Filed 9/24/26 Aviles v. Access Services CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
GUILLERMO AVILES, JR., et B338927
al.,
(Los Angeles County
Plaintiffs and Appellants, Super. Ct. No.
20STCV33752)
v.
ACCESS SERVICES et al.,
Defendants and
Appellants.
APPEALS from a judgment and order of the Superior Court
of Los Angeles County, Richard L. Fruin, Jr., Judge. Affirmed.
The Javid Trial Firm, Raphael D. Javid; The Ehrlich Law
Firm and Jeffrey I. Ehrlich for Plaintiffs and Appellants.
Horvitz & Levy, Eric S. Boorstin, Andrew G. Spore;
McCune & Harber, Joseph W. Cheung; Schonbuch Hallissy and
Michael Schonbuch for Defendants and Appellants.
******
The seven children of an ailing man who died after falling
to the ground after being dropped off in front of his home by a
paratransit service’s contractor sued the service, its contractor,
the contractor’s driver, and others. A jury returned a $17.5
million verdict, but the trial court granted judgment
notwithstanding the verdict for the service and a new trial for the
contractor and driver. The children appeal the post-trial rulings,
and the contractor and driver cross-appeal the trial court’s failure
to grant them judgment notwithstanding the verdict. Because we
conclude there was no abuse of discretion or error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The paratransit service
Under federal law, a local government that operates a
fixed-route transit service (either train or bus) must also provide
a “complementary paratransit system” for qualifying “individuals
with disabilities” to transport them anywhere, not necessarily to
and from medical appointments. (49 C.F.R. §§ 37.121, 37.123,
37.125.) Access Services (Access) fulfills that mandate by
facilitating the paratransit system for the County of Los Angeles.
In doing so, Access has contracted with a different company
(Medical Transportation Management, Inc. (MTM)) to conduct
eligibility evaluations for prospective riders by assessing their
gait as well as their ability to climb steps and navigate uneven
2
terrain;1 has contracted with a call center (run by Alta Resources
Corp.) to operate a single point-of-contact “Access” hotline for
eligible riders to call to schedule transport; and has contracted
with six different companies to provide the “Access”-labeled vans
and drivers, each of which is responsible for dispatching and
transporting the eligible riders within whichever one of the six
geographic regions in the county it covers. Global Paratransit
Inc. (Global) is the transportation service for Access’s “southern
region” within the county.
Through its contractors, Access’s default mandate is to
provide its eligible riders not with “door-to-door” service, but
instead with “curb-to-curb” service—that is, picking them up and
dropping them off “at the curb in front of or as close as possible to
the main entry of the pick-up or drop-off location.” However,
consistent with federal guidance for paratransit systems,
paratransit drivers may be required to provide “additional help”
to riders beyond dropping them off at the curb, such as when the
contractor that evaluates the riders for eligibility determines that
they always need “beyond-the-curb” service (such as when the
rider is visually impaired), when the rider requests additional
assistance (either when scheduling a transport or while being
transported), or when the driver determines further assistance is
needed (such as when the contractor that evaluates the riders for
eligibility determines that “occasional” beyond-the- curb
1 The written contract between Access and MTM is not in the
record.
3
assistance may be needed, or when a rider appears weak or
fatigued, perhaps upon transport home from a dialysis center).2
Although the contract between Access and Global is not in
the record, Global was responsible for providing the vehicles used
to transport eligible riders, for hiring and training the drivers,
and for dispatching the coming and going of its drivers when the
call center transferred riders in Access’s “southern” region to
schedule their requested transport to Global. Access retained the
authority to ask Global to remove specific drivers from Access
assignments (because Global transported non-Access riders as
well), but did not have the authority to hire or fire those drivers
or other employees of Global.
Global had its drivers sign a sheet labeled “ASI Provider
Policies Acknowledgments Sheet,” which was designed “to ensure
that [drivers] understand exactly what is required of them from
Access [] and [Global].” The sheet informs Global drivers of
Access’s default “curb-to-curb” rule, but requires them to
acknowledge that they “are to provide assistance as needed or
requested to all riders”—stating, “OFFER ASSISTANCE!!! DO
NOT WAIT FOR THE PASSENGER TO ASK!!!” Global
trained its drivers to ask “How can I assist you?”, but not to
further “badger” riders (for fear of making them feel less
“independent”). Global did not train its drivers about specific
medical conditions, such as post-dialysis symptoms.
