Nunez v. Alaniz

Filed 6/18/07 Nunez v. Alaniz CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed.

Raul Alaniz was driving a pickup belonging to his employer, Black Dog Farms of California, and crashed into a tractor driven by Jesus Nunez, who suffered extensive injuries. A jury found by special verdict that although Alaniz was negligent, his negligence was not a substantial factor in causing harm to Nunez.

Nunez contends the trial court erred because it did not: instruct the jury with Vehicle Code, section 21753; comply with Code of Civil Procedure section 614; and, grant his motions for judgment notwithstanding the verdict and new trial. He also contends that, as a matter of law, the jury's verdict is erroneous. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Nunez testified at trial that on January 5, 2002, he was driving a tractor that was towing a 23-foot long hay rake and going south on Barbara Worth Road in Imperial County. He was traveling at approximately 15 miles per hour and slowed to approximately 8 to10 miles per hour to make a left turnfrom the two-lane road into a driveway. There was no oncoming traffic. There were no lights on the hay rake, and the turn signals on the tractor were not working that day. The tractor did not have a rearview mirror. Nunez testified he extended his left hand to indicate he was turning and looked behind him, but did not see any vehicle behind him.

Alaniz was driving in the same direction as Nunez, at approximately 50 to 55 miles per hour as he approached Nunez's tractor. Alaniz turned on his left signal, and started to move into the oncoming lane to overtake the tractor. Although he was watching the tractor driver to wave to him upon passing, he did not see any indication the tractor was making a left turn. After Alaniz passed the hay rake, he noticed the tractor turning into the left lane. He hit his brake and steered over to the dirt shoulder, but crashed into the tractor. The right portion of the pickup hit the left back tire of the tractor. Nunez, who was not wearing a seatbelt, was knocked out of the tractor, landed on the ground, and suffered injuries requiring surgery and hospitalization.

In January, 2003, Nunez filed a complaint for property damage and personal injury against Alaniz and Black Dog Farms, et al. The jury found by special verdict that Alaniz was negligent, but his negligence was not a substantial factor in causing harm to Nunez. Nunez filed motions for judgment notwithstanding the verdict and new trial, which were denied. (Code Civ. Pro. 629, 657.)

Stephen Plourd, an expert on traffic accident reconstruction who was called as a witness by Nunez, testified that Nunez's hand signal indicating he was turning would not have been visible to Alaniz "because of the configuration of the rake and the bars and all the structure to hold the rack together, you couldn't see an arm signal if you were looking right down at the back of the trailer. Down back of the rake and the tractor." Jim McNamara, a California Highway Patrol officer who investigated the accident, testified at trial he interviewed Nunez shortly after the collision, but his report did not state whether Nunez told him he had extended his arm to indicate he was turning left. James Abatti, Nunez's employer, testified that two weeks after the accident Nunez said he had seen Alaniz's pickup approaching, but he thought it "was pretty far back."

The trial court denied Nunez's motions for judgment notwithstanding the verdict and new trial.

DISCUSSION

I.

Nunez contends the trial court erred in denying his requested jury instruction on Vehicle Code, section 21753, which reads as follows: "Except when passing on the right is permitted, the driver of an overtaken vehicle shall safely move to the right-hand side of the highway in favor of the overtaking vehicle after an audible signal or a momentary flash of headlights by the overtaking vehicle, and shall not increase the speed of his or her vehicle until completely passed by the overtaking vehicle. This section does not require the driver of an overtaken vehicle to drive on the shoulder of the highway in order to allow the overtaking vehicle to pass." The court declined to give the instruction, noting, "I don't know how it would apply to this case since the facts are undisputed that the horn was not sound [sic] and there was no flashing of the lights."

Principles regarding jury instructions are well-settled. First, "[a] party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) Second, instructional error in a civil case is not ground for reversal unless it is probable the error prejudicially affected the verdict. (Id. at p. 580; Steiny & Co., Inc. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 295.)

Alaniz testified he neither flashed his headlights nor sounded his horn before beginning to overtake the tractor. Accordingly, the trial court correctly determined that there was no factual basis for the proffered instruction or there was simply no evidence in the record to warrant it.

II.

We reject Nunez's contention the court erred in not granting his motions for judgment notwithstanding the verdict and a new trial.

"An order 'denying a motion for judgment notwithstanding the verdict' is appealable. [Citation.] Where the motion is combined with a motion for a new trial, the order denying judgment notwithstanding the verdict is appealable, regardless of whether the motion for a new trial is granted or denied." (9 Witkin, Cal. Procedure, (4th ed. 1997) Appeal, 147, p. 214.)

"The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. [Citations.] The trial judge cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] 'A motion for judgment notwithstanding the verdict of a jury may properly 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 to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.' " (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.)

