Chu
Development Enterprises
Filed 8/16/13 Chu v. ABS
Development Enterprises CA2/5
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
THUY V. CHU et al.,
Plaintiffs and Appellants,
v.
ABC DEVELOPMENT ENTERPRISES et
al.,
Defendants and Respondents;
MT. HAWLEY INSURANCE COMPANY,
Intervener and Respondent.
B236627
(Los Angeles
County Super.
Ct.
No. GC038945)
APPEAL from
a judgment of the Superior Court
of
County, Joseph F. DeVanon, Jr., Judge. Affirmed.
Acker &
Whipple, Stephen Acker, Anthony H. Whipple, Leslie Anne Burnet; The NT Law
Group and Julie N. Nong for Plaintiffs and Appellants.
Law Offices
of Linda M. Libertucci, Charles A. Palmer and Daniel Y. Chang for Defendants
and Respondents.
Bistline,
Cohoon & Luymes and Gregory D. Bistline for Intervener and Respondent.
___________________________
Plaintiff
and appellant Thuy Chu, on behalf of herself and as guardian ad litem for her
minor son, appeals from a judgment following a jury trial in favor of
defendants and respondents ABC Development Enterprises, DSC Laser and Skin Care
Center, Inc., and Mt. Hawley Insurance Company, in this action arising out of
the death of her husband Phi Nong. Chu
contends: 1) the trial court erred by granting
liability cause of action in favor of ABC and DSC; 2) the trial court erred in permitting Mt.
Hawley Insurance Company to appear for Pinewave; 3) the trial court should have granted a motion
for judgment on the pleadings on Mt. Hawley’s complaint-in-intervention;
4) the trial court erred by admitting
the declaration of Mark Sanders; 5) the
trial court erred by excluding evidence of Cal-OSHA regulations (see Lab. Code,
§ 6300 et seq. [Cal. Occupational Safety & Health Act of 1973
(Cal–OSHA)]), economic damages, and settlement payees; 6) the trial court erred by denying her
requested instructions on direct liability in special risk cases, nondelegable
duty, and negligence per se; and 7)
there is no substantial evidence to support the findings that Pinewave,
ABC, and DSC were not negligent.
We conclude
the record is inadequate to review Chu’s contention
concerning the summary adjudication ruling without a reporter’s transcript of
the hearing. The trial court did not
abuse its discretion in permitting Mt.
Hawley to intervene and appear in
the name of its insured at trial. We
find no prejudicial evidentiary or instructional errors, and there is
substantial evidence to support the judgment.
Therefore, we affirm.
I. Glass Delivery to
Construction Site
ABC hired Pinewave to remodel the interior of a
commercial building. DSC had agreed to
rent space in the building after the work was completed. Pinewave had a general liability insurance
policy issued by Mt. Hawley. Pinewave ordered plate glass from David
Truong’s company. Although construction
at the site took place during the week, they agreed that Truong would deliver
the glass on a weekend. Truong delivered
the glass to the site on Saturday, May
7, 2005, but he did not call anyone to let them know he would be
making the delivery that day. His
roommate Nong rode along with him.
Truong parked his truck on the street.
He chose where to unload the glass and did not put out any safety
cones. When he removed a plate of glass
from the rack on his truck to carry it inside, he did not put stakes in place
that would have held the remaining glass securely. Each glass plate weighed about 150
pounds. He told Nong to get some snacks
and watch that no one interfered with the truck. Nong was standing on the sidewalk while
Truong and his workers transported glass from the truck to the site. Glass fell off the rack and killed Nong.
II. Wrongful Death Complaint
On May 4, 2007, Chu
filed a wrongful death action against the manufacturer of the glass rack used
on the truck based on product liability and general negligence theories. The manufacturer cross-complained against
Truong. Truong entered into a settlement
with Chu. Truong’s
motion for a determination of good faith settlement with Chu
was heard on June 18, 2008. The trial court granted Truong’s motion only
as to parties who were in the case prior to the filing of the motion.
The
manufacturer of the glass rack filed a motion for summary judgment. In opposition, Chu
submitted the declaration of expert Mark Sanders that the glass rack was
defective. The trial court denied the
motion for summary judgment. Chu
negotiated settlements with the manufacturing defendants.
On May 21, 2009, Chu
substituted ABC as a Doe defendant. The
complaint against ABC was served after the trial court granted the
manufacturing defendants’ requests for good faith determination of settlements. On July
28, 2009, the court granted leave to file an amended complaint
which added new negligence allegations and a cause of action for premises
liability.
On September 17, 2009, Chu
substituted Pinewave as a Doe defendant.
Pinewave’s corporate status had been suspended by the California
Franchise Tax Board and the Secretary of State, and therefore, it lacked
capacity to defend itself in the lawsuit.
The parties stipulated to allow Mt.
Hawley to file a complaint in
intervention on behalf of its suspended insured Pinewave without a noticed
motion, and the trial court granted Mt.
Hawley leave to intervene based on
the stipulation. On December 2, 2009, Mt.
Hawley filed a complaint in
intervention on behalf of Pinewave.
On May 4, 2010, Chu
substituted DSC as a Doe defendant. Mt.
Hawley filed a declaratory relief
action against Pinewave, ABC, DSC, and Chu, seeking a
declaration that it had no duty to defend Pinewave or ABC. Mt.
Hawley obtained an entry of default
against Pinewave and requested entry of a default judgment. On November
18, 2010, the trial court found that the wrongful death action and
the declaratory relief action were related and assigned them to the same
department for all purposes.
ABC and DSC
had each filed motions for summary adjudication of the issues. They argued that they were not liable for a
product defect or for the negligence of an independent contractor, and they did
not own or control the sidewalk or create a dangerous condition.
