Filed 7/22/26 Washington v. City of Los Angeles CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
EDMON WASHINGTON, B324208
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC698026)
v.
CITY OF LOS ANGELES, et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Mark A. Borenstein, Judge. Affirmed in
part and reversed in part.
The Cochran Firm California and Brian T. Dunn for
Plaintiff and Appellant.
Hydee Feldstein Soto, City Attorney, Denise C. Mills, Chief
Deputy City Attorney, Kathleen A. Kenealy, Chief Assistant City
Attorney, Shaun Dabby Jacobs and Merete Rietveld, Deputy City
Attorneys, for Defendants and Appellants.
__________________________
At the conclusion of a police standoff, Los Angeles Police
Department (LAPD) Officer Eric Olive shot Edmon Washington
with a round from a 40-millimeter less-lethal launcher. The
round hit Washington in the face, and Washington lost almost all
vision out of his right eye as a result. Washington sued the City
of Los Angeles (City) and Olive (collectively, the defendants) for
negligence. The jury returned a verdict in the defendants’ favor
after a trial. Washington moved for judgment notwithstanding
the verdict (JNOV) and alternatively a new trial, arguing there
was insufficient evidence to support the jury’s verdict. The trial
court granted a new trial as to the City, concluding the jury
should have found the City negligent based on application of the
doctrine of res ipsa loquitur. The court otherwise denied
Washington’s postjudgment motions.
The City appeals from the order granting the new trial, and
Washington cross-appeals from the order denying his JNOV
motion. We affirm the order denying Washington’s JNOV
motion. However, we reverse the new trial order and reinstate
the jury’s verdict as to the City because the trial court’s ruling
was based on erroneous legal principles. The trial court
erroneously determined the presumption of negligence under res
ipsa loquitor principles was unrebutted, despite evidence
proffered by the City tending to show it was not negligent or the
proximate cause of Washington’s harm.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Federal Lawsuit and the Underlying Lawsuit
The incident in which Olive shot Washington with the less-
lethal weapon took place in August 2016.1 (See Washington v.
City of Los Angeles (C.D.Cal. Apr. 16, 2018, CV 17-2829 PA) 2018
WL 6131603, p. 1 (Washington), affd. (9th Cir. 2020) 791 Fed.
Appx. 683.) After Washington and a companion were seen
carrying assault rifles at a protest, LAPD officers tracked
Washington as he traveled in a car and entered an underground
parking garage, where he remained for several hours. (Ibid.)
During this time, Olive viewed a video showing Washington
shouting at the protest, “[W]e gonna blow their heads off!” (Ibid.)
Officers initiated a traffic stop when the car left the garage.
(Washington, supra, 2018 WL 6131603, p. 2.) Washington exited
the car but, during a seven-minute standoff, refused to comply
with repeated instructions to get on the ground. (Ibid.) An
officer warned Washington that if he did not comply, he would be
hit by a projectile from a 40-millimeter less-lethal launcher. (Id.
at p. 3.) When Washington still failed to obey the commands,
1 The factual circumstances of the events leading up to the
underlying incident were excluded at trial but are provided here
for context. We take them from the federal district court decision
granting summary judgment on Washington’s claim against
Olive for civil rights violations under 42 U.S.C. section 1983.
(Washington v. City of Los Angeles (C.D.Cal. Apr. 16, 2018,
CV 17-2829 PA) 2018 WL 6131603.)
3
Olive fired the launcher and hit Washington just below his right
eye. (Ibid.)2
In 2017 Washington filed a lawsuit in federal district court,
alleging an excessive force claim against Olive under 42 U.S.C.
section 1983 and battery and negligence claims against the City
and Olive under state law. (Washington, supra, 2018 WL
6131603, p. 1.) The district court granted Olive’s motion for
summary judgment on the excessive force claim, concluding the
force Olive used in firing the launcher was objectively reasonable
and thus Olive’s conduct did not violate the Fourth Amendment.
(Id. at p. 6.) The district court declined to exercise supplemental
jurisdiction over the state law claims and dismissed them
without prejudice. (Id. at p. 8.)
In 2018 Washington filed this action in state court, alleging
a cause of action for negligence against the City and Olive.3
Washington alleged Olive failed to exercise reasonable and
ordinary care when firing the 40-millimeter less-lethal launcher
and the City “negligently acquired, inspected, maintained, and/or
tested” the launcher before the incident and inadequately trained
and supervised Olive. Washington also alleged the City was
vicariously liable for its employees’ acts and omissions.
2 Washington was later convicted of a felony for carrying an
assault rifle.
3 Washington also included a battery cause of action in his
complaint but later dismissed it in light of the federal court’s
ruling that the force Olive used was objectively reasonable.
A first trial held in early 2022 on the negligence cause of
action resulted in a mistrial after the jury hung.
