Stone v. Hot Dogger
Filed 8/15/12 Stone v. Hot Dogger Tours CA2/8
PUBLISHED IN THE OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
EIGHT
HAILEY STONE, a Minor, etc., et
al.,
Plaintiffs
and Appellants,
v.
HOT DOGGER TOURS, INC.,
Defendant
and Respondent.
B228603
(Los Angeles
County
Super. Ct.
No. EC048419)
APPEAL
from the judgment of the Superior Court
of
County. Laura A. Matz,
Judge. Affirmed.
Law
Offices of Eric Bryan Seuthe & Associates and Eric Bryan Seuthe for
Plaintiffs and Appellants.
Lewis
Brisbois Bisgaard & Smith, Jeffrey A. Miller, Brittany H. Bartold; Cahill
& Associates, Sean T. Cahill and Todd C. Samuels for Defendant and
Respondent.
* *
* * * * * * * *
Plaintiff
and appellant Hailey Stone, heir of decedent Nicholas Stone, appeals the
judgment, following trial by jury, in favor of defendant and respondent Hot
Dogger Tours, Inc., the entity against whom plaintiff brought a
multiple evidentiary errors which deprived her of a fair trial. We find no error and affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
We
briefly summarize the facts germane to the issues raised on appeal.
On
the morning of September 16, 2007,
Nicholas Stone went for a motorcycle ride with some friends on Angeles
Crest Highway, a mountain road with numerous
curves that winds through the Angeles
National Forest. The weather was sunny, warm and dry. Sometime around 9:00 a.m., just after
starting out on their ride up the mountain, Mr. Stone and one of his friends,
Christopher Rabino, passed a slow-moving vehicle and drove ahead of the rest of
their group.
Near
the highway’s intersection with Mount Wilson Road,
the road is fairly straight for a distance of about two to three blocks. Mr. Rabino saw Mr. Stone, who was ahead of
him by a few bike lengths, lose control of his motorcycle on this straightaway,
just before entering into the next turn.
Mr. Stone was not yet leaning into the turn when his motorcycle just
“went down.” With Mr. Stone still
“wedged” into the motorcycle, the motorcycle slid along its left side, hit the
side of the mountain, and careened back partly onto the roadway. The force of the crash separated Mr. Stone
from his motorcycle, and the motorcycle ricocheted off the hillside and
collided with Mr. Rabino. Mr. Rabino had
been trying to stop, but fell when he was hit by Mr. Stone’s motorcycle.
Shortly
thereafter, another motorcycle rider, Larry Michael Beaufait, who was riding
alone and did not know Mr. Stone and his friends, came upon the scene of the
accident. Mr. Beaufait saw two riders
down at the end of the straightaway and began preparing to stop to see if he
could help. As he drove closer to the
downed riders, he lost control of his motorcycle because his tires unexpectedly
“lost traction.” His motorcycle went
into a slide and he came to rest about 25 to 30 feet from Mr. Stone.
Mr. Beaufait owned
an automotive repair shop and was familiar with the properties and odor of
antifreeze. After the crash, he smelled
the distinctive odor of antifreeze. He
also noticed that a portion of the road appeared lightly coated with a
“slippery” or “oily” substance. He even
slipped as he attempted to walk across it.
Mr. Beaufait walked back down the road a ways to flag down other drivers
and warn them to stop.
Mr.
Rabino was knocked unconscious from the crash.
Mr. Rabino awoke to his friends, who had caught up and come upon the
accident scene, trying to talk to him to see if he was alright. While getting up from the ground, Mr. Rabino
smelled antifreeze, and he and several of his friends slipped on the road
trying to walk over to assist Mr. Stone.
There was no puddling of any liquid on the road, but there was a
definite smell of antifreeze and the surface was slippery.
A
tour bus owned and operated by defendant and respondent Hot Dogger Tours, Inc.,
dba Gold Coast Tours, was travelling up Angeles Crest Highway that same
morning. Defendant’s employee, Efrem
Geary, with 25 years of experience, was driving the bus. Before leaving the yard that morning, Mr.