Chu
opposed the motions on the grounds that ABC and DSC were liable for creating a
condition that rendered the sidewalk dangerous and liable under the peculiar
risk exception for the negligence of an independent contractor who was
performing inherently dangerous work. In
support of the opposition, Chu submitted the declaration
of engineer Brad P. Avrit. Avrit opined
in his declaration that Pinewave failed to ensure materials were delivered and
received safely. He further declared
that the area where the work took place should have been marked by cones,
designated as a safety zone, and the glass should have been restrained.
The hearing
on the summary adjudication motion was not reported and no settled statement
under California Rules of Court, rule 8.137 has been made part of the record on
appeal. After taking the matter under
submission, on January 19, 2011, the trial court denied summary adjudication of
the negligence cause of action, finding triable issues of fact as to whether
DSC hired and paid Pinewave for work on the project, whether glass delivery
constituted a peculiar risk, and whether ABC, DSC, or their contractor failed
to take proper safety measures, such as designating a safety zone. The court granted summary adjudication of the
premises liability causes of action, because Chu had not
identified a dangerous condition of ABC’s property and neither ABC nor DSC
owned or modified the street or sidewalk where the accident occurred. The court also granted summary adjudication
of the product liability cause of action as to both ABC and DSC.
On February 7, 2011, Mt.
Hawley filed a motion to appear at
trial under the name of Pinewave pursuant to Evidence Code section 1155. Chu opposed the motion
on the ground that Mt. Hawley
denied coverage and sought a declaration that it had no duty to defend, and
therefore, the insurer had no direct and immediate interest in the
litigation. Mt.
Hawley replied that the declaratory
relief action did not diminish its interest in the instant action.
On February 16, 2011, the trial court
entered a default judgment against Pinewave in Mt.
Hawley’s declaratory relief
action. The court declared that Mt.
Hawley had no duty to defend and
indemnify Pinewave in the wrongful death litigation, because Pinewave had not
complied with policy provisions regarding subcontractors.
Chu
filed a motion for judgment on the pleadings to have Mt.
Hawley’s complaint in intervention
stricken on the ground that the insurer did not have a direct and immediate
interest to warrant intervention. Mt.
Hawley opposed the motion by
arguing that it had not refused to defend Pinewave. Chu filed a reply.
Mt.
Hawley filed a motion for summary
adjudication against Chu in its declaratory relief
action seeking declarations that it had no duty to defend or indemnify
Pinewave.
III. Trial
A.
Preliminary Trial Rulings
The first
day of trial was held on May 10, 2011. The trial court noted that the motion for
judgment on the pleadings to have Mt.
Hawley’s complaint in intervention
stricken had never been properly calendared.
The court continued the hearing on the motion and eventually denied
it. The court granted Mt.
Hawley’s request to appear in the
case as Pinewave.
Mt.
Hawley had filed a motion in limine
to preclude reference to Cal-OSHA statutes or violations, because Cal-OSHA
governed protections for employees. Chu
argued that the Building Code incorporates Cal-OSHA standards and they were the
basis for a negligence per se instruction.
The trial court excluded testimony concerning Cal-OSHA standards,
because they were not applicable.
ABC and DSC
had filed a similar motion in limine seeking to preclude Chu’s
liability expert Avrit from offering legal opinions on the application of any
statute or regulation. In particular,
ABC and DSC sought to prevent Avrit from testifying that ABC and DSC had
particular duties that were imposed by the Building Code and Cal-OSHA
regulations. ABC and DSC noted that the
only basis for their liability was vicarious and only if there was a peculiar
risk. Chu opposed
the motion on the ground that Avrit’s basis for his opinion of the standard of
care in the industry was his understanding of the Building Codes that must be
followed. The trial court ruled that
Avrit could testify as to building practices, what a safe construction site
looks like, and similar opinions without expressing what the law is or what the
law requires. The court later clarified
that Avrit could state that the Building Code contains certain provisions, as
long as he did not opine that a particular fact situation was a violation of
the Building Code provisions.
B. Relevant Testimony at Trial
Truong testified about his extensive experience working
with glass. He was taught safety
procedures for handling glass when he worked at a previous company. He decided where to park and how to deliver
the glass.
Pinewave
employee Kenny Szeto testified that deliveries were usually made on
weekdays. He would usually be present at
the site when there was a delivery of glass and would control the site. He had used Truong’s services on other jobs
and did not remember whether he ever inspected Truong’s equipment. He did not remember giving Truong any
instructions about the glass delivery for this job or if he knew Truong planned
to deliver the glass on a Saturday.
Szeto usually opened the door in the morning. There was a lock box, which provided entry to
the job site, but Szeto did not remember whether he gave the number to
Truong. Szeto went to the job site on
the day of the accident, but much later, and found the doors open. Szeto did not tell ABC or the building owners
that glass was being delivered. It was
part of Pinewave’s work schedule and there was no need to tell the client. Szeto’s supervisor also testified that he
would not expect ABC to be present at the time the glass was delivered.
Chu
testified that she settled with Truong and the manufacturer of the glass
rack. No party asked about the amounts
of the settlements.
ABC’s
construction expert Scott Paul Vivian testified. In his opinion, Truong was a specialist with
experience in transporting glass and all activity with respect the material was
his responsibility until Pinewave took possession of the material. Vivian noted that if the stakes had been
replaced, the accident would not have happened.
It was a judgment call by Truong that the stakes were not required for the
amount of time it would take to return for another plate of glass. Vivian explained that the general contractor
has control of the construction site during construction hours. In his opinion, on a weekend when there is no
contractor at the site and no notice of the delivery, the subcontractor has
responsibility for the delivery of materials.
Also, he does not allow a project manager to take control of materials
until the subcontractor has moved them to the construction area, because he
needs the subcontractor to have liability for breakage or other accidents. The subcontractor has the entire
responsibility for the material from any location outside the construction area
until it is in the construction area, at which point there is a shared
responsibility for the material inside the construction area. In his opinion, none of the responsibility
for the accident in this case is attributable to the general contractor, the
property owner, or the tenant.
