-trailer; an accident report prepared by Avalos; driving logs prepared by the co-
driver Magallenes; and a drug and alcohol test taken by Avalos after the accident.
4 Magallenes had testified previously he did not use Avalos’s phone that day.
15 A. Additional Factual Background
Here, after the trial in this matter, the jury was instructed with CACI No. 203 as
follows: “You may consider the ability of each party to provide evidence. If a party
provided weaker evidence when it could have provided stronger evidence, you may
distrust the weaker evidence.” It also was instructed, without limitation, with CACI 204
as follows: “You may consider whether one party intentionally concealed or destroyed
evidence. If you decide that a party did so, you may decide that the evidence would have
been unfavorable to that party.” The relevant facts pertaining to these instructions are as
follows:
1. MIL – black box
Oakhurst filed its MIL 6 which addressed the exclusion of any reference to a data
recorder or “black box” on the tractor-trailer. Oakhurst contended that there was
conflicting evidence as to whether or not a black box recording device was on the tractor-
trailer at the time of the accident. Moreover, whether the device was present or absent,
neither party knew what data it recorded. Further, none of the parties alleged that it
recorded what lane the impact occurred, which was the source of liability in the instant
case. Oakhurst contended that at the time of the accident, the CHP officers, the Johnsons
and Oakhurst did not know if the black box existed.
The Johnsons filed a reply. They claimed that Oakhurst had failed to preserve the
black boxes. As evidence, they presented discovery conducted in 2007. In 2007, an
interrogatory was sent by the Johnsons to Oakhurst asking for, “Any and all records
generated through the use of the QUALCOMM OMNITRAX system with which the
16 truck may or may not have been equipped at the time of the INCIDENT . . .” In
response, Oakhurst stated, “Responding party is not aware [i]f such a system was
equipped on the subject vehicle, therefore, is unable to comply with this request.” The
Johnsons also provided the deposition testimony of Phillips. In his deposition, he was
asked, “Describe the onboard data collection system this vehicle had, first of all again. Is
this the Qualcomm that you are talking about?” Phillips responded, “No. Well, yes and
no.” Phillips recounted that, based on his research, that this type of vehicle had a Detroit
diesel engine with a recording device, e.g. the black box. It would record hard braking.
When asked if he reviewed the data from the tractor-trailer, he stated, “Well, the short
answer is no. But I wasn’t involved until two years later, and nobody apparently
understood that it had this capability, at least to my knowledge.” Phillips had asked prior
counsel about a black box and no one was aware of what Phillips was talking about.
Further, the “trucking” company stated that the tractor-trailer also had a Teletrac system.
In response to discovery, Oakhurst stated, “Responding party believes that at the time of
the incident the recording system that was in use and still in use is Teletrac and the
requested information had been purged from the system six (6) months after the
incident.” In addition, there was a request for, “Any all records generated by on-board
recording devices with which the truck was equipped at the time of the INCIDENT . . . “
Oakhurst filed a reply. Oakhurst responded it did not have the black box data in
its control or custody. Further, the new expert hired by the Johnsons, Bellino, did not
have any information that the tractor-trailer in question had the black box. Further, they
argued that instruction pursuant to CACI No. 204 was improper because there was no
17 evidence that Oakhurst intentionally withheld evidence as there was no definitive
evidence a black box existed on the tractor-trailer or was destroyed.
On September 12, 2011, the trial court heard argument on Oakhurst’s MIL 6. The
trial court inquired of the black box that was not part of the first trial. Oakhurst
represented that it rented the truck from Penske and Ryder. The trial court understood
from other cases that the black boxes could tell speed and braking. The Johnsons advised
the trial court that Oakhurst admitted through its expert (Phillips) that there were two
recording devices on the tractor-trailer. Oakhurst denied the expert ever saw the tractor-
trailer or knew about the devices. The trial court held off ruling on the black box until
Phillips testified. The Johnsons also offered that they would present testimony through
their expert Bellino that the black box was purged by Oakhurst.
Later, the Johnsons mentioned that based on the response to an interrogatory,
Oakhurst agreed that there was a black box and it had been purged. Oakhurst argued it
was Teletrac that was not a black box; Teletrac only was a tracking device for drivers.