B. Guillermo Aviles, Sr. (Aviles) becomes an
eligible rider for Access’s services
In July 2018, Aviles applied to become an eligible Access
rider. MTM evaluated Aviles, and documented that he was able
2 Access has a written policy governing beyond-the-curb
service, but it is not in the record.
4
to walk 300 feet independently and able to maneuver over
varying types of surfaces, including uneven terrain. Because
Aviles told the MTM evaluator that he experienced dizziness and
fatigue for three or four hours following his dialysis treatments,
the MTM evaluator determined that Aviles should receive
“occasional” beyond-the-curb service. Aviles’s designation for
occasional beyond-the-curb service did not appear on his rider
profile available to the Global drivers.
Aviles began using Access’s services in November 2019. He
had a standing order to be transported from his home in Long
Beach, California, to a nearby dialysis center and back, at the
same time on Mondays, Wednesdays, and Fridays every week.
Global was the Access contractor for that region.
For the next four months, Global drivers sometimes would
drop Aviles off at the curb or the street in front of his house, and
other times would escort him to his front porch. Global drivers
sometimes would help Aviles exit the vehicle, and other times
would wait for him to exit and then hand Aviles his duffle bag
(which he used to carry items for his dialysis appointments, like a
blanket, medications, snacks, and medical information). The
level of assistance would “depend[] on the driver.”
Aviles was “quite ill.” Besides having renal disease over
the last 20 years necessitating his thrice weekly dialysis
treatments, Aviles suffered from several other “complex” health
“issues”: He had a heart attack in August 2017; he was
hospitalized in May 2017 and October 2019 for ventricular
tachycardia causing him to pass out and enter cardiac arrest; and
he had a “severely leaking valve” in his heart that was repaired
in January 2020.
5
C. The incident
On March 27, 2020, a Global driver, Carlos Juarez, Jr.,
picked Aviles up from his routine dialysis appointment and
transported him home. At the pickup, a nurse from the dialysis
center accompanied Aviles to the Global vehicle by walking some
distance in front of him—not beside him. Juarez had been
employed by Global for around two months and had been
conducting transport for Access riders for about one month.
Juarez had never transported Aviles before.
Because there was no available curbside parking in front of
Aviles’s home, Juarez parked the vehicle in the street near the
driveway apron of the home. Juarez lowered the vehicle’s ramp
and placed Aviles’s duffel bag on the roadway at the base of the
ramp. Near the bag was a pothole measuring 10 feet wide and
two inches deep at its deepest point.3 Aviles had been able to
navigate around the pothole on other occasions.
Aviles walked without trouble down the ramp to the street,
and then asked Juarez to retrieve his wallet from the vehicle.
Juarez handed Aviles his wallet and returned to the vehicle to
stow the ramp and depart, believing that Aviles was in a safe
waiting area. Meanwhile, Aviles bent down for a few seconds to
pick his bag up off the ground. He suddenly swayed and fell
forward, landing face-first into the pothole. Aviles’s fall was
captured in the background of the dash cam of the vehicle.
Aviles, unresponsive, was transported by an ambulance to
the hospital. He suffered a heart attack and a cervical fracture,
which rendered him quadriplegic. The sequence of causation was
disputed: Some experts opined that Aviles had become dizzy and
3 Aviles’s son had reported the pothole to the City of Long
Beach (the City) the year before.
6
light-headed from the dialysis treatment, which caused him to
fall and sustain a cervical fracture, which then caused a heart
attack; other experts opined that Aviles experienced a heart
attack at the outset, which caused him to fall and, as a result, to
sustain a cervical fracture.
Aviles died in the hospital three months later.
Access had no communications with Juarez regarding the
incident.