Geary had performed a routine inspection of the bus (designated number 575)
which took approximately 30 to 35 minutes.
The bus was approximately 45 feet long and carried 57 passengers,
although it was empty at the time, as Mr. Geary was on his way up the mountain
to pick up a load of passengers.
In the vicinity of
Mount Wilson Road, Mr. Geary noticed, in his rear view mirror, what appeared to
be white steam or smoke coming from the rear of the bus. Within about a mile, Mr. Geary was able to
pull into a turnout large enough to accommodate the bus. While checking the engine, Mr. Geary
discovered the radiator fluid was down approximately a gallon and a half, so he
replaced that amount with water. He also
discovered a small crack (perhaps an eighth of an inch) in the bottom radiator
hose spraying fluid onto the hot engine, which he believed had caused the smoke
or steam. A company mechanic eventually
arrived to repair the bus.
A
bicyclist riding up the highway that morning saw bus number 575 in the vicinity
of Mount Wilson Road. The bus was
emitting a “large cloud” of smoke from the back end. He did not notice any slippery substance on
the highway or any fluids dripping or spraying onto the highway from the bus,
and he was able to continue his bike ride up the highway without incident.
Officers
from the California Highway Patrol, including Michael Morrin and Curtis Stout,
received radio dispatches to report to the scene of an accident where three
motorcyclists had crashed. Officer
Morrin arrived at the scene around 9:20 a.m. and observed emergency medical
technicians from the United States Forest Service tending to the downed riders. After ensuring that traffic was under control,
Officer Morrin began to document the accident scene, including taking
photographs and measurements. He
received another radio broadcast of a disabled tour bus farther up the highway. Because witnesses had reported some sort of
fluid spill on the road, Officer Morrin went to the location of the bus and
spoke to Mr. Geary. He also looked at
the engine and observed no fluid spills or fluid trails between the accident
scene and the bus location. Officer
Morrin returned to the scene and continued to document the accident site. He observed no fluids or substances on the
road, located no slippery areas on the road, no slippery substances on the
motorcycles, and found only one area of staining on the road, which was not wet
or slippery to the touch.
Mr.
Stone was pronounced dead at the scene and his body transported to the County
of Los Angeles Department of Coroner (Coroner).
An autopsy was performed on September 18, 2007, with “multiple blunt
force trauma” found to be the cause of Mr. Stone’s death. Blood samples were taken to be tested for
various substances. The toxicology
report included in the autopsy report indicated that Mr. Stone’s blood had
tested positive for the presence of marijuana.
Plaintiff
and appellant Hailey Stone is the minor daughter and sole heir of Nicholas
Stone. Plaintiff, through her mother
acting as guardian ad litem, filed this action for wrongful death against
defendant, primarily alleging that defendant negligently failed to maintain and
inspect bus number 575, resulting in the broken radiator hose and the spilling
or spraying of radiator fluid or antifreeze onto the highway, which caused Mr.
Stone’s fatal accident.
The
action proceeded to a jury trial in July 2010.
Defendant’s primary defenses were that it was not negligent in the
maintenance of its buses and that the accident had not been caused by a
slippery substance on the roadway, but rather was caused by Mr. Stone operating
his motorcycle under the influence of marijuana. In support of the defense that Mr. Stone was
reckless in operating his motorcycle that morning, defendant sought to
introduce the toxicology report from the Coroner’s office, expert testimony
from its retained expert, Dr. Herbert Moskowitz, regarding the effects of
marijuana on the human body, and the percipient testimony of Mr. Rabino that he
and Mr. Stone had been smoking marijuana before the motorcycle ride.
Plaintiff
brought several motions in limine to exclude the toxicology report and other
evidence of marijuana use by Mr. Stone.