In Vivian’s
opinion, under the facts and circumstances of this case, there was no need for
a safety zone around the truck out of cones and safety tape. Vivian explained that a safety zone is
typically designated to protect members of the public who are not knowledgeable
about construction from walking into a potentially hazardous situation. In this case, material was being removed from
a stationary truck and taken immediately into the building. There was no pedestrian traffic on the
sidewalk that day on that street. The
speed with which the material in this case was being removed from a stationary
truck and taken past the public sidewalk in a matter of seconds, along with the
number of people involved in transporting the object, would have made a safety
zone unduly burdensome for the workers.
Two workers would have to stand holding the glass while the third worker
reconfigures the safety zone each time they pass by. The standard in the industry, as a practical
matter, is that a safety zone is not going to be constructed and deconstructed
while moving the glass, because there is no real construction activity taking
place.
Even if
Pinewave’s project manager had been present, Vivian stated that he was not
required to establish a safety zone.
Pinewave should not interfere in the subcontractor’s transportation of
the material because they are specialists, and they are in control of the
material. The standard in the industry
would be for the project manager not to interfere with the subcontractor’s
delivery of the material.
In
addition, Vivian opined that even if a safety zone had been established, it
would not have made a difference in this case.
Nong was with the glass subcontractor and had a right to access the
truck, move around the truck, and be near the truck. He was instructed to keep an eye on the
glass. A safety zone would not have made
a difference, because Nong would have been within the zone.
Vivian
agreed that the safety standards applied and the general contractor had to take
the same safety measures at all times, with no exceptions on weekends. He also agreed that if there is significant
construction activity near a public way in general use for pedestrian travel,
the public needs to be protected.
However, in his opinion, there was no necessity for pedestrian
protection at the time and place of the incident in this case. He explained that he had supervised a project
that used glass plates weighing from 800 to 2,300 pounds each and they made a
plan in advance for deliveries. He
stated that the general contractor needs to provide a clear path through the
construction site and a safe staging area for the materials. He agreed that unrestrained glass on a truck
presents a potential hazard and workers may drop the materials, causing
tempered glass to shatter into chunks.
However, he also explained that glass racks are designed with a tilt in
order to hold glass without stakes and not place people in jeopardy. In his view, the accident occurred in the
street as a result of glass located on the truck in the subcontractor’s sole
possession and which had not yet been delivered.
Mt.
Hawley’s construction expert Joseph Callanan also testified that Truong was the
party who was ultimately responsible for the mechanics of transporting,
unloading, and delivering the glass to the construction site. Truong made the decisions as to how to
position his truck, how to unload the glass and transport it into the building,
and whether to secure the remaining glass between deliveries. Callanan opined that the accident occurred as
a direct result of the glass not being secured to the rack.
He
explained that the general contractor does not supervise the detailed mechanics
of the work being performed by subcontractors.
The general contractor supervises and coordinates the project as a
whole. Specifically with respect to
safety, the general contractor maintains site conditions and project scheduling
to prevent conflicting work by subcontractors that will cause safety issues,
but does not become involved in the detailed mechanics of executing the work. There were no site conditions or project
operations controlled by Pinewave that contributed to the accident in this
case.
Callanan
testified that according to the custom and practice in the industry, a glass
vendor is responsible for transporting the material to the job site and making
it available for unloading or unloading it, depending on the parties’
agreement. Callanan had no criticism of
Pinewave for hiring Truong. Truong had
been in the glass business for decades and Pinewave had worked with him
previously without incident. Callanan
also testified that it was not uncommon in the industry for vendors or
subcontractors to be given access to a construction site without the general
contractor being present. It is common
for work to be performed on Saturdays and for delivery of materials after
hours.
He opined
that building materials can cause serious injury if mishandled. Plate glass is no more dangerous to deliver
than any other building materials. He
would expect some provisions would be made specific to handling glass, but he
did not consider it especially hazardous.
In
Callanan’s opinion, a safety zone of cones with tape around it was not needed
for the delivery in this case. He did
not believe that unloading glass by hand from a truck at the sidewalk’s curb
warrants any special arrangements like a safety zone. Moreover, he did not believe a safety zone
would have prevented the accident in this case.
The people unloading the truck would have entered the safety zone and
approached the unsecured material. Nong
was brought to the site by Truong and was part of that operation.
Callahan
agreed that if there were pedestrian traffic that may be affected by the work
being executed, the person executing the work should be aware of it and take
some steps to make safety features available.
He also agreed that in accordance with industry standards, when
construction work is performed on a building adjacent to a public way,
provision should be made to protect the public engaged in pedestrian
travel. He stated that the industry
safety practices specific to each trade were the responsibility of the
subcontractor. He stated that the
primary source for safety practices for the job site would be OSHA regulations. However, the only injury and illness
prevention program that he is aware of is a portion of the Cal-OSHA regulations
that governs the employer-employee relationship and not protection of the
general public. He would not expect
Pinewood to provide safety information to subcontractors or tradesmen coming
onto the job site.
C. Verdict and Proceedings After Trial
On May 19, 2011, the jury returned its special
verdict. The first question on the
verdict form simply asked whether Pinewave was negligent. The jury answered no. The form instructed the jurors, under those
circumstances to stop, answer no further questions, and sign, date, and return
the form. The trial court entered
judgment in favor of Mt. Hawley, ABC, and DSC on July 5, 2011. Chu filed a timely
DISCUSSION
I. Summary Adjudication of Premises Liability
Cause of Action
On appeal,
Chu contends the trial court erred by granting summary adjudication of a
premises liability cause of action in favor of ABC and DSC. However, the hearing on the summary
adjudication motion was not reported.
Chu’s election to proceed without a suitable substitute for a
transcript of the hearing
on appeal is adequate for review of this issue.
