White v. FAV

Filed 8/30/06 White v. FAV CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment and an order of the Superior Court of San Diego County, Jeffrey B. Barton, Judge. Affirmed.

In this personal injury action, plaintiff Rick White appeals a judgment on a jury verdict for defendant FAV, Inc. (FAV) and a postjudgment order denying his motions for judgment notwithstanding the verdict (JNOV) or a new trial. White challenges two of the trial court's evidentiary rulings: (1) its denial of his motion to exclude his deposition testimony that the accident "was my fault for sure," and (2) its sustaining of FAV's objections to a third party's extrajudicial statement that he was responsible for the accident, and to his proposed direct testimony of the same nature. White contends he was incompetent to admit fault because of a brain injury he suffered in the accident, the third party's hearsay statement is admissible under an exception to the hearsay rule based on agency principles, and the third party's direct testimony would not be speculative. We affirm the judgment and the order.

FACTUAL AND PROCEDURAL BACKGROUND

In the early 1990's White got an idea for a waterless fire-fighting device, called the Firecat, which would cut fire breaks and extinguish brush fires. White formed FAV to develop and market the Firecat, and in the mid-1990's he obtained two patents for it and assigned them to FAV.

Charles Eminhizer, Ph.D., a physicist, agreed to assist White in developing the Firecat. Dr. Eminhizer received shares of FAV stock in lieu of payment for his services, but when the accident occurred he was not an officer or director of FAV.

On April 13, 2001, the third prototype of the Firecat was tested on private property in Niland, California. The Firecat consisted of rotating brush cutting blades attached by a long apparatus to a tractor, and the operator could control the blades with a switch inside the tractor cab.

White, who drove the tractor, Dr. Eminhizer, who participated in the testing, and two videographers were in radio contact with each other. To measure the efficacy of the Firecat, a brush fire was set on the property. During the testing, White stopped the Firecat and exited it three times without incident. Each time, he turned off the blades before exiting and Dr. Eminhizer was present.

Later in the day, one of the videographers said he had enough footage of the testing. White nonetheless continued to operate the Firecat near the fire. Dr. Eminhizer, however, was tired and left the area to rest. He turned off his radio and could not hear White.

On the videotapes of the testing, White is heard to exclaim, "There's fire on the head." The "head" is a crossbar on the Firecat that supports the blades. White then exited the tractor without turning off the blades. He grabbed a hose, went to the front of the Firecat and walked directly into the spinning blades while looking in their direction. He sustained permanent and disabling injuries, including a severe brain injury, multiple orthopedic injuries and peripheral nerve injuries. He was in a coma for several weeks.

White sued FAV for negligence. His theory was that the accident was caused by Dr. Eminhizer's failure to observe White and stay in radio contact with him during the entirety of the testing, for which FAV was vicariously responsible.^[1] FAV argued that White caused the accident by failing to turn off the blades before exiting the Firecat and walking into the blades. The videotapes of the testing, one of which captured the entire accident, were admitted into evidence.

The jury found FAV was negligent, but the negligence was not a substantial factor in causing the accident. Judgment was entered for FAV on February 1, 2005. White

brought motions for JNOV and a new trial, based on the evidentiary issues he raises here, and the court denied the motions.

DISCUSSION

I

White's Admission of Fault

White testified in deposition that the accident "was my fault for sure." During opening statement, White's counsel advised the jury that White does not recall the accident, "and if asked what happened, he'll tell you with the innocence and simpleness of a child, oh, it's my fault, I walked into the blade."

During White's case in chief, however, he presented a motion in limine to exclude his deposition testimony. White argued his opinion on fault was speculative and irrelevant as he did not remember the accident because of his brain injury. Alternatively, he argued that any probative value was offset by undue prejudice. (Evid. Code,^[2] § 352.)

" '[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.' " (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900, citing People v. Waidla (2000) 22 Cal.4th 690, 717.) "[A] reviewing court should not disturb the exercise of a trial court's discretion unless it appears that there has been a miscarriage of justice. . . . 'Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' " (Dehnam v. Superior Court (1970) 2 Cal.3d 557, 566.)

We find no abuse of discretion. White's deposition testimony is a party admission. (§ 1220.) "An admission consists of a statement or conduct of a party to the action . . . that is offered against the party at the trial." (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 90, p. 793.)