II. Procedural Background
A. The operative complaint
Aviles’s seven adult children (collectively, plaintiffs)4 filed a
lawsuit in September 2020. As pertinent here, the operative
second amended complaint alleged (1) a wrongful death claim
based on negligence against Access, Global, and Juarez
(collectively, defendants) and (2) a dangerous condition of public
property claim against the City.5
4 The plaintiffs are Guillermo Aviles, Jr., Alexander Aviles,
Aileen Aviles, Crystal Sararana, Guillerlyn Karen Reyes, Ulyses
Aviles, and Guirlyn Aviles.
5 Plaintiffs asserted 15 claims in total, but the wrongful
death claim on plaintiffs’ own behalf was the only claim that
proceeded to trial. The 14 other claims, alleged on behalf of
Aviles’s estate, were for (1) negligence; (2) negligence per se; (3)
two claims for negligent hiring, supervision, or retention; (4)
professional negligence; (5) public entity liability for failure to
perform a mandatory duty; (6) failure to train; (7) elder neglect;
(8) violation of the Americans with Disabilities Act; (9) violation
of the Unruh Civil Rights Act; (10) violation of the California
Disabled Persons Act; and (11) vicarious liability, injunctive
relief, and punitive damages, which are not actionable “claims.”
7
B. Trial
The parties proceeded to a bifurcated trial. The liability
phase was tried over nine days in May 2023, and the damages
phase was tried before a different jury over six days in December
2023.
The liability-phase jury returned a special verdict finding
that (1) Juarez was negligent; (2) Global was negligent, and was
an “agent” of Access; and (3) Access was negligent. The jury
apportioned 45 percent of the fault to Access, 40 percent to
Global, and 15 percent to Juarez. (The jury also found that the
City was negligent, but that its negligence did not contribute to
Aviles’s harm.)
The damages-phase jury awarded plaintiffs $17.5 million in
damages, consisting of $13,250,000 in past non-economic
damages and $4,250,000 in future non-economic damages.
(Plaintiffs had requested damages of $70 million.)
The trial court subsequently entered judgment for
plaintiffs.
C. Post-trial motions
Defendants filed motions for judgment notwithstanding the
verdict (JNOV) and for a new trial.
1. JNOV motion
Defendants moved for JNOV on the grounds that (1) they
owed no duty to Aviles after he exited the van and stood safely on
the street, (2) they did not breach any duty of care owed to Aviles,
and (3) none of their conduct was the legal cause of Aviles’s
Plaintiffs had also sued MTM and its employee who
performed Aviles’s eligibility evaluation, but settled with them
before trial. And plaintiffs sued Alta Resources Corp., but did not
proceed to trial against it.
8
death. Plaintiffs opposed, asserting that defendants were
negligent by (1) “failing to adequately communicate” Aviles’s
beyond-the-curb designation to the Global driver, (2) “failing to
sufficiently train” Juarez, and (3) failing to assist Aviles to the
curb or a safe waiting area.
2. New trial motion
Defendants also moved for a new trial on multiple grounds.
As pertinent here, defendants argued that if the trial court did
not grant their JNOV motion, the court should grant a new trial
because the verdict was against the weight of the evidence.6
Plaintiffs’ opposition did not address the sufficiency of the
evidence to support the verdict.
3. Rulings
Following defendants’ filing of reply briefs, and two
hearings on the motions, the trial court issued a 11-page order (1)
granting a JNOV for Access, (2) denying a JNOV for Global and
Juarez, and (3) granting a new trial for all defendants.
a. JNOV rulings
The trial court granted a JNOV for Access, concluding
“there [wa]s no substantial evidence that the conduct of Access[]
was negligent or was a substantial factor in causing harm to []
Aviles”, and “no substantial evidence that Global [] was an agent
of Access.” (Italics added, boldface and capitalization omitted.)
As to agency, the court explained that Global was an independent
contractor of Access, and that none of the evidence at trial
“transform[ed]” Global “into an agent” of Access. Specifically, (1)
plaintiffs did not put the contract between Access and Global into
evidence; (2) Access’s policy that Global “abide by certain
6 Defendants raised numerous other grounds for a new trial,
which were all rejected by the trial court.