“[W]e
[Citation.] In performing our
independent review, we conduct the same procedure used by
the trial court. We examine (1) the pleadings to determine the elements of
the claim for which the party seeks relief; (2)
the summary judgment motion to
determine if movant established facts justifying judgment in its favor; and
(3) the opposition to the
motion—assuming movant met its initial burden—to ‘decide whether the opposing
party has demonstrated the existence of a triable, material fact issue. [Citation.]’
[Citations.]†(Y.K.A.
Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174
Cal.App.4th 339, 354.)
However, “a
party challenging a judgment has the burden of showing reversible error by an adequate
record.†(Ballard
v. Uribe (1986) 41 Cal.3d 564, 574.)
“ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged
to support it on matters as to which the record is silent
. . . .’ (Orig. italics.) [Citation.]â€
(Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) In the absence of a proper record
on appeal, the judgment is presumed correct and must be affirmed. (Maria P. v. Riles (1987) 43 Cal.3d
1281, 1295-1296.)
California
Rules of Court, rule 8.120(b) provides:
“If an appellant intends to raise any issue that requires consideration
of the oral proceedings in the superior court, the record
on appeal must include a record of these oral proceedings
. . . .†If the proceedings were not
recorded, California Rules of Court, rule 8.137 contains procedures for filing
a settled statement.
Without a
reveal the parties’ arguments to the court and any concessions concerning the
facts, issues and evidence, Chu cannot meet her burden of showing reversible
error. In the absence of an adequate
challenged on appeal and presume the trial court properly concluded that no triable
issues of material facts exist as to the premises liability cause of action.
II. Mt. Hawley’s Intervention and Appearance
as Pinewave
Chu
contends the trial court erred by permitting Mt. Hawley to intervene in the
case, denying Chu’s motion for judgment on the pleadings seeking to strike Mt.
Hawley’s complaint in intervention, and allowing Mt. Hawley to appear as
Pinewave at trial. We find no abuse of
discretion.
“We review
a trial court’s order granting intervention for an abuse of discretion. [Citation.]
‘When the proper procedures are followed, the trial court has the
discretion to permit a nonparty to intervene in litigation pending between
others, provided that (1) the nonparty
has a direct and immediate interest in the action; (2) the intervention will not enlarge the issues
in the litigation; and (3) the reasons
for intervention
the parties presently in the action.’
[Citation.]†(
1509, 1521 (Gray).)
“It is
undisputed that if the insurer admits coverage, the insurer clearly has a
direct and immediate interest in the outcome of the action against its insured,
and therefore may intervene. ‘An
insurer’s right to intervene in an action against the insured, for personal
injury or property damage, arises as a result of Insurance Code section
11580. Section 11580 provides that
a judgment creditor may proceed directly against any liability insurance
covering the defendant, and obtain satisfaction of the judgment up to the amount
of the policy limits. [Citation.] Thus, where the insurer may be
subject to a direct action under Insurance Code section 11580 by a judgment
creditor who has or will obtain a default judgment in a third party action
against the insured, intervention is appropriate. [Citation.]’
[Citation.]†(
“It is also
undisputed that if the insurer denies coverage and refuses to provide a
defense, the insurer ‘does not have a direct interest in the litigation between
the plaintiff and the insured to warrant intervention. The rationale behind this rule is that by its
denial, the insurer has lost its right to control the litigation.’ [Citation.]
When an insurer refuses to defend, it may be bound by a default judgment
against its insured [citation]
. . . . (
“[T]he key
factor in determining whether an insurer is bound by a settlement reached
without the insurer’s participation is whether the insurer provided the insured
with a defense, not whether the insurer denied coverage. (See Safeco Ins. Co. v. Superior Court
(1999) 71 Cal.App.4th 782, 785, 787 [holding that an insurer that defended
under a reservation of rights was not bound by a settlement reached without its
consent].) It therefore follows that an
insurer providing a defense, even though subject to a reservation of rights,
may intervene in the action when the insured attempts to settle the case to the
potential detriment of the insurer. In
contrast to the insurer that refuses to defend, an insurer providing a defense
under a reservation of rights has not ‘lost its right to control the
litigation’ [citation], and therefore retains a direct interest in the
case. (See also
1468 [upholding intervention, and right to vacate a default judgment, by an
insurer that tendered a defense under a reservation of rights].)†(Gray,
supra, 84 Cal.App.4th at pp.
1523-1524.)
Similarly,
in this case, the trial court did not abuse its discretion by finding Mt.
Hawley had a direct interest in the litigation between its insured and
Chu. Although Mt. Hawley denied
coverage, it provided a defense of Pinewave’s interests in the instant action
through its intervention. Had Chu been
successful in her litigation against Pinewave, she could have proceeded
directly against the insurance company under Insurance Code section 11580. Intervention was appropriate, since Mt.
Hawley would have been subject to a direct action under Insurance Code section
11580 if Chu had obtained a default judgment in her third party action against
Pinewave. Mt. Hawley’s default judgment
against Pinewave on the issue of coverage would not have prevented Chu from
litigating the coverage issue.
There was
no abuse of discretion in the trial court’s ruling permitting Mt. Hawley to
appear at trial as Pinewave. Evidence
Code section 1155 provides: “Evidence
that a person was, at the time a harm was suffered by another, insured wholly
or partially against loss arising from liability for that harm is inadmissible
to prove negligence or other wrongdoing.â€
Case law acknowledges the substantial risk of prejudice to a defendant
from the introduction of evidence the defendant is insured
for the harm he or she allegedly caused:
“[a]ny such evidence would have an obvious potential to prejudice the
jury’s determination of the insured’s liability.†(Moradi–Shalal v. Fireman’s Fund Ins.
Companies (1988) 46 Cal.3d 287, 311; see also Omaha Indemnity Co. v.
Superior Court (1989) 209 Cal.App.3d 1266, 1270-1271.) In this case, the trial court allowed Mt.
