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Pope v. Babick

California Court of Appeals, Fourth District, Third Division

September 18, 2014

LEO L. POPE et al., Plaintiffs and Appellants,
MATTHEW BABICK, Defendant and Appellant THOMAS STANLEY, Defendant and Respondent.

Appeal from a judgment of the Superior Court of San Bernardino County, Nos. CIVSS813891, CIVDS904807 John P. Vander Feer, Judge. Affirmed.

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McCuneWright, David C. Wright and Michele M. Vercoski for Plaintiffs and Appellants.

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Konoske Akiyama & Brust, Gregory P. Konoske and D. Amy Akiyama for Defendant and Appellant Matthew Babick.

Musick, Peeler & Garrett, Cheryl A. Orr, Scott L. MacDonald, David A. Tartaglio; Law Office of Mark S. Julius and Eric G. Bluemke, for Defendant and Respondent Thomas Stanley.



This case concerns a July 2008 motor vehicle accident on a freeway near Redlands. The vehicle occupied by plaintiffs Leo L. Pope and Judi Nightingale was hit by a vehicle driven by Debbie Sert, who is no longer a party. Plaintiffs proceeded to trial against Thomas Stanley, who they argued made a negligent lane change and caused Sert to hit plaintiffs’ car, and Matthew Babick, the vehicle’s owner. The jury found defendants not liable.

Plaintiffs offer two arguments on appeal. First, they assert there was not substantial evidence to support the verdict, a claim which we completely reject. Second, they argue the misconduct of Babick’s attorney, Gregory Kane, was so egregious the court should have granted plaintiffs’ request for a mistrial or motion for a new trial. Kane directly violated a court order by eliciting causation evidence from a California Highway Patrol officer who responded to the scene. Kane was subsequently sanctioned $500 and the jury was given a curative instruction. While we find Kane’s behavior unacceptable from an officer of the court, we do not find the single question and answer on this subject was so prejudicial as to warrant a mistrial or new trial. We therefore affirm.

Babick filed a protective cross-appeal regarding the ownership of the vehicle Stanley was driving, but due to our decision on plaintiffs’ appeal, we need not address it.



As noted above, three vehicles are relevant in this accident. The first car, a 2000 Nissan Maxima, was driven by Sert, and she had three passengers, Lara Balit, Tamara Hacikian, and Nora Hacikian. They were on their way home from a weekend in Palm Springs, celebrating Sert’s 19th birthday. On the night prior to the accident, they had stayed awake until 2:00 or 3:00 in the

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morning, waking in time to check out of their hotel. Balit testified that she saw Sert drinking alcohol earlier in the weekend, but Sert did not have a clear recollection of doing so.

Sert had received her driver’s license when she was 16. While in high school, her driving experience was mostly brief drives on surface streets to and from school. Once she graduated, she would drive home from college, from San Diego to Los Angeles, once or twice a month. Sert’s father was concerned about her driving on the freeway, although she was not.

The second car was driven by plaintiffs, who were in a 2003 GMC Yukon. Pope, age 53 at the time, was driving, and Nightingale was his passenger. They were doing some errands shortly before the accident. Pope and Nightingale were a couple.

The third car, driven by 47-year-old Stanley, was a 1970 Oldsmobile convertible. He was accompanied by his partner, Fred Stanley. Stanley was taking the car to his brother, Babick, in Fresno.

As to the facts of the accident, it occurred on westbound Interstate 10 near the Ford Street off-ramp in Redlands. The westbound side of the freeway, the only portion relevant here, is composed of four lanes, which were relatively straight with a downhill grade. The freeway decreased to three lanes at the Ford Street off-ramp. At the time of the accident the weather was warm and clear, and the road was dry.

Sert testified that once she and her friends left Palm Springs, they began driving west on Interstate 10. Sert recalled the presence of a lot of cars on the freeway, but said she was able to drive at a “good speed.” She remembered driving in the number one lane, [1] though she was not sure for how long, and she changed lanes more than once. Sert was driving at approximately 70 to 75 miles per hour. The speed limit was 65.

Plaintiffs entered the freeway at Yucaipa Boulevard, and Pope testified he was driving about 65 miles per hour and did not have to slow for traffic. Stanley entered the 10 freeway from Highway 111, and described traffic as moderate, allowing him to drive about 65 miles per hour.

The basic facts regarding the accident were reflected in the California Highway Patrol (CHP) report prepared by Officer Michael Earl, who responded to the scene with Officer Raul Arriaga. Sert’s vehicle was traveling

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in one of the left-hand lanes. Only Sert herself told the police she was not changing lanes. Balit said she had changed lanes and was completely in the new lane; Tamara Hacikian said Sert had changed lanes, and Nora Hacikian said Sert “began to change lanes into the #2 lane at the same time a vehicle in the #3 lane began to change lanes into the #2 lane.”

Stanley’s vehicle, from the right, began to change lanes into Sert’s lane. Sert attempted to avoid him, and in doing so, tried to swerve to her left, but to avoid another car, she swerved back to her right. She lost control of the vehicle, which began to spin and flipped over, at some point impacting plaintiffs’ vehicle and causing it to flip. Stanley’s vehicle was not involved in the impact, and he did not stop at the scene.

In preparing the report, Earl spoke to Sert and her passengers, plaintiffs, and Brad Gorham, another driver who witnessed the accident. Gorham said Stanley’s vehicle was “going kind of fast” and changing lanes through traffic. He was not sure where Sert’s vehicle was, and then Stanley’s vehicle “possibly went into the lane that was occupied by another vehicle or was trying to change into that lane. It happened so fast he isn’t quite sure what happened.” Gorham got Stanley’s license plate number and reported it to the police; Gorham also felt that Stanley should have stopped after the accident. Ultimately, the report concluded that Sert caused the accident by making an unsafe lane change.

In October 2008, plaintiffs filed the instant lawsuit. In due course, both plaintiffs settled with Sert. Before trial began in October 2011, the court ruled on a number of motions in limine. One such motion was plaintiffs’ motion to exclude the testimony of Earl and Arriaga regarding their conclusions as to the cause of the accident, the crash sequence, what caused the rollover, or the vehicle’s structural integrity. The court granted the motion with respect to causation issues, absent laying a proper foundation, which would be discussed outside the jury’s presence.

The jury was then empanelled and preinstructed prior to opening statements. Among other things, they were directed to reach a verdict based on the evidence, keep an open mind, and not to decide the case until they had heard all the evidence and discussed it as a jury. We set forth the testimony adduced at trial in accordance with the relevant standard of review.

Balit testified that Sert was driving in the number one lane and fully and safely moved to the number two lane. About two minutes later, Balit saw a Mustang-like car changing lines behind Sert’s car, then again to the right. In the mirror, ...

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