Leibundguth, Brian v. Schockley, Richea

A verdict can be “against law” only: (1) when there is a failure to find on a material issue; (2) when the findings are irreconcilable; and (3) when the evidence is insufficient in law and without conflict in any material point. (Tagney v. Hoy (1968) 260 Cal.App.2d 372, 375–376; McCown v. Spencer (1970) 8 Cal.App.3d 216, 229.) This ground for new trial is distinct from insufficiency of the evidence, which is a separate

statutory basis under California Code of Civil Procedure section 657(6). (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 215.)

Plaintiff appears to argue that the evidence at trial was insufficient in law and without conflict as to defendant’s negligence. As already indicated, there certainly was conflicting evidence as to which party’s alleged negligence caused the bicycle vs. automobile collision. The specific focus of plaintiff’s argument on this point is that “the jury did not follow jury instruction 418B” in reaching its verdict in favor of defendant. That instruction provides that negligence can sometimes be presumed in the event of a violation of Vehicle Code section 21802.

Without reciting the entire statute, it generally provides that a motorist who has approached and stopped at an intersection must yield the right of way to any vehicles that have approached from another highway, or which are approaching so closely as to constitute an immediate hazard, before proceeding to enter the intersection. Plaintiff makes a similar argument regarding Instruction 418C which is based on Vehicle Code section 21804.

What plaintiff fails to focus on with regard to either of these instructions is that the jury cannot find that a violation of statute constitutes negligence unless it finds the violation was a substantial factor in bringing about the accident. Here, there was conflicting evidence as to whether defendant’s alleged violation was a substantial factor in bringing about the accident. In focusing on Instructions 418B and 418C, plaintiff overlooks the preceding instruction given to the jury. Based primarily on Vehicle Code section 22450(a), Instruction 418A generally provides that a motorist or bicyclist approaching an intersection must stop at the limit line before entering the intersection.

The instruction specifically provides that “a rolling stop or failure to come to a complete cessation of movement” violates the statute. The instruction allowed the jury to find that plaintiff himself was negligent if it found that he violated the statute and that the violation was a substantial factor in bringing about the accident. In that regard, there was no dispute in the evidence that plaintiff failed to come to a complete stop before entering the intersection and that he then accelerated to between 15 to 20 miles per hour before colliding with defendant’s vehicle.

The evidence showed that defendant stopped at the limit line, recognized there was a visibility obstruction caused by a stone monument, then moved forward to a second viewpoint at the “gutter line” where she stopped again. She testified she looked in both directions and yielded to a left-turning vehicle before proceeding into the intersection at a low speed of three to five miles per hour when the front left side of her vehicle was struck by the plaintiff bicycle rider. The jury was within its rights to conclude that plaintiff acted reasonably under the circumstances and, further, that plaintiff’s own statutory violation was a substantial factor in causing the accident.

The jury could conclude from the circumstances that plaintiff failed to prove that negligence on the part of defendant should be presumed under Instructions 418B and 418C.

Plaintiff’s contention that the jury failed to follow the instructions also overlooks that the jury was instructed that it could determine the credibility and weight of witness testimony, and that it could determine from the evidence that some instructions may not be applicable depending on its findings from the evidence. The jury is presumed to

follow the directions it is given. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.) Taking into account all of the jury instructions given and the conflicting evidence as to negligence, plaintiff has not shown that the jury failed to follow the instructions such that a new trial would be warranted.

Plaintiff’s third argument is that defense counsel Houvener “committed egregious misconduct.” Misconduct of counsel is an “[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.” (Code of Civil Procedure section 657(1); City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870.) An “irregularity of the proceedings” allowing a new trial is a catch-all phrase “referring to any act that (1) violates the right of a party to a fair trial and (2) which a party ‘cannot fully present by exceptions taken during the progress of the trial, and which must therefore appear by affidavits.’” (Montoya v.

Barragan (2013) 220 Cal.App.4th 1215, 1229–30.) Attorney misconduct can justify a new trial only if it is reasonably probable that the party moving for a new trial would have obtained a more favorable result absent the misconduct. (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1122; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801–802.)

Plaintiff points to several comments made by defense counsel in closing argument regarding the financial status of plaintiff, including statements regarding his annual income, vacations that plaintiff and his family took, and that plaintiff’s home had HOA access to a pool and gym. Plaintiff essentially argues that such comments were made to improperly prejudice the jury against him due to his wealth or financial status. On the other hand, defendant argues the comments were appropriate to counter plaintiff’s claims regarding “loss of enjoyment of life” and the extent of his alleged physical limitations. Defense counsel’s comments on those matters were derived from evidence in the record and not improper to mention for that purpose during closing argument.

