Wilson v. Cal. Hwy. Patrol CA4/2 (2014) · DecisionDepot
Wilson v. Cal. Hwy. Patrol CA4/2
California Court of Appeal Nov 21, 2014 No. E056698Unpublished
Filed 11/21/14 Wilson v. Cal. Hwy. Patrol CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
STEPHEN WILSON et al.,
Plaintiffs and Appellants, E056698
v. (Super.Ct.No. CIVBS1000511)
CALIFORNIA HIGHWAY PATROL, OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. John. B. Gibson,
Judge. Affirmed.
Verlato and Roberts, and April A. Verlato for Plaintiffs and Appellants.
Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Chief Assistant
Attorney General, Kristin G. Hogue, Assistant Attorney General, and Joel A. Davis,
Deputy Attorney General, for Defendant and Respondent.
On November 9, 2008, Stephen Wilson was injured and Faith Wilson was killed
on Interstate 40 (I-40) as a result of multiple traffic collisions due to obscured visibility
caused by a sandstorm. In an action seeking damages for personal injuries and wrongful 1
death against defendant and respondent California Highway Patrol (CHP) and others1
alleging a dangerous condition of public property, plaintiffs and appellants Stephen
Wilson, Alex Wilson, Hope Elizabeth Cronkite and Randall Wilson appeal from a
Explanation. Plaintiff may not ‘manufacture a triable issue of fact through use of an
expert opinion with self-serving conclusions, devoid of any bias, explanation or
reasoning.’ (McGonnell v. Kaiser Gypsum Company, Inc., et al. (2002) 98 Cal.App.4th
1098, 1106.) An expert witness ‘may not himself create the facts upon which the
conclusion is based.’ (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487,
citations omitted.) [¶] Improper legal conclusion. (Guthrey v. State of California (1998)
63 Cal.App.4th 1108, 1120.) [affidavits and declarations must cite evidentiary facts, not
legal conclusions or ‘ultimate’ facts].” This objection was repeated in numerous
objections to plaintiffs’ experts’ declarations.
Focusing on the level of detail provided in the objections to expert declarations,
the contrast between what CHP provided versus what was provided in the Cole case leads
us to only one conclusion; plaintiffs’ reliance on Cole is misplaced. Despite CHP’s
reference to Evidence Code section 800 and not Evidence Code section 801, the detail of
reasoning offered by CHP was sufficient “to make a coherent argument in support of the
objection.” (Cole, supra, 205 Cal.App.4th at p. 764.)2
E. Costs
On May 24, 2012, CHP filed its Memorandum of Costs in the amount of
$15,823.75. Plaintiffs moved to tax/strike costs. CHP stipulated to reduce its costs by
$1,921.00, representing $150 for jury fees and $1,771 for the deposition of expert
2 To the extent plaintiffs’ reply brief raises any new arguments challenging the trial court’s evidentiary rulings on CHP’s objections of plaintiffs’ experts’ declarations, they are forfeited. (Estate of Bonzi (2013) 216 Cal.App.4th 1085, 1106, fn. 6, [“we do not consider arguments raised for the first time in a reply brief”].)
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Timothy Cheek. Following the hearing on plaintiffs’ motion, the trial court awarded
CHP costs in the amount of $13,902.75.
On appeal, plaintiffs contend the trial court abused its discretion in failing to
consider reducing CHP’s costs. Additionally, plaintiffs claim they met their burden of
proving that the deposition costs attributed to coroner, Teri Lay ($351), and traffic
engineer, Weston Pringle ($1,008), along with the cost of CHP’s answer to a cross-
complaint ($395) were not related or necessary to the defense of plaintiffs’ action.
Code of Civil Procedure section 1032, subdivision (b) provides: “Except as
otherwise expressly provided by statute, a prevailing party is entitled as a matter of right
to recover costs in any action or proceeding.” (See also Michell v. Olick (1996) 49
Cal.App.4th 1194, 1198.) A “prevailing party” includes “the party with a net monetary
recovery, a defendant in whose favor a dismissal is entered, a defendant where neither
plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who
do not recover any relief against that defendant. . . .” (§ 1032, subd. (a)(4).)
According to plaintiffs, CHP did not need to depose Teri Lay, the coroner who
examined the decedents of the Ramirez family, because Lay did not examine Faith
Wilson. CHP replies that (1) the “co-plaintiffs dismissed their claims in exchange for a
waiver of costs before the Court ruled on the motion for summary judgment on May 3,”
and (2) plaintiffs noticed Lay’s deposition. We agree with CHP and conclude that the
award of this cost is appropriate. Regarding the deposition of Weston Pringle, a traffic
engineer retained by defendant Midway Transportation, Inc. (Midway) for claims it
brought against CHP, plaintiffs contend “[t]he deposition did not include any of the
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issues raised by [them] as [they] had a retained traffic engineer expert witness of their
own.” While CHP agrees that Pringle was retained by defendant Midway, it asserts that
“the plaintiffs and Midway largely relied on the same evidence in opposing the motions
for summary judgment by CHP and CalTrans.” Again, we agree with CHP and do not
disturb the award of this cost.
