Voelker v. Morales

Filed 2/23/07 Voelker v. Morales CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Aurelio Munoz, Judge. Affirmed.

Moriarity & Associates and John L. Moriarity for Plaintiff and Appellant.

McClaugherty, Mulder & Keidel, Jay S. McClaugherty and David H. Ryan for Defendant and Respondent.

* * * * * *

Retired Los Angeles Police Department Officer Larry Voelker, who is the plaintiff and appellant in this case, brought an action against defendant and respondent Ramon Morales on the theory that a sports utility vehicle negligently driven by Morales struck him, as Voelker was working as a traffic control officer in a film shoot. The jury found in favor of Morales. The court entered judgment accordingly, including an award of $50,189.85 in costs. We affirm the judgment and the award of costs.

FACTS

Morales lives on Duane Street in the Silver Lake area of Los Angeles. Duane Street runs east from Silver Lake Boulevard, up across a hill. Voelker was stationed with his motorcycle on the southeastern corner of Silver Lake and Duane, at the bottom of the hill; the motorcycle was standing on Duane, as was Voelker. Voelkers specific assignment was to stop traffic from going up the hill on Duane after he received a call that filming was in progress.

Morales was driving his 1993 Ford Explorer south on Silver Lake; Gregory Diavira was a passenger. As he approached the Silver Lake/Duane intersection, Morales moved into the left turn lane on Silver Lake and began a left turn onto Duane. At this point, Voelker, having received a call to stop the traffic on Duane, walked away from the curb and onto Duane. According to Voelker, he called out: If you want to go up the hill, you will have to wait a few minutes. Theyre filming, doing stunts. Accounts of the ensuing events diverge from this point.

Morales testified that he intended to pull up to Voelker, tell him his street address and proceed on home. He pulled into the left lane on Duane (a witness testified he was moving at five miles per hour), and the next thing he knew was that Voelker was beside the vehicle and had grabbed the cars antenna. Morales and Diavira both testified that the car never struck Voelker and that, if there was any significant contact between Voelker and the car, it came when Voelker walked into the side of the Explorer, after he had grabbed the antenna.

Voelkers account was that, after he had called out to stop, Morales replied, I live up there. Im going up there anyway. Voelker testified that the car, which had been headed to the right lane of Duane, now started to move into the left lane; that Voelker tried to gain the north curb of Duane, but couldnt; that the car hit him on his right side, spun him, that he fell on the hood of the car, and was able to grab the antenna and hang on until the car stopped 15 or 20 feet after the impact.

One eyewitness, Daniel Jacobson, testified that after the car had turned left on Duane, Voelker came up on the car and slammed his hand on the SUV; Jacobsen did not support Voelkers version of the events. Neither did the passenger, Diavira, who testified that after they had made the turn, Voelker came up on the car, grabbed the antenna, started bending it, and grimaced and screamed at Morales.

Voelker then told Morales to get out of the car and handcuffed and arrested him. We are not advised how long this detention lasted. Diavira was interviewed by police who arrived at the scene but was not detained.

In substance, the case revolved around the question whether Voelker walked up to the car, grabbed the antenna and then walked into the side of the car, or whether the car struck him. As Morales points out in the respondents brief, on this issue even some of Voelkers testimony suggests that the car did not strike him.^[1] Each side called an accident reconstruction expert who unsurprisingly supported the side that had called him. It should be noted that Moraless expert Dr. Honikmans theory^[2]is not unreasonable and that if the events were as Voelker related, he would have been spun away from, and not onto the car, and that it was very unlikely that he was thrown onto the hood of the car.

Voelkers medical experts testified that the accident aggravated a preexisting back problem, that Voelker now requires pain management and back surgery, and that the cost of this care is in excess of $200,000.

DISCUSSION

1. Reference to a Settlement with a Third Party Was Not Prejudicial

Voelker called Eric Nichols, an independent film coordinator, to testify that the necessary permits had been obtained by the Mr. Pink music video production company for the filming, and that Voelker, as a traffic control officer, had the permit required for this work. During Nicholss cross-examination by Moraless counsel, counsel asked Nichols if he was aware that Morales had sued Mr. Pink. After Nichols answered that he had heard about that, the following transpired:

Q [by Moraless counsel] Okay. And youre aware that Mr. Pink made a settlement ‑‑

MR. MORIARTY [Voelkers counsel]: Ill --

THE COURT: Sustained.