White claims the court's ruling was improper because his brain injury made him incompetent to admit fault. White, however, never sought any finding he was incompetent to testify (see § 701), and during direct examination at trial he testified on a variety of issues, including the development and testing of the Firecat and his post-accident activities and lifestyle.

White's reliance on Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, is misplaced. In Stanchfield, the Court of Appeal concluded the trial court did not abuse its discretion by disqualifying a witness under section 701 because he suffered from dementia and did not understand the duty of a witness to tell the truth. (Stanchfield, at pp. 1506-1507.) White, however, did not move to disqualify himself as a witness under section 701, he merely sought to exclude testimony harmful to his case.

Further, although White did not recall the accident an adequate factual foundation was established for admission of his deposition testimony. During the same deposition he testified he had seen the videotape of the accident and had discussed the accident with one of the videographers. As the trial court explained in its ruling, the videotape shows White getting out of the tractor cab without shutting off the blades, exiting the cab and walking directly into the spinning blades while looking in their direction. White conceded he was quite familiar with the operation of the Firecat as he had built it, he decided not to equip the Firecat with guards for purposes of testing, and he knew it had no guards at the time of the accident and that if he got anywhere near the spinning blades they could seriously injure him.

Additionally, the court gave White the opportunity to present expert evidence regarding his injuries and any impact they may have had on his ability to admit fault. Calvin Colarusso, a psychiatrist, testified White had extreme injuries to his right arm and leg and his brain, but White denied he had any problems and pronounced, " 'I'm fine.' " Dr. Colarusso explained that "in many ways, [White] said he's better than he was before the injury. This obviously shows impaired reasoning and judgment." Further, Dr. Colarusso stated: "[White's] life has changed so dramatically, injuries so severe to his entire right side and to his brain, that to acknowledge that would be exquisitely painful and difficult, and he hasn't been able to come to grips with the severity of his injuries or the degree of impairment."

Dr. Colarusso also testified that White's "opinion on anything has to be considered at the least suspect because of lack of judgment and the ability to comprehend and reason." It was the jury's province to assess White's credibility and weigh his admission in light of the medical evidence.

Although our above discussion is dispositive, we also note that because of the videotape of the accident it is not reasonably probable White would have obtained a more favorable result in the absence of his admission. Thus, any arguable error was not prejudicial. (Cal. Const., art. VI, § 13.) As the court noted, the videotape was "the most important evidence in the entire trial," and it "diminishes to a degree the importance of opinions and conclusions of fault by the parties . . . since . . . the jury was able to independently evaluate the actions of the parties throughout the day and at the time of the accident."

II

Dr. Eminhizer's Opinion of Fault

A

White also contends the court abused its discretion by disallowing Dr. Eminhizer's out of court statement he was responsible for the accident because when it occurred he had left the scene and discontinued radio contact with White.

White attempted to introduce the evidence twice at trial. During White's examination of Dr. Eminhizer, the following exchange took place:

"Q. Dr. Eminhizer, you've told people that if you were at the site at the time of this accident, it wouldn't have happened, correct?

"A. No.

"Q. Do you think that if you were at the site test of this accident, that it wouldn't have happened?"

FAV's counsel objected to the last question on grounds of speculation and incomplete hypothetical, and the court sustained the objection.

During the testimony of White's fiancée, Susan Bagaso, White sought to introduce evidence Dr. Eminhizer "told her that he could have prevented the accident if he had left his radio on and had been at the scene." The court sustained FAV's objection to the evidence.

Further, in his motions for JNOV or a new trial, White argued the court erred by sustaining FAV's objection to an examination of Dr. Eminhizer on his opinion of fault and by excluding evidence of Dr. Eminhizer's statement to Bagaso. In support of the motion, White submitted the declaration of Dr. Eminhizer. It stated he incorrectly denied at trial telling anyone he was responsible for the accident, and the evening of the accident he told Bagaso at the hospital "that if I had been at the test site, the accident would not have happened. I also told [her] that I could have prevented the accident if I had not been sitting in Bob Gardner's [a videographer] van with my radio off."