Finally, plaintiffs claim the cost of CHP’s answer to Midway’s cross-complaint
was not reasonably necessary to the defense of plaintiffs’ claims. In response, CHP cites
Nelson v. Anderson (1999) 72 Cal.App.4th 111 (Nelson) and argues that “the trial court
did not have authority to disallow or reduce costs that defendant CHP is entitled to
recover as a matter of right.”
In Nelson, plaintiff Nelson and two other plaintiffs sued actress Loni Anderson
and her attorneys, Musick, Peeler & Garrett (MPG), for interference with contract and
legal malpractice, among other claims. (Nelson, supra, 72 Cal.App.4th at p. 117.) MPG
settled with the two other plaintiffs, but not Nelson, who ultimately prevailed against
Anderson but not against MPG. (Id. at pp. 117, 122.) MPG sought costs against Nelson,
and Nelson filed a motion to strike the costs. (Id. at p. 122.) The trial court granted costs
in favor of MPG but reduced the amount awarded by two-thirds: “As the court explained
in its minute order granting the motion [to strike costs], it reduced MPG’s pretrial costs
‘because . . . [MPG] settled with the other two Plaintiffs, and . . . one of the terms of
those settlements was that MPG would waive its right to collect costs; it would be unfair
to Plaintiff Nelson, and would constitute an inappropriate windfall to MPG to allow it to
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collect all of its pre-trial costs from Nelson.’” (Id. at p. 128.) MPG appealed the order
reducing costs by two-thirds.
The appellate court concluded that MPG was a prevailing party: “Since MPG was
a defendant against whom Nelson obtained no relief, MPG was the prevailing party.
(Code Civ. Proc., § 1032, subd. (a)(4).) ‘Except as otherwise expressly provided by
statute, a prevailing party is entitled as a matter of right to recover costs in any action or
proceeding.’ (Code Civ. Proc., § 1032, subd. (b).) This means that the prevailing party is
entitled to all of his costs unless another statute provides otherwise. [Citation.] Absent
such statutory authority, the court has no discretion to deny costs to the prevailing party.
[Citation.] [¶] Code of Civil Procedure section 1033 enumerates allowable costs and
costs which are not allowable, and restricts allowable costs to those reasonably necessary
to the conduct of the litigation. We have found no statutory authority for reducing
allowable costs for any of the reasons advanced by the trial court. ‘A court should be
cautious in engrafting exceptions onto the clear language of Code of Civil Procedure
section 1032.’ [Citation.]” (Nelson, supra, 72 Cal.App.4th at pp. 128-129.) Our
colleagues in Division Seven of the Second District reversed the two-thirds reduction
ordered by the trial court.
Here, plaintiffs agree there is “no statutory authority or case law for an across the
board reduction in costs based on the number of plaintiffs involved in litigation . . . .”
However, they argue the “necessity or reasonableness of costs” should govern whether
certain costs are recoverable. According to plaintiffs, filing an answer to Midway’s
cross-complaint was not reasonably necessary to the defense of plaintiffs’ claims. We
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disagree. But for plaintiffs’ complaint, there would not have been a cross-complaint by
Midway against CHP. As CHP noted, “the plaintiffs and Midway largely relied on the
same evidence in opposing the motions for summary judgment by CHP and CalTrans.”
Regardless of plaintiffs’ dismissal of their action against Midway, the cross-action
remained viable with claims against CHP that were identical to plaintiffs’ claims against
CHP. Given this similarity, the trial court acted within its discretion by allowing CHP to
recover its cost of filing an answer to Midway’s cross-complaint.
IV. DISPOSITION
The judgment is affirmed. Defendant and Respondent shall recover its costs on
appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
KING J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the California Highway Patrol (CHP) was not liable for injuries resulting from a sandstorm-related traffic accident because the plaintiffs failed to establish that the CHP had actual or constructive notice of the dangerous condition, and the CHP was immune from liability under Government Code section 831 regarding weather-related highway conditions.
Issues
Whether the CHP had actual or constructive notice of a dangerous condition on I-40 under Government Code section 835.
Whether the CHP is immune from liability for injuries caused by weather conditions under Government Code section 831.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The trial court found that CHP did not have “actual or constructive notice of the dangerous condition within the meaning of Government Code section 835.””
“There is no legal support for plaintiffs’ view that constructive notice requires only that a public entity must have had prior knowledge of the type of hazard, as opposed to the specific hazard, that caused the plaintiffs’ injury.”
“We hold, as a matter of law, that the requirements of constructive notice, as defined in Government Code section 835.2, subdivision (b), were not met.”