4
B. Trial
In June 2022 Washington proceeded to trial on his
negligence claim. Washington stipulated that Olive’s decision to
fire the launcher was justified. Thus, he agreed not to challenge
the “fact of the deployment,” but rather to challenge “only the
manner of deployment.” He further stipulated he would “advance
his negligence cause of action exclusively on the fact that he was
shot in the face with the [40-millimeter] launcher, as opposed to
an appropriate target area on his person.” The court advised the
jury of the limited scope of the negligence theory at the outset of
the trial. After the parties had rested, the court instructed the
jury: “The plaintiff contends that the negligence of Officer Olive
caused the projectile to hit Mr. Washington in the eye, or that the
[40-millimeter] launcher was negligently maintained, which
caused the round to fire at a higher level than Officer Olive
intended. The defendant City … denies that Officer Olive was
negligent, and also denies that any of the LAPD personnel were
negligent in the care and maintenance of the [40-millimeter]
launcher that Officer Olive fired on the day in question.”
1. Washington’s case
Washington presented three witnesses. He and an
ophthalmologist testified to his injuries. Washington also called
Olive, who testified he was proficient with the 40-millimeter less-
lethal launcher and trained not to target certain areas, including
the head. Olive passed the LAPD’s qualification exam for the
launcher by accurately hitting a series of targets. He had not
fired the launcher in the field before the incident.
Olive did not observe any issues with the launcher before
firing it at Washington. Specifically, when he received the
weapon at the start of his shift, Olive inspected it and “check[ed]
5
the sights to make sure that they’re there.” The weapon was
stored inside “a canvas bag with a foam interior or velour soft
inside lining which has a zipper on it.” During his shift, Olive
kept the weapon “on top of our gear in the back of the SUV.”
When he fired the launcher at Washington, Olive was
approximately 43 to 45 feet away, which was within the
recommended range. Olive aimed at Washington’s abdomen with
the launcher’s sighting system, using the same method he had
been trained to use. Olive did not see Washington “jump or lurch
or levitate” immediately before he fired the launcher. Audio-
video footage showed that moments after Olive fired the
launcher, he said, “that went high.” Olive explained he
spontaneously uttered this “[b]ecause … Washington didn’t
respond in a way I thought he would if I would have struck him
in the abdomen.” Olive retrieved another round from his vehicle.
Olive then discovered the fired round had struck Washington in
the face when he approached Washington on the ground and saw
he was bleeding from his cheek.
When asked if he would expect an officer with similar
training to accurately hit a target 45 feet away in the abdomen,
Olive responded, “Absolutely.”
2. The defense case
The defendants presented two witnesses in addition to
their examination of Olive. Officer Boyan Brkic, an LAPD
armorer who created the pilot program to train patrol officers on
LAPD’s 40-millimeter less-lethal launchers, and Sergeant
Michael Hall, the officer in charge of LAPD’s firearms training
unit who examined and tested the accuracy of the launcher that
Olive fired at Washington after the incident.
6
Brkic explained that 40 launchers were used in the training
program: nine “first-generation” launchers that the LAPD had
used before and 31 new “second-generation” launchers. Both sets
of launchers used a mechanical bead sight affixed to the front of
the launcher. For the first-generation launchers, the bead sight
was screwed into the barrel of the launcher and could be adjusted
only with a tool. The second-generation launchers had an
additional set screw (also referred to as a tension screw) that
“lock[ed] the bead sight in place … [s]o that it cannot be moved
upward or downward once the weapon system has been sighted.”
Unlike the newer version, the first-generation launchers did not
have a port to install a set screw for the bead sight; “[t]here was
no provision for that additional screw from the manufacturer.”
The first-generation launchers previously had optic sights that
were not part of the launchers’ “original” sighting system, but
LAPD removed those sights and installed the “original type bead
front sight[s]” after the LAPD issued a moratorium on use of
optic sights.
Brkic described himself as one of LAPD’s “less lethal
[weapons] experts” and explained that as an armorer he was
“responsible for maintaining, diagnosing problems, issuing
weapons, and also the repair of the weapons.” Before the
training program began, Brkic and other instructors were
charged with inspecting the launchers for mechanical issues and
“zeroing in” their sighting systems, which refers to the process of
adjusting a launcher’s bead sight to ensure a fired round impacts
the target at the point of aim. If a fired round did not hit the
target as intended, the bead sight was adjusted either by
“screw[ing] it down to have the round raise up [its] point of
impact or … unscrew[ing] the sight elevating it to push the barrel
7
down and that would lower the point of impact.” Brkic testified it
cannot be determined whether a launcher is zeroed in by visual
inspection, only by firing the weapon.