9
procedures . . . for the safety of the riders . . . as well as to achieve
a high quality of service” merely “define[d] the way in which a
subcontractor [was] to perform [its] job”; (3) there was “no
evidence that Access [] managed the daily operations of Global”;
(4) Global—and not Access—“hired, trained, supervised and paid”
the drivers; and (5) there was “no evidence” that Access’s name
on the Global vehicle “was important to [] Aviles or any of the
seven plaintiffs”. In sum, “[p]laintiffs introduced confusion into
the evidence” at trial “by attributing everything involved in
providing paratransit services to [] Aviles as being authorized by
Access” and “conflating the acts of Global [] (and also MTM) to
being controlled by Access” despite there being “no evidence to
support the argument that Access [] authorized or controlled the
particular acts giving rise to [] Aviles’ accident.”
The trial court denied a JNOV for Global and Juarez,
finding that “the evidence show[ed] their connection to the fatal
accident.”
b. New trial rulings
The court granted a new trial to Access in the alternative,
finding that the jury’s direct and vicarious liability findings were
against the weight of the evidence.
The court also granted Global and Juarez a new trial. In so
ruling, the court explained that, after “weighing the entire
record,” “[i]t is uncertain” whether Global “had a duty to
accompany [] Aviles carrying his bag to his front door that would
have avoided the accident that occurred in the street” and it is
“inconclusive” “as to the cause of [Aviles’s] fall and whether []
Juarez’[s] conduct was a substantial factor in causing or
contributing to cause the fall.”
10
D. Judgment and cross-appeals
Following the entry of a new judgment in Access’s favor,
plaintiffs and defendants appealed.
DISCUSSION
In their dueling appeals, plaintiffs challenge the trial
court’s grant of JNOV for Access and grant of a new trial for all
defendants, while Global and Juarez challenge the trial court’s
denial of their JNOV motion.
In evaluating these rulings, we necessarily focus on the
elements of plaintiffs’ wrongful death claim—namely, “(1) a
‘wrongful act or neglect’ . . . that (2) ‘cause[s]’ (3) the ‘death of
[another] person.’” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383,
404, quoting Code Civ. Proc., § 377.60.) Where, as here, a
wrongful death claim sounds in negligence, the first element
turns on whether the defendant breached a legal duty. (See
Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88,
105 [wrongful death claim sounding in negligence incorporates
“all the elements of actionable negligence,” which include
“violation of a legal duty imposed by statute, contract or
otherwise, by the defendant to the person injured”]; Faiaipau v.
THC-Orange County, LLC (2025) 117 Cal.App.5th 292, 304.)
I. Rulings on JNOV Motion
A trial court may grant a JNOV only if there is “‘no
substantial evidence in support’” of the verdict. (Wolf v. Walt
Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138;
Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th
292, 313-314 (Johnson & Johnson).) In independently reviewing
a trial court’s ruling, we view the record in the light most
11
favorable to the verdict. (Cooper v. Takeda Pharmaceuticals
America, Inc. (2015) 239 Cal.App.4th 555, 573.)
A. Grant of JNOV for Access
The trial court did not err in granting JNOV for Access
because no substantial evidence supported the verdict holding
Access liable for Aviles’s wrongful death. Because a defendant
may be liable either for its own negligence (under a theory of
direct liability) or for someone else’s negligence (under a theory of
vicarious liability) (Hughes v. Farmers Ins. Exchange (2024) 107
Cal.App.5th 73, 82), we analyze each theory separately.
1. Direct liability
There is no substantial evidence of Access’s direct liability
for negligence. It is undisputed that Access did not itself
transport Aviles, and instead hired Global—as its contractor—to
provide all transportation services in Access’s southern region.
There is no evidence that Access possessed the contractual right
to control, or otherwise informally exercise any control, over how
Global went about providing those transportation services.
Because Access had no involvement in Aviles’s transportation, it
owed him no direct duty of care vis-à-vis those services—and thus
cannot be directly liable for any negligence in their provision.
(See Pereda v. Atos Jiu Jitsu LLC (2022) 85 Cal.App.5th 759, 768
(Pereda) [“the person the plaintiff is suing (that is, the defendant)
[must be] legally responsible for th[e] negligence”].)
Plaintiffs resist this conclusion with three arguments.
