Threadgill v. Extreme Auto Recovery CA6

Filed 9/18/14 Threadgill v. Extreme Auto Recovery CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

FRANK THREADGILL, H039620 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. 1-10-CV172550)

v.

EXTREME AUTO RECOVERY, INC.,

Defendant and Respondent.

Plaintiff Frank Threadgill brought a personal injury action against defendant Extreme Auto Recovery, Inc., alleging he was struck by defendant’s tow truck during the repossession of his vehicle. After trial, the jury found that defendant was negligent but that its negligence was not the cause of plaintiff’s injuries. The trial court denied plaintiff’s motion for a new trial based on juror misconduct and entered judgment against plaintiff. On appeal from that judgment, plaintiff argues the trial court erred in denying his motion for a new trial. We disagree and shall affirm. I. FACTUAL AND PROCEDURAL BACKGROUND A. Evidence Presented At Trial We state the facts as presented by the limited record on appeal consisting of appellant’s appendix, respondent’s appendix, and a partial reporter’s transcript.1

1 The partial reporter’s transcript excludes the direct examinations of plaintiff’s witnesses and the cross-examinations of defendant’s witnesses. This oddly one-sided transcript is the result of plaintiff’s decision not to designate any of the trial testimony in his notice designating the record on appeal. He designated only the oral proceedings (continued)

Plaintiff testified that he parked his vehicle outside his wife’s home one evening in May 2010. Plaintiff and his wife were not living together at the time; he was there to care for her because she was sick. At approximately 1:30 a.m. the following morning, plaintiff was sitting in the bedroom when he heard a truck beeping. He walked to the front door and saw a tow truck near his vehicle. Plaintiff, who was aware his vehicle was going to be repossessed, attempted to get the tow truck driver’s attention because he wanted to retrieve some of his personal belongings from the vehicle. According to plaintiff, he was standing between the rear of his vehicle and the rear of the tow truck and, as the tow truck drove away with his vehicle, something clipped his foot. The collision did not cause plaintiff’s foot to move or cut his skin. Plaintiff went to the hospital and learned that his Achilles tendon was ruptured; surgery was required to repair it. Plaintiff’s wife testified that plaintiff was sitting on the front step, not standing between the vehicles, when the tow truck drove away. Defendant’s accident reconstruction expert, Rajeev Kelkar, Ph.D., opined that plaintiff could not have been struck by the defendant’s truck in the manner he claimed. Roger Mann, M.D., an orthopedic surgeon who specializes in foot and ankle injuries, testified as an expert for the defense. He opined that it was “very unlikely” that a single blow to plaintiff’s Achilles tendon caused it to rupture. He stated that patients with Achilles tendon ruptures often report feeling as if they were kicked in the leg at the time of the injury, when in fact they were not. B. The Court Reports That Toy Cars Were Seen in the Jury Room On January 16, 2013, the trial court notified the parties that the jury had reached a verdict. Before the jury entered into the courtroom, the trial judge informed the parties