As to the toxicology report, the trial court denied plaintiff’s motion,
ruling that defendant could attempt to establish a proper foundation for the
admission of the report under the official record exception to the hearsay
rule. As to Mr. Stone’s use of marijuana,
the court granted plaintiff’s motion to exclude testimony of his previous use
to show habit or custom, but permitted defendant to offer evidence to show Mr.
Stone drove recklessly or negligently on the day of the accident.
During
trial, defendant called Brian Waters, a criminalist with the Coroner’s office,
to lay a foundation for the toxicology report as an official record. The trial court denied plaintiff’s request to
hold a hearing on the foundational elements for admission of the report outside
the presence of the jury. Under
questioning by both defense counsel and counsel for plaintiff, Mr. Waters
explained that he was a senior criminalist with the Coroner’s office, primarily
engaged in performing tests and analyses on postmortem blood and tissue samples
taken from autopsies, and that he is the criminalist responsible for performing
marijuana testing. Mr. Waters also
testified to the certification of the Coroner’s lab, the protocol of the
Coroner’s office for the collection of samples and transmission to the
toxicology department for testing, the protocol for preparation of reports, his
standard procedure of calibrating instruments before running tests or “runs”
and his procedure for multiple “runs” for accuracy. He also confirmed that he prepared his report
of the tests performed on Mr. Stone on October 4, 2007, the results of which
were accurately incorporated into the final toxicology report prepared,
according to protocol, by a supervising criminalist
in the Coroner’s office.
Later,
during the cross-examination of Mr. Rabino, defense counsel asked when Mr.
Stone left Mr. Rabino’s home the night before their motorcycle ride, and Mr.
Rabino said probably around 5:30 or 6:00 p.m.
Defense counsel then inquired whether Mr. Rabino saw Mr. Stone smoke
marijuana that day. Over defense
objection, Mr. Rabino was allowed to answer “yes,” that they had all smoked
marijuana that day, and that he believed Mr. Stone had smoked it from a glass
pipe. In a follow-up question, Mr.
Rabino denied seeing Mr. Stone smoke any marijuana the following morning before
the start of their ride.
Numerous
additional witnesses testified during the course of trial, including Willy
Wondowlski, a bus mechanic employed by defendant, who attested to defendant’s
maintenance procedures for its fleet of tour buses.
The
jury returned a verdict in favor of defendant, answering the first question of
the special verdict form in the negative.
Question 1 read: “Were defendants
HOT DOGGER TOURS, INC. dba GOLD COAST TOURS and/or EFREM JAMAL GEARY
negligent” The jury answered no, never
reaching any other questions, including whether or not Mr. Stone had been
negligent. Judgment was entered in
defendant’s favor accordingly. Plaintiff
then moved for a new trial, which was denied.
This appeal followed.
DISCUSSION
Admission of
the Toxicology Report
Plaintiff raises
several contentions regarding the admission of the toxicology report. Plaintiff argues the court erred (1) in
finding that the foundational requirements for admitting the report as an
official record under Evidence Code section 1280 (section 1280) were satisfied;
(2) in conducting the Evidence Code section 402 hearing regarding the
foundational requirements in the presence of the jury; and (3) in allowing
Brian Waters to give expert testimony to establish the foundational
requirements when Mr. Waters had not been designated by defendant as either a
retained or non-retained expert. We
conclude the court did not abuse its discretion in admitting the toxicology
report.
The toxicology
report (exhibit 218-11) was admitted as an official record under section
1280. The trial court is vested with
“broad discretion” to determine whether a party has established the
foundational requirements of section 1280.
(People v. Martinez (2000) 22
Cal.4th 106, 120 (Martinez).) “A reviewing court may overturn the trial
court’s exercise of discretion ‘ “only upon a clear showing of
abuse.” ’ [Citations.]” (Ibid.)
Section 1280
provides: “Evidence of a writing made as
a record of an act, condition, or event is not made inadmissible by the hearsay
rule when offered in any civil or criminal proceeding to prove the act,
condition, or event if all of the following applies: [¶] (a)
The writing was made by and within the scope of duty of a public employee. [¶]
(b) The writing was made at or near the time of the act, condition, or
event. [¶] (c) The sources of information and method and
time of preparation were such as to indicate its trustworthiness.”
