Krant v. Hopper

Filed 10/3/06 Krant v. Hopper CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. Ramona G. See, Judge. Affirmed.

Garrard & Davis and Donald A. Garrard for Plaintiffs and Appellants.

Cooper, Phillips & Peterson and John A. Peterson for Defendants and Respondents.

_____________________________

Appellants Maurice J. Krant and Phillip J. Manzo (hereafter “Krant” and “Manzo”) appeal from judgment upon a jury’s Special Verdict in the Los Angeles Superior Court in favor of Respondents Kenneth A. Hopper and Sylvia Hopper (hereafter “Hopper”).[1] Appellants appeal because they claim respondent Hopper was negligent as a matter of law, the trial court’s denial of a motion for judgment notwithstanding the verdict and its exclusion of evidence and reference to respondent Hopper’s age and driving experience constituted prejudicial error, and respondents’ memorandum of costs was not timely filed. We affirm the judgment of the court in all regards.

FACTS AND PROCEEDINGS BELOW

The subject of this personal injury case was a head-on collision between respondent Hopper’s vehicle and appellant Krant’s vehicle. The accident involved two collisions and three vehicles driven by Krant, Hopper and a dismissed defendant, Wilbert Turner (“Turner”). The accident resulted in hospitalization of appellants Krant and Manzo and was witnessed by two uninvolved witnesses, Sharon Lowery and Dana Bonahoom. The accident was reconstructed by two expert witnesses at trial, Dr. Terence Honikman, Ph.D. and Paul Guthorn. Respondent Hopper was 17 years old at the time of the accident.

Immediately before the collision, appellant Krant was driving his Nissan Pathfinder westbound in the number one lane on Manchester Avenue, with appellant Manzo riding in the front passenger seat of the vehicle. At the same time, Hopper was stopped facing eastbound inside the intersection of Lincoln Boulevard and Manchester Avenue waiting to make a left turn to proceed northbound on Lincoln Boulevard. Turner was stopped directly behind Hopper’s green Honda automobile, also waiting to turn left to northbound Lincoln. After Turner honked his horn twice, Hopper commenced his left turning movement.

Not more than two seconds and 16 feet after beginning his turn, the right front of Hopper’s vehicle collided with the left front of Krant’s within the prolongation of westbound lane number one of Manchester Avenue. The impact caused Hopper’s vehicle to rotate counterclockwise and then collide with the left side of Turner’s automobile.

Witness Lowery testified the light at the intersection was yellow prior to Krant entering the intersection where the accident occurred. She also heard what she perceived to be Krant accelerating into the intersection. Witness Bonahoom testified she knew for sure the light was yellow when she heard the honking which preceded Hopper making the left turn, but she was not absolutely certain what the condition of the traffic light was when Krant’s vehicle entered the intersection. She also testified she saw Krant’s vehicle accelerate simultaneously with Hopper starting the left turn movement.

Hopper testified he remained stopped within the intersection until the light turned to red, and did not make his turn in reaction to Turner honking twice. In deposition, Manzo declared the light remained green as Krant’s vehicle went through the intersection, but at trial he testified the car was within the intersection as the light turned yellow. He testified he never saw the light turn red. Krant testified the light was green until he got to the westernmost stripe of the pedestrian walk, when it turned yellow. He also declared he noticed Hopper “was not looking in the direction where he should be looking. [Hopper] was looking to his right.” There was no physical evidence of any braking by appellants’ vehicle.

Hopper testified he did not believe he ever looked away, but was instead looking at opposing traffic when Turner honked his horn. At the time, the light was still yellow and Hopper only noticed cars in the right-hand turn lane, cars clearing the intersection, and cars 100 or 200 yards further down.

Appellants’ expert witness, Dr. Honikman, testified no evidence supports the testimony regarding the light having been green when appellant’s vehicle entered the intersection. Respondents’ expert witness, Mr. Guthorn, testified it was his conclusion Mr. Krant’s vehicle was outside the intersection when the light turned red. Dr. Honikman countered by testifying there was no physical evidence and no evidence not dependent on witness statements indicating Krant’s car entered the intersection against a red light. According to Honikman’s testimony, at the beginning of the yellow phase Krant’s car would have been at least 171 feet east of the limit line, a distance sufficient to come to a complete stop had the light been yellow.

The jury returned a verdict declaring Kenneth Hopper was not negligent. Notice of entry of judgment in favor of respondents was mailed March 30, 2005. Appellants timely filed and served their motion for judgment notwithstanding the verdict and for new trial which were denied on May 11, 2005. Respondents’ memorandum of costs was filed and served April 19, 2005. The court denied appellants’ motion to strike respondents’ memorandum of costs as untimely. Appellants’ notice of appeal was timely filed and served June 9, 2005, 29 days after denial of appellants’ motions for new trial and judgment notwithstanding the verdict.