MR. MORIARTY: Wow.

MR. McCLAUGHERTY [Moraless counsel]: No further questions.

MR. MORIARITY: may we approach the bench?

THE COURT: The jury will disregard the last answer.

Prior to trial, the court had ruled that settlement of Moraless case against Mr. Pink was irrelevant. In the course of the discussion of this matter, attorney McClaugherty said he would approach the court, in the event he felt that he needed to refer to this settlement. As the record reflects, he did not do so before referring to a settlement in his examination of Nichols.

After the quoted exchange between counsel, Nichols and the trial court, the matter came up outside the presence of the jury. McClaugherty, and the trial court, noted that the question addressed to Nichols went to the issue of bias. Attorney Moriarty stated that he realized that the court had instructed the jury to disregard the answer, but [h]ow do you unring the bell? The trial court responded: Im not going to grant a mistrial. Thats the long and short of it. [] . . . [] . . . Your motion is to be deemed and made. I dont think its that prejudicial, and I think the jury will follow the admonition.

We assume for the purposes of our discussion that reference to a settlement with Mr. Pink was inadmissible,^[3]and that the settlement with Mr. Pink had no logical relationship to Nicholss bias.^[4] We also think that it was improper to mention the settlement in violation of the trial courts ruling on the subject.

Given these predicates, we agree with the trial court that McClaughertys statement that Mr. Pink made a settlement was not prejudicial, especially in light of the trial courts immediate instruction to the jury to disregard the matter.

First, whether Mr. Pink settled with Morales did not materially affect Voelkers case against Morales. This case was predicated on Voelkers theory that Moraless car hit him. The production company Mr. Pink has no connection with what transpired in a few seconds between Voelker, Moraless car and Morales on Duane Street.

Second, we do not agree with Voelker that the evidence on liability was close, if not overwhelming in plaintiffs favor and that, in such a close case, reference to a settlement could have been the factor that turned the tide in Moraless favor. The fact is that no percipient witness supported Voelkers version of events; on the contrary, the single third party eyewitness Jacobson, not to speak of passenger Diavira, testified in Moraless favor. In addition, the physical dynamics of the encounter do not support the claim that Voelker was thrown onto the hood of the car. Thus, this was not a close case where a single error might have made the difference.

Third. In Tobler v. Chapman (1973) 31 Cal.App.3d 568, 574-575, repeated references were made by counsel to a settlement. The court held: In the absence of irremediable misconduct, any prejudice is deemed cured by appropriate instructions from the court. (Id. at p. 576.) The misconduct in this case was nowhere near irremediable, but rather a half-hearted attempt that was immediately squelched and corrected by a timely objection, ruling and instruction to the jury.

For these reasons, we conclude that the reference to a settlement was not prejudicial.

2. Evidence of Diaviras Potential Bias Was Not Excluded

Voelker contends that the trial court erred in excluding evidence of bias on the part of Diavira, whom Voelker characterizes as a key defense witness.

The factual predicate of this contention is in error; evidence of potential bias was admitted. In Diaviras cross-examination by Voelkers counsel, Diavira stated that he had known Morales for approximately 15 years and that he and Morales were friends. Thus, the fact of a long-standing friendship between Morales and Diavira was made known to the jury.

The trial court granted a motion in limine to exclude evidence about Moraless sexual orientation, a ruling that is in all respects correct, a matter Voelker does not question. Thus, when it came to questions about whether Diavira and Morales were close friends, went to the movies and dinner together and hung out together, the trial court sustained timely objections.

Once it became known that Morales and Diavira had been friends for 15 years, it is hard to see what difference it would have made if the jury had been told that they went to the movies and had dinner together, and hung out. One would think that it is within common experience that a friendship of 15 years is founded on some common activities. In other words, the evidence that the trial court excluded made no difference on the issue of Diaviras potential bias.

The fact is that the jury was told that Diavira and Morales were friends of long standing. Thus, evidence of potential bias was not excluded by the trial court.

3. Voelker Has Not Shown That Evidence Was Destroyed

Voelker contends that critical evidence was tampered with here. Defense counsel intentionally obliterated demonstrative evidence that plaintiff attempted to present to the jury. Counsel erased everything that could be erased on Trial Exhibit 2, a custom-made, laminated map of the scene of the collision. (6RT 1204.) The erasures included markings by several lay and expert witnesses regarding the relative positions of plaintiff, defendant, defendants motorcycle, and other witnesses at the collision scene.