Brkic trained Olive and other officers on how to use the
launchers in June and July 2016, or about a month before the
incident. The first phase of training involved classroom lectures
and handouts, culminating in a written test. In the
second phase, officers handled the launcher and manipulated the
rounds. During the third phase, officers learned how to fire the
launcher and shot “a qualification course that consisted of
five rounds at various distances.” Brkic trained officers to aim for
the “naval area or belt line” and “to avoid the head, the neck, the
spine, and the groin area.” He explained that “[a]ny impact on
the head area would have been an automatic disqualification”
because “we don’t want to cause any injury and that’s one of the
target areas to avoid.” Olive earned a perfect score in his
qualification course.
Brkic explained that officers “were told to not manipulate
the sighting system at all” and that if officers discovered a
sighting issue, they were to turn the launcher into the armory.
During the training program, no launcher malfunctioned, and out
of the approximately 2,000 shots fired from the launchers, no
issue ever arose regarding a sighting system becoming
misaligned or “going out of zero.” Brkic confirmed he was not
aware of any problem with the launcher Olive later fired at
Washington. After the training program, all 40 launchers were
again zeroed in, with some needing readjustment. From there,
the launchers were brought to the armory where they were
available to be used by LAPD officers.
8
Brkic testified that aside from the bead sight being
misaligned he was not aware of any mechanical issue that could
have caused Olive’s launcher to malfunction and shoot high. He
confirmed that the high shot that hit Washington was “either an
error on behalf of Officer Olive or the bead sight was lower than
it should have been.” Brkic also confirmed the bead sight and
launcher remained under LAPD’s control after LAPD bought it.
Upon inspecting the launcher after the incident, Hall
discovered the bead sight “was lower than it should have been,”
which in turn caused fired rounds to “impact[] significantly
higher than where they should have been impacting.” He did not
measure how far off the rounds were from their intended targets,
only that the launcher “consistently fired high.” Hall found the
bead sight could be moved with minimal effort and by hand even
though it “should be basically unmovable with your hands” and
require a tool to adjust. Hall concluded “that when Officer Olive
had this weapon, … the bead sight must have been in an
improper position with regard to the height that it was.”
Hall did not test any of the other 39 launchers.
Nonetheless, in a post-incident testing report, Hall noted “it is
possible” for the bead sight on the first-generation launchers “to
come loose with minimal effort” because those launchers lacked a
set screw to secure the sight. He recommended that the bead
sight on those launchers be affixed or “glued” in place or that the
“9 launchers without the front sight tension screw be removed
from the field immediately.” He testified that “without knowing
how this one became loose, we didn’t want to see additional ones
becoming loose and changing the height of that front bead
resulting in … deployments not hitting the intended target.”
Hall testified that LAPD did not have any input on the
9
engineering of the launchers, which were manufactured by a
third party. Hall was not aware of any other instances where a
launcher misfired “similar to what happened with
Officer Olive’s.”
Neither Hall nor Brkic could say when or why the bead
sight on Olive’s launcher became loose and not zeroed in. Brkic
explained, “there’s a possibility of a lot of different things
happening to the weapon system that would make the front sight
go loose. … Maybe handling or in the trunk of a car. Or in
handling the way it’s stored in the kit room of the police
stations.” When further prompted, Brkic testified that it “could
have been the way it’s handled. Could have been the way it’s
stored. It may have been dropped at some point and no one took
it back to the armory.” Regardless, Brkic stated that if he “came
across a loose bead sight” like the one on Olive’s launcher, he
would “send it to the manufacturer for repair.” He also
confirmed, however, that by the time of trial the bead sights on
all the LAPD’s launchers had been replaced by a “more modern”
optic sighting system.
3. Jury instructions
Washington asked the court to instruct the jury on the res
ipsa loquitur doctrine using CACI No. 417. The court granted the
request over the defendants’ objection. In turn, the court
instructed the jury that:
Plaintiff Edmond Washington may prove that
Defendant City of Los Angeles’ negligence caused his
harm if he proves all of the following:
10
1. That Plaintiff Edmon Washington’s harm
ordinarily would not have happened unless
someone was negligent;
2. That the harm was caused by something that
only Defendant City of Los Angeles controlled;
and
3. That Plaintiff Edmon Washington’s
voluntary actions did not cause or contribute to
the event[s] that harmed him.
If you decide that Plaintiff Edmon Washington did
not prove one or more of these three things, you must
decide whether Defendant City of Los Angeles was
negligent in light of the other instructions I have
read.
If you decide that Plaintiff Edmon Washington
proved all of these three things, you may, but are not
required to, find that Defendant City of Los Angeles
was negligent or that Defendant City of Los Angeles’s
negligence was a substantial factor in causing
Plaintiff Edmond Washington’s harm, or both.
Defendant City of Los Angeles contends that it was
not negligent or that its negligence, if any, did not
cause Plaintiff Edmon Washington harm.
11
If after weighing all of the evidence, you believe that
it is more probable than not that Defendant City of
Los Angeles was negligent and that his [sic]
negligence was a substantial factor in causing
Plaintiff Edmond Washington’s harm, you must
decide in favor of Plaintiff Edmond Washington.
