In v. Radiant Services Corp.

Filed 8/28/06 In v. Radiant Services Corp. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.Warren L. Ettinger, Judge. Affirmed.

Law Offices of Gary A. Dordick, Gary A. Dordick, David Azizi for Plaintiffs and Appellants.

Horvitz & Levy, David M. Axelrad, Peder K. Batalden; Zurawski & Halas, James P. Zurawski for Defendants and Respondents.

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This appeal arises from a traffic accident between a truck and a car. The injured car passengers sued the drivers of both vehicles. A jury determined that the truck driver was not at fault. On appeal, the plaintiffs challenge the jury instructions and the manner in which the jury alternates were selected. We find no error and affirm the judgment.FACTS

Appellants Sung Joon In and Geram Kim were passengers in a car driven by Jong Sun Lee. Lee's car collided with a delivery truck in the middle of the intersection at Normandie and Pico. Appellants brought a personal injury action against Lee; the truck driver, Elias Ramirez; and the truck owner, Radiant Services Corporation.

The trial court bifurcated the case into a liability phase and a damages phase. During the liability phase, Ramirez and Lee both claimed that they had the green light at the intersection, and each accused the other of negligently driving through a red light. By a vote of 11 to 1, the jury found that Ramirez was not negligent; instead, it found that Lee was negligent and caused the accident.

Before the jury returned for the damages phase, appellants' counsel advised the court that Lee's insurer had already offered up the policy limits of her insurance coverage, and appellants did not wish to seek an excess judgment against Lee. Appellants were willing to discharge the jury and indicate a settlement with Lee. The court rendered judgment in favor of Ramirez and Radiant Services. This timely appeal from the judgment followed.

DISCUSSION

1. Jury Instructions

After the jury was instructed and before closing arguments started, appellants asked for a new instruction, CACI No. 434, over a defense objection that CACI No. 434 is inapplicable.^[1] The court denied the request as untimely. Part way through closing arguments, appellants renewed their request to instruct the jury with CACI No. 434. The court again denied the request as untimely.

It is counsel's duty to file and serve proposed jury instructions before the first witness is sworn. (Code Civ. Proc., § 607a.) The trial court has discretion to refuse an untimely request for an instruction. (Wilson v. Gilbert (1972) 25 Cal.App.3d 607, 613 [instruction proposed just before final jury arguments was properly refused as untimely].) In the present case, the court exercised its discretion and refused to give the belated instruction.

We find no error in the trial court's refusal to give CACI No. 434.

First, the record does not support appellants' contention that CACI No. 434 was requested before the jury was instructed. Indeed, the Reporter's Transcript pages cited by appellants unequivocally indicate that the jury was already instructed by the time appellants requested CACI No. 434.

Second, because the jury was already instructed, allowing the plaintiffs to add a new instruction might confuse or mislead the jury. As appellants' counsel conceded in the trial court, if the court added CACI No. 434, this would have required the court to â€