Plaintiff also contends it was prejudicial misconduct for defense counsel to point out that his client should not be held responsible to pay for the multi-million dollar award being sought by plaintiff. This was not an unfairly prejudicial comment when considered in light of the entire context of the evidence presented at trial. Plaintiff also contends that defense counsel intentionally mispronounced plaintiff’s last name to unfairly imply that plaintiff lied. This claim is not well taken. Looking past the fact that credibility of the parties was at issue, the court does not believe the mispronunciations had any meaningful impact on the jury’s finding that defendant’s driving did not bring about the collision.

Plaintiff also contends defense counsel’s use of the phrase “pigs get fed, hogs get slaughtered” in his argument on damages was another facet of misconduct. The proverb is usually taken to mean that moderation is good while greed can have negative consequences. While this phrase certainly may not have been the best or most sensitive way for counsel to suggest that plaintiff was overreaching in his damages claim, it does not constitute a ground for granting a new trial.

The court also notes that plaintiff’s counsel did not timely object to all of the allegedly improper statements made by defense counsel during his closing argument. Additionally,

the court notes that the jury was instructed—both before and after evidence was presented—that the statements and arguments of counsel are not evidence. (CACI 101, 3925, 5002.) The jury also was instructed that the wealth or poverty of the parties was not to be considered. (CACI 117.) It is presumed the jury followed these instructions.

Having considered plaintiff’s arguments on these points, and the totality of the circumstances at trial, the court cannot reasonably conclude that it is reasonably probable that plaintiff would have obtained a more favorable result in the absence of the remarks and/or mispronunciations made by defendant in his closing argument. Taken together, the statements by defense counsel did not prevent plaintiff from having a fair trial.

Plaintiff’s fourth argument is that admission of the “no stop” simulation and a sub rosa video amounted to prejudicial error. Defense reconstruction expert Fatzinger created several simulations depicting how the collision might have occurred. Plaintiff argues there was no factual underpinning to support Fatzinger’s simulation which depicted plaintiff riding his bicycle through the intersection without stopping, at a speed of approximately 17 miles per hour. Plaintiff contends this “no-stop” simulation “created confusion about the sequence of events that led up to the collision.”

However, Fatzinger’s presentation was based on plaintiff’s own testimony that he failed to come to a complete stop before entering the intersection and on a text message sent by plaintiff’s wife stating that plaintiff “never came to a complete stop.” Plaintiff also provided testimony that at the time of the collision he had accelerated in the intersection to a speed between 15 to 20 miles per hour. As the court found at trial, these facts provided a sufficient basis for Fatzinger’s simulation. Even so, the jury was instructed that it did not have to accept an expert’s opinion and that it should consider the facts upon which an expert based an opinion. (CACI 219.)

There is no reason to conclude that the jury ignored these instructions or that it did not consider all of the evidence at trial aside from Fatzinger’s depiction of the accident.

Plaintiff contends the court should not have admitted a sub rosa video obtained by a defense investigator which showed plaintiff working out at his HOA’s gym, during which he used a rowing machine and did bar dips. Plaintiff brought a motion in limine seeking to exclude the investigator’s sub rosa video on the ground that the investigator had violated plaintiff’s right of privacy. Plaintiff requested a hearing under Evidence Code section 402. The court granted the request in order to determine the preliminary fact of whether plaintiff’s privacy rights had been violated to an extent such that exclusion of the video would be appropriate.

After following plaintiff to the gym, the investigator testified he saw a man near the entrance to the gym wearing a high-visibility vest, whom the investigator believed was a maintenance worker. He caught the attention of the man and then falsely represented to him that he had forgotten his fob to gain entry into the gym. The man allowed the investigator to enter the building with him, and even gave him a tour of the building, including the locker room and pool area. The investigator then went to the large workout area and was then able to set up his camera inside of a hat, capturing plaintiff exercising on various exercise equipment.