Plaintiff
concedes the first element of section 1280 was satisfied. However, plaintiff contends the timeliness
and trustworthiness elements were not established, that the toxicology report
should not have been received as an exhibit, and defendant’s expert, Dr.
Moskowitz, should not have been allowed to discuss it, or rely upon it, in
expressing his opinions before the jury.
On
the timeliness element, plaintiff argues not only that the report admitted as
exhibit 218-11 was not the report generated by Mr. Waters on October 4, 2007,
but also that Mr. Waters’s report was prepared more than two weeks after the
September 18 autopsy, and that such a lapse of time does not satisfy the
requirement that an official record be made “at or near the time of the act,
condition, or event” in order to be admissible.
The
Supreme Court has explained that “the timeliness requirement ‘is not to be
judged . . . by arbitrary or artificial time limits, measured by
hours or days or even weeks.’ [Citation.] Rather, ‘account must be taken of practical
considerations,’ including ‘the nature of the information recorded’ and ‘the
immutable reliability of the sources from which [the information was] drawn.’ [Citation.]
‘Whether an entry made subsequent to the transaction has been made
within a sufficient time to render it within the [hearsay] exception depends
upon whether the time span between the transaction and the entry was so great
as to suggest a danger of inaccuracy by lapse of memory.’ [Citation.]”
(Martinez,
In
Lee v. Valverde (2009) 178
Cal.App.4th 1069 (Lee), the appellate
court reversed the trial court, finding it had abused its discretion in
refusing to admit a forensic report as an official record on the grounds the
report did not meet the timeliness requirement of section 1280. The court explained that while the certified
copy of the report presented as evidence bore a later date (reflecting the time
it was printed from the lab’s database), the report nonetheless duly indicated
that the analysis of the blood sample was performed
and reported on the same day, defeating any claim that the analyst’s
reported test results were not made at or near the time he or she performed the
analysis. (Lee, at pp. 1078-1079.)
(2009) 176 Cal.App.4th 1210 (Miyamoto),
another case where the trial court was reversed for rejecting a lab report
proffered as an official record for lack of evidence showing its timeliness
under section 1280. “That the results
were later retrieved and incorporated into a formal written report, that the
report was later reviewed by a second employee of the Lab, that the report was
later certified by the analyst who ran the test, and that the report of all
these events was printed at some later date for use at the DMV hearing does not
alter the fact that the test results were recorded at the time the test was
performed.” (Miyamoto, at p. 1221.)
The same rationale
applies here. Mr. Waters testified that
he completed his testing of Mr. Stone’s blood sample for the presence of
marijuana and generated his report on the same day: October 4, 2007. He further attested to the protocol at the
Coroner’s office for the follow-up review of his report, as well as the
preparation of the final toxicology report by the supervising criminalist
incorporating all of the toxicology testing to be attached to the autopsy
report. And, he confirmed that the test
results included in that final report, bearing the date October 17, 2007, and
submitted as exhibit 218-11, matched his test results of October 4, 2007.
In this case, just
as in Lee and Miyamoto, there was no danger from “lapse of memory” because the
results of the analysis were duly reported by Mr. Waters on the same date he
performed the analysis. The later
incorporation of his results into a final, formal toxicology report does not
reflect negatively on the timeliness of Mr. Waters’s report or render exhibit
218-11 untimely for purposes of section 1280.
(Lee, supra, 178 Cal.App.4th at pp. 1078-1079.) Plaintiff’s argument Mr. Waters’s analysis is
suspect because it was performed over a week after the autopsy was performed
and the specimen was collected is not persuasive. Mr. Waters attested to the secured, cold
storage of the samples in the toxicology department. Plaintiff has failed to show the trial court
abused its discretion in finding the timeliness element was satisfied.