The trial court properly excluded evidence of Dr. Eminhizer's statement to Bagaso as inadmissible hearsay. " 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (§ 1200, subd. (a).) Except as provided by law, hearsay evidence is inadmissible. (§ 1200, subd. (b).)

In his posttrial motions, White cited section 1224, which sets forth an exception to the hearsay rule. The statute provides: "When the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, . . . evidence of a statement made by the declarant is as admissible against the party as it would be if offered against the declarant in an action involving that liability, obligation, duty, or breach of duty." (§ 1224.)

Despite the literal language of section 1224, however, the statute does not apply to admissions of fault by an employee or agent. (1 Witkin, Cal. Evidence, supra, Hearsay, § 128, p. 834.) In Markley v. Beagle (1967) 66 Cal.2d 951, our high court held that Evidence Code section 1224's predecessor (former Code Civ. Proc., § 1851) "did not change the settled and apparently universally followed rule that hearsay statements of an agent or employee not otherwise admissible against the principal or employer are not made admissible merely because they may tend to prove negligence of the agent or employee that may be imputed to the principal or employer under the doctrine of respondeat superior." (Markley v. Beagle, at p. 959.) The court explained the " 'rule that would allow an agent, after a transaction is closed, to admit away the rights of his [or her] principal, would be too dangerous to be tolerated for a moment.' " (Ibid.)^[3]

In Labis v. Stopper (1970) 11 Cal.App.3d 1003, the court held the hearsay statement of an employee of the defendant that "related a specific and detailed act by the employee" was admissible under section 1224. The employee told a police officer "he had moved a canvas drop cloth 'but he didn't realize anybody was standing on it.' " (Labis v. Stopper, at p. 1004.) The court distinguished Markley v. Beagle on the ground that in that case "the employee did not purport to give any detail of the manner or method of his performance of the work. He said only that his employer had removed and reinstalled the railing there in issue. The court commented [citation] on 'the very vagueness of [the employee's] description of the work.' " (Labis v. Stopper, at p. 1005, citing Markley v. Beagle, supra, 66 Cal.2d at p. 960.) The court also noted that in Markley v. Beagle, the employee no longer worked for the defendant when he made the statement, and thus it was not a vicarious admission under section 1222. (Labis v. Stopper, supra, at p. 1005.) In Labis v. Stopper, however, the court cautioned that employee statements such as " 'It was my fault,' " or " 'I was wrong,' " are not admissible against their employers under section 1224. (Labis v. Stopper, supra, at p. 1005.)

As the trial court explained here, under Markley v. Beagle and Labis v. Stopper, Dr. Eminhizer "was allowed to give testimony in great detail concerning his actions on the day of the accident," but he "was not allowed to give general conclusions on causation." The court properly excluded the conclusory opinion on causation that Dr. Eminhizer expressed to Bagaso at the hospital as not falling within the ambit of section 1224.

Moreover, although any opinion of Dr. Eminhizer offered at trial that he was responsible for the accident would not have been hearsay, the court properly excluded it. Again, an employee or agent may not " 'admit away the rights of his [or her] principal' " by making a conclusory statement about fault. (Markley v. Beagle, supra, 66 Cal.2d at p. 959.) Further, it is undisputed that Dr. Eminhizer did not witness or hear the accident or review the videotape of the accident until a week before trial. As the court explained, "There was no testimony about a safety role for [Dr.] Eminhizer . . . . Where he would have been, whether he could have seen . . . White, and what he would have done or been able to do, all lack foundation and are speculative even in retrospect. The foundational questions were not asked and an adequate foundation for the opinion was not laid."

B

White also contends section 1222 is applicable because Dr. Eminhizer was FAV's corporate agent. The statute provides the hearsay rule does not apply to a statement offered against a party if it "was made by a person authorized by the party to make a statement . . . for him [or her] concerning the subject matter of the statement." (§ 1222, subd. (a).) "Section 1222 provides a hearsay exception for authorized admissions. Under this exception, if a party authorized an agent to make statements on his [or her] behalf, such statements may be introduced against the party under the same conditions as if they had been made by the party himself [or herself]. The authority of the declarant to make the statement need not be express; it may be implied. It is to be determined in each case under the substantive law of agency." (Cal. Law Revision Com. com., 29B Pt.4 West's Ann. Evid. Code (1995 ed.) foll. § 1222, p. 159.)