Otherwise, you must decide in favor of Defendant
City of Los Angeles.
The court also denied the defendants’ request to instruct on
comparative fault using CACI No. 405. The court emphasized
the narrow focus of the trial and explained there was no evidence
Washington contributed to Olive shooting high and hitting him in
the head as opposed to a proper target area on his body.
4. Closing arguments, motions for directed verdict, and
the verdict
In his closing argument, Washington’s counsel argued
“either Officer Olive made some kind of mistake or he had a bad
weapon. Either way, the City is liable.” Counsel emphasized:
“There is no evidence that anyone other than the City … or the
[LAPD] maintained this weapon. There’s no evidence that
anyone outside of the LAPD tested this weapon, zeroed it out.
There’s no third party that came in and somehow modified this
weapon. There’s positively no evidence that it was given to the
[LAPD] by any corporation in a defective condition.” Instead,
counsel argued, any looseness in the bead sight was “caused by
people that were responsible for maintaining and preserving this
particular weapon.” Counsel argued there was also no evidence
showing Washington contributed to his getting shot in the head.
To conclude, counsel emphasized that his “burden is met simply
12
by the fact that this man was shot undisputedly and
unequivocally in a manner that … he was not supposed to be
shot.”
In their argument, the defendants focused on Washington’s
burden of proof, emphasizing he had not presented any evidence
showing “how that particular bead sight came loose” or that the
City had notice of the condition that was causing the weapon to
shoot high. The defendants also argued Washington had not
presented any evidence that Olive did not meet the standard of
care in firing the launcher or that the City’s maintenance of it fell
below the standard of care. The defendants argued evidence
instead showed Olive acted with reasonable care in firing the
launcher and City employees did as well in ensuring the
launchers were functioning properly before and after Olive’s
training. The defendants further argued evidence suggested
Olive’s first-generation launcher suffered from a manufacturing
or design defect as demonstrated by the manufacturer’s inclusion
of a set screw in the second-generation launcher to hold its bead
sight in place.
Washington moved for a partial directed verdict on the
issue of the defendants’ liability for negligence. He did not
address a theory of res ipsa loquitur but argued he was entitled
to a directed verdict because the record showed a reasonably well
trained LAPD officer would not have shot a suspect in the head.
The court denied the motion. The court also denied the
defendants’ motion for directed verdict based on Washington’s
failure to present evidence regarding an applicable standard of
care and any breach thereof.
After deliberating for an hour, the jury unanimously found
Olive was not negligent in aiming the launcher, and by a vote
13
of 11 to 1, found the City was not negligent in maintaining the
launcher. The court entered judgment in the defendants’ favor.
5. Washington’s postjudgment motions
Washington moved for JNOV. He also moved for a new
trial under Code of Civil Procedure section 657, subdivision (6),
arguing the verdict was supported by insufficient evidence and
“against law.” For each motion, Washington argued the trial
court should grant the requested relief because he established the
three conditions of the res ipsa loquitur presumption and no
evidence rebutted the defendants’ liability. In neither motion did
Washington raise an issue of instructional error.
In opposition, the defendants emphasized that Washington
had not presented any evidence showing it breached the standard
of care and that substantial evidence instead showed its
employees acted with due care and a design defect was
responsible for the misfire.
In September 2022, after a hearing, the trial court denied
the JNOV motion and granted the motion for new trial as to the
City. The court first sua sponte determined there had been an
instructional error, explaining the res ipsa loquitur instruction
incorrectly stated the jury had discretion to determine whether
the City was negligent. But the court denied Washington’s JNOV
motion because “the [instructional] error was invited” by
Washington, who proposed the instruction over the City’s
objection. For the new trial motion, however, the court explained
that the jury should have found the City negligent on a res ipsa
loquitor theory and that its contrary finding was not supported
by the evidence. The court denied the motion as to Olive.
The City and Washington both appealed from the court’s
postjudgment orders.
14
DISCUSSION
The City argues the trial court erred in granting
Washington’s motion for new trial.4 In his cross-appeal,
4 As a threshold issue, the City also argues for the first time
on appeal that Washington failed to comply with the claim
presentation requirement under the Government Claims Act
(Gov. Code, § 810 et seq.) with regard to his allegations of
negligent maintenance of the launcher. (See Gov. Code, § 945.4.)
The City acknowledges it did not raise this argument in the trial
court but contends the general forfeiture rule should not apply
because pleading claim presentation compliance is an element of
the plaintiff’s cause of action and an argument for failure to state
a claim may be raised for the first time on appeal. (See State of
California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1243
(Bodde) [“plaintiff must allege facts demonstrating or excusing
compliance with the claim presentation requirement”]; Cedars-
Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 7,
fn. 2 [“the issue of whether a cause of action is stated is not
waived by the failure to raise it in the trial court, and it may be
raised for the first time on appeal”].) But Washington generally
alleged in his complaint that he complied with the claim
presentation requirement before filing suit. This is sufficient to
state a claim. (Gong v. City of Rosemead (2014) 226 Cal.App.4th
363, 374 [“A plaintiff may allege compliance with the claims
requirements by including a general allegation that he or she
timely complied with the claims statute.”]; accord, Perez v.
Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1237.)
The City forfeited any claim presentation argument by not
raising it in the trial court. (See Meridian Financial Services,
Inc. v. Phan (2021) 67 Cal.App.5th 657, 699-700; see also Bodde,
at p. 1239, fn. 7 [noncompliance with the claim presentation
requirement under the Government Claims Act “does not divest
the trial court of subject matter jurisdiction over causes of action
against public entities”].) The City’s requests for judicial notice
15
Washington argues the court erred in denying his motion for
JNOV as to the City.5
A. The Doctrine of Res Ipsa Loquitur
Res ipsa loquitur—Latin for “the thing speaks for itself”—is
“an evidentiary rule for ‘determining whether circumstantial
evidence of negligence is sufficient.’ ” (Howe v. Seven Forty Two
Co., Inc. (2010) 189 Cal.App.4th 1155, 1161 (Howe); see Brown v.
Poway Unified School Dist. (1993) 4 Cal.4th 820, 825 (Brown);
Evid. Code, § 646.) “ ‘The doctrine of res ipsa loquitur is
applicable where the accident is of such a nature that it can be
said, in the light of past experience, that it probably was the
result of negligence by someone and that the defendant is
probably the one responsible.’ ” (Howe, at p. 1161.)
In California, res ipsa loquitur is defined by statute as “a
presumption affecting the burden of producing evidence.” (Evid.
Code, § 646, subd. (b); see Howe, supra, 189 Cal.App.4th at
p. 1161.) To invoke the doctrine, the plaintiff has the burden to
produce evidence establishing three conditions: “ ‘(1) the event
must be of a kind which ordinarily does not occur in the absence
of someone’s negligence; (2) it must be caused by an agency or
instrumentality within the exclusive control of the defendant;
[and] (3) it must not have been due to any voluntary action or
contribution on the part of the plaintiff.’ ” (Howe, at p. 1161.) If
of Washington’s presented claim and federal court complaint are
denied as unnecessary to resolution of the appeal. (County of
San Diego v. State of California (2008) 164 Cal.App.4th 580, 613,
fn. 29.)
5 Washington does not challenge the denial of his
postjudgment motions as to Olive.
16
so established, “the doctrine applies and the defendant is
presumptively negligent.” (Id. at pp. 1161-1162; accord, Brown,
supra, 4 Cal.4th at p. 826 [“[t]he presumed fact, in this context, is
that ‘a proximate cause of the occurrence was some negligent
conduct on the part of the defendant’ ”]; see Evid. Code, §§ 604,
646, subd. (c).)
At that point, “the burden of producing evidence to rebut
[the presumption] shifts to the defendant to prove lack of
negligence or lack of proximate cause that the injury claimed was
the result of that negligence.” (Howe, supra, 189 Cal.App.4th at
p. 1162; see Newing v. Cheatham (1975) 15 Cal.3d 351, 364-365
[after the presumption was established, “[i]t then became
defendant’s obligation to introduce sufficient evidence to sustain
a finding either that the accident resulted from some cause other
than Cheatham’s negligence, or, else, that Cheatham exercised
due care in all possible respects wherein he might have been
negligent”]; Evid. Code, §§ 604, 646, subds. (b)-(c).) “As a
presumption affecting the burden of producing evidence (as
distinguished from a presumption affecting the burden of proof),
if evidence is presented to rebut the presumed fact, the
presumption is out of the case—it ‘disappears.’ But if no such
evidence is submitted, the trier of fact must find the presumed
fact to be established.” (Howe, at p. 1162; see Newing, at p. 365;
Evid. Code, §§ 604, 646, subd. (c).)
Finally, if the presumptive effect vanishes based on the
defendant’s evidentiary showing, “ ‘the jury may still be able to
draw an inference that the accident was caused by the
defendant’s lack of due care from the facts that gave rise to the
presumption.’ ” (Howe, supra, 189 Cal.App.4th at p. 1163,
quoting Cal. Law Revision Com. com., 29B pt. 2 West’s Ann.
17
Evid. Code (1995 ed.) foll. § 646, pp. 198-199; see Evid. Code,
§ 646, subd. (c)(1).) But ultimately it is the plaintiff’s burden to
present evidence showing it is more probable than not that the
defendant is negligent and that such negligence was the
proximate cause of the accident. (Howe, at p. 1163; accord,
Brown, supra, 4 Cal.4th at p. 826 [“If the defendant introduces
‘evidence which would support a finding that he was not
negligent or that any negligence on his part was not a proximate
cause of the occurrence,’ the trier of fact determines whether
defendant was negligent without regard to the presumption,
simply by weighing the evidence.”]; see Evid. Code, §§ 604, 646,
subd. (c)(2).)