As
to the trustworthiness element, plaintiff contends there was inadequate
evidence from which the court could deem exhibit 218-11 trustworthy, as there
was evidence casting doubt as to the accuracy of the report. Plaintiff argues the autopsy report, of which
exhibit 218-11 was a part, documented an inaccurate height and weight for the
decedent and also included two different personal inventory lists. Plaintiff further argues that Mr. Waters did
not provide detailed testimony explaining, for instance, the manner in which
marijuana testing is performed at the Coroner’s office, whether there are
generally accepted protocols in the industry, whether there are generally
accepted calibration requirements for the testing of equipment, and whether Mr.
Waters’s calibration of his equipment met those requirements.
Section
1280 gives the trial court discretion to deem an official record trustworthy if
there is sufficient evidence as to the “sources of information and method and
time of preparation” reflecting positively on the trustworthiness of the
document. (§ 1280, subd. (c); see also
110, 116.) During initial discussions
with the parties as to the potential admissibility of the report, the trial
court correctly explained to defense counsel that the official certification of
the report as a true and correct copy was insufficient to establish the
trustworthiness element.
Thereafter,
defendant proffered the testimony of Mr. Waters to establish the foundation for
the report and the manner in which it was prepared. Mr. Waters stated he was a senior criminalist
with the Coroner’s office and had worked there for seven years, with his main
duties being forensic postmortem toxicological analysis and collection of
evidence. Mr. Waters explained that the
Coroner’s office is an accredited toxicology lab with the American Society of
Crime Laboratory Accreditation Board. He
explained the office’s general procedures of performing an autopsy within two
to three days of a decedent being brought into the office, and of completing
all toxicology testing within one month thereafter. Mr. Waters conceded there may be some
variation in the amount of time autopsies and tests are completed due to the
caseload of the office at the time.
Mr.
Waters explained the protocol for collecting blood and other specimens during an
autopsy. He stated that the medical
examiners work on one body at a time to eliminate cross-contamination, and that
samples are preserved in jars or test tubes, which are labeled with the coroner
case number and decedent’s name, if known, the type of specimen, the date of
the autopsy, and the date and time of collection. The samples are then brought up to a secured
area in the toxicology lab and placed in refrigerated storage, maintained at
four degrees Celsius. The assigned
criminalist then performs the requested tests and prepares his or her report of
the analysis and results.
Mr.
Waters explained that his specialty is the analysis of specimens for the
presence of marijuana, that he calibrates his equipment before testing, and
that he performs multiple “runs” to verify the results. For additional quality control purposes, his
test results are reviewed by another analyst and then the result is input into
the office database. Eventually, all of
the toxicology test results are incorporated into a final, comprehensive
toxicology report reviewed and approved by the supervising criminalist to
become a part of the formal autopsy report.
Following
Mr. Waters’s testimony, the trial court allowed the parties to make a final
argument and then ruled that the toxicology report would be received, finding
Mr. Waters’s testimony adequate to establish its reliability. In part, the court explained: “. . . I find it reliable
enough. This lab is accredited. And this gentleman testified that he
calibrates the machines before he does the tests. So the document will be received. You’re welcome to argue it’s [
it is received as a public record.”
Given the
testimony of Mr. Waters, the court was well within its discretion in finding
his testimony sufficient to establish the trustworthiness of exhibit
218-11. This was not a situation, for
instance, where the sources of information reflected in the official record are
third parties under no public duty to accurately report their
observations. (See, e.g.,
775, 780-781 [trial court properly excluded police report containing statement
of third-party witness]; see also Behr v.
County of Santa Cruz (1959) 172 Cal.App.2d 697, 705.) And, Mr. Waters provided reasonably detailed
testimony regarding the procedures followed at the Coroner’s office reflecting
on the reliability of the report. To the
extent there were some minor discrepancies, the court was correct in explaining
that counsel could argue those defects to the jury as bearing on the weight to
be afforded the exhibit. Plaintiff has
failed to show any abuse of discretion by the trial court.
