Camberos v. Lewis
Filed 10/9/13 Camberos v. Lewis CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
LAURO CAMBEROS et al.,
Plaintiffs and Appellants,
v.
RAYMOND LEWIS et al.,
Defendants and Appellants.
B230562
(Los Angeles
County
Super. Ct.
No. VC047977)
APPEAL from a judgment and order of
the Superior Court
of
County. Michael A. Cowell, Judge. Affirmed.
Hoffman & Osorio and Nathan V.
Hoffman for Plaintiffs and Appellants.
Carlson & Messer, Jeffrey J.
Carlson, Jeanne L. Zimmer and Stephen A. Watkins for Defendants and
Respondents.
____________________
This case arises from a
multi-vehicle accident, which led to the death of 15-year-old Lauro Alberto
Camberos (the decedent). The decedent’s
parents, Lauro and Sandra Camberos, and his estate (appellants) sued the Los
Angeles Unified School District (LAUSD) and one of its school bus drivers
(Raymond Lewis) (Lewis) (collectively respondents) for
for nonsuit on the ground that appellants had no expert testimony on
causation. We affirm. We also affirm the trial court’s order
denying respondents’ motion for attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
The Accident
On July 20, 2006, the decedent was walking on a sidewalk on Gage
Avenue in Huntington Park,
California.
A van driven by Jerry Lee Smith (Smith) westbound on Gage
Avenue struck the rear of a car driven by Eduardo
Bonilla (Bonilla). Smith’s van continued
westbound, striking another car driven by Iris Meija (Meija). Smith’s van and Meija’s car came to rest at a
curb. Meanwhile, Bonilla’s car crossed
the center divider into opposing eastbound traffic lanes, striking a LAUSD
school bus driven by Lewis in the eastbound number one lane. The bus crossed into opposing traffic,
striking a sport utility vehicle (SUV), then went up the curb, striking the
decedent and a wall. The decedent died
of his injuries after
being hospitalized.
The
California Highway Patrol (CHP) investigated the accident and Sergeant Tai Vong
prepared a 33-page traffic collision report, in which he concluded that Smith
was the cause of the accident due to driving at an unsafe speed. Sergeant Vong recommended that the case be
forwarded to the Los Angeles County District Attorney’s Office for prosecution
of Smith for vehicular manslaughter
with gross negligence.
The CHP’s
Multi Accident Investigation Team (MAIT) also responded, and did extensive
investigation and accident reconstruction.
The MAIT prepared a physical evidence diagram and a dynamics diagram,
reconstructing the collisions, and included more than 250 photographs of the
scene and the vehicles involved. CHP
Officer Paul Gray testified at his deposition and at trial about the
investigation and preparation of the MAIT diagrams and accident
reconstruction. He also provided all
counsel with copies of a security videotape from a liquor store across the
street from the accident that caught a portion of the accident. Appellants’ counsel played the videotape at
trial, which showed that the accident lasted less than two seconds.
The Operative
Complaint
In the
LAUSD and Lewis for wrongful death based on negligence. Appellants also sued the other drivers, who
are not parties to this appeal.
Appellants’ Expert
Witness
Appellants designated as their
expert witness Augustine Zemba (Zemba) to testify as to “passenger
transportation and the operation of school buses, and the standard of care
while driving buses.†Appellants
conceded that Zemba was not an expert on accident reconstruction.
exclude Zemba’s testimony based on speculation, lack of proper foundation,
improper opinion, and lack of relevance.
The trial court granted the motion in part, ruling that Zemba could not
testify as to whether Lewis was negligent.
Motion for Nonsuit
Immediately following
appellants’ opening statement, respondents moved for nonsuit on the ground that
appellants lacked expert testimony on causation. The trial court took the matter under
submission and permitted briefing on the issue.
In the meantime, the trial court heard three days of testimony by
Officer Gray, Zemba, and Lewis’s supervisor.
After holding a hearing on the motion for nonsuit, the trial court
granted the motion. The trial court
explained: “Everything your expert has
said is predicated on one thing only, that is the statement by Mr. Lewis in his
deposition that he believes he had 100 feet within which to react. [¶]
. . . [¶] There’s
no other evidence that he’s taken into consideration. He didn’t look at the reports, he didn’t look
at the time frame, the time sequence of these things; he’s assuming that this
is gospel.†The trial court continued,
“The fact that a man with so little . . . exposure to the
circumstances of the case, without any examination of the vehicles that were
involved . . . that he could presume to make a statement that
somebody killed a boy because of his negligence; that’s the basis of my
opinion.â€
Motion for Attorney
Fees
Respondents
subsequently moved for an award of attorney fees and costs in the amount of
$331,210.16, which the trial court denied.
Appellants’
appeal from the judgment and respondents’ cross-appeal from the order denying
their motion for attorney fees ensued.