First, plaintiffs argue that the trial court erred in granting
JNOV for Access because it incorrectly evaluated the evidence
against the general negligence standard of care rather than the
heightened standard of care applicable to “common carriers.”
Plaintiffs are in no position to complain about the trial court’s
12
failure to view Access as a common carrier. That is because, in
opposing the JNOV motion, plaintiffs expressly asserted that “the
Access [d]efendants . . . are not common carriers” and, on that
basis, argued that case law applicable to common carriers was
“inapposite.” (Mary M. v. City of Los Angeles (1991) 54 Cal.3d
202, 212-213 [“Under the doctrine of invited error, when a party
by its own conduct induces the commission of error, it may not
claim on appeal that the judgment should be reversed because of
that error”].) Although the trial court had previously ruled in
limine that Access and Global were not common carriers,
plaintiffs’ argument in their post-trial briefing did not merely
accede to this prior ruling; rather plaintiffs independently
asserted that common carrier law was irrelevant in order to
advance their position. They cannot on appeal take the opposite
position.
Second, plaintiffs argue that there was some evidence in
the record, even under the general negligence standard of care, to
support a finding that Access was directly liable for Aviles’s
injury because Access (1) failed to oversee Global’s internal
distribution of information about riders to ensure that Juarez
had received Aviles’s “occasional” beyond-the-curb service
designation, and (2) failed to monitor how Global was training its
drivers. The general rule is that “a[n] . . . organization [that]
hires an independent contractor . . . presumptively delegates to
the contractor the duty to do the work safely.” (Sandoval v.
Qualcomm Incorporated (2021) 12 Cal.5th 256, 269; Privette v.
Superior Court (1993) 5 Cal.4th 689, 693.) As a result, any
breach of Global’s duty (as a contractor) to transmit information
internally and to train its employees is generally not a basis for
holding Access liable (as the hiring organization)—unless, as
13
pertinent here, the duties to transmit information and to train
are duties that cannot be delegated to the contractor. (Hu v. XPO
Logistics, LLC (2026) 117 Cal.App.5th 1197, 1207; Butte Fire
Cases (2018) 24 Cal.App.5th 1150, 1175.) But plaintiffs are in no
position to argue that Access owes such nondelegable duties
because plaintiffs voluntarily withdrew their proposed
nondelegable duty jury instruction after agreeing with the trial
court that the doctrine did not apply here, and because plaintiffs
do not adequately brief the issue on appeal. (E.g., Trinity Risk
Management, LLC v. Simplified Labor Staffing Solutions, Inc.
(2021) 59 Cal.App.5th 995, 1008.)
Third and finally, plaintiffs argue that the jury instructions
shifted the burden to Access to prove that it was not negligent—
and that it failed to carry that burden. We reject the premise of
this argument. To be sure, the jury was instructed with a
modified version of CACI No. 434, which was to apply should the
jury “decide that more than one of the defendants is liable, but
the conduct of only one of them could have actually caused []
Aviles[’s] harm”; in that circumstance, the instruction went on to
provide, the jury must hold “each defendant . . . responsible for
the harm” unless “a [particular] defendant proves that he/she/it
did not cause [] Aviles[’s] harm.” But this instruction does not
aid plaintiffs here because it applies only if the jury first
concludes that Access and another defendant is liable—but, as
explained above, there is no evidence of Access’s direct liability.
2. Vicarious liability
There also is no substantial evidence that Access is
vicariously liable for any negligence by Global.
Plaintiffs urge that Access is vicariously liable because
Global was Access’s agent, and Aviles was injured by Global’s
14
negligence (or by Juarez’s negligence as an employee of Global).
To be sure, a principal is liable for the negligent conduct of its
agent “within the course and scope of the agency.” (Peredia v. HR
Mobile Services, Inc. (2018) 25 Cal.App.5th 680, 691.) But
whether Global is Access’s agent turns on whether Access has the
right to control, “not just the desired result of the enterprise,”
but, critically, “also ‘the manner and means’ by which such result
is achieved [citations].” (Patterson v. Domino’s Pizza, LLC (2014)
60 Cal.4th 474, 493 (Patterson); Malloy v. Fong (1951) 37 Cal.2d
356, 368; Secci v. United Independent Taxi Drivers, Inc. (2017) 8
Cal.App.5th 846, 855 (Secci); Pereda, supra, 85 Cal.App.5th at p.