An agent's hearsay statement may be offered "either after admission of evidence sufficient to sustain a finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence." (§ 1222, subd. (b).) "When the essential facts are not in conflict and the evidence is susceptible to a single inference, the agency determination is a matter of law for the court." (Emery v. Visa Internat. Service Assn. (2002) 95 Cal.App.4th 952, 960.)

"An agent is one who represents another, called the principal, in dealings with third persons." (Civ. Code, § 2295.) An agent "acts for and in the place of the principal for the purpose of bringing the principal into legal relations with third persons." (3 Witkin, Summary of Cal. Law (10th ed. 2005) Agency and Employment, § 4, p. 42.)

" 'The fact that parties had a preexisting relationship is not sufficient to make one party the agent for the other. . . . [Citation.] An agency is proved by evidence that the person for whom the work was performed had the right to control the activities of the alleged agent. [Citation.]' [Citations.] By the same token, '[a] person does not become the agent of another simply by offering help or making a suggestion.' [Citation.] . . . 'Control may not be inferred merely from the fact that one person's act benefits another. [Citation.]' " (van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 572.) " 'In the absence of the essential characteristic of the right of control, there is no true agency . . . . ' " (Ibid., citing Edwards v. Freeman (1949) 34 Cal.2d 589, 592.)

White made no foundational showing that when Dr. Eminhizer made the hearsay statement to Bagaso he was an agent of FAV, and thus the court properly disallowed evidence of it. Dr. Eminhizer testified he had been a shareholder of FAV "for quite some time" and received shares of stock in lieu of compensation. He conceded, however, that at the time of the accident he had never been an officer or director of FAV, he had no written employment agreement with FAV, and never received a W-2 wage tax form or a 1099 form for an independent contractor from FAV. He never signed a contract on FAV's behalf and he was required to get White's approval before making any large expenditure. White adduced no evidence FAV had any control over Dr. Eminhizer's activities.

White relies on Dr. Eminhizer's testimony he was elected treasurer of FAV's board of directors after the accident. To be admissible against the principal, however, a vicarious admission must have been made during the existence of the agency relationship. (Taylor v. Socony Mobil Oil Co. (1966) 242 Cal.App.2d 832, 834; 1 Witkin, Cal. Evidence, supra, Hearsay, § 119, p. 826.) As to Dr. Eminhizer's extrajudicial statement to Bagaso, his status at the time of trial was irrelevant.

Additionally, White asserts that since Dr. Eminhizer was the treasurer of FAV at the time of trial, his proposed opinion testimony on causation would be an authorized admission. Again, however, the substantive law of agency applies, and White made no offer of proof suggesting FAV expressly or impliedly authorized Dr. Eminhizer to speak for it regarding causation, notwithstanding his treasurer position. Again, section 1222 requires that the principal authorize the agent to make a statement for it "concerning the subject matter of the statement." (§ 1222, subd. (a).)

Moreover, as is the case with section 1224, section 1222 does not ordinarily permit an agent's admission of negligence or other tort liability. (1 Witkin, Cal. Evidence, supra, Hearsay, § 122, p. 828.) Under section 1222, " ' " 'whatever is said by an agent, either in the making of a contract for his [or her] principal, or at the time, accompanying the performance of any act, within the scope of his[or her] authority, . . . of the particular contract or transaction in which he [or she] is then engaged, is, in legal effect, said by his [or her] principal, and admissible as evidence . . . . But declarations or admissions by an agent, of his [or her] own authority, and not accompanying the making of a contract, or the doing of an act, in behalf of his [or her] principal, . . . are not binding upon his [or her] principal . . . and are not admissible . . .' " [citation].' [Citation.]" (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1077, second and third italics added.)

White cites cases in which courts held, under section 1222, that top level employees were impliedly authorized to make statements on the employers' behalves. "Place in an employer's hierarchy undoubtedly is important in determining authority to speak." (O'Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 572 (O'Mary) [vice president was authorized to convey company policy to subordinates]; W.T. Grant Co. v. Superior Court (1972) 23 Cal.App.3d 284 (W.T. Grant) [store manager was authorized to reveal company policy to customer].) Again, however, there is no evidence here that FAV had any control over