APPEALS from a judgment of the Superior Court of San Diego County, Randa Trapp, Judge. (Super. Ct. No. 37-2009-00083702- CU-PO-EC)
The opinion of the court was delivered by: Mcconnell, P. J.
CERTIFIED FOR PUBLICATION
This negligence action, for personal injury and wrongful death, arises from shootings by Gary Sanner during an intrusion at his home. The principal question on appeal is whether the trial court prejudicially abused its discretion by admitting the opinions of plaintiffs' designated expert, a retired police officer, on the reasonableness of Sanner's conduct. We answer the question in the affirmative and reverse the judgment. The test of reasonableness is an objective one for the jury when, as here, it is just as competent as the expert to evaluate the evidence and draw conclusions. The expert testimony usurped the jury's role.
FACTUAL AND PROCEDURAL BACKGROUND
Sanner and Jennifer Sanchez married in 2001. She has a son, Shayne Thompson (Shayne), who lived with Sanner and Sanchez in Sanner's small house in rural Descanso. Numerous times, Shayne climbed through a back window to get into the house when he did not have his key. Sanchez and Shayne moved out of the house in October 2007, and in April 2008*fn1 she filed for dissolution of the marriage.
On August 8, a Friday, Sanchez placed several calls to Sanner about retrieving the title to Shayne's truck, which was at Sanner's house. That afternoon and into the evening, Sanchez and her boyfriend, Joseph Burton, drank beer together at her house. She drank at least four beers and he drank at least eight beers. A friend of Sanchez's who stopped by late that evening described Burton as "intoxicated" and Sanchez as "under the influence."
Sanchez phoned Sanner between 11:00 and 11:30 p.m. Sanner drank at least six beers that evening and he had gone to bed. The phone call awakened him, but he did not answer. Sanchez left a message that she planned to go to his home to retrieve belongings she had left there.*fn2 Sanchez felt Sanner was being uncooperative. He had been paying for her cell phone service, but he discontinued the service that day without warning.
Sanchez and Burton decided to go to Sanner's home. At about midnight, Burton phoned the sheriff's department for an escort because he feared trouble. The department advised him it had no escort available at that hour, and he should call back during business hours. Sanchez and Burton, however, were unwilling to wait. Sanchez again called Sanner at about 1:00 a.m. on August 9, and he did not answer. The call awakened Sanner. His landline had caller identification, and he could see the call came from Burton's cell phone.
Burton's daughter, Jessica Burton (Jessica), was visiting Burton and Sanchez at Sanchez's house. Shayne, then age 16, and Burton's son, Joseph Eric Burton (J.E.), then age 18, were friends, and they were together at Burton's house. Burton and Sanchez decided the boys should join them at Sanner's house to help retrieve her belongings. J.E. and Shayne drove to Sanner's house in J.E.'s truck, and Jessica drove Burton and Sanchez there in Burton's truck. Both trucks backed into and parked in Sanner's driveway at approximately 2:00 a.m. on August 9. It was a dark night, and there were no nearby street lights or lights on inside or outside Sanner's house. His truck was parked at the house.
Sanner was awakened by his dog barking and the sound of a vehicle engine. He looked out the front window and saw two trucks backing into his driveway. Sanner thought one of the trucks belonged to Burton and the other belonged to a male friend of Sanchez. Sanner dialed 911 from the back corner of his bedroom as he loaded his shotgun. He told the 911 operator, "There's two trucks pulled in my yard, and there are three men and they intend to do me harm. I need help immediately." He also told the operator, "I have a loaded shotgun, and I'm not letting them harm me." When the operator asked Sanner why he feared the men, he responded, "Because one of them is my estranged wife's boyfriend, and she thinks I've got something of hers that she wants." Sanner also said, "They're all intoxicated, and I will start shooting."
The group of five climbed onto the front porch of Sanner's house. Sanner, who was still on the 911 call, could see their silhouettes through the window. According to Sanchez, a motion light over the door activated, and she knocked on the door and loudly announced herself. According to Sanner, he had unscrewed the light bulb before he went to bed because animals were continually activating it. A neighbor of Sanner explained he had asked Sanner to deactivate the motion light on occasion because it shone into the neighbor's guestroom.
Sanner heard knocking on the door, and he told the 911 operator he thought he heard Sanchez's voice. Sanner "was begging the police to get there." Sanner kept his interior lights off and said nothing because "I was not giving my position away."
When Sanner did not answer the door, Sanchez looked through the front window with a flashlight, but she could not see him. Sanchez directed Shayne to go to the back of the house to look for or call out to Sanner. Shayne left for the back and J.E. followed him.
Sanner saw the silhouettes of two persons outside his back window, and he mistakenly believed there were seven intruders in all. Shayne took the screen off the window, set it on the ground, and opened the window to try to "make contact" with Sanner. Shayne did not knock or announce himself. It was "pitch black" inside the home and Shayne could not see Sanner. Without any warning, Sanner fired his shotgun through the open window, mortally wounding J.E.
Still on the front porch, Sanchez heard the gunshot. She banged on the front window, and said, "Gary, no; Gary, stop." Sanner heard yelling from the front porch. He saw two silhouettes on the front porch and heard someone say, "Break the window." From the doorway of his bedroom, he fired a second shot through the front window. The shot hit Sanchez and seriously injured her.
There was no cell phone reception at the property, and Jessica drove Sanchez away to seek help. After verifying that J.E. was dead, Burton and Shayne also left. As they prepared to leave, Shayne heard Sanner "asking who we were and telling us to get off of his property." Shayne responded, "It's Shayne. Don't shoot. It's Shayne," and, "We just came to get our stuff." Sanner fired another shot through the front window that lodged ...