The discovery responses only referred to the Teletrac and had nothing to do with a black
box or any other onboard device. Phillips did not inspect the tractor-trailer involved to
see if there was a black box that tracked speed or anything else; he could not know. The
Johnsons argued that Oakhurst lied to the expert; the black box existed and was purged.
The trial court stated it was going to conduct an Evidence Code section 402 hearing on
the matter of the black boxes and decide if it should be admitted. No such hearing was
conducted.
18 Rafferty testified he was not aware of a black box on the involved tractor-trailer.
He also testified that Teletrac, which was located in Orange County, destroyed any data
that would have been on their system after six months. Rafferty explained that the
Teletrac system only recorded where the vehicle was parked and its location. Phillips
testified as provided, ante, that a black box would have recorded speed and braking.
Bellino testified he was unaware of any black box on the tractor-trailer and it would not
provide the point of impact.
At the time the parties discussed the instructions, Oakhurst argued that there had
been no willful suppression of the black boxes or anything else in the case. The trial
court responded, “Listen to me very carefully. I just read that instruction entirely so that
you can listen to it. If you decide that a party did so. In other words, it’s a jury question
then you treat it in a certain way. If they decide no, then they don’t apply anything to it.”
Oakhurst’s counsel responded that he was concerned about the part of the instruction that
if they did find there was willful suppression, “you may decide that the evidence would
have been unfavorable to that party.”
Oakhurst complained that the issue was where the collision occurred. The black
box would not have given that information. The trial court interrupted and stated it
would have given the speed. Oakhurst’s counsel stated that there was only a five mile
per hour disparity on the vehicles. The trial court responded, “That’s what they say. I
don’t know the answer to it. The thing would have said much more than that, I don’t
know that. I’m going [to] give it over your objections.”
19 During opening argument, the Johnsons argued that the tractor-trailer had two data
recording devices that were purged. They argued that one of the devices recorded speed
and braking. The Johnsons argued, “All that information was captured by the electronic
device, the one in the engine and the one in the cab. Both those were purged by
Oakhurst. They were erased. Both of the computer brains were erased.”
During closing argument, the Johnsons raised that Oakhurst failed to preserve the
data recorders. Oakhurst should have known based on the severity of the accident that
they should have saved the evidence. The Johnsons argued, “If it helps you, you would
preserve it. If it doesn’t, you would purge it is what I suggest occurred here. And they
did exactly that. They didn’t keep the accident report on the investigation. They didn’t
keep the data from the computer . . . .”
Oakhurst responded by asking the jury to focus on the accident itself and ignore
any of the arguments about anything else that the Johnsons were trying to make to
distract them from the real issues in the case.
The Johnson’s rebuttal included an argument that Oakhurst did not save their
driving logs or data recorders because the evidence would not help them. The Johnsons
argued, “[t]hey don’t have it because the evidence would have been unfavorable to
them.”
20 2. Drug and alcohol tests and accident report kit
Oakhurst’s MIL 5 sought to exclude evidence that they failed to conduct their own
investigation of the accident. In response, the Johnsons alleged that Avalos had failed to
prepare an accident report kit in violation of its own policies regarding safety and
accident investigation. The Johnsons attached Avalos’s testimony from the first trial. In
that testimony, Avalos was shown the fleet safety manual that was promulgated in 2006.
Avalos read from the manual that he was to submit an accident report kit. Avalos did not
remember if he completed one. An objection was made that the manual was from 2006,
when Avalos was no longer employed at Oakhurst, but it was overruled. The Johnsons
also presented discovery responses that they asked Oakhurst for all safety manuals and
they were given the 2006 version. Avalos’s personnel file was also turned over.
Oakhurst responded that whether Avalos completed an accident report kit or not
was irrelevant to causation. Further, the best evidence was the CHP investigation.
Oakhurst later argued that the 2006 policies and procedures were not relevant to
causation.
In Oakhurst’s MIL 9, they sought to exclude any mention of a lack of drug and
alcohol testing of Avalos. Avalos was not suspected at the accident scene to be under the
influence of drugs or alcohol. Any mention that he did not take a drug or alcohol test
would be prejudicial. The Johnsons did not file a written reply.
Prior to trial, the parties discussed the fleet safety manuals. The trial court noted
that part of the handbook was that employees were not to use their cellular telephones
while they were driving. Avalos lied and said he was not on his phone.
