Christopher Duran vs. Jonathan Irmler

3. Even were the Court to consider the motion on the merits, the Court would find that Plaintiff’s motion fails to meet the requirements of Code of Civil Procedure, section 657 (1) irregularity of the proceedings, (6) insufficiency of the evidence, or (7) error in law.

As to irregularity of the proceedings, Plaintiff objects that Ms. Tseng committed misconduct by arguing a “pack of inaccuracies” and making prejudicial statements to the jurors in closing. The

202200570270CUPA: Christopher Duran vs. Jonathan Irmler

motion lists the various alleged improper and prejudicial statements by Ms. Tseng. “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.” (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, citing Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802.) A party must object to the misconduct and request the jury to be admonished to preserve the objection.

Failure to timely object and request an admonition waives a claim of error, unless (1) the misconduct was so prejudicial that it could not be cured by an admonition; (2) a request for an admonition would have been futile; or (3) the objecting party had no opportunity to request an admonition. (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1411–1412.) Plaintiff has made no showing that he objected to the alleged improper statements made by Ms. Tseng or that the comments made by Ms. Tseng were prejudicial so as to cause him an unfavorable result.

The Court makes no finding that the comments constituted misconduct. In viewing the overall record, the Court finds that it is not reasonably probable that Plaintiff would have achieved a more favorable result had Ms. Tseng not made the challenged comments. (See Sacramento Area Flood Control Agency v. Dhaliwal (2015) 236 Cal.App.4th 1315, 1339.)

As to insufficiency of the evidence, “A new trial shall not be granted upon the ground of insufficiency of the evidence . . . unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the . . . jury clearly should have reached a different verdict or decision.” (Code Civ. Proc. § 657.) Neither party presented an accident reconstruction expert at trial, and therefore no expert testimony was presented to the jury regarding braking distance, reaction times, lane positioning, time-distance analysis, line of sight issues, whether evasive maneuvers were possible, point of impact, crush damage analysis, Delta- V, or black box downloads.

In voir dire, Plaintiff’s counsel stated, “Liability is going to be a small part of this case.” In opening, he briefly discussed the accident and then underlined his intention to focus on damages stating, “We don’t believe this is going to be a major part of this trial. The evidence is clear and you’ll see that negligence is basically 100 percent. So the main issue is going to be about injury.” The Court finds that there were conflicting accounts as to the circumstances immediately preceding the accident and that in its review of the entire record, including all reasonable inferences therefrom, finds Plaintiff did not prove by a preponderance of the evidence that (a) Defendant was negligent in the operation of his vehicle or (b) that his negligence was a substantial factor in causing the accident and that there was substantial evidence supporting the jury’s verdict in favor of Defendant. (See generally People v.

Lewis (2001) 26 Cal.4th 334, 364.) The Court further finds that Plaintiff lacked credibility in his testimony regarding the nature and severity of his injuries and his ability to engage in activities following the accident and therefore finds that he lacked credibility in his account of the circumstances immediately preceding the accident.

As to error of law: The Court finds that CACI 452 was properly given where Defendant testified that cars suddenly braked and swerved out of his lane to avoid boxes lying in the roadway and that in order to avoid a collision with Plaintiff’s vehicle, he had a choice of one of two courses of action: swerving to the right and hitting the sound wall on the side of the car in which his pregnant wife sat, or swerving to the left. He chose the left and struck the left rear of Plaintiff’s car.

A party will be denied the benefit of the doctrine of imminent peril where that party’s negligence causes or contributes to the creation of the perilous situation. [Citations.]” (Shiver v. Laramee (2018) 24 Cal.App.5th 395, 399.) The transcript attached to Plaintiff’s motion reflects that

202200570270CUPA: Christopher Duran vs. Jonathan Irmler

Plaintiff’s counsel suggested that he would not argue against the instruction except that the Defendant was “distracted”. The Court interprets this statement as an argument that Defendant was not entitled to the instruction because he was negligent. Plaintiff has not established through his papers that he objected on grounds of unfair surprise or prejudice. The appropriate instructions on negligence were given and the issue of whether the Defendant was not negligent was a question of fact for the jury. That “sudden emergency” was not specifically identified as an affirmative defense is not a bar to its use where the instruction was supported by substantial evidence and actually litigated at trial. (See Code Civ. Proc. § 607a.)

CACI 418 was properly refused. The statute which Plaintiff sought the jury to consider was Vehicle Code 21703, to wit, whether Defendant was following Plaintiff’s vehicle more closely than was reasonable and prudent. The jury would need to determine whether Defendant violated that statute and whether that violation caused the accident. Plaintiff’s request for this instruction was not supported by substantial evidence including because he failed to present expert testimony on the circumstances surrounding the accident itself. Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc. 190 Cal.App.4th 1502, 1526 which is cited by Plaintiff for the proposition that neither lay nor expert witness testimony is required to prove a violation of Vehicle Code section 21703 (or any statute for that matter) does not stand for that proposition.

Based upon the foregoing, Plaintiff’s Motion for New Trial is DENIED.

Plaintiff’s Motion for JNOV

Plaintiff’s motion for JNOV DENIED on two independent grounds:

1. The motion is untimely for the same reasons as set forth in item 1 above. Moving briefs shall be filed and served within the periods specified by Code of Civil Procedure section 659a. (Code Civ. Proc. § 629 subd. (b).) Because the memorandum was not timely filed, the motion is DENIED.

2. Even were the Court to consider the motion on the merits, the Court would find that the motion must be denied. A judge may grant a motion for JNOV only if there is no substantial evidence to support the verdict. (Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 253; Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 313.) All conflicts in the evidence must be resolved against the moving party and in the opposing party’s favor and all reasonable inferences from the evidence must be construed against the moving part and in favor of the opposing party. (See McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 84; Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 289.) Substantial evidence exists to support the verdict. There were conflicting accounts of how the accident occurred, all of which must be resolved in favor of the verdict. Therefore, the motion is DENIED.

Defendant shall give notice.

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