The Legislature codified the operation of the res ipsa
loquitur doctrine and authority for a corresponding jury
instruction under Evidence Code section 646, subdivision (c),
which states: “If the evidence, or facts otherwise established,
would support a res ipsa loquitur presumption and the defendant
has introduced evidence which would support a finding that he
was not negligent or that any negligence on his part was not a
proximate cause of the occurrence, the court may, and upon
request shall, instruct the jury to the effect that: [¶] (1) If the
facts which would give rise to a res ipsa loquitur presumption are
found or otherwise established, the jury may draw the inference
from such facts that a proximate cause of the occurrence was
some negligent conduct on the part of the defendant; and [¶]
(2) The jury shall not find that a proximate cause of the
occurrence was some negligent conduct on the part of the
defendant unless the jury believes, after weighing all the
evidence in the case and drawing such inferences therefrom as
the jury believes are warranted, that it is more probable than not
18
that the occurrence was caused by some negligent conduct on the
part of the defendant.”
B. Motion for JNOV
1. Standard of review
“ ‘A motion for [JNOV] may be granted only if it appears
from the evidence, viewed in the light most favorable to the party
securing the verdict, that there is no substantial evidence in
support.’ (Sweatman v. Department of Veterans Affairs (2001)
25 Cal.4th 62, 68.) The standard of review on appeal is the same:
‘whether any substantial evidence—contradicted or
uncontradicted—supports the jury’s conclusion.’ ” (I.C. v.
Compton Unified School Dist. (2025) 108 Cal.App.5th 688, 698;
accord, Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770.)
“Our determination with respect to the presence of the requisite
substantial evidence is de novo.” (IIG Wireless, Inc. v. Yi (2018)
22 Cal.App.5th 630, 639; accord, Hirst v. City of Oceanside (2015)
236 Cal.App.4th 774, 782 [“appellate court must review the
record de novo and make an independent determination whether
there is any substantial evidence to support the jury’s findings”].)
Where, however, “ ‘ “the trier of fact has expressly or
implicitly concluded that the party with the burden of proof did
not carry the burden and that party appeals, it is misleading to
characterize the failure-of-proof issue as whether substantial
evidence supports the judgment.” ’ ” (Pruchnik v. JCCP4621
Common Benefit Committee (2025) 116 Cal.App.5th 35, 47-48;
accord, Sonic Manufacturing Technologies, Inc. v. AAE Systems,
Inc. (2011) 196 Cal.App.4th 456, 465.) Under these
circumstances, “when an appeal turns on the appellant’s failure
of proof, ‘ “the question for a reviewing court becomes whether
the evidence compels a finding in favor of the appellant as a
19
matter of law. [Citations.] Specifically, the question becomes
whether the appellant’s evidence was (1) ‘uncontradicted and
unimpeached’ and (2) ‘of such a character and weight as to leave
no room for a judicial determination that it was insufficient to
support a finding.’ ” ’ ” (Pruchnik, at p. 48.)
Further, where the evidence supporting a jury verdict is
challenged without a claim of instructional error, we consider the
evidence based on the legal standard set forth in the jury
instructions. (See Null v. City of Los Angeles (1988)
206 Cal.App.3d 1528, 1535 [“where a party to a civil lawsuit
claims a jury verdict is not supported by the evidence, but asserts
no error in the jury instructions, the adequacy of the evidence
must be measured against the instructions given the jury”];
accord, Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th
655, 675 [“[a]bsent instructional error, which [defendant] does
not argue, for an appellate court to review a verdict under a rule
of law on which the jury was not instructed would allow reversal
of a judgment on a jury verdict ..., even though neither the jury
nor the court committed error”].) Washington does not challenge
the res ipsa loquitur instruction; nor could he given he proposed
the instruction and thus invited any error. (Mayes v. Bryan
(2006) 139 Cal.App.4th 1075, 1090 [“ ‘It is an elementary
principle of appellate law that “[a] party may not complain of the
giving of instructions which he has requested.” ’ ”].)
2. The record does not compel a finding in Washington’s
favor as a matter of law
The jury was instructed that, even if it determined
Washington proved all three conditions of the res ipsa loquitur
presumption, “you may, but are not required to, find” that the
City was negligent or that its negligence was a substantial factor
20
in causing Washington’s harm. The instruction then further
informed the jury that it could find in Washington’s favor if, after
weighing all the evidence, it believed it was more probable than
not that the City was negligent and that the City’s negligence
was a substantial factor in causing Washington’s harm. The
instruction thus provided that the jury’s finding as to the City’s
negligence was not to be controlled by the res ipsa loquitur
presumption but rather by the jury’s determination as to whether
a preponderance of the evidence showed the City was negligent.