21 Oakhurst argued the handbook was written in 2006 and the accident was in 2003.
The Johnsons responded it was the only manual they had been given in discovery. The
trial court felt the 2006 manual was admissible because Avalos had previously testified
he broke rules in the manual and no other manual had been produced.
The trial court later revisited the issue. Oakhurst’s counsel represented that in
2007, during discovery, they produced the two-page safety manual that was effective in
2000 that would have been in place when the accident occurred in 2003. In the 2000
manual, there was no mention of cellular telephone use. Avalos signed the 2000 version.
The Johnsons argued that Oakhurst had represented that the manual from 2006
was the one in effect during the first trial. Avalos agreed he violated the manual. The
trial court allowed the 2000 manual to be admitted into evidence and Oakhurst could
argue it was applicable at the time of the accident.
The 2000 manual was admitted during Rafferty’s testimony. According to the
two-page safety manual in effect in 2000, there was no requirement of a drug or alcohol
test after an accident or to complete an accident report kit.
The Johnsons argued during opening argument that Avalos had refused to take a
drug and alcohol test and Avalos did not complete an accident report kit.
During argument, the Johnsons argued that Avalos was fatigued and on a long trip.
They argued that driving while talking on a cellular telephone was a careless act and
Avalos had lied about using the phone. He was on the phone while he was supposed to
be sleeping. They also argued he violated the fleet safety manual by using his phone, by
failing to take a drug and alcohol test and by failing to prepare an accident report kit.
22 They later again argued that Oakhurst suppressed the accident report and failed to
preserve the black boxes.
The Johnsons argued, “Preserve your record. If it helps you, you would preserve
it. If it doesn’t, you would purge it is what I suggest occurred here. And they did exactly
that. They didn’t keep the accident report on the investigation. They didn’t keep the data
from the computer and the drug and alcohol test. Maybe they did do exactly what their
company rules say, 32 hours later do a drug test. And maybe those drug tests weren’t so
helpful to them and that’s why they are not here for us to see. That’s something for you
to consider.” The Johnsons also argued, “So when you think about this willful
suppression, please consider those facts that they had the ability to give us the drug tests,
the accident report kit, Magallenes’s logs, but they refused. They didn’t. They just
didn’t. An important thing is you may very-well conclude that they didn’t because it was
unfavorable to them, and I think that’s how the evidence is pointing at this juncture.”
3. Magallenes’s log
The evidence regarding driving logs prepared by Magallenes was scarce. Rafferty
testified that Avalos kept a driving log and that it was kept in the employment records.
Avalos testified that Magallenes would have kept his own driving log. Magallenes
testified he kept a logbook of his driving, that he kept it for a month and then threw it
away in accordance with his normal practice. He showed them to a CHP officer at the
scene. Magallenes stated he gave a copy of the driving logs to Oakhurst and he had no
idea how long they kept them.
23 The Johnsons argued during closing that Oakhurst should have produced the
Magallenes’s logs. Further, as stated above, they argued that the failure to do so was
unfavorable to them.
4. Jury deliberations
During deliberations, the jury sent out a note that they wanted to know the time
limit for deliberations if they were “stuck.” The jury was called into the courtroom and
the foreperson indicated the split of the vote was 8 to 4. They were advised they should
keep deliberating. They retired for deliberations and then reached a verdict. The final
verdict was a 10 to 2 vote.
5. Motion for new trial
Oakhurst filed a motion for new trial as to the liability phase of the trial. Oakhurst
first raised that the trial court erroneously instructed the jury with CACI 204 on willful
suppression of evidence. First, it raised the issue of the “black boxes” and that there was
no evidence they even existed on the tractor-trailer or what they recorded. The only
evidence was of Teletrac on the vehicle which would not have provided a specific
location in the lane. Second, the accident report kit would not have been helpful as there
was no evidence that Avalos would have provided more than what the numerous CHP
officers at the scene provided. Third, the lack of an alcohol or drug test issue was raised.
There was no suspicion that Avalos was under the influence. Moreover, no test was
suppressed. Finally, there was no evidence in the case about the driving logs of
Magallenes. There was no evidence they existed and no evidence how they would help
24 in deciding liability. There was no evidence that Oakhurst willfully suppressed these
items.