768; Hoffman v. Young (2022) 13 Cal.5th 1257, 1274 (Hoffman).)7
Here, plaintiffs introduced zero evidence showing that
Access actually retained or exercised any control over the manner
and means by which Global transported eligible riders, including
Aviles.8 It is undisputed that Global provided its own vehicles;
7 Because a person who hires either an employee or an
independent contractor can be liable as a principal if it exerts
sufficient control over the manner and means to render that
employee or independent contractor an agent, we will focus on
the question of control rather than the label the parties attribute
to their relationship. (Accord, Olson v. La Jolla Neurological
Associates (2022) 85 Cal.App.5th 723, 738 [because “‘[t]he right to
control the result is inherent in both independent contractor
relationships and principal-agency relationships[,] it is the right
to control the means and manner in which the result is achieved .
. .’” that is critical].)
8 We need not discuss ostensible agency, which “turns on
whether the ‘principal intentionally, or by want of ordinary care,
causes a third person to believe another to be his agent’ even
though the third person is not actually an agent.” (Pereda, supra,
15
that Global hired, trained, and terminated its drivers; that Global
performed all aspects of the service, from scheduling to the
transportation itself; and that Global alone handled the
aftermath of the incident in this case. (See APSB Bancorp v.
Thornton Grant (1994) 26 Cal.App.4th 926, 932-933 [listing
factors bearing on agency determination].) More to the point,
there is no evidence that Access possessed any “right to control
the relevant aspect of [Access’s] day-to-day operations.”
(Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33
Cal.App.5th 70, 85; cf. Secci, supra, 8 Cal.App.5th at p. 862
[JNOV on agency finding reversed where principal retained the
right to terminate and discipline taxi drivers, provided drivers
with a manual and training, and supplied equipment].) Plaintiffs
also never introduced into evidence the contract between Access
and Global which, although not dispositive, would have revealed
the type of relationship to which they consented in writing.
(Pereda, supra, 85 Cal.App.5th at p. 768 [“[a]ctual agency is
based on consent”]; Hoffman, supra, 13 Cal.5th at p. 1274 [agency
is typically “created by an express contract or authorization”].)
Plaintiffs respond with what boils down to two arguments.
First, plaintiffs cite four facts that they contend constitute
substantial evidence supporting the jury’s finding that Global
85 Cal.App.5th at pp. 768, 772; Civ. Code, § 2300.) That is
because (1) there is no evidence of Aviles’s beliefs and his
children’s testimony is not an adequate substitute (cf. People v.
Chatman (2006) 38 Cal.4th 344, 397 [“[g]enerally, a lay witness
may not give an opinion about another’s state of mind”]), and (2)
plaintiffs do not challenge the trial court’s refusal to give their
proposed ostensible agency instruction. Thus, plaintiffs’
argument that the jury’s agency finding is supported by the
evidence that Global’s vans bore the “Access” livery is misplaced.
16
was Access’s agent—specifically, that (1) Access possessed the
contractual authority to “hire or fire” Global’s individual drivers,
(2) Global drivers signed the acknowledgment sheet agreeing to
Access’s standards of performance, (3) Access contracted for
Global’s services over a long period, up to ten years, and (4)
Access and Global maintained a “[u]nified litigation posture”.
The first fact is based on a misrepresentation of the record:
Access could demand only that a Global driver be “removed” from
a transportation assignment for Access; Access did not have the
right to terminate those drivers from their employment with
Global. The second fact does not create substantial evidence of
control because there is no evidence who (Access or Global)
required Global’s drivers to sign the acknowledgment sheet; more
importantly, the sheet does little more than lay out general
policies to be followed, akin to how a franchisor lays out the
policies its franchisees are to follow and which are insufficient,
without the actual exercise of control, to create agency.
(Patterson, supra, 60 Cal.4th at p. 497; Pereda, supra, 85
Cal.App.5th at p. 770.) The third and fourth facts are wholly
irrelevant to the issue of agency.