This portion of the instruction tracks Evidence Code 646,
subdivision (c), and is meant to be provided where the defendant
has rebutted the established res ipsa loquitur presumption with
evidence tending to show it was not negligent or that its
negligence was not a proximate cause of the plaintiff’s harm.
(Evid. Code, § 646, subd. (c); Howe, supra, 189 Cal.App.4th at
p. 1162; see also Use Note to CACI No. 417 [the paragraphs
“assume that the defendant has presented evidence that would
support a finding that the defendant was not negligent or that
any negligence on the defendant’s part was not a proximate cause
of the accident. In this case, the presumption drops out, and the
plaintiff must then prove the elements of negligence without the
benefit of the presumption of res ipsa loquitur.”].) As noted,
under those circumstances, the jury may draw an inference from
the plaintiff’s evidence that the defendant’s negligence was a
proximate cause of his harm. (Evid. Code, § 646, subd. (c)(1);
Howe, at p. 1163.) But once the defendant has presented
rebutting evidence, the binding presumption of negligence
“ ‘disappears,’ ” and the plaintiff has the burden to present
evidence showing it is more probable than not that his harm was
21
caused by the defendant’s negligence. (Howe, at p. 1162; see
Evid. Code, § 646, subd. (c)(2).)
The trial court concluded this portion of the instruction
should not have been provided to the jury because the City did
not present any evidence rebutting the res ipsa loquitur
presumption that Washington had established. The court
explained the provided instruction suggested the jury had
discretion in its negligence determination whereas the
instruction should have informed the jury it was required to find
the City negligent if the presumption was established. Even so,
the court continued, because Washington proposed the
instruction, any instructional error leading to the jury’s exercise
of improper discretion was invited and could not be used to
overturn the verdict.6
We agree with this outcome but not the trial court’s
analysis. Specifically, we disagree with the court’s conclusion
that the City presented no evidence to rebut the res ipsa loquitur
presumption. For instance, the City presented evidence showing
Olive was thoroughly trained on how to use the launcher and,
because of that training, proficient in its use. Through Olive’s
testimony, the City also showed that on the day of the incident
Olive followed his training and protocols to inspect and fire the
6 Washington seeks to get around the invited error issue by
asserting his proposal of the instruction was merely acquiescence
to a judicial determination after the court denied his motion for
directed verdict. (See Mary M. v. City of Los Angeles (1991)
54 Cal.3d 202, 212 [invited error doctrine “does not apply when a
party, while making the appropriate objections, acquiesces in a
judicial determination”].) The record shows Washington
proposed the instruction before he moved for a directed verdict
and thus does not support this assertion.
22
weapon. Likewise, Brkic testified that approximately a month
before the incident the training instructors inspected the
launchers for mechanical issues and test-fired them to ensure
their functionality and accuracy. After thousands of rounds were
fired from the launchers during the training program, without
any sighting system issues, the weapons were again zeroed in to
ensure they were properly sighted. Collectively, this is rebutting
evidence that tends to prove both that City employees acted with
due care in maintaining and using the launcher and that
Washington’s harm was not caused by the City’s negligence. (See
Howe, supra, 189 Cal.App.4th at p. 1162 [“ ‘If evidence is
produced that would support a finding that the defendant was
not negligent or that any negligence on his part was not a
proximate cause of the accident, the presumptive effect of the
doctrine vanishes.’ ”]; accord, Brown, supra, 4 Cal.4th at p. 826
[“If the defendant introduces ‘evidence which would support a
finding that he was not negligent or that any negligence on his
part was not a proximate cause of the occurrence,’ the trier of fact
determines whether defendant was negligent without regard to
the presumption”].)7
7 The City also points to evidence showing that, in its post-
incident testing, Olive’s launcher was firing high based on a
misaligned bead sight that was “loose” and that, unlike the first-
generation launcher used by Olive, the second-generation
launchers were designed with a set screw that securely locked the
bead sight into place. The City contends the jury could
reasonably infer from this evidence that Washington’s harm was
caused by something other than its negligence—namely, a
defective bead sight for which a third party was responsible.
Washington argues the presented evidence was insufficient to
allow for such an inference and thus could not serve to rebut the
23
Because the City presented rebutting evidence, the
provided res ipsa loquitur instruction set forth the correct law.
Accordingly, we disagree with the trial court’s conclusion that
Washington’s JNOV motion was doomed by invited instructional
error. Nonetheless, our review of the record also shows it cannot
be said that Washington’s evidence of the City’s negligence was
uncontradicted and unimpeached, much less of a character and
weight as to prove such negligence as a matter of law. (Pruchnik
v. JCCP4621, supra, 116 Cal.App.5th at p. 48.) We therefore
affirm the denial of his motion.8
C. Motion for New Trial
1. Standard of review
Under Code of Civil Procedure section 657, a new trial may
be granted “on all or part of the issues” for any of seven specified
grounds “materially affecting the substantial rights of [the
aggrieved] party.” The sixth ground is: “Insufficiency of the
res ipsa loquitur presumption. Ultimately, we need not resolve
this dispute. As discussed, the City rebutted the presumption
with other evidence showing its employees acted with due care in
maintaining and using the launcher and thus were not negligent
or the cause of Washington’s harm. This alone was sufficient.