When the same complaint was aired in the trial court at the end of the trial, the trial court observed, addressing Voelkers counsel, that youve been playing games with the board too. Its Exhibit 2. Its a big blowup. Its his [Moraless]. He brought it in. He offered to let you have the little ones^[[5]] to do what you wanted with it. [] You wanted to use the blue one. Everybody has been moving the car around. Everybody has been moving Officer Voelker around and back. . . . Its much ado about nothing.

We are guided by the trial courts appraisal of a matter that is part of the conduct of a trial which, of course, is consigned to the discretion of the trial court. If the seasoned trial judge thought this was much ado about nothing, we are not inclined to conclude otherwise.

It is, of course, also true that Voelkers counsel could well expect that, as is usually the case, the witnesses would place marks on the exhibit of the scene. Counsel was furnished with copies of exhibit 2, and could have memorialized those markings on those copies. He chose not to do so.

Nor are we persuaded that facts such as the position of Voelkers parked motorcycle were of any relevance to this case, which turned on the simple question: Did Voelker hit the car, or did the car hit Voelker? As Morales observes, it nowhere appears how or why these erasures were prejudicial to Voelker, especially since we do not know when Moraless counsel erased markings on exhibit 2.

Finally, we question whether erasing markings on exhibit 2 was tantamount to destroying evidence. The evidence was the witnesses testimony, and that testimony is preserved in the record. The markings on exhibit 2 merely supplement the testimony.

In sum, we reject Voelkers contention that evidence was destroyed in this case when some markings on exhibit 2 were erased.

4. The Offer of $10,000 To Settle the Case Was Reasonable

Morales sought an award of $57,752 in costs; the court taxed several items, and awarded $50,189.85. Voelker challenges the award on the ground that the Code of Civil Procedure section 998 (hereafter section 998) pretrial offer by Morales to settle for $10,000 was not reasonable; Voelker does not challenge the cost award on other grounds. Voelker relies on authority that holds that a section 998 offer must be realistically reasonable under the circumstances of a particular case. (E.g., Wear v. Calderon (1981) 121 Cal.App.3d 818, 821.)

The trial court specifically found that the section 998 offer was reasonable. The determination of the good faith and reasonableness of a section 998 offer is left to the sound discretion of the trial court. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1264.)

The trial courts finding that the section 998 offer was reasonable was well within the bounds of its discretion. To begin with, the trial result itself constitutes prima facie evidence that the offer was reasonable. (Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1264.) Voelker has not offered anything to rebut this prima facie showing. His claim that damage exposure was exceedingly high in light of medical expenses of $279,000, and that he was therefore resolved to take the case to trial unless he was offered something close to that sum, does not take into account that Voelkers case lacked probative evidence showing that Morales was liable. A finding of liability was predicated in large extent on Voelkers own testimony, which, as the verdict confirms, was not persuasive. The reasonableness of a section 998 offer is objectively determined. The circumstance that this particular plaintiff was resolved to take the case to trial, however mistaken that decision was, is not a factor in determining whether the section 998 offer was reasonable. In light of the verdict, the offer of $10,000 was certainly reasonable.

DISPOSITION

The judgment is affirmed. Respondent is to recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

FLIER, J.

We concur:

COOPER, P. J.

RUBIN, J.

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Analysis and review provided by Oceanside Property line attorney.

^[1] Q [By Moraless counsel] [W]hen you first contacted the car, what is the next thing that occurred? [] A [Voelker] The car is moving; and when I hit it ‑‑ did you want me to give the scenario as to what happened? [] Q I would like to hear whats the next thing that occurred after your contact with the car? [] A When I hit the right front of the car, my feet were planted kind of in a northwesterly direction. (Italics added.)

^[2] As the reviewing court, we are required to consider evidence that is favorable to the prevailing party, and to draw every reasonable inference in favor of that party. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  359, pp. 408-410.)

^[3] Evidence Code section 1152 provides that evidence of a settlement is inadmissible to prove a persons liability.

^[4] It is also true that Nicholss bias is simply not an issue. His testimony about the foundational facts noted in the text was uncontroverted.

^[5] These were copies of exhibit 2.