DISCUSSION

I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT DENIED THE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT BECAUSE THE INFERENCES DRAWN FROM THE EVIDENCE WERE REASONABLY MADE.

Appellants assert the trial court improperly denied the motion for judgment notwithstanding the verdict because the undisputed evidence at trial compelled the conclusion Hopper was negligent as a matter of law. An appeal from denial of judgment notwithstanding the verdict requires appellants to demonstrate there was no substantial evidence to support the challenged finding.[2] If there is any evidence of facts supporting an inference favorable to the judgment, the reviewing court is without power to substitute its deductions for those of the trial court.[3] A review of the record leads us to the conclusion there was evidence supporting an inference favorable to the judgment.

Facts in the record demonstrate the court could have reasonably concluded Hopper did not negligently violate Vehicle Code section 21801(a).[4] Witnesses Bonahoom and Lowery testified Krant accelerated into the intersection. Coupled with the testimony from Hopper declaring he did not enter the intersection until the light had turned red, the absence of testimony from either expert supporting Krant’s statement he entered the intersection on a green light, the experts’ indication Krant would have had sufficient time and distance to come to a complete stop before the intersection, and the lack of evidence showing Krant attempted to brake all lead to a reasonable inference Hopper did not negligently violate Vehicle Code section 21801(a). Based on this evidence, the jury could have reasonably concluded Hopper was not negligent because he turned only upon the light turning red and was assuming approaching vehicles would exercise reasonable care instead of accelerating into a yellow or red light.[5]

Appellants argue any negligence on the part of Krant is irrelevant to the question of Hopper’s negligence and relies on Huetter for the proposition to not see what is in front of you is negligent as a matter of law.[6] We disagree with such a blanket statement in the context of this case. First, any evidence indicating Krant may have accelerated into the intersection against a red light is relevant to a determination of Hopper’s negligence because whether Hopper acted as would a reasonably prudent person in a similar situation implicates the expectation other drivers will exercise reasonable care.[7] Second, in Huetter, the negligent driver had at least 850 feet of unobstructed view on a simple two-lane highway, was looking straight ahead the entire time, yet failed to see a driver crossing his lane on a paved “crossover” until the car was a mere 75 feet away. The language in Huetter appellants characterize as standing for the proposition “to not see what is in front of you is negligent as a matter of law” was expressly predicated on these particularly egregious circumstances and on its face is not applicable to the facts before us.[8]

We recognize the record contains some facts supporting a finding of negligence on the part of Hopper (including testimony Hopper was not looking the right way and he did not see Krant’s vehicle until the point of impact) but that does not justify reversal. Arriving at a determination of what constitutes a hazard for the purposes of Vehicle Code section 21801(a) requires a jury to consider what a reasonably prudent person under similar circumstances would have done.[9] The jury made a reasonable determination in consideration of the circumstances and evidence presented despite some contrary evidence. It is undisputed if there is a reasonable doubt as to the sufficiency of the evidence to sustain a finding of the lower court, appellate courts should resolve doubt in favor of the findings.[10] Accordingly, we affirm the judgment.

II. THE TRIAL COURT DID NOT COMMIT PREJUDICIAL ERROR IN GRANTING THE MOTION TO EXCLUDE EVIDENCE OF HOPPER’S AGE AND DRIVING EXPERIENCE.

Appellants argue it was relevant Hopper was only 17 years old with limited driving experience at the time of the accident and thus it was prejudicial for the court to exclude this evidence. Since the trial court has broad discretion in assessing the relevance of evidence, and the exclusion of the age and experience of Hopper was not prejudicial regardless of its relevance, we affirm the judgment.

It is established under Evidence Code section 352 the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time.[11] The trial court’s exercise of discretion to exclude evidence will be disturbed only if the court’s decision exceeds the bounds of reason.[12]

Appellants rely on Riddick v. Jim Hay Co. to demonstrate the “incontrovertible fact . . . young drivers tend to be inattentive and reckless,”[13] thus establishing the relevance of Hopper’s relative young age and inexperience. The facts of Riddick are not entirely applicable to the case at hand. In Riddick, the defendant was 15 years old, making him below the designated legal age at which one may obtain a license. The admittance into evidence of age was granted by the Riddick court to show negligence on the part of the plaintiff who accepted a ride from an unlicensed and unlicenseable driver.[14] Because he was 17 years old at the time of the accident, appellant Hopper had reached the age of maturity designated by the Legislature as sufficient to operate a motor vehicle. As such, the declaration “young drivers tend to be inattentive and reckless” does not have the same relevance here as it did in Riddick.