Second, plaintiffs argue that we are prohibited from looking
at the specific factors pertinent to showing a principal’s control
over its agent because the instruction given to the jury at trial
did not lay out those factors (and instead included the more
generic requirement of proof “that Access [] gave Global . . .
authority to act on its behalf”). We reject this argument.
Authority and control are flip sides of the same coin, so there is
no inconsistency between the instruction and the law (indeed, no
party contends the jury instruction was incorrect). Because our
task in independently reviewing the trial court’s grant of the
17
JNOV for Access is to determine whether the evidence showed as
a matter of law that Access and Global were not in a
principal/agency relationship under the governing legal test (see
Fountain Valley Chateau Blanc Homeowner’s Assn. v. Dept. of
Veterans Affairs (1998) 67 Cal.App.4th 743, 750 [purpose of
JNOV “is to allow a party to prevail as a matter of law where the
relevant evidence is already in”]), nothing prohibits us from
looking to the factors spelled out in the case law governing that
relationship—even if they are not also spelled out in the jury
instruction.
B. Denial of JNOV for Global and Juarez
The trial court properly denied JNOV for Global and
Juarez because the evidence was conflicting as to what duties
Global and Juarez owed Aviles when Aviles got out of the vehicle
and as to whether any acts or omissions by Juarez caused
Aviles’s death. (Johnson & Johnson, supra, 37 Cal.App.5th at p.
313 [“‘“If the evidence is conflicting or if several reasonable
inferences may be drawn, the motion for judgment
notwithstanding the verdict should be denied. . . .”’”].)
Global and Juarez assert that, whether under a general
negligence standard or under a common carrier standard, they
owed no duty to Aviles when his ride ended and he disembarked
at a safe place (and, therefore, owed no duty to escort Aviles to
the front door of his home). This assertion ignores critical
threshold issues: When did the ride end given Aviles’s
“occasional” beyond-the-curb service designation, and was the
street a safe place? Inconsistent yet reasonable inferences could
be drawn from the evidence at trial on these issues, and the jury
resolved those inferences against Global and Juarez. A JNOV is
not appropriate in that situation. (However, as noted next, the
18
trial court properly reweighed those inferences in determining
that a new trial is required.)
II. Rulings on Motion for New Trial
A motion for new trial may be granted where, as pertinent
here, there is “[i]nsufficien[t]” evidence “to justify the verdict.”
(Code. Civ Proc., § 657, subd. (6).) “A trial court evaluating a new
trial motion on these ground sits ‘“as a thirteenth juror,”’ asking
whether ‘“the weight of the evidence appears to be contrary to the
jury’s determination”’; in so doing, the court is free to ‘“disbelieve
witnesses, reweigh the evidence, and draw reasonable inferences
therefrom contrary to those of the trier of fact.”’” (Licudine v.
Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 900,
quoting Barrese v. Murray (2011) 198 Cal.App.4th 494, 503;
Mercer v. Perez (1968) 68 Cal.2d 104, 112 (Mercer).) On appeal
from a grant of new trial on this basis, we generally review for an
abuse of discretion, but specifically ask whether substantial
evidence supports the trial court’s different finding. (Oakland
Raiders v. National Football League (2007) 41 Cal.4th 624, 636
(Oakland Raiders); Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th
405, 412; Johnson & Johnson, supra, 37 Cal.App.5th at pp. 335-
336.) Where, as here, the trial court’s finding is made against the
party bearing the burden of proof at trial, reversal of a new trial
order is warranted only if the evidence compels a finding contrary
to the trial court’s finding as a matter of law. (Estate of Berger
(2023) 91 Cal.App.5th 1293, 1307.)
On appeal, plaintiffs do not argue that the evidence at trial
compels a finding in their favor. Instead, they argue that the
trial court’s articulated justification for granting a new trial on
their wrongful death claim against Global and Juarez falls short
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of what the statute procedurally requires.9 The statute requires
that an order granting a new trial “specify . . . the [trial] court’s
reason or reasons for granting the new trial upon each ground
stated.” (Code Civ. Proc., § 657, 2d par.) “[S]trict compliance”
with this mandate is “required” (Oakland Raiders, supra, 41
Cal.4th at p. 634), and the mandate is satisfied only if the trial
court “briefly recite[s] the respects in which [the court] finds the
evidence to be legally inadequate” and “briefly identif[ies] the
portion of the record which convinces the judge ‘that the court or
jury clearly should have reached a different verdict or decision’”
(Mercer, supra, 68 Cal.2d at pp. 115-116). “The statement of
reasons must refer to [the] evidence, not ultimate facts.”