Hawley to appear at trial in the name of its insured, because the court
correctly perceived that bringing that information before the jurors would be highly
prejudicial and misleading under Evidence Code sections 1155 and 352.
III. Evidentiary Issues
A. Standard of Review
“Broadly speaking, an appellate court applies the
of review to any ruling by a
690, 717.) That standard also applies to
rulings excluding expert opinion
evidence. (Amtower v. Photon
Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599.) A party challenging a trial
court’s evidentiary rulings must
demonstrate both an abuse of discretion
and a consequent miscarriage of justice.
(Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th
1298, 1317.)
The trial
court has broad discretion in ruling
under Evidence Code section 352 on the admissibility of evidence and acts
within its discretion when excluding
cumulative and time consuming evidence.
The section 352 weighing process depends on the court’s consideration of
the facts and issues of the case before it rather than on mechanical, automatic
rules. (Aguayo
v. Crompton & Knowles Corp. (1986) 183 Cal.App.3d 1032, 1038.)
Evidence Code section
353 provides: “A verdict or finding
shall not be set aside, nor shall the judgment or decision based thereon be
reversed, by reason of the erroneous admission of evidence unless: [¶]
(a) There appears of record an
objection to or a motion to exclude or to strike the evidence that was timely
made and so stated as to make clear the specific ground of the objection or
motion; and [¶] (b) The court which passes upon the effect of the
error or errors is of the opinion that the admitted evidence should have been
excluded on the ground stated and that the error or errors complained of
resulted in a miscarriage of justice.â€
Evidence Code section
354 provides: “A verdict or finding
shall not be set aside, nor shall the judgment or decision based thereon be
reversed, by reason of the erroneous exclusion of evidence unless the court
which passes upon the effect of the error or errors is of the opinion that the
error or errors complained of resulted in a miscarriage of justice and it
appears of record that: [¶] (a)
The substance, purpose, and relevance of the excluded evidence was made
known to the court by the questions asked, an offer of proof, or by any other
means; [¶] (b) The rulings of the court made compliance with
subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked
during cross-examination or recross-examination.â€
A
miscarriage of justice should be declared only when the appellate court, after
an examination of the entire cause (including the evidence), is of the opinion
that it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d
818, 836.)
B.
Exclusion of Testimony About Cal-OSHA Statutes
Chu
contends the trial court abused its discretion by excluding evidence of
Cal-OSHA regulations to establish a standard of care. We conclude there was no error, but if there
were, any error was harmless.
“A
plaintiff can rely on statutory law to show that a defendant owed the plaintiff
a duty of care. (See Elsner v. Uveges
(2004) 34 Cal.4th 915, 927 & fn. 8.)â€
(SeaBright Ins. Co. v. US Airways,
Inc. (2011) 52 Cal.4th 590, 596 (SeaBright).) “Not only are Cal-OSHA violations punishable
by civil and/or criminal penalties ([Lab. Code,] § 6423 et seq.), but the Act
specifies that ‘[s]ections 452 and 669 of the Evidence Code shall apply to this
division and to occupational safety and health standards adopted under this
division in the same manner as any other statute, ordinance, or
regulation.’ ([Lab. Code,] §
6304.5.) This means that ‘Cal-OSHA
provisions are to be treated like any other statute or regulation and may be
admitted to establish a standard or duty of care in all negligence and wrongful
death actions, including third party actions.’
(Elsner v. Uveges[, supra,
at p.] 928.)†(
292.)
The
“[u]nder current law, a plaintiff may rely on Cal–OSHA requirements, in the
same manner that it can rely on other statutes and regulations, in an attempt
to show that a defendant owed the plaintiff a duty of care ([Lab. Code,] §
6304.5), but the law now defines ‘employer’ more narrowly than it did before
1971. . . . [We] have never held under
the present law that a specific Cal-OSHA requirement creates a duty of care
to a party that is not the defendant’s own employee.†(SeaBright,
supra, 52 Cal.4th at pp. 596-597.)
The
independent contractor’s hirer implicitly delegates to that contractor its tort
law duty, if any, to provide the employees of that contractor a safe
workplace.†(SeaBright, supra, 52
Cal.4th at p. 597, fn. omitted.) In
other words, “the tort law duty, if any, that a hirer owes under Cal-OSHA and
its regulations to the employees of an independent contractor†is
delegable. (Id. at p. 601.) However, an
employer cannot delegate its own preexisting duty to its own employees to provide
a safe workplace, such that the employer could avoid liability for an injury to
its own employee. (Ibid.)
In this
case, there was no evidence or argument that Pinewave breached a duty to its
own employees to provide a safe workplace.
The trial court did not abuse its discretion by excluding evidence of
Cal-OSHA regulations. Even if the
regulations should have been admitted, any error was harmless, because the jury
found Pinewave was not negligent. Chu
has not shown that the jury’s verdict would have been any different if evidence
of Cal-OSHA regulations governing the employer-employee relationship had been
presented.
C.
Exclusion of Testimony About Economic Damages
Chu
contends the trial court erred by excluding evidence of economic damages.
ABC and DSC
had filed a motion in limine to exclude evidence of economic damages on the
ground that the release of one settling tortfeasor barred recovery of economic
damages from ABC and DSC. After several
days of trial, the court found the common law rules applied and granted the
motion to bar Chu from presenting evidence of economic damages. The court noted that at the time of the
settlement and good faith determination, Chu was aware of all the factual circumstances
and the existence of potential defendants ABC, DSC and Pinewave, who were
subsequently brought into the case.
Therefore, the court found Chu’s complaints about the effect of the
common law rule were not justified. The
court found there were no recoverable economic damages.
Any abuse of
discretion in this instance was harmless, because the jury found Pinewave was
not negligent and never reached the issue of damages.
Exclusion of Certain Evidence of Settlement
Chu
contends the trial court should not have excluded the amounts of individual
settlements. We find no abuse of
discretion in the trial court’s ruling.