The evidence also showed other persons were exercising in the gym during the time the investigator was present. Persons in the gym exercised on equipment that was open and visible from other parts of

the gym. The video, as well as the testimony of the investigator, also established that the gym was fairly large, with large glass windows alongside the entire front of the gym. The windowed area was visible from the adjoining parking lot. Plaintiff exercised on a rowing machine and did bar dips in front of the windowed area visible from the parking lot. The investigator testified “I would say everywhere in that gym is visible from the parking lot.” (Allman testimony, 24:7–11.) No private conversations were recorded, and no confidential information of plaintiff was obtained by the investigator by way of the video.

The essential question presented to the court was whether there was an objectively reasonable expectation of privacy under the circumstances and, if so, whether any alleged invasion of privacy was serious enough to justify exclusion of the sub rosa video. Among other things, the court noted the evidence showed others were exercising in the large gym area, and that a bank of large windows fronted the building which were visible from the adjoining parking lot. Under all of the circumstances, the court essentially determined there was no objectively reasonable expectation of privacy for a person working out in the gym.

Nor did the totality of circumstances support that there was a serious invasion of privacy, even though plaintiff himself may have subjectively felt otherwise. Finally, pursuant to Evidence Code section 352, the court also weighed the potential prejudicial effect of the video against its probative value of showing plaintiff’s physical condition. The court found the video was not excluded under section 352. In denying plaintiff’s motion in limine the court told counsel “That doesn't mean that the video is admissible or the testimony of the investigator is admissible” and that the video was still subject to normal foundation requirements.

The admission of the video did not prevent plaintiff from having a fair trial, especially since the video had more to do with plaintiff’s claimed injuries than with the underlying question of who caused the collision.

For all of the above reasons, plaintiff’s motion for new trial is denied.

Plaintiff’s JNOV Motion

Plaintiff moves for judgment notwithstanding the verdict. Plaintiff asks the court to grant judgment notwithstanding the verdict in favor of plaintiff on the issue of liability and to grant plaintiff a new trial on the issue of damages.

The trial judge cannot weigh the evidence or determine the credibility of witnesses on JNOV motions. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) Conflicting evidence is resolved against the moving party. The party in whose favor the verdict was rendered is “entitled to the benefit of every favorable inference which may reasonably be drawn from the evidence and to have all conflicts in the evidence resolved in his favor.” (California Practice Guide--Civil Trials and Evidence, 18:55.) A JNOV motion “may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.” (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68; Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1137–1138.)

With the above standards in mind, and viewing the evidence in the light most favorable to defendant and drawing all reasonable inferences in defendant’s favor, the court finds there is substantial evidence to support the jury’s verdict. Plaintiff’s motion for judgment notwithstanding the verdict is denied.

6. S-CV-0050979 Pearson, James v. Kaiser Found. Hospitals

The motion for summary judgment or, in the alternative, summary adjudication is continued to be heard on June 30, 2026 at 8:30 a.m. in Department 42. No further briefing is permitted. The court apologizes to the parties for any inconvenience.

7. S-CV-0051367 Brown, Maurice v. ClearCaptions

Plaintiff is advised the notice of motion must include notice of the court’s tentative ruling procedures. (Local Rule 20.2.3(C).)

Amended Motion for Preliminary Approval

Plaintiff seeks preliminary approval of the parties’ class action and PAGA settlement. No opposition has been filed.

The court has broad discretion in determining whether a class action settlement is (1) fair and reasonable, (2) the class notice is adequate, and (3) certification of the class is proper. (In re Cellphone Fee Termination Cases (2010) 186 Cal.App.4th 1380, 1389.) Further, the court reviews the moving papers along with the entirety of the court file to determine that the settlement is genuine, meaningful, and consistent with the underlying purposes of the PAGA-related statute. (Lab. Code, § 2699(l); O’Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110.) The court must also determine whether the PAGA settlement appears fundamentally fair, reasonable, and adequate. (Ibid.)

The court has carefully considered the class action and PAGA settlement agreement and plaintiff’s amended moving papers filed in connection with the motion, as well as the entire court file. The court determines a sufficient showing has been made that the settlement is fair, reasonable, genuine, meaningful, and consistent with the purpose of PAGA.

For the purposes of the settlement, the court hereby certifies the class for the purposes of settlement as, “all individuals who are or were employed by Defendants as non-exempt employees in California during the Class Period” of October 4, 2019 through October 6, 2024.

The court preliminarily approves the class action and PAGA action settlement agreement attached as Exhibit A to the amended declaration of counsel Jonathan Melmed. The court also approves the proposed form of the notice attached as Exhibit 1 to the to Exhibit A of the amended declaration of counsel Melmed with two changes: on page 4, the Settlement

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