Filed 7/15/22 Heywood v. Los Angeles County Metropolitan etc. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

APPEAL from orders of the Superior Court of Los Angeles County, William MacLaughlin, Judge. Affirmed.

Phoebe Heywood, in pro. per., Plaintiff and Appellant.

Kohrs & Fiske, Anthony C. Kohrs and Stephan Mihalovits, for Defendant and Respondent.

________________________

INTRODUCTION

Plaintiff Phoebe Heywood appeals from a judgment in favor of defendant Los Angeles County Metropolitan Transit Authority (MTA) after a jury found defendant was not responsible for personal injuries plaintiff suffered when she tripped and fell aboard an MTA bus. Plaintiff asserts she was deprived a fair trial due to irregularities during jury selection. She also contends substantial evidence does not support the defense verdict. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Plaintiff’s Fall

On July 19, 2017, plaintiff was riding a crowded MTA bus, seated next to a window behind the wheelchair section where a rider in a wheelchair was located. When the bus pulled over at plaintiff’s stop, an automated announcement informed passengers to use the rear exit for their safety and watch their step exiting the bus. At this stop, a wheelchair passenger also decided to disembark. When the driver opened the doors, two teenagers attempted to board the bus before the wheelchair passenger disembarked. The driver signaled to the teenagers to stay off the bus and wait (as was customary when a wheelchair was exiting). At this time, plaintiff stood up and began moving to the front of the bus. Just a few feet from the front of the bus and about seven or eight seconds after the bus stopped, plaintiff tripped over what she believed was the wheelchair’s wheel and fell to the floor, breaking her arm.

The driver offered to summon paramedics (which plaintiff declined), assisted plaintiff in righting herself, and helped her off the bus. The driver then deployed the wheelchair ramp for the wheelchair passenger to exit. After the wheelchair passenger left, the teenagers boarded.

2. Plaintiff’s Lawsuit

Plaintiff sued MTA, alleging negligence. At the jury trial, plaintiff, the bus driver, plaintiff’s bus transportation safety expert, plaintiff’s husband, and an orthopedic surgeon testified. During testimony, plaintiff’s counsel and defense counsel played two videos taken from bus security cameras (exhibits 1 and 7) and asked the bus driver, the safety expert, and plaintiff questions about the videos.[1] Plaintiff’s theory was that the MTA driver was negligent for not initiating the wheelchair ramp sooner because the ramp’s deployment is accompanied by a beeping sound that would have alerted her to wait for the wheelchair to disembark. She asserted that the wheelchair angled into the aisle as she began to walk down the aisle to the front of the bus, and she then tripped over the wheelchair wheel. The defense called no witnesses.

The jury found MTA was not negligent. The court entered judgment in MTA’s favor.

Plaintiff timely appealed.

DISCUSSION

Plaintiff raises two issues on appeal: (1) irregularities in jury selection, and (2) insufficient evidence supporting the jury’s verdict that MTA was not negligent.

1. Plaintiff Forfeited Her Arguments Regarding Jury Selection “Irregularities”

Plaintiff asserts that “During jury selection, a few irregularities occurred that unduly influenced and tainted the prospective jurors.” She contends the trial court’s examination of Juror No. 10 was inconsistent with the examination of other prospective jurors because he was not asked the same questions. When asked whether he could be fair and impartial if asked to serve on the jury, Juror No. 10 responded that he was “a little bit torn on how much taxpayer money [plaintiff] might be asking for.” Plaintiff argues on appeal that the court should have admonished the jury to disregard Juror No. 10’s statement. Instead, the court inquired further about the juror’s response, thus adding fuel to the fire of the juror’s earlier remarks. Juror No. 10 was ultimately excused from the panel.

Plaintiff also avers that Juror No. 10’s comment prompted a subsequent juror to ask–in front of the other prospective jurors–whether MTA was publicly funded. She asserts the comment was prejudicial and the harm was compounded by the trial court’s response that it would not answer the question because it was not relevant to the jury’s task to decide if MTA was negligent.

Plaintiff has forfeited these arguments because she failed to bring her concerns to the trial court’s attention. She neither objected, nor asked for an admonishing instruction, nor moved to dismiss the panel altogether if she believed the jury was tainted by these comments. (People v. Contreras (2013) 58 Cal.4th 123, 144 [defendant forfeited claims of error regarding the adequacy and fairness of voir dire where he silently stood by while the trial court asked the jury questions].) “ ‘The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial. . . . In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice.’ ” (People v. Brown (2003) 31 Cal.4th 518, 553, citing Horn v. Atchison, T. & S.F.R. Co. (1964) 61 Cal.2d 602, 610 [finding waiver where party failed to ask the court to admonish the jury to disregard improper statements].)