Even if we were to assume the court erred in determining Hopper’s age and driving experience were not relevant, “No judgment shall be set aside . . . in any cause, on the ground . . . of the improper admission or rejection of evidence . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”[15] A miscarriage of justice has occurred only if “. . . the appellate court, after an examination of the entire cause, is of the opinion . . . it is reasonably probable . . . a result more favorable to the appealing party would have been reached in the absence of the error.”[16] After an examination of the entire cause, we conclude it is not reasonably probable a result more favorable to appellants would have been reached had the court allowed testimony about Hopper’s age and driving experience.

The same scrutiny and standards in determining negligence applied to Hopper as they would to any licensed driver despite his age and experience.[17] Accordingly, it was reasonable for the court to consider admission of Hopper’s age as being irrelevant to the cause based on the uniform negligence standards applicable to all licensed drivers. Nothing in the record suggests Hopper appeared much older than his years, so his youth would have been apparent to the jury. Moreover, appellants’ counsel highlighted Hopper’s youthfulness and inexperience in closing argument. Little would have been added by fixing his age precisely. As such, it is reasonable to conclude it was not probable a result more favorable to appellants would have been reached in the absence of the purported error. Accordingly, we find any error in excluding this evidence would not have represented a “miscarriage of justice.”

III. RESPONDANTS’ MEMORANDUM OF COSTS WAS TIMELY FILED IN ACCORDANCE WITH RULES OF COURT RULE 870 AND CODE OF CIVIL PROCEDURE SECTION 1013(a).

Appellants contend the court’s refusal to grant the motion to strike respondents’ memorandum of costs was prejudicial error because the memorandum was untimely pursuant to Rules of Court, rule 870(a). Whether made timely by Code of Civil Procedure section 1013(a) or alternatively by Rules of Court, rule 870(b)(3), we affirm the denial of the motion.

The issue at hand is whether the language of Rules of Court, rule 870(a) limiting the time to serve and file a memorandum of costs to within 15 days after the date of mailing of the notice of entry of judgment is qualified by Code of Cicil Procedure section 1013(a). Rules of Court, rule 870(a)(1) provides: “A prevailing party who claims costs shall serve and file a memorandum of costs within 15 days after the date of mailing of the notice of entry of judgment . . .”[18] Code of Civil Procedure section 1013(a) grants extensions of time for service by mail, providing in pertinent part: “. . . any period of notice and any right or duty to do any act or make any response . . . shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California . . . .”[19] Because the “upon service by mail” language in 1013(a) is distinct from the “within 15 days after date of mailing” language in 870(a)(1), appellants argue 1013(a) does not apply to 870(a) and thus respondents’ memorandum of costs was untimely as it was filed 20 days after mailing of the notice of entry of judgment. We disagree.

A. The Specific Reference to the Applicability of CCP Section 1013(a) Within the Language of Rules of Court Rule 870(b) Does Not Necessitate a Finding 1013(a) is Not Applicable to Rule 870(a).

According to appellants’ position, because the express language of Rules of Court, rule 870(b) declares CCP 1013 extends by five days the period to serve any notice of motion to strike or to tax costs after service of the cost memorandum, this necessitates a conclusion 870(a) is not subject to the same extension because it does not contain the same express language.[20] We do not agree the express reference to CCP 1013 in one section of Rules of Court, rule 870 necessarily excludes its applicability to another.

Appellants’ argument seeks to establish if the Judicial Council intended to have section 1013 apply to rule 870(a), it would have included express language to do so, as it did for rule 870(b). The argument is further predicated on the notion the “15 day time limit from the date of mailing of notice of entry of judgment” language specified in rule 870(a) coincides with the requisite 15 day time limit from date of mailing of notice of entry of judgment to file and serve notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663(a), and notice of appeal, the three exceptions to the application of the time extension specified within 1013(a).[21] Therefore, appellants argue, it can be assumed the Judicial Council intended all filings subject to this language to be an exception to the application of 1013(a).