(See Howe, supra, 189 Cal.App.4th at p. 1162 [“if evidence is
presented to rebut the presumed fact [that the plaintiff’s harm
was caused by the defendant’s negligence], the presumption is
out of the case—it ‘disappears’ ”].)
8 For the same reasons, we affirm the denial of Washington’s
motion for directed verdict. (See Fountain Valley Chateau Blanc
Homeowner’s Assn. v. Department of Veterans Affairs (1998)
67 Cal.App.4th 743, 750 [motions for directed verdict and for
JNOV “are analytically the same and governed by the same
rules”].)
24
evidence to justify the verdict or other decision, or the verdict or
other decision is against law.” (Code Civ. Proc., § 657, subd. (6).)
If the court grants a new trial, the court must “specify the ground
or grounds upon which it is granted and the court’s reason or
reasons for granting the new trial upon each ground stated.” (Id.,
§ 657.)
A trial court may grant a new trial for insufficiency of the
evidence if “after weighing the evidence the court is convinced
from the entire record, including reasonable inferences
therefrom, that the ... jury clearly should have reached a different
verdict.” (Code Civ. Proc., § 657.) This provides a trial court with
broad discretion. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th
405, 412; Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379,
387.) When a court rules on a motion for new trial on this basis,
the court sits as an “independent trier of fact” (Neal v. Farmers
Ins. Exchange (1978) 21 Cal.3d 910, 933) and “functions as a
thirteenth juror” (Estate of Elliot (1952) 114 Cal.App.2d 747,
748), with power “to disbelieve witnesses, reweigh the evidence,
and draw reasonable inferences therefrom contrary to those of
the trier of fact” (Mercer v. Perez (1968) 68 Cal.2d 104, 112).
Generally, where a new trial is granted for insufficient
evidence, the order must be affirmed on appeal “ ‘unless the
opposing party demonstrates that no reasonable finder of fact
could have found for the movant on [the trial court’s] theory.’ ”
(Lane v. Hughes Aircraft Co., supra, 22 Cal.4th at p. 412.) The
standard of review is different, however, where “it appears on
appeal that a trial court in granting a new trial based its order
exclusively upon an erroneous concept of legal principles
applicable to the cause.” (Conner v. Southern Pacific Co. (1952)
38 Cal.2d 633, 637; accord, Rickley v. County of Los Angeles
25
(2004) 114 Cal.App.4th 1002, 1008-1009.) If such a legal error is
shown, an order granting a new trial must be reversed. (Conner,
at p. 637 [order reversed upon finding the trial court had granted
a new trial based on its mistaken conclusion that jury
instructions misstated the law].)
2. The trial court erred in ordering a new trial as to the
City
The new trial order is based on erroneous legal principles.
For purposes of the new trial motion, the trial court again
determined the jury was incorrectly instructed on the res ipsa
loquitur presumption. The court stated it was not bound by
Washington’s invited error in considering his new trial motion
and that it instead must apply the correct law regardless of the
jury instructions. Even so, the court explained, the jury was
required to find the City was negligent because Washington had
established the presumption and the City had not presented any
rebutting evidence. The court concluded that the jury’s contrary
finding was erroneous and prejudicial to Washington.
As discussed, however, the jury was correctly instructed on
the res ipsa loquitur doctrine, including that it was not bound by
a presumption of negligence. This part of the instruction was
proper because the City presented evidence to rebut the
presumption. In turn, the presumptive effect of the doctrine
disappeared, and the jury was required to determine whether
Washington had proved the City’s negligence by a preponderance
of the evidence. (Evid. Code, § 646, subd. (c); see Howe, supra,
189 Cal.App.4th at pp. 1162-1163.) The trial court erred in
disregarding this operation of the doctrine and applying the
presumption notwithstanding the City’s rebutting evidence. And
in misapplying the applicable legal principles, the trial court
26
abused its discretion in granting a new trial on the ground of
insufficient evidence. (Conner v. Southern Pacific Co., supra,
38 Cal.2d at p. 637.)
DISPOSITION
The postjudgment order is affirmed in part and reversed in
part. The denial of Washington’s motion for JNOV is affirmed.
The grant of Washington’s motion for new trial as to the City is
reversed. On remand, the trial court shall reinstate the
judgment in full. The defendants are entitled to their costs on
appeal.
STONE, J.
We concur:
MARTINEZ, P. J.
FEUER, J.
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