These authorities are consistent with the broader rule of forfeiture. “ ‘ “The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.” ’ ” (In re Seaton (2004) 34 Cal.4th 193, 198; see Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 287 [“Appellants neither objected to these statements nor requested the jury be admonished; they have forfeited the claim.”].)

We disagree with plaintiff that the court had a sua sponte duty to admonish the jury on these subjects. “[U]nlike a trial court in a criminal case that has ‘the ultimate responsibility for properly instructing the jury’ [citation], a trial court in a civil case has ‘ “ ‘no duty to instruct on its own motion.’ ” ’ [Citations.] Consequently, errors in the jury instructions can be forfeited by a party’s failure to object, can be the subject of waiver or estoppel due to a party’s acquiescence, and can be deemed invited error if that acquiescence was tactical.” (Drink Tank Ventures LLC v. Real Soda in Real Bottles, Ltd. (2021) 71 Cal.App.5th 528, 543; see also Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653.)

Because plaintiff failed to request curative action by the trial court at the time these claimed prejudicial acts occurred, plaintiff has forfeited her jury selection irregularity arguments.

We also reject on the merits plaintiff’s argument that she did not ask Juror No. 10 the same questions as other jurors. “Consistent with applicable statutory law, the trial court has wide latitude to decide the questions to be asked on voir dire [citation], and to select the format in which such questioning occurs. . . . Unless the voir dire ‘is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal.’ ” (See People v. Contreras, supra, 58 Cal.App.4th at p. 143.)

2. Substantial Evidence Supports the Verdict

Plaintiff asserts the jury’s verdict was not supported by substantial evidence. “When a party contends insufficient evidence supports a jury verdict, we apply the substantial evidence standard of review. [Citations.] ‘ “[T]he power of [the] appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the [verdict].” ’ ” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188.) “ ‘Even in cases where the evidence is undisputed or uncontradicted, if two or more different inferences can reasonably be drawn from the evidence this court is without power to substitute its own inferences or deductions for those of the trier of fact. . . . We must accept as true all evidence and reasonable inferences from the evidence tending to establish the correctness of the trial court’s findings and decision, resolving every conflict in favor of the judgment.’ ” (Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 24.)

The driver’s and plaintiff’s own testimony support the verdict. The driver said he did not immediately deploy the wheelchair ramp because in the first five seconds after he opened the bus door, he was stopping two teenagers from boarding the bus. A jury could reasonably conclude the driver did not have sufficient time to deploy the wheelchair ramp before plaintiff stood up and tripped.

Equal to the point, plaintiff admitted she tried to leave the bus through the front door contrary to the recorded announcement which told her to leave through the back of the bus, and she did not watch her step when she was walking down the aisle before she fell.

Plaintiff argues, “The jury failed to consider the two expert witnesses or what was seen and heard on the video. It was obvious as they were unanimous on both counts in their verdict which they decided in less than sixty (60) minutes.”[2] Although plaintiff produced experts, the “jury is not required to accept an expert’s opinion. The final resolution of the facts at issue resides with the jury alone.” (People v. Sanchez (2016) 63 Cal.4th 665, 675; see Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409 [the jury is entitled to accept all, part, or none of any witness’s testimony].) In making this argument, plaintiff essentially asks this Court to reweigh the evidence, which we may not do. (See Mathews v. Happy Valley Conference Center, Inc. (2019) 43 Cal.App.5th 236, 251.) Plaintiff also provides no support for her assertion that the jury did not consider testimony from the bus safety expert and the surgeon. (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286–287 [“In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.”].)

Substantial evidence supports the verdict.[3]

DISPOSITION

The judgment is affirmed. Defendant and respondent Los Angeles County Metropolitan Transit Authority is awarded costs on appeal.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

KIM, J.

[1] These exhibits, two versions of the same video, were received into evidence. We have reviewed a copy of the video supplied by respondent.

[2] Although plaintiff makes this argument in her briefing on jury selection irregularities, it amounts to a substantial evidence challenge and we therefore address it as such.

[3] We do not address plaintiff’s argument regarding MTA employee Mary Hampton’s statements because her statements were not introduced into evidence.