While this argument is intriguing, agreement would require this court to make the leap in logic the Judicial Council intended 870(a) to be an exception, yet failed to include it within the seemingly exhaustive list of exceptions found within 1013(a). Code of Civil Procedure section 1013(a) provides these time extensions “. . . appl[y] in the absence of a specific exception provided for by this section or [an]other statute or rule of court.”[22] Since neither CCP 1013(a) nor Rules of Court, rule 870(a) provides such specific exception we conclude 1013(a) must apply to 870(a). Recognizing the “within 15 days after date of mailing” language found in 870(a) coincides with the language found within the types of filings specified as exceptions under 1013(a) is not a sufficient basis to assume 870(a) is an exception to the application of 1013. To do so would require this court to ignore the Judicial Council’s decree 1013(a) shall apply in the absence of specific exception.

As appellants point out in the context of 870(b), had the Judicial Council intended 1013 not to apply to 870(a), it could and would have expressly indicated this within the list of exceptions to 1013(a) or within the text of rule 870(a). Because the Judicial Council did not do this, we conclude the 1013(a) time extensions must apply to rule 870(a) despite a lack of language indicating the same as is found in 870(b).

B. Current Case Law Supports a Conclusion CCP 1013(a) Applies to Rules of Court rule 870(a)

The application of Code of Civil Procedure section 1013(a) to Rules of Court, rule 870(a) is not entirely clarified by case law, but the few cases mentioning the issue clearly support a finding CCP 1013(a) does in fact extend the time to file a memorandum of costs by five days if the place of address and the place of mailing are both within the State of California. In Robinson v. Grossman the court unequivocally declared CCP 1013(a) applies to rule 870(a)(1) when it stated: “A prevailing party must file a memorandum of costs within 15 days of service of notice of entry of judgment. . . . If service of the notice is by mail within California, the period within which the memorandum must be filed is extended by five days.”[23]

Similarly, the court in Lee v. Wells Fargo Bank incorporated the five-day extension afforded by Code of Civil Procedure section 1013(a) when it stated: “[u]nder the rules, cost bills should be filed within 20 days after notice of entry of judgment where notice is served by mail.”[24] Respondents filed their memorandum of costs 20 days after the entry of judgment. The place of address and the place of mailing were both within the State of California, therefore the five-day extension granted by CCP 1013(a) applies, and the memorandum was properly deemed timely.[25]

C. In the Alternative, the Memorandum of Costs Was Timely Due to the Court’s Discretionary Right to Extend the Time to File the Memorandum of Costs up to 30 Days Pursuant to Rules of Court Rule 870(b)(3).

Assuming arguendo Code of Civil Procedure section 1013(a) does not apply to Rules of Court, rule 870(a), we are alternatively led to the conclusion the memorandum was timely based on the application of Rules of Court, rule 870(b)(3). Rules of Court, rule 870(b)(3) provides for the parties to agree to extend the time for serving and filing cost memorandum and in the absence of an agreement, gives the court discretion to “. . . extend the times for serving and filing the cost memorandum . . . for a period not to exceed 30 days.”[26] Even without applying the five-day extension granted by CCP 1013(a), it was still appropriate for the court to deny appellants’ motion to strike respondents’ memorandum of costs as untimely because it was within its discretion to do so as long as it did not exceed the statutory maximum of 30 days.[27] Respondents filed the memorandum of costs 20 days after the notice of entry of judgment, making it well within the court’s discretionary 30 day extension period.

For either or both of the above reasons, the denial of the motion to strike is affirmed.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHNSON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] Respondent Sylvia Hopper is Kenneth Hopper’s mother and the owner of the vehicle driven by Kenneth Hopper at the time of the accident. She was not in the car or otherwise physically involved with the accident in any way.

[2] See, e.g., Nichols v. Mitchell (1948) 32 Cal.2d 598, 600.

[3] See, e.g., Dawson v. Williams (1954) 127 Cal.App.2d 38, 41.

[4] Vehicle Code section 21801(a) provides: “The driver of a vehicle intending to turn to the left . . . shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn . . . can be made with reasonable safety.”

[5] See, e.g., Spear v. Leuenberger (1941) 44 Cal.App.2d 236, 247 [knowledge of absolute safety when turning is not required, “only precautions which a reasonably prudent person would take under the circumstances reasonably appearing to him at the time”]; Dawson v. Williams, supra, 127 Cal.App.2d at pages 41-42 [whether a left turning driver should have focused on a particular approaching vehicle, or whether in the exercise of ordinary care he was permitted to make other observations of the scene are questions for the trier of fact].

[6] Huetter v. Andrews (1949) 91 Cal.App.2d 142, 146.

[7] Washam v. Peerless Automatic Staple Mach. Co. (1941) 45 Cal.App.2d 174, 178 [“It was not intended by the legislature . . . the party making [a left turn] must be certain of absolute safety before he turns and before he proceeds. . . .