DISCUSSION
I. The Motion for Nonsuit
A. Standard of Review
“‘A defendant is entitled to a
nonsuit if the trial court determines that, as a matter of law, the evidence
presented by plaintiff is insufficient to permit a jury to find in his
favor. [Citation.] “In determining whether plaintiff’s evidence
is sufficient, the court may not weigh the evidence or consider the credibility
of witnesses. Instead, the evidence most
favorable to plaintiff must be accepted as true and conflicting evidence must
be disregarded. . . .†A
mere “scintilla of evidence†does not create a conflict for the jury’s
resolution; “there must be substantial
evidence to create the necessary conflict.â€
[Citation.].’†(
Cal.App.4th 1170, 1176, citing Nally v.
Grace Community Church (1988) 47 Cal.3d 278, 291.) A defendant may move for nonsuit after the
plaintiff’s opening statement. (Code
Civ. Proc., § 581c, subd. (a).)
“‘In reviewing a grant of nonsuit, we are “guided by the same rule
requiring evaluation of the evidence in the light most favorable to the plaintiff.†[Citation.]
We will not sustain the judgment ‘“unless interpreting the evidence most
favorably to plaintiff’s case and most strongly against the defendant and
resolving all presumptions, inferences and doubts in favor of the plaintiff a
judgment for the defendant is required as a matter of law.â€â€™ [Citation.]’†(Fillpoint,
LLC v. Maas, supra, 208 Cal.App.4th at p. 1176.)
B. Improper Reliance on Abolished Doctrines
The elements of negligence are (1)
duty of care, (2) breach of that duty, (3) proximate cause, and (4)
injury. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205;
Cal.4th 1177, 1188.) The plaintiff must
show that the defendant’s actions were a substantial factor in causing
injury. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1049;
1239–1240.)
Appellants contend that they made a
prima facie showing of negligence in their opening statement and by the
testimony given at trial under the doctrines of “last clear chance†and
“discovered peril.†They argue that
under these doctrines, causation is not an issue, but that in any event they
established causation by Zemba’s testimony.
Specifically, they cite to Zemba’s testimony that he had considered
Lewis’s deposition testimony, in which Lewis recalled seeing the accident
developing and thinking of two ways to avoid it—by braking and moving to the
number two lane—and Zemba’s conclusion that a bus driver “should†move to the
next lane if it is available.
Appellants spend much of their
opening brief discussing “last clear chance†cases they claim are similar, and
do so under different headings in their brief.
The problem with appellants’ arguments, though, is that the last clear
chance doctrine was expressly abolished by our Supreme Court in favor of
comparative negligence. (
804, 829 (Li) [“The doctrine of last
clear chance is abolished, . . . â€].) As respondents note, commentators routinely
refer to “last clear chance†and “discovered peril†interchangeably. (See Prosser, Law of Torts (3d ed. 1964) §
65, p. 439.) Indeed, there are no
reported California decisions applying the “discovered peril†doctrine since
Accordingly, appellants’ contention
that they made a prima facie showing of negligence based on these doctrines is
without merit.
C. No Expert on Causation
Appellants also contend that the
trial court erred in requiring their standard of care expert to qualify as an
expert on accident reconstruction.
Putting aside appellants’ continued reliance on last clear chance cases,
which they claim do not require such an expert, they correctly note that expert
witness testimony is necessary when “[r]elated to a subject that is
sufficiently beyond common experience that the opinion of an expert would
assist the trier of fact.†(Evid. Code,
§ 801, subd. (a).) According to
appellants, the only matter that was beyond the common experience of the jury
was the standard of care for commercial bus drivers, for which Zemba was the
designated expert.
We disagree. While Zemba’s testimony may have been
relevant to the scope of Lewis’s duty as a school bus driver, it had nothing to
do with the issue of causation, i.e., were Lewis’s actions a proximate cause of
the harm. At best, Zemba could testify
that Lewis should have moved the bus
into an empty traffic lane if available, without discussing other critical
factors in a traffic accident, such as reaction time, perception time,
distance, and the mechanics of the damage to the bus from the vehicle
collisions. The accident in this case
involved multi-vehicle chain reaction collisions and a complicated sequence of
events and issues, including the nature of the severe damage to the bus from
both the collision with Bonilla’s car and the subsequent collision with the
SUV, and how the resulting damage affected Lewis’s operation of the bus. These issues are plainly beyond the common
experience of judges and juries. (See
234 Cal.App.3d 1609, 1616 [truck driver, who was not an expert on automobile
accident reconstruction, could not give a lay opinion as to the cause of the
collision]; Haning, Flahavan & Kelly, Cal. Practice Guide: Personal Injury (The Rutter Group 2012), §
2:370, p. 2(i)-61 [“Expert testimony is also required on the issue of
experience that it can be explained only
through expertsâ€].)
“[W]here, as here, the complexity
of the causation issue is beyond common experience, expert testimony is
required to establish causation.†(
Cal.App.4th 1363, 1373.) Appellants, who
had the burden of establishing every element of their negligence claim, could
not establish causation without an accident reconstruction expert in this complicated
accident case.