Chu had
filed a motion in limine prior to trial to exclude evidence of payments from
collateral sources. ABC and DSC opposed
the motion to the extent it excluded evidence of prior settlements, which they
argued were not covered by the collateral source rule. They intended to present evidence that other
tortfeasors had settled and the amounts of the settlements. Chu objected that evidence of the amounts of
settlements would be prejudicial. The
trial court ruled that witnesses could testify about the existence of
settlements but not the amounts. On the
second day of testimony, the court modified its ruling to allow evidence of the
amounts of settlements for the limited purpose of showing bias. In discussing jury instructions, Mt. Hawley
requested the court instruct the jury to disregard evidence of prior
settlements in determining the amount of an award. When the court noted that no evidence of
settlement had been presented, Mt. Hawley’s attorney stated that he intended to
ask Chu the following day whether she had settled with certain parties,
although not the amounts of the settlements.
Chu changed position and sought to disclose the amounts of prior
settlements to rebut any inference she had been adequately compensated. The court agreed to allow Chu to testify to
the total amount of settlement, but not the amount as to each settling
party. The court was concerned that the
jury would view Truong’s settlement as inadequate compensation and play on
their sympathies with respect to the remaining parties. Chu’s attorney asked if the settlement amount
could be broken up, but the court refused.
We find no
abuse of discretion in the trial court’s ruling to exclude the individual
amounts paid in settlements with Chu.
The court allowed Chu’s attorney to elicit testimony about the total
amount of the settlements, which was sufficient to rebut any inference that Chu
had been adequately compensated. Chu has
not shown that evidence of the individual amounts was necessary for any
purpose, nor did Chu argue at trial that evidence of the individual amounts was
necessary, and the court correctly concluded that the evidence could be more
prejudicial than probative.
E.
Admission of Expert Mark Sanders’s Declaration
In
opposition to a motion for summary judgment brought by the manufacturing
defendants, Chu submitted the declaration of expert Mark Sanders. Sanders declared that the glass rack was
defective for failing to provide adequate warning labels to people near the
rack. ABC characterized the declaration
as a judicial admission and sought to read it to the jury. Chu objected that it was an out of court
statement that was more prejudicial than probative and was likely to confuse
the jury. Moreover, Sanders was
available to testify at trial. The trial
court overruled the objection, finding the evidence was not more prejudicial
than probative. The declaration was read
to the jury, including Sanders’s opinion that the glass transport rack has an
inherent hazard in its product design and should be accompanied by warnings to
people in the zone of danger that unrestrained glass may fall from the rack.
We conclude
there was no abuse of discretion in the trial court’s admission of the
declaration. The statement was an
adoptive admission under Evidence Code section 1221, as well as an
authorized admission under Evidence Code section 1222 made by a party that Chu
authorized to make a statement for her as to whether the glass rack was defective.
IV. Jury Instructions
A. Standard of Review
“Each party is entitled to have his theory of the case
submitted to the jury in accordance with the pleadings and proof [citation],
and it is incumbent upon the trial court to
(1953) 40 Cal.2d 630, 633.) “A party is
entitled upon request to correct, nonargumentative instructions
on every theory of the case advanced by him which is supported by substantial
evidence.†(Soule v. General Motors
Corp. (1994) 8 Cal.4th 548, 572 (Soule).) For that reason, a trial court’s
discharged if the instructions given by the court
embrace all the points of the law arising in the case.†(Hyatt v. Sierra Boat Co. (1978) 79
Cal.App.3d 325, 335.)
To warrant reversal
for demonstrated instructional error,
the complaining party also must prove actual prejudice. (Soule, supra, 8 Cal.4th at p.
574.) There is “no presumption that
(Code Civ. Proc., § 475.) “A
judgment may not be reversed on appeal, even for error
involving ‘misdirection of the jury,’ unless ‘after an examination of the
entire cause, including the evidence,’ it appears the error
caused a ‘miscarriage of justice.’ (Cal.
Const., art. VI, § 13.)†(
Special Instruction on Direct Liability for Special Risk
Chu
contends the trial court erred by denying her proposed special instruction on
direct liability in special risk cases when the employer fails to provide in
the contract for the independent contractor to take special precautions. Chu contends the instruction was warranted
because ABC and DSC failed to provide for special precautions in their contract
with Pinewave. We conclude that any
error in failing to give the instruction was harmless.
The trial
court provided the following instruction to the jury with respect to Chu’s
claim that ABC was responsible for Pinewave’s conduct because the work involved
a peculiar risk of harm: “A special risk
of harm is a recognizable danger that arises out of the nature of the work or
the place it is to be done and requires a specific safety measure appropriate
to that danger. . . . A special risk of
harm does not include a risk that is unusual, abnormal, or not related to the
normal or special risk associated with the work. [¶] To
establish this claim, [Chu] must prove each of the following: [1.]
That the work was likely to involve a special risk of harm to others;
[2.] That [ABC] knew or should have
known that the work was likely to involve this risk; [3.] That [ABC] failed to use reasonable care to take
specific safety measures appropriate to the danger to avoid this risk; and
[4.] That [ABC’s] failure was a cause of
harm to [Chu].â€
The trial
court denied Chu’s request to also give a special instruction on direct
liability when the work involved a special risk and the contract with the
independent contractor failed to require special precautions. The special instruction that Chu requested
stated: “One who employs an independent
contractor to do work which the employer should recognize as likely to create,
during its progress, a peculiar unreasonable risk of physical harm to others
unless special precautions are taken, is subject to liability for physical harm
caused to them by the absence of such precautions if the employer [¶] (a) fails to provide in the contract that the
contractor shall take such precautions, or [¶] (b) fails to exercise reasonable care to provide
in some other manner for the taking of such precautions. This is a rule of ‘direct liability.’ [Citations.]â€
The trial court concluded that the requested special instruction was
adequately covered in the peculiar risk instruction provided to the jury.