On review of a trial court's denial of a motion for judgment notwithstanding the verdict we determine whether it appears from the record, viewed most favorably to the party securing the verdict, that any substantial evidence supports the verdict; if there is any substantial evidence, or reasonable inferences to be drawn therefrom in support of the verdict, we must uphold the trial court's denial of the motion. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284; Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 730.) "In general, [t]he purpose of a motion for judgment notwithstanding the verdict is not to afford a review of the jury's deliberation but to prevent a miscarriage of justice in those cases where the verdict rendered is without foundation." (Trujillo v. North County Transit Dist., supra, 63 Cal.App.4th at p. 284, internal quotation marks omitted.)

Here, we are required to uphold the verdict because it is supported by substantial evidence. Nunez testified the turn signals on the tractor were not working. Although Nunez testified at trial that when he started the left turn he looked to see if there were any vehicles behind him, his testimony was contradicted by his employer's testimony that Nunez saw Alaniz's pickup, but thought it was far away. Further, Alaniz testified that Nunez failed to signal in any way that he was making a left turn. Plourd testified that even if Nunez had extended his arm indicating he was making a left turn, it would not be visible to someone behind him. Officer McNamara testified if Nunez had told him that he had extended his arm to indicate he was turning left, it would have been included in his report. Nunez testified he looked in the rear view mirror before turning left, but the tractor did not have a rear view mirror. Based on Nunez's conduct, there was substantial evidence to show he was the substantial cause of his own injuries.

Further, Nunez was not wearing a seatbelt and fell to the ground as a result of the collision between Alaniz's truck and the hay rake Nunez was towing with his tractor; Nunez suffered injuries as a result of his fall. Alaniz was driving his truck within the maximum speed limit and was unaware Nunez was turning left until Alaniz had driven into the oncoming lane to pass Nunez and was unable to avoid the hayrake as it turned left in front of him. Based on the conduct of Nunez and Alaniz there is substantial evidence to support the jury's verdict that Alaniz's negligence was not a substantial factor in causing Nunez's injuries.

Nunez based his motion for a new trial on the claim the jury's verdict that Alaniz was both negligent and not substantially responsible for Nunez's damages was erroneous as a matter of law. (Code of Civ. Proc. 657, subd. (6).) The correctness of the special verdict is analyzed as a matter of law. (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 303; Trujillo v. North County Transit, supra, at p. 285.)

"The breach of duty the negligent act or omission, must be the 'proximate' cause . . . of the plaintiff's injury.' [Citation.] The doctrine of proximate cause limits liability; i.e., in certain situations where the defendant's conduct is an actual cause of the harm, he will nevertheless be absolved because of the manner in which the injury occurred." (Hardison v. Bushnell (1993) 18 Cal.App.4th 22, 26.)

The jury was correctly instructed regarding Nunez's burden of proof as follows: "Jesus Nunez claims that he was harmed by Raul Alaniz's negligence. To establish this claim, Jesus Nunez must prove all of the following: 1. That Raul Alaniz was negligent; 2. That Jesus Nunez was harmed; and 3. That Raul Alaniz's negligence was a substantial factor in causing Jesus Nunez's harm. Just because Jesus Nunez was harmed does not, by itself, mean Raul Alaniz is legally responsible for the harm." (See CACI No. 400 (2006 Ed.).)

The jury was instructed in the language of Vehicle Code section 22107 as follows: " 'No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.' A driver must use reasonable care when turning or moving to the right or to the left." Another instruction stated, "[a] substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [] A person's negligence may combine with another factor to cause harm. If you find that Raul Alaniz's negligence was a substantial factor in causing Jesus Nunez's harm, then Raul Alaniz is responsible for the harm. Raul Alaniz cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing Jesus Nunez's harm."

The jury's verdict was not inconsistent or erroneous as a matter of law. Accordingly, we reject Nunez's claim the court erred in denying his motion for a new trial. As the trial court noted at the hearing on the motion for a new trial, "I will say that it was my opinion at the time of trial that the jurors could easily find that it was my opinion at the time of trial that the jurors could easily find that the defendant was negligent, but that the negligence was not a cause of the collision. . . . [] . . . The collision was caused by the plaintiff turning left when being passed." The trial court did not err in denying the motion for a new trial.

III.

Nunez claimed in his opening brief that the trial court failed to comply with Code of Civil Procedure section 614 because the court did not summon him when the jury sent notes to the court during deliberations. Alaniz pointed out in his reply brief, with record citation, that Nunez was present for discussions with the court regarding the jury's notes. In his reply brief, Nunez abandoned this claim; accordingly, we need not address it.

DISPOSITION

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

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McDONALD, J.

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