Accordingly, the motion for nonsuit
was properly granted. (
D. No Violation of Rules Governing Nonsuits
Finally, appellants contend that
the trial court violated “various rules of nonsuits†by improperly weighing the
evidence, failing to interpret the evidence favorably to them, and failing to
indulge every legitimate inference in their favor. Appellants list eight instances of alleged violations. We have reviewed the record and find no error
by the trial court. It is clear the
court understood its role: “Part of your
motion is that the court cannot evaluate defense evidence. You are right, I am not evaluating the
defense evidence here. They made an
offer of proof . . . what they intended to put up. It is not a question of [the] court
evaluating the defense evidence, it’s a question of the standard of whether you
have established enough evidence to even get into the defense [evidence].†The trial court continued, “The defendant is
entitled to a nonsuit if the trial court determines that it’s a matter of law
the evidence presented by plaintiff is [in]sufficient to permit a jury to find
in his favor. It’s not a question of
whether I believe or disbelieve Mr. Zemba.
I don’t disbelieve him. . . . [¶] . . . [¶] But I find that there is no basis to justify
the denial of the motion of a nonsuit as to LAUSD and Mr. Lewis.â€
II. The Motion for Attorney Fees
Respondents brought a motion for an
award of attorney fees and defense costs in the amount of $331,210.16 pursuant
to Code of Civil Procedure section 1038 (section 1038), which the trial court
denied.
Section 1038, subdivision (a)
provides that “In any civil proceeding under the
. . . Government Claims Act . . . the court, upon
motion of the defendant or cross-defendant, shall, at the time of the granting
of . . . any nonsuit dismissing the moving party
. . . determine whether or not the plaintiff, petitioner,
cross-complainant, or intervenor brought the proceeding with reasonable cause
and in the good faith belief that there was a justifiable controversy under the
facts and law which warranted the filing of the complaint, petition,
cross-complaint, or complaint in intervention.
If the court should determine that the proceeding was not brought in
good faith and with reasonable cause, an additional issue shall be decided as
to the defense costs reasonably and necessarily incurred by the party or
parties opposing the proceeding, and the court shall render judgment in favor
of that party in the amount of all reasonable and necessary defense costs, in
addition to those costs normally awarded to the prevailing party.†Section 1038, subdivision (b) defines
“defense costs†to include “reasonable attorneys’ fees, expert witness fees, the
expense of services of experts, advisers, and consultants in defense of the
proceeding . . .â€
“‘Reasonable cause’ is an objective
standard which asks whether any reasonable attorney would have thought the
claim tenable. [Citation.] ‘Thus, before denying a [Code of Civil
Procedure] section 1038 motion, a court must find the plaintiff brought or
maintained an action in the good faith belief in the action’s justifiability
and with objective reasonable cause.’
[Citation.]†(
(2007) 149 Cal.App.4th 860, 888.) “The
‘reasonable cause’ prong is reviewed de novo, and the ‘good faith’ prong is
reviewed for substantial evidence.†(
At the outset, we note that while
respondents’ written motion for attorney fees is included in the record,
appellants’ written opposition is missing.
The trial court stated at the beginning of the lengthy hearing on the
motion that it had read and considered the opposition filed by appellants. Respondents have therefore failed to provide
us with a complete record of the matter, in violation of well established
appellate rules. For this reason alone,
we find the issue has been forfeited on appeal.
(See Maria P. v. Riles (1987)
43 Cal.3d 1281, 1295–1296 [“Because [defendants] failed to furnish an adequate
record of the attorney fee proceedings, defendants’ claim must be resolved
against themâ€].)
In any event, respondents
essentially take the position in their appellate brief that appellants lacked
reasonable cause and good faith to maintain this action because they did not
have an accident reconstruction expert and they ignored repeated requests to
participate in settlement discussions.
In denying the motion, the trial court stated: “The problem that I have in this case is that
I think it was—well, I’ll say it quite frankly; I think inadequate
representation by plaintiff’s counsel. I
think there’s ineffective assistance of counsel here, that may come to the
level of incompetence when it comes to bringing this type of a lawsuit without a
solid accident reconstruction expert.
[¶] . . .
[¶] I disagree with [plaintiff’s
counsel’s] representations . . . theor[ies]. But the fact remains that however tenuous—Mr.
Lewis did testify [before trial] that he might have gone to the right-hand lane. You had another witness testify [before
trial] that he [Lewis] did go into the right-hand lane briefly, whether it was
before or after the [initial impact].
And you have Mr. Zemba, vague and unqualified expert though he is,
testify to what was obvious from the video, which was that the right-hand lane
was clear and open and it was possible for a bus to have gone into that lane
had there been an opportunity to move into it.
[¶] . . .
[¶] But I do not think that ineffective
assistance of counsel [or attorney malpractice] necessarily equates to bad
faith.†Neither do we.
DISPOSITION
The judgment and order are
affirmed. The parties to bear their own
costs on appeal.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
___________________________,
Acting P. J.
ASHMANN-GERST
We concur:
____________________________, J. ____________________________, J.
CHAVEZ FERNS
Appellants
initially designated their experts on April 12, 2010, but de-designated their
accident reconstruction expert on May 20, 2010.
do not challenge this ruling.
