Castro v. Los Angeles County Sheriff's Dept. CA2/5

Filed 3/9/16 Castro v. Los Angeles County Sheriff’s Dept. CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

ERNESTO CASTRO, B262516

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC500939) v.

LOS ANGELES COUNTY SHERIFF’S DEPARTMENT et al.,

Defendants and Respondents.

APPEAL from an order of the Superior Court of Los Angeles County, Patrick T. Madden, Judge. Affirmed. Layfield & Wallace, Philip J. Layfield for Plaintiff and Appellant. Hurrell Cantrall, Thomas C. Hurrell, Melinda Cantrall for Defendants and Respondents.

Plaintiff and appellant Ernesto Castro was in a motor vehicle accident with defendant and respondent Larry Walter Reed on the 101 Freeway. Reed’s truck struck Castro’s car from behind after Castro’s car stalled in traffic. Castro brought a negligence action against Reed and Reed’s employer, defendant and respondent Los Angeles County Sheriff’s Department (LASD). The jury determined defendants were not negligent, and the trial court entered judgment in defendants’ favor. The trial court denied Castro’s subsequent motion for judgment notwithstanding the verdict. Castro argues the trial court erred in denying his motion, contending he was entitled to a presumption of negligence under the doctrine of res ipsa loquitur and defendants failed to present sufficient evidence at trial to rebut that presumption. Because Castro waived the claims he asserts on appeal by withdrawing his request for the trial court to instruct the jury on res ipsa loquitur, we affirm.

BACKGROUND About 10:55 p.m. on August 31, 2012, Castro was driving a 1971 Pontiac Firebird southbound in the far right or number four lane on the 101 Freeway. Reed, who was driving an 18-wheel truck, also was driving southbound in the number four lane on the 101 Freeway. There was a “fair amount of traffic,” but it was mostly in the left lanes and flowing well—there was “no real traffic in the right lanes.” Reed was traveling 50 miles per hour, the appropriate speed in light of the traffic conditions. He was not driving too fast for the traffic conditions, and the traffic was “all pretty much” traveling faster than his truck. As Reed was traveling in the number four lane, an SUV in front of him quickly swerved from the number four lane into the number three lane as if it was trying to go around something. Reed applied the brakes, whereupon the trailer on his truck skidded sideways and started to jackknife. He took his foot off the brakes to control the truck, and immediately regained control. As the SUV swerved, its headlights illuminated Castro’s car which Reed saw for the first time. Castro’s car was stopped directly in front of Reed’s truck in the number four lane. Reed reapplied the brakes to try to avoid hitting