California Court of Appeals, Second District, First Division
Ordered Date Filed 6/12/13
ORDER MODIFYING OPINION AND DENYING REHEARING
IT IS ORDERED that the opinion filed herein on May 15, 2013, be modified as follows:
1. On page 2, last line of first full paragraph, add the words "on liability and damages" to the end of the sentence.
2. On page 3, last line (sentence carries over to page 4), replace "At the close of plaintiffs' case, Bert’s asked" to read: "After the Pedeferri plaintiffs rested, Bert’s moved...."
3. On page 4, carry-over paragraph from page 3, substitute for the last sentence the following: "The court and the parties treated the motion as timely, and the court denied the request."
4. On page 5, second full paragraph, first sentence, replace "White settled with all plaintiffs" to read: "White settled with the Pedeferri plaintiffs...."
5. On page 5, second full paragraph, substitute for the last sentence the following: "White has submitted a brief aligned with the Pedeferri plaintiffs in resisting Bert's request for a new trial."
6. On page 13, first full paragraph, fifth line, add "(Raven H.)" after "1025."
7. On page 16, second full paragraph, add footnote (which will be footnote 2) after the first sentence, which will read:
For the first time in their petition for rehearing, the Pedeferri plaintiffs argue that Bert's forfeited this issue by not moving to strike this testimony until they had rested their case. We disagree. The trial court allowed the toxicologist to offer his opinion based on assumptions to be proven up by other evidence. (Evid. Code, § 403, subd. (b), (c).) In these circumstances, Bert’s motion to strike was "timely made" (id., § 353, subd. (a)), because it was made as soon as Bert's knew the Pedeferri plaintiffs had not established a factual foundation for the toxicologist's assumptions—that is, when the Pedeferri plaintiffs rested their case-in-chief. The Pedeferris plaintiffs contend that motions to strike made after a party rests cannot be timely because, if granted, they deprive the party of the ability to cure the evidentiary deficiency. However, this argument overlooks a court's power (and, in some instances, duty) to reopen a party's case. (In re Marriage of Olson (1980) 27 Cal.3d 414, 422; Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 886 [plaintiffs have a right to reopen to respond to nonsuit motion].)
8. On page 17, delete the second full paragraph (beginning "This error was prejudicial") and replace with the following:
There is a "reasonable probability" that the admission of the toxicologist’s unsupported opinion that White was a "chronic" marijuana user affected the jury's apportionment of liability between Bert's and White. (People v. Watson (1956) 46 Cal.2d 818, 836.) The degree to which White’s marijuana binge contributed to the accident was hotly contested at trial. The toxicologist’s opinion prejudiced Bert's because the plaintiffs used it to prove White was unimpaired, thereby reducing White's respective share of responsibility for the accident and increasing Bert's.
9. On page 18, first line in carry-over paragraph from page 17, add "the jury was instructed" before "that his opinion."
10. On page 18, add the following sentence at the end of the carry-over paragraph from page 17: "The jury's power to disregard answers to hypothetical questions unsupported by the facts did not obviously apply to the totality of the toxicologist's opinion, and did not cure its prejudicial effect."
11. On page 18, delete last paragraph (which carries over to page 19), beginning with "We therefore, " and replace with the following:
We conclude that the erroneous admission of the toxicologist's opinion necessitates retrial of the entire liability portion of the trial. The Pedeferri plaintiffs argue that we need only remand on the issue of apportionment of liability because the toxicologist's opinion does not affect either our conclusion that Bert's owed a duty or the jury's finding that Bert's breached that duty. Although the toxicologist's opinion does not affect the issue of duty, there is nevertheless a "reasonable probability" that the jury's findings of breach and of causation were affected by that opinion. White provided the only eyewitness account of how the bikes were negligently secured while the truck was moving, and the toxicologist's opinion that White was unimpaired (and thus able to accurately perceive what was happening) ostensibly lent credence to White's account. Without the opinion minimizing White's culpability and inflating Bert's, the jury might have concluded that Bert's contribution to the accident was so "remote or trivial" as not to be a "substantial factor in causing harm." (Raven H., supra, 157 Cal.App.4th at p. 1025.) The Pedeferri plaintiffs note our conclusion that White's negligence was not a superseding cause as a matter of law, but this conclusion also does not preclude a jury from finding as a factual matter that Bert's negligence was not a “substantial factor” in causing the accident.
We conclude that a retrial is appropriate on the issue of damages as well. We are mindful of the burden that retrying damages entails, as the damages trial was bifurcated and focused on different evidence than the liability trial. However, the same jury that found Bert's liable based in part upon the toxicologist's opinion also fixed damages, and the trial court in remitting the damages award found that this damages verdict was already tainted by an emotional response to the evidence presented. We accordingly conclude that retrial on liability alone would "deny [Bert's] a fair trial." (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696.)
12. On page 19, first sentence under DISPOSITION, add the words "on all issues" to the end of the sentence.
There is no change in the judgment.
Plaintiff and Respondent Pedeferris' petition for rehearing is denied.
APPEAL from an order of the Superior Court of Ventura County Super. Ct. No. 56-2009-00357429-CU-PO-VTA. Vincent J. O'Neill, Jr.
Duane Morris LLP, Paul J. Killion, Max H. Stern and Colleen A. Cassidy for Defendants and Appellants Seidner Enterprises, LLC, RJS Financial and Bert's Mega Mall.
C. Michael Alder, Myers, Widders, Gibson, Jones & Schneider, Ferguson Case Orr Paterson LLP and Wendy C. Lascher for Plaintiffs and Respondents Anthony Pedeferri and Carrie Pedeferri.
Horvitz & Levy LLP, Mitchell C. Tilner, Peder K. Batalden and Kurt Boyd for Defendant and Respondent Jeremy J. White.
HOFFSTADT, J. [*]
Does a commercial vendor owe a duty of care to persons on or near the roadway who are injured as a result of the vendor's negligence in loading and securing cargo in a vehicle in a way that distracts the vehicle's driver? Applying the controlling principles of California law, we conclude that such a duty exists and that a categorical "no duty" exception for vendors should not be created. We also hold that the driver's negligence in driving under the influence of marijuana does not constitute a superseding cause as a matter of law; instead, the issue of superseding cause is one for the jury. We nevertheless determine that the trial court abused its discretion in not striking, for lack of foundation, expert testimony that the driver in this case was a "chronic" marijuana user and thus unlikely to be impaired. Because the driver's impairment was crucial to the allocation of fault between the driver and vendor, we vacate the judgment and remand for a new trial.
FACTS AND PROCEDURAL HISTORY