. . . [he] may assume . . . all others using the same highway will exercise reasonably care.”].

[8] Huetter v. Andrews, supra, 91 Cal.App.2d at pages 143-144, 146.

[9] Washam v. Peerless Automatic Staple Mach. Co., supra, 45 Cal.App.2d at page 177 [“If [a driver] miscalculates [the proximity of a potential hazard] and a collision occurs, upon a trial of the resulting controversy, it is a fact to be determined from the evidence whether a reasonably prudent person in making the same turn would, under such circumstances have reached the same conclusion”].

[10] See, e.g., Dawson v. Williams, supra, 127 Cal.App.2d at page 41; Riddick v. Jim Hay Co. (1975) 45 Cal.App.3d 464, 473 [“Conclusive proof is never necessary to justify the verdict of a jury. The jury [has] the right to draw its own inference from the evidence.”].

[11] People v. Rodrigues (1994) 8 Cal.4th 1060, 1124; Evidence Code section 352 states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

[12] People v. Funes (1994) 23 Cal.App.4th 1506, 1519.

[13] Riddick v. Jim Hay Co., supra, 45 Cal.App.3d at page 472.

[14] Riddick v. Jim Hay Co., supra, 45 Cal.App.3d at page 468 [“The Legislature . . . has made a determination that children are not of sufficient maturity to drive a vehicle until the age of 16. We think it not unreasonable that if a person knowingly accepts a ride with someone under that age, he also accepts a responsibility for maintaining a greater vigilance while a passenger than if he were riding with a more mature person.”].

[15] California Constitution, article VI, section 13.

[16] Wanland v. Los Gatos Lodge, Inc. (1991) 230 Cal.App.3d 1507, 1520.

[17] See, e.g., Neudeck v. Bransten (1965) 233 Cal.App.2d 17, 20 [“The same duty is imposed by law on all licensed drivers and there is no distinction made as to ages.”].

[18] California Rules of Court, rule 870(a)(1), italics added.

[19] Code of Civil Procedure section 1013, subdivision (a), italics added.

[20] California Rules of Court, rule 870(b)(1) provides: “Any notice of motion to strike or to tax costs shall be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013.”

[21] The exceptions provided for within the language of Code of Civil Procedure section 1013(a) are as follows: “. . . the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal.”

[22] Code of Civil Procedure section 1013, subdivision (a), italics added.

[23] Robinson v. Grossman (1997) 57 Cal.App.4th 634, 649.

[24] Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1199.

[25] At oral argument, appellant’s counsel for the first time mentioned two cases he asserted had held cost memoranda must be filed within 15 days with no five-day extension allowed under 1013(a). These cases are Sanabria v. Embrey (2001) 92 Cal.App.4th 422 and Jones v. John Crane, Inc. (2005) 132 Cal.App.4th 990. Upon closer examination, however, it turns out neither of these opinions had occasion to address or even mention the five-day extension issue. In both, the winning party filed a cost memorandum substantially later than 20 days after the mailing or service of the entry of judgment. Thus, a five-day extension would not have helped the prevailing party obtain costs and any mention of that possible extension in either opinion would have been irrelevant. In Sanabria v. Embrey, supra, the prevailing defendants filed their cost memorandum five-and-a-half months after a dismissal was entered in their favor. In Jones v. John Crane, Inc., supra, the prevailing plaintiffs filed their cost memorandum a full month after the entry of judgment was served. In the latter case, the trial court also expressly refused to exercise its discretion to allow a late filing of the memorandum.

These two decisions contrast with Robinson v. Grossman, supra, 57 Cal.App.4th 634 and Lee v. Wells Fargo Bank, supra, 88 Cal.App.4th 1187, discussed in the text above. In both those cases, the five-day extension was relevant indeed needed if the prevailing party’s cost memorandum was to be considered timely as a matter of right not discretion. Significantly, in both those cases the court did discuss the issue and did apply the five-day extension to find a cost memorandum timely. The Robinson court found a filing on the 19th day and the Lee court found one on the 20th day to be within the permissible time limit expressly because of the five-day extension provided by 1013(a).

[26] Rules of Court, rule 870(b)(3).

[27] See, e.g., Adam v. DeCharon (1995) 31 Cal.App.4th 708, 713 [The court was justified in declaring a memorandum of costs timely despite it being brought more than 15 days after the date of mailing of the notice of entry of judgment but before 45 days had expired because “California Rules of Court, rule 870(b)(3) provides that the ‘court may extend the time for serving and filing the cost memorandum . . . for a period not to exceed 30 days’.”].