California Court of Appeals, First District, Fifth Division
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Superior Court of Contra Costa County, No. MSC10-03516, Laurel S. Brady, Judge.
Stratman, Patterson & Hunter, Edward J. Rodzewich; Hayes, Scott, Bonino, Ellingson & McLay, Mark G. Bonino and Charles E. Tillage for Defendant and Appellant.
Brady Law Group, Steven J. Brady; and Laura S. Liccardo for Plaintiff and Respondent.
Appellant Ran Li crashed a new BMW during a test drive. Kenneth Gonsalves, a salesperson for the BMW dealership, was a passenger in the vehicle. Gonsalves sued, alleging that Li drove recklessly during the test drive, causing the accident, and that Gonsalves suffered significant back injuries as a result. A jury found that Li was negligent, that Gonsalves was not comparatively negligent, and awarded Gonsalves more than $1.2 million in damages. Li argues the trial court committed numerous evidentiary errors and failed to adequately investigate juror misconduct. He further argues that Gonsalves’s trial counsel committed multiple acts of misconduct. We conclude the trial court erred in admission of certain evidence and find that Gonsalves’s counsel committed misconduct in at least two instances. We conclude that the cumulative prejudice from these errors requires the verdict be set aside and the matter be remanded for new trial.
On December 28, 2008, Gonsalves assisted potential customers Xiaoming and Li at a BMW dealership in Concord. Gonsalves accompanied them on test drives of a BMW 335 and of a more powerful car, a BMW M3. Xiaoming drove the first half of the M3 test drive and Li drove the second half. During the M3 test drive, Li exited the highway to return to the dealership, but then pressed an “M button” in the car and returned to the highway. He lost control of the vehicle in the curve of the on-ramp. The car’s rear wheels lost traction and the car hit the guardrail, turning to face oncoming traffic. None of the airbags deployed and there were no skid marks. Accident reconstruction experts for both parties agreed that the M3 was traveling at about 25 miles an hour when it entered the curve of the on-ramp, and then accelerated. California Highway Patrol officers interviewed the parties shortly after the accident. Gonsalves reported that the driver had accelerated in a turn, spun the vehicle out, and hit the guardrail. Li reported that, after he exited the highway, Gonsalves told him about the functions of the M button; Li pushed the M button and returned to the highway; and the accident occurred as he accelerated in the curve of the on-ramp.
Gonsalves testified that when Li and Xiaoming arrived at the dealership they expressed interest in test driving both the 335 and M3, but Gonsalves persuaded them to test drive the less-powerful 335. Only Xiaoming drove the 335. When Xiaoming asked if he could test drive the M3, Gonsalves told him the dealership typically only allows “confirmation test drives” of the M3—i.e., test drives after an agreement on price and confirmation of a customer’s ability to pay—because purchasers want to buy those cars with no mileage on them. Xiaoming told Gonsalves he lived in Orinda, was wealthy enough to pay cash for the car, and was very interested in buying the car. Because Gonsalves was concerned that he had insulted Xiaoming, he let Xiaoming test drive the M3 without the usual confirmatory paperwork.
Xiaoming initially drove the M3 and then asked Gonsalves if his son could drive the car. Gonsalves initially said no, but relented after Xiaoming told him Li was a very safe driver who had never received any tickets. When Li got on the highway, he accelerated to 120 miles per hour and began to weave dangerously between cars. Gonsalves repeatedly told Li to slow down. As Li was returning to the dealership, he asked Gonsalves about various buttons on the dashboard, including the M button. Gonsalves told him not to press the M button. Li accelerated to 60 to 80 miles per hour and headed toward the highway on-ramp—both Xiaoming and Gonsalves told him to slow down—and sometime before he got on the highway on-ramp, he pressed the M button. He told Gonsalves, “I’m just going to get on the freeway and I’ll get right back off.” As he accelerated into the curve of the on-ramp, he lost control of the vehicle.