Even if it
were error to have refused to give the special instruction, any error was
harmless. As discussed further below,
the jury’s finding that Pinewave was not negligent, either directly or
vicariously, is supported by substantial evidence. Pinewave was not required to take any
additional safety measures and was not liable for any negligence by Truong
under the special risk doctrine.
Therefore, ABC and DSC could not have been found negligent under Chu’s
special instruction. ABC employed
Pinewave to perform certain work and the jury found Pinewave was not
negligent. Since Pinewave took all the
safety measures required of it under the circumstances, ABC could not have been
negligent for not undertaking additional precautions.
Instruction on Nondelegable Duty
Chu also
contends the trial court erred by denying her request to instruct the jury on
nondelegable duty based on California Building Code section 3303.1. We disagree.
Chu
requested the jury be instructed as follows:
“[ABC] has a duty that cannot be delegated to another person arising
from California Building Code section 3303.1.
Under this duty, ‘no person shall perform any work on any building or
structure adjacent to a public way in general use by the public for
pedestrian[] travel unless the pedestrians are protected.’ [¶]
[Chu] claims that she was harmed by the conduct of [Pinewave] and that
[ABC] is responsible for this harm. To
establish this claim, [Chu] must prove all of the following: [¶]
1. That [ABC] hired [Pinewave] to
perform an interior remodeling that required plate glass to be delivered to its
building by transporting and carrying it across a public sidewalk without
proper precaution; [¶] 2. That [Pinewave] breached its duty and did not
comply with this law. [¶] 3.
That [Chu] was harmed; and
[¶] 4. That [Pinewave’s] conduct was a substantial
factor in causing [Chu’s] harm.†Chu
requested a separate instruction that was identical except for that Chu claimed
DSC was responsible for Pinewave’s conduct, and another in which Chu claimed
Pinewave was responsible for Truong’s conduct.
The trial court denied the requested instructions on nondelegable duty,
finding that the jury had already received sufficient instruction on the issue
of duty and the requirements of the parties under that duty, specifically as it
related to peculiar risk.
The
requested instruction is incomplete and misleading. California Building Code section 3303.1
provides in pertinent part: “No person
shall perform any work on any building or structure adjacent to a public way in
general use by the public for pedestrian travel unless the pedestrians are
protected as specified in this chapter.â€
The chapter sets forth specific provisions concerning storage of
equipment, mixing of mortar, protection of utilities, maintenance of a walkway
on the sidewalk in front of the building during construction, and railings,
fences, and canopies. The instruction
requested does not identify any protective measure set forth in the chapter
which Chu claims the defendants violated.
The trial court correctly declined to instruct the jury as provided.
Negligence Per Se for Building Code Violations
Chu
contends that the trial court should have instructed the jury on negligence per
se based on certain Building Code provisions, but it is unclear from the briefs
which instructions Chu contends the trial court improperly omitted.
Chu’s opening
brief cites the trial court’s ruling denying the following instruction on
negligence per se: “California Building
Code section 3303.1 states: [¶] ‘No person shall perform any work on any
building or structure adjacent to a public way in general use by the public for
pedestrian travel unless the pedestrians are protected.’ [¶] If
you decide [¶] 1. That [Pinewave]
violated this law and [¶] 2. That the
violation was a substantial factor in bringing about the harm, [¶] Then you must find that [Pinewave] was
negligent. [¶] If you find that [Pinewave] did not violate
this law or that the violation was not a substantial factor in bringing about
the harm, then you must still decide whether [Pinewave] was negligent in light
of other instructions.†The requested
instruction was restated as to ABC and DSC as well. The trial court found the negligence per se
instruction was not applicable.
The trial
court properly rejected this instruction on negligence per se, as it suffers
from the same defect as the nondelegable duty instruction discussed above. The requested instruction fails to specify a
violation of Building Code chapter 33 which Chu claims resulted in harm to
her. The instruction was incomplete and
misleading, and the trial court properly declined to instruct the jury in the
language suggested.
Chu appears
to contend in her opening brief that the trial court also erred by refusing to
give three special instructions on negligence per se. The first special instruction was based on
Building Code Section 3303.1 and states:
“No person shall perform any work on any building or structure adjacent
to a public way in general use by the public for pedestrian travel unless the
pedestrian[s] are protected.†The second
instruction was based on Building Code section 3303.6 and states: “A walkway not less than 4 feet (1219 mm)
wide shall be maintained on the sidewalk in front of the building site during
construction, alteration or demolition.
Adequate signs and railings shall be provided to direct pedestrian
traffic.†The third instruction was
based on Building Code section 3303.7.1 and states: “Pedestrian traffic shall be protected by a
railing on the street side when the walkway extends into the roadway.†Chu provides no citation to any ruling in the
record by the court on the three special instructions and we have not
discovered such a ruling. In Chu’s reply
brief under the heading concerning the negligence per se instruction, she in
fact discusses the nondelegable duty instruction and the court’s ruling on that
instruction. We conclude that any issue
with respect to the three special instructions on negligence per se has been
waived for failure to obtain a ruling in the trial court.
E.
Pinewave’s Special Instructions on Equipment
In Chu’s
opening brief, one of the contentions listed is that the trial court erred in
instructing the jury on the use of defective equipment and misuse of
equipment. However, she did not state
this point under a separate heading
or subheading or provide any argument or citation of
authority with respect to this contention, in violation of California Rules of
Court, rule 8.204(a)(1)(B). None of the
respondents addressed the issue. Chu
provides argument and citation for her contention for the first time in her
reply brief. “‘Points
raised for the first time in a
considered, because such consideration would deprive the respondent of an
opportunity to counter the argument.’