In a civil case,
the court has discretion to conduct an Evidence Code section 402 hearing in the
presence of the jury. (Evid. Code, §
402, subd. (b) [“court may hear and determine the question of the admissibility
of evidence out of the presence or hearing of the jury”]; see also
(1975) 46 Cal.App.3d 436, 448 [discretionary language of Evid. Code, § 402
authorizes trial court to determine whether hearing on admissibility of
evidence is properly held in presence of jury].)
Plaintiff argues
the jury was unfairly prejudiced in hearing Mr. Waters’s testimony regarding
the request for and performance of toxicology tests as part of the autopsy
performed on Mr. Stone, and that the court should not have allowed such
allegedly inflammatory testimony to establish the foundation for a document, the
admissibility of which was in question.
Even assuming for the sake of argument that plaintiff could show it was
an abuse of discretion to allow the jury to hear the foundational testimony
before the court ruled on the admissibility of the report, plaintiff has failed
to show reversible error.
The potential for
prejudice existed only if the court ultimately ruled the report
inadmissible. Because the toxicology
report was properly admitted, the jury would have heard that foundational
testimony and no unfair prejudice can be established.
Mr. Waters was
identified on defendant’s witness list as an employee of the Coroner’s
office. Defendant did not list Mr.
Waters as a retained or nonretained expert on its pretrial expert designation
pursuant to Code of Civil Procedure, section 2034.260. Plaintiff is correct that failure to properly
designate an expert, including a nonretained expert, in accordance with the
statutory requirements prevents calling that expert to offer opinions at trial.
(Code Civ. Proc., § 2034.300; see also Kalaba
v. Gray (2002) 95 Cal.App.4th 1416, 1423.)
But plaintiff is not correct in contending that Mr. Waters testified as
an expert.
Mr. Waters
testified as a percipient witness, based upon his own personal knowledge and
personal observations, to lay a foundation for the admissibility of the
toxicology report, including how and when such reports are generated at the
Coroner’s office, when he performed his testing and generated his report, and
the protocol regarding incorporation of his test results into the final
toxicology report offered as exhibit 218-11.
Plaintiff has failed to show error.
Admission of
Testimony Regarding Marijuana Use
Plaintiff contends
the court committed error in allowing defendant to elicit from Mr. Rabino that
he and Mr. Stone smoked marijuana at his home on the afternoon and evening of
September 15, less than 24 hours before the motorcycle ride and Mr. Stone’s
fatal accident. Defendant argues that
plaintiff waived the issue by failing to cite supporting
We
agree plaintiff has failed to support this contention of error with argument
and citation to relevant legal authority, and we therefore may treat it as
waived. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523; see also 9
Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 701, p. 769.) Nevertheless, we briefly discuss the
contention on its merits.
The
questions directed by defense counsel to Mr. Rabino were minimal, including how
late Mr. Stone was at Mr. Rabino’s home the evening before their ride, whether
Mr. Stone smoked marijuana that day, and whether Mr. Rabino had seen Mr. Stone
smoke marijuana the next morning before they started out on their ride. Defendant’s proffered expert toxicologist,
Dr. Moskowitz, was prepared to offer an opinion that the smoking of marijuana
within less than 24 hours before the accident was relevant to the levels of
marijuana found in Mr. Stone’s blood sample, and the degree to which Mr.
Stone’s motor skills and judgment would have been impacted. Mr. Rabino’s testimony was not elicited to
show that Mr. Stone had a habit of smoking marijuana or as improper bad
character evidence. The court did not
err in allowing Mr. Rabino’s testimony in this regard.
Cumulative
Error
Because we find no
error in the evidentiary rulings challenged by plaintiff, we need not discuss
plaintiff’s final argument regarding alleged cumulative error.
DISPOSITION
The judgment is affirmed. Defendant and respondent Hot Dogger Tours,
Inc., shall recover its costs on appeal.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
GRIMES,
J.
WE CONCUR:
BIGELOW, P. J. RUBIN, J.