According to medical reports, Gonsalves told doctors that he was injured when a test driver accelerated to 120 miles per hour and ran into a wall. In response to an interrogatory, Gonsalves wrote that the car was going about 80 miles an hour on the on-ramp. In a deposition, Gonsalves had said the car was going 50 to 60 miles an hour at the time of the crash. At trial, Gonsalves said he could not estimate the car’s speed in the curve of the on-ramp, but he was sure it was traveling faster than 25 miles an hour. He admitted it was not traveling 80 to 85 miles per hour on the on-ramp. Gonsalves testified that he tried to tell the CHP officers about Li’s dangerous driving on the highway, but the police directed him to describe only what happened during the accident itself.
Gonsalves’s expert testified that the accident occurred because of driver error: the driver accelerated and turned the steering wheel in a manner that caused the car to exceed the maximum friction in the roadway. “This is clearly not a turn where 25 miles an hour is maintained constant through the
turn. [¶]... [¶] It’s 20 or 25 miles an hour starting into the turn and then gunning it and turning the steering wheel hard. That’s what caused the accident.” The expert acknowledged that the M button might have been programmable to disengage the car’s dynamic stability control system, which was designed to automatically direct braking power to wheels that start to slip. He acknowledged that the car might have handled differently with the stability control disengaged and, because it was unknown how the M button was programmed, it would have been imprudent of Gonsalves to suggest that Li press the M button—such an act might have contributed to the accident. “If the driver thinks he’s got more capability than he does, then he may exceed those capabilities.” Gonsalves’s expert nevertheless opined that the accident was caused by driver error regardless of whether the M button had disengaged the stability control system.
Li’s and Xiaoming’s Version
Xiaoming testified that he went to the BMW dealership because he was interested in purchasing a new car that he would share with Li, who had just finished college and was working in San Francisco. Gonsalves suggested they test drive a 335. He collected driver’s licenses from Xiaoming and Li and, per their agreement, Xiaoming drove the first half of the 335 test drive and Li drove the second half. After the 335 test drive, Gonsalves asked if there was anything they did not like about the car and they said they preferred a stick shift. He suggested they test drive a manual transmission M3. Again, per their agreement, Xiaoming drove the first half of the test drive and Li drove the second half. Xiaoming could tell immediately that the M3 was very different from the 335. When Li took over, he drove about 85 miles per hour and passed some cars but he was not “weaving.” Xiaoming told him to be careful; Gonsalves said nothing.
Li exited the highway and was about to return to the dealership when Gonsalves said, “Oh, do you want to see the full potential of the car? There’s a button. If you press the button, it’s going to change the behavior of the car.” Gonsalves pointed out the M button and said it would cause the car to stiffen and release a lot of power. Because travel had to be at a sufficient speed to feel the difference, Gonsalves advised them to get back on the highway to try it out. Li rapidly accelerated in the curve of the on-ramp, and the car started moving sideways as well as forward. Xiaoming told Li to be careful, but Li “must have pressed on the brake so hard, [because] then the car was totally out of control. It spun a little bit and hit [the] guardrail.” It happened very quickly. “[T]he car had indeed stiffened substantially... once the car was in motion with sufficient speed....” Li similarly testified that pressing the M button somehow changed the car’s performance “so when I made that turn, a turn that I would typically think was a safe speed, the car lost control.” He
had had no trouble driving the M3 before the button was pushed. Following the accident, Gonsalves calmly and cordially told Xiaoming that the accident occurred because Li was not used to driving a rear-wheel drive vehicle.
The defense expert opined that pressing the M button affected the way the accident happened. “[T]he Dynamic Stability Control on the vehicle was clearly off when this accident occurred; otherwise, we wouldn’t see the rear of the vehicle spinning out or coming out to the left as it did in this accident.” When the wheels are spinning, the speed of the vehicle does not increase. Thus, the accident was not caused by excessive speed. Instead, “pressing the accelerator caused the rear wheels to ...