[Citation.] ‘Obvious reasons of
fairness militate against consideration of an issue raised initially in the
‘“Obvious considerations of fairness in argument demand that the
appellant present all of his points in the opening
brief. To withhold a point
until the closing brief would deprive the respondent of his opportunity to
answer it or require the effort and delay of an additional brief by
permission. Hence the rule is that
will not be considered, unless good reason is shown for failure to present them
before.â€â€™â€ (Reichardt v. Hoffman
(1997) 52 Cal.App.4th 754, 764; see also Stoll v. Shuff (1994) 22
Cal.App.4th 22, 25, fn. 1 [“an appellate court has the discretion to deem an
alleged error to have been waived if asserted only in the
reply brief and not the opening
briefâ€].) The contention concerning
equipment instructions was waived for failure to address it properly in the
V. Sufficiency of the Evidence
of Review
“When a
party contends insufficient evidence supports a
of review.
[Citations.] ‘“[T]he power of
[the] appellate court begins and
whether there is any substantial evidence
contradicted or uncontradicted which will support the
[verdict].†[Citations.]’ [Citation.]â€
(Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188 (County
of Orange).) “Substantial
evidence†is evidence that is reasonable, credible, and
of solid value. (Braewood
Convalescent Hosp. v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159,
164.) “[T]he testimony of a single
witness, even the party himself may be sufficient.†(Chodos v. Insurance Co. of North America
(1981) 126 Cal.App.3d 86, 97 (Chodos).)
in the light most favorable to the prevailing party, giving it the benefit of
every reasonable inference and resolving all conflicts in its favor
. . . .’ [Citation.]†(County of Orange, supra, 169
Cal.App.4th at p. 1188.) Thus, “we defer
to the trier of fact on issues of credibility.
[Citation.] ‘[N]either conflicts
in the evidence nor “‘testimony which is subject to justifiable suspicion . . .
justif[ies] the reversal of a judgment, for it is the exclusive province of the
[trier of fact] to determine the credibility of a witness and the truth or
falsity of the facts upon which a determination depends.’†[Citations.]
Testimony may be rejected only when it is inherently improbable or incredible,
i.e., “‘unbelievable per se,’â€
physically impossible or “‘wholly unacceptable to reasonable minds.’†[Citations.]’
[Citation.]†(Lenk v.
Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) “Needless to say, a party ‘raising a claim of
insufficiency of the evidence assumes a “daunting burdenâ€â€™ [citation] . . .
.†(County of Orange, supra, at
p. 1188.)
Pinewave
Chu
contends there is no substantial evidence to support the jury’s finding that
Pinewave was not negligent, either directly or vicariously for the negligence
of Truong. We conclude that there is
substantial evidence to support the verdict.
The trial
court instructed the jury that in order for Chu to establish her claim that she
was harmed by Pinewave’s negligence, Chu must first show that Pinewave was
negligent. The court instructed the jury
as follows in pertinent part:
“Negligence is the failure to use reasonable care to prevent harm to
oneself or others, and a person can be negligent by acting or by failing to
act. [¶]
. . . A person is negligent if he or she does something that a
reasonably careful person would not do in the same situation or fails to do
something that a reasonably careful person would do in the same situation. [¶]
You must decide how a reasonably careful person would have acted in
Pinewave Construction’s situation.â€
The trial
court further instructed that to establish Chu was harmed as a result of the
way Pinewave managed the property, she had to prove Pinewave controlled that
property and was negligent in the use or maintenance of the property.
In
addition, the trial court instructed the jury on Chu’s claim that Pinewave was
responsible for Truong’s conduct because the work involved a special risk of
harm. “A special risk of harm is a
recognizable danger that arises out of the nature of the work or the place it
is to be done and requires a specific safety measure appropriate to that
danger. A special risk of harm does not
include a risk that is unusual, abnormal, or not related to the normal or special
risk associated with the work. [¶] To establish this claim, [Chu] must prove
each of the following: [1.] That the work was likely to involve a special
risk of harm to others; [2.] That
Pinewave Construction . . . knew or should have known that the work was likely
to involve this risk; [3.] That Pinewave
Construction . . . failed to use reasonable care to take specific safety
measures appropriate to the danger to avoid this risk; and [4.] That Pinewave Construction’s . . . failure
was a cause of harm to [Chu].â€
There was
substantial evidence to support the jury’s verdict that Pinewave was not
negligent, either directly or as a result of vicarious liability for negligence
by Truong. Both Vivian and Callanan
testified that Pinewave was not required to take any additio
| Description | Plaintiff and appellant Thuy Chu, on behalf of herself and as guardian ad litem for her minor son, appeals from a judgment following a jury trial in favor of defendants and respondents ABC Development Enterprises, DSC Laser and Skin Care Center, Inc., and Mt. Hawley Insurance Company, in this action arising out of the death of her husband Phi Nong. Chu contends: 1) the trial court erred by granting summary adjudication of a premises liability cause of action in favor of ABC and DSC; 2) the trial court erred in permitting Mt. Hawley Insurance Company to appear for Pinewave; 3) the trial court should have granted a motion for judgment on the pleadings on Mt. Hawley’s complaint-in-intervention; 4) the trial court erred by admitting the declaration of Mark Sanders; 5) the trial court erred by excluding evidence of Cal-OSHA regulations (see Lab. Code, § 6300 et seq. [Cal. Occupational Safety & Health Act of 1973 (Cal–OSHA)]), economic damages, and settlement payees; 6) the trial court erred by denying her requested instructions on direct liability in special risk cases, nondelegable duty, and negligence per se; and 7) there is no substantial evidence to support the findings that Pinewave, ABC, and DSC were not negligent. We conclude the record is inadequate to review Chu’s contention concerning the summary adjudication ruling without a reporter’s transcript of the hearing. The trial court did not abuse its discretion in permitting Mt. Hawley to intervene and appear in the name of its insured at trial. We find no prejudicial evidentiary or instructional errors, and there is substantial evidence to support the judgment. Therefore, we affirm. |
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