Thomson v. Vidrio CA1/5

Filed 3/10/15 Thomson v. Vidrio CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

CASSANDRA THOMSON, Plaintiff and Appellant, A138998 v. SANDRA VIDRIO et al., (Sonoma County Super. Ct. No. SCV-250565) Defendants and Respondents.

In this personal injury action arising from a traffic accident, plaintiff and appellant Cassandra Thomson (plaintiff) appeals a judgment following jury trial in favor of defendants and respondents. Plaintiff challenges (1) the jury’s finding that defendant Jose Vidrio (defendant) was not negligent, and (2) the trial court’s refusal to issue one of plaintiff’s proposed jury instructions. We affirm. BACKGROUND At trial, plaintiff testified she was driving her daughter to school when she saw flashing lights and children in a crosswalk ahead. Plaintiff slowed and then stopped at the crosswalk. About 10 or 15 seconds after she stopped, defendant rear ended her.1 Defendant testified he was driving about 30 miles per hour on a street he drives every weekday. It was a sunny day. He had been following plaintiff’s truck for some minutes, at a distance of about 50 feet. As he was driving, his phone, which was on the passenger seat, rang. Defendant looked forward, saw that plaintiff’s truck was

1 Plaintiff’s daughter similarly testified.

1

proceeding and there were no pedestrians or flashing lights in the crosswalk ahead, and then looked down at his phone to see who was calling him. Defendant initially testified that he looked down for around 5 to 10 seconds. He subsequently testified this estimate was overstated and he in fact looked down for three seconds. When he looked back up, “suddenly the white truck [plaintiff’s truck] stopped.” He was unable to brake in time to avoid impact. The jury, in a special verdict, found defendant was not negligent. DISCUSSION I. Negligence Plaintiff first challenges the jury’s finding that defendant was not negligent. It was plaintiff’s burden at trial to prove defendant’s negligence. (Evid. Code, § 500 [“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.”].) “ ‘In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. . . . [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” [Citation.]’ [Citation.] The appellate court cannot substitute its factual determinations for those of the trial court; it must view all factual matters most favorably to the prevailing party and in support of the judgment. [Citation.] ‘ “All conflicts, therefore, must be resolved in favor of the respondent.” ’ ” (Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.)