(Oakland Raiders, at p. 635.)
The trial court’s new trial order here satisfies the statutory
standard. The court cited a deficiency of proof as to two elements
of plaintiffs’ wrongful death claim—namely, duty and causation.
First, the court found that the weight of the evidence did not
establish that defendants had a “duty to accompany [] Aviles
carrying his bag to his front door” even if not asked by Aviles to
do so. The court noted that the evidence on the issue of duty was
“uncertain”: Although one of the plaintiffs “testified . . . that on
about 30 occasions he had observed a Global . . . driver
accompany [Aviles] to the front door carrying his bag,” “[t]here
was no evidence as to whether this was at [] Aviles[’s] request.”
The court went on to note that the “evidence is uncertain” as to
whether Global “owed [] further duties to [] Aviles (a) to pick up
his bag; (b) to accompany him to the front door with the bag;
9 Because we affirm the trial court’s grant of a JNOV for
Access, we need not address the court’s grant of a new trial for
Access. (Code Civ. Proc., § 629, subd. (d).)
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and/or (c) to ask [] Aviles whether he required any further
assistance before the driver departed.” Second, the court found
that the weight of the evidence was “in[con]clusive as to the cause
of the fall and whether [] Juarez’[s] conduct was a substantial
factor in causing or contributing to cause the fall.” The court
detailed what the dash cam footage depicted, but found it to be
“inconclusive” as to causation. The court’s conclusion makes
sense given that plaintiffs’ own transportation expert testified
that it was “definitely speculation” as to whether Aviles’s fall
would have been prevented had Juarez “handed the bag” to him
and “made sure that [he] was out of the street.” In describing the
evidence that was presented and why it was too uncertain or
inconclusive to convince the trial court that plaintiffs had carried
their burden of proving the elements of duty and causation, the
court met its obligation to briefly recite how the evidence was
legally inadequate and why the jury should have reached a
different result.
Plaintiffs’ primary rejoinder is that the trial court failed to
address (and, ostensibly, refute) each piece of evidence cutting in
plaintiffs’ favor on the issues of duty and causation. But nothing
in the statute obligates a trial court to provide a point-by-point
refutation. (See Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d
359, 370 [statement of reasons need not state the weight and
inferences to be drawn from “‘each item of evidence supporting, or
impeaching, the judgment’”].) Nor would it: The existence of
some evidence favoring plaintiffs did not preclude the trial court
from finding that the weight of the evidence nevertheless
21
warrants a new trial.10 (Cf. Previte v. Lincolnwood, Inc. (1975) 48
Cal.App.3d 976, 987 [where a jury’s verdict relies on “one of
several issues of fraud,” a new trial order addressing only one of
those issues does not support a new trial].)
* * *
In light of our conclusions, we have no occasion to reach the
parties’ protracted arguments addressing whether a new trial
should have been granted on alternative grounds.11 (See Code
Civ. Proc., § 657, 5th par.; Sanchez-Corea v. Bank of America
(1985) 38 Cal.3d 892, 905.)
10 The trial court’s failure to discuss the excessiveness of
damages is irrelevant in light of our conclusion that a new trial
on liability was appropriately granted.
11 One of those alternative grounds was the exclusion of
evidence regarding Aviles’s physical abuse of plaintiffs when they
were children. We reject defendants’ request that we “provide
guidance” to the trial court as to the admissibility of that
evidence during the new trial.
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DISPOSITION
The judgment for Access is affirmed. The order granting a
new trial for Global and Juarez is affirmed. Defendants are
entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, P. J.
HOFFSTADT
We concur:
_________________________, J.
KIM (D.)
_________________________, J.
KUMAR*
* Retired Judge of the Superior Court of Los Angeles County,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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