Oakhurst argued it was prejudicial because the Johnsons argued to the jury that the
items had been kept from the jury because they were harmful to Oakhurst. Oakhurst
provided juror declarations that the instruction caused a “shift” in support for four jurors.
The declarations only showed observable facts and not the thought processes of the
jurors.
According to the declarations, the initial vote was eight jurors favored Oakhurst
and four jurors favored the Johnsons. One juror, Huerta, had the presiding juror read
CACI 204 to the jury. After this instruction was given, another poll was taken and three
jurors favored Oakhurst and nine found in favor of the Johnsons.
The Johnsons filed opposition to Oakhurst’s motion for new trial. The Johnsons
argued that Oakhurst had not shown a miscarriage of justice had occurred. They argued
that Avalos was aware he had been in a serious accident. Written policies of Oakhurst
mandated that he prepare an accident report and take a drug and alcohol test. There were
no driving records for Magellenes and no black boxes. Since they were mandated by
Oakhurst’s own policies, they would have produced evidence relevant to the liability of
Oakhurst.
Oakhurst filed a reply. The Johnsons could not provide juror declarations to
contradict Oakhurst’s declarations. Further, there was no evidence of willful suppression
of evidence. No evidence the items would have an impact on the case.
25 The matter was heard on March 1, 2012. The trial court first went over the issues
that were being raised. As for the juror declarations, it noted that it was going to exclude
them pursuant to Evidence Code section 1150.5 The trial court stated, “[w]hether I did or
did not, even if I should consider it, I come up with the same result because it’s based
upon the idea that I made a legal decision that was incorrect, i.e., to give CACI
instruction 204, i.e. willful suppression of the evidence. Since I don’t believe that that
was a wrong legal type of maneuver on this Court’s part, I just don’t see why I should,
even if I should not exclude it, this Court consider it. It doesn’t make any difference as
far as I’m concerned. But legally speaking, I made a ruling that 1150 does apply.” The
trial court tentatively stated it was going to deny the motion for new trial.
Oakhurst’s counsel disagreed that the declarations went to the thought processes
of the jurors. Oakhurst argued there was no evidence that three of the items said to be
willfully suppressed — the black boxes, accident report kit, and drug and alcohol test —
even existed. The instruction, according to Oakhurst, allowed the Johnsons to “substitute
scandalous speculation that was connected to nothing in the place of evidence.” Oakhurst
argued CACI 203 was the correct instruction. Oakhurst argued that it was a very close
case on liability and this had an impact on the verdict.
5 Evidence Code section 1150 provides as follows: “(a) Upon an inquiry as to the validity of the verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”
26 On March 6, 2012, the notice of ruling denying the motion for new trial was
entered.
B. Standard of Review
We apply the de novo standard of review to this claim. (See Sander/Moses
Productions, Inc. v. NBC Studios, Inc. (2006) 142 Cal.App.4th 1086, 1094-1095
[“Challenges to jury instructions are subject to a de novo standard of review”].)
C. Evidence of Actual Suppression
“‘[A] party is entitled to have the jury instructed on his theory of the case, if it is
reasonable and finds support in the pleadings and evidence or any inference which may
properly be drawn from the evidence.’ [Citation.]” (Moore v. Preventive Medicine
Medical Group, Inc. (1986) 178 Cal.App.3d 728, 744.)
Evidence Code section 413 provides that, “[i]n determining what inferences to
draw from the evidence or facts in the case against a party, the trier of fact may consider,
among other things, the party’s . . . wilful [sic] suppression of evidence relating thereto. .
.” (Shapiro v. Equitable Life Assurance Soc. (1946) 76 Cal.App.2d 75, 94, italics
omitted.) The rule expressed in Evidence Code section 413 “‘is predicated on common
sense, and public policy. The purpose of a trial is to arrive at the true facts. A trial is not
a game where one counsel safely may sit back and refuse to produce evidence where in
the nature of things his client is the only source from which that evidence may be
secured. A defendant is not under a duty to produce testimony adverse to himself, but if
he fails to produce evidence that would naturally have been produced he must take the
risk that the trier of fact will infer, and properly so, that the evidence, had it been
27 produced, would have been adverse.’ [Citation.]” (Williamson v. Superior Court (1978)
21 Cal.3d 829, 835, fn. 2, italics omitted.) CACI No. 204 is derived from Evidence Code
section 413.
“The substantial evidence test applies to jury instructions as well as judgment
[citation], and it is prejudicial error to instruct the jury on wilful [sic] suppression of
evidence when there is no evidence to support the instruction.” [Citation.]” (Bihun v.
AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 992 (Bihun), disapproved of
on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644.)
In Bihun, an employee sued her former employer for damages arising from sexual
harassment, after she was subjected to unwelcome sexual advances by one of the
employer’s senior officials. (Id. at pp. 985-986.) On appeal, the employer claimed that
the trial court erred by instructing the jury on willful suppression of evidence after the
employer’s attorney failed to admit in a request for production of documents that the
senior official’s personnel file could not be located. (Id. at pp. 991-992.) The court first
noted that “a wilful [sic] suppression instruction does not require direct evidence of
fraud.” (Id. at p. 992.) It also noted, “[i]n our case the defendant not only was unable to
produce records it clearly could anticipate would be requested after it was sued, when
those records were requested it covered up the fact the records had been lost or destroyed
and did not reveal this fact until forced to do so in the middle of trial.” (Id. at pp. 993-
994.) The court found evidence supported the willful suppression of evidence including
that although the senior official’s employment file could not be found, the employee’s
file could be found; the defendant covered up the loss of the file; defendant’s own rules
28 required that the personnel file be maintained if a matter is in litigation; and “it was
reasonably probable” performance evaluations and other documents or the employee’s
complaints of sexual harassment would have been in the file. (Id. at p. 994.)
In Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, the court
held that there is no tort remedy for the intentional destruction of evidence by a litigating
party. (Id. at p. 17.) Cedars–Sinai expressed a preference for remedying litigation-
related misconduct by imposing sanctions in the underlying lawsuit rather than by
creating a tort remedy. (Id. at pp. 8-9.)
Cedars–Sinai also stated that other, nontort remedies available for intentional
spoliation, including particularly the evidentiary inference provided by Evidence Code
section 413 and discovery sanctions under former section 2023, were sufficient to deter
intentional spoliation and protect the spoliation victim. (Cedars–Sinai, supra, at pp. 11-
13.) Cedars–Sinai also stated that uncertainty as to what the spoliated evidence would
have shown created a risk that the spoliator could be found liable for damages even if the
spoliated evidence would not have changed the outcome of the underlying litigation. (Id.
at p. 15.) Cedars–Sinai also expressed concern about the cost of litigating meritless
spoliation claims where evidence was destroyed, not for the purpose of making it
unavailable in litigation, but innocently in the ordinary course of business. (Id. at pp. 15-
16.)
A later case addressing Cedars-Sinai stated, “Moreover, we believe that the
concern expressed in Cedars–Sinai, supra, 18 Cal.4th at pages 15-16, [], about meritless
spoliation claims where the evidence was destroyed innocently in the ordinary course of
29 business is an appropriate concern in this context as well. A party moving for discovery
sanctions based on the intentional destruction of evidence could argue that the mere fact
that the evidence no longer exists supports an inference of intentional spoliation. Rather
than decide the facts with respect to the intentional destruction of evidence and impose a
nonmonetary sanction on a pretrial motion in circumstances not contemplated by the
discovery statutes, we believe that in most cases of purported spoliation the facts should
be decided and any appropriate inference should be made by the trier of fact after a full
hearing at trial.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403,
1431, footnote omitted.)
Here, the evidence of willful suppression of the Teletrac or black box was
deficient. Initially, it is clear from the interrogatories and testimony from Rafferty that no
one at Oakhurst was aware of a black box on the tractor-trailer. They were completely
unaware of the system and no evidence was presented that they were lying. It was not
until 2011 that Phillips discovered that this type of truck had a black box system. Phillips
was advised by the prior attorneys that no one knew about it.
The trial court never made a determination that Oakhurst was aware of the device
and intentionally suppressed it. It never determined if it ever existed. Based on the
statements made by the trial court, it appeared to leave the determination to the jury.
However, there must be some evidence to support the willful suppression instruction.
(Bihun, supra, 13 Cal.App.4th at p. 992.) Based on the record in this case, there simply
was no sufficient evidence that Oakhurst had any control over the black box, if it even
was installed on this tractor-trailer, or that it was intentionally destroyed by Oakhurst.
30 Moreover, it appears, like the Teletrac data, to have been purged in the normal course of
business. Further, as for Teletrac information, which only described the location of the
vehicle, Oakhurst could not be expected to determine it would be relevant and should be
preserved should litigation on an accident occur. Moreover, it was purged in the normal
course of business and would not change the outcome of the litigation. (Cedars-Sinai,
supra, 18 Cal.4th at p. 16.) The willful suppression instruction was not supported by
evidence that a black box may have been destroyed and certainly did not support the
inference that it was favorable evidence for the Johnsons.
Additionally, it is undisputed that Avalos did not submit to an alcohol and drug
test after the accident, and that he did not complete an accident report kit. Hence, as
argued by Oakhurst, there was no evidence that Oakhurst suppressed any evidence.
Giving the instruction that allowed the Johnsons to argue that there was intentional
suppression of evidence that did not exist was error. The only support for the instruction
would have been if Avalos was required, as argued by the Johnsons, by his company
policy to prepare this documentation and he purposefully refused to comply. (Bihun,
supra, 13 Cal.App.4th at pp. 992-994.)
The Johnsons have argued that Avalos had an obligation to prepare both the
accident report kit and take a drug and alcohol test based on the fleet safety manual.
They refer to the manual dated September 11, 2006.6 The fleet safety manual to which
6 We note that Oakhurst has failed to raise the argument in either its opening brief or reply brief that the 2000 fleet safety manual did not require an alcohol and drug test or accident report. Rather, Oakhurst states the items supposedly suppressed by it did [footnote continued on next page]
31 the Johnsons rely upon was not enacted until 2006, three years after the accident. The
Johnsons cannot claim that such a requirement existed based on the 2006 manual.7
Rather, the fleet safety manual from 2000, that Avalos signed, and the trial court admitted
into evidence, had no requirement for a drug or alcohol test or for the preparation of an
accident report kit. Rafferty testified that he produced the personnel file of Avalos and it
included the 2000 manual signed by Avalos. It is inconceivable how Oakhurst could
have been found by the trial court to have willfully suppressed evidence on a theory that
Avalos purposefully failed to produce it when Avalos had no requirement to complete it
based on the manual in effect at the time of the accident.
We have reviewed both safety manuals. It is clear that the 2006 manual was not
promulgated until 2006, well after the accident in this case. The fleet safety manual in
place was created in 2000, and makes no mention of the accident report kit or a drug or
[footnote continued from previous page] not exist. We consider this issue because the only argument raised by the Johnsons that it was required is that the 2006 safety manual required it. 7 At oral argument, the Johnsons raised for the first time that the 2006 manual included language that it superseded rules enacted in 1999 regarding the drug and alcohol testing requirements at Oakhurst. We have found no such reference in the record. No such requirement was included in the 2000 rules signed by Avalos and there was no evidence presented in the trial court, or in this court, regarding rules promulgated in 1999. The Johnsons have also referred to Rafferty’s testimony at oral argument and in their respondent’s brief as establishing a requirement at Oakhurst that a driver who is involved in an accident must submit to drug and alcohol testing with 32 hours of the accident. They contended in the respondent’s brief that such rule was required by the 2006 manual, which we have already concluded was not in place when the accident occurred. There simply was no credible evidence of a drug and alcohol testing requirement in 2003 when the accident occurred to warrant the willful suppression instruction.
32 alcohol test. As such, the willful suppression instruction was not supported by evidence
that Oakhurst suppressed an alcohol and drug test or an accident report kit.
Finally, as to the driving logs of Magallenes, there simply is not enough evidence
in the record in order to determine what happened to the logs. Magallenes testified he
prepared them but had no idea what Oakhurst did with the logs. There is no evidence if
the logs were destroyed in the normal course of business or if they still existed. This did
not support the instruction.
None of the four pieces of evidence supported the willful suppression instruction.
D. Prejudice
Oakhurst contends that if the instruction was erroneously given, that prejudice
need not be shown and reversal is mandated without consideration of prejudice. The
Johnsons respond that prejudice must be shown.
In Bihun, the court stated, without further analysis, that “it is prejudicial error to
instruct the jury on wilful [sic] suppression of evidence when there is no evidence to
support the instruction.” (Bihun, supra, 13 Cal.App.4th at p. 992.) In County of Contra
Costa v. Nulty (1965) 237 Cal.App.2d 593, it held that it is prejudicial error to give an
instruction on fraudulent suppression of evidence when there is no showing of fraudulent
suppression. (Id. at p. 598.) However, after these cases were decided, in Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, the California Supreme Court held, “We . . .
conclude that there is no rule of automatic reversal or ‘inherent’ prejudice applicable to
any category of civil instructional error, whether of commission or omission. A
judgment may not be reversed for instructional error in a civil case ‘unless, after an
33 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.’ [Citation.]” (Id. at
p. 580.) The California Supreme Court has further explained, instructional error requires
reversal only ‘““where it seems probable” that the error “prejudicially affected the
verdict”’ [Citation.] The reviewing court should consider not only the nature of the
error, “including its natural and probable effect on a party’s ability to place his full case
before the jury,” but the likelihood of actual prejudice as reflected in the individual trial
record, taking into account “(1) the state of the evidence, (2) the effect of other
instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury
itself that it was misled.” [Citation.]” (Rutherford v. Owens–Illinois, Inc. (1997) 16
Cal.4th 953, 983 (Rutherford).)
We conclude the instruction was prejudicial after reviewing the entire cause. The
case for liability in this case was not strong. Avalos, the only witness who saw the
impact, testified that Debra veered into his truck and hit him. There were no skid marks
or any type of evidence in Avalos’s lane. The skid marks did not establish the point of
impact. The Johnsons’ expert relied on the skid marks and reconstruction, but also relied
heavily on Avalos’s failure to take a drug test, his fatigue, and his failure to make an
accident report in concluding that Avalos was at fault. Oakhurst had an equally credible
expert, who surmised based on the same markings on the road, that Debra hit the trailer.
Hence, in this case, any advantage for either party could conceivably sway the
jury. The Johnsons argued that Avalos was fatigued because it was clear he drove the
entire route. They were then able to argue that Magallenes’s logs were destroyed to hide
34 this fact. They were able to argue that it was suspicious that Avalos did not complete an
accident report kit despite the fact there were statements by Avalos as to the accident
cause and voluminous police reports. Further, the Johnsons were able to argue that
Oakhurst destroyed the black boxes because it had damaging information. Also, they
were able to argue that Avalos was on drugs at the time of the accident which caused him
to veer into Debra’s lane. It ‘““seems probable” that the error “prejudicially affected the
verdict.”’ [Citation.] (Rutherford, supra,16 Cal.4th at p. 983.)
Moreover, there is a strong indication from “the jury itself that it was misled.”
[Citation.]” (Rutherford, supra, 16 Cal.4th at p. 983.) The trial court excluded the
declarations provided by Oakhurst.
The California Supreme Court has “emphasize[d] that, when considering evidence
regarding the jurors’ deliberations, a trial court must take great care not to overstep the
boundaries set forth in Evidence Code section 1150. The statute may be violated not only
by the admission of jurors’ testimony describing their own mental processes, but also by
permitting testimony concerning statements made by jurors in the course of their
deliberations.” (People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.) “‘“[A] verdict
may not be impeached by inquiry into the juror’s mental or subjective reasoning
processes, and evidence of what the juror ‘felt’ or how he understood the trial court’s
instructions is not competent.”’ [Citations.]” (People v. Lindberg (2008) 45 Cal.4th 1,
53.)
However, “[J]urors may testify to ‘overt acts’ — that is, such statements, conduct,
conditions, or events as are ‘open to sight, hearing, and the other senses and thus subject
35 to corroboration’— but may not testify to ‘the subjective reasoning processes of the
individual juror . . . .’ [Citation.]” (In re Stankewitz (1985) 40 Cal.3d 391, 398.)
Although overt acts may be admitted, statements must be received with caution.
“Statements have a greater tendency than nonverbal acts to implicate the reasoning
processes of jurors — e.g., what the juror making the statement meant and what the juror
hearing it understood. They are therefore more apt to be misused by counsel in an effort
to improperly open such processes to scrutiny.” (Ibid.)
Here, the trial court properly determined that it could not consider the thought
processes of the jurors under Evidence Code section 1150. However, the trial court could
consider the votes of the jurors (which were stated in open court) and that, between the
time of the first vote and the finding of liability, that the willful suppression instruction
was given in the jury room. It is reasonably inferred that the instruction had some impact
on the jurors. Nonetheless, the prejudice was apparent even without considering the
declarations.
Based on the foregoing, instruction to the jury with CACI No. 204 was prejudicial.
We reverse liability and damages. We briefly address two of the other issues raised by
Oakhurst as to the liability phase in anticipation of a third trial in this matter.
IV
REMAINING ISSUES
Oakhurst contends that the trial court should have admitted the opinions of the
CHP officers at the scene as to the point of impact especially in light of allowing Officer
Kaplan to testify regarding the alignment of the Ford. Oakhurst further contends that the
36 trial court erred by admitting a response to a Request for Admission wherein Avalos
denied he was using his cellular telephone during the accident.
A. Request for Admission
Prior to trial, a Request for Admission provided to Avalos stated as follows:
“Admit that YOU were using a cellular phone at the time of the INCIDENT.” Avalos
responded, “Deny.” The Request for Admission and response were admitted during
Avalos’s testimony.
The trial court found the Request for Admission admissible as it went to Avalos’s
credibility. The denial was admissible under Evidence Code section 780. Evidence Code
section 780 provides that “Except as otherwise provided by statute, the court or jury may
consider in determining the credibility of a witness any matter that has any tendency in
reason to prove or disprove the truthfulness of his testimony at the hearing, including but
not limited to any of the following: [¶] (h) A statement made by him that is inconsistent
with any part of his testimony at the hearing.” Oakhurst provided no persuasive authority
that this was not applicable to the Request for Admission.
B. Testimony by CHP Officers
Prior to trial, the trial court excluded the testimony of CHP Officers Forbes and
Briggs as to the cause of the accident. Initially, the trial court noted that all of the CHP
Officer witnesses could not testify as to causation because it would be cumulative. The
trial court found that the TCR was not admissible. The trial court noted that any
measurements or tire marks were admissible but the report itself was not admissible. The
trial court stated that there was no physical evidence of the point of impact. Oakhurst
37 argued that the officer who looked at the markings would testify that the point of impact
was consistent with Avalos’s statement and the physical evidence. The trial court
responded, “You’re not going to get there, I can tell you that right now.” The trial court
excluded any opinions by the officers on the point of impact. The trial court did note that
if the officers qualified as reconstruction experts they could testify about their opinion as
to the point of impact.
In Officer Forbes’s testimony, he stated that he had taken several traffic accident
investigation classes but provided nothing about accident reconstruction. Officer Briggs
stated he was not qualified in accident reconstruction; he only was trained to mark
evidence.
Expert opinion testimony is admissible when it is “[r]elated to a subject that is
sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact.” (Evid.Code, § 801, subd. (a).) “[T]he determinative issue in each case must
be whether the witness has sufficient skill or experience in the field so that his testimony
would be likely to assist the jury in the search for the truth, and ‘no hard and fast rule can
be laid down which would be applicable in every circumstance.’ [Citation.] Where a
witness has disclosed sufficient knowledge, the question of the degree of knowledge goes
more to the weight of the evidence than its admissibility.” (Mann v. Cracchiolo (1985)
38 Cal.3d 18, 38.)
Here, Officers Briggs and Forbes were never qualified as experts in accident
reconstruction. Presuming Oakhurst could establish in another trial that Officers Briggs
and Forbes did in fact have the necessary expertise in accident reconstruction, their
38 opinions based on Avalos’s statements and the surrounding evidence would be
admissible. (Evidence Code, § 801, subd. (b).)
Officer Kaplan, who testified he had extensive experience in the mechanical
workings of cars, and was an expert as conceded by Oakhurst, testified as set forth, ante,
that based on his review of the alignment on the Ford, it would not have caused the Ford
necessarily to veer to the right. Officer Kaplan did not testify as to the cause of the
accident. He provided that based on his review of the alignment, it would not have
veered to the right. Such expert opinion, based on his experience as a mechanic, was
properly admitted.
V
DISPOSITION
We reverse the judgment. Oakhurst is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI J.
We concur:
RAMIREZ P. J.
McKINSTER J.
Related
Cite This Page — Counsel Stack
Johnson v. Oakhurst Industries CA4/2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-oakhurst-industries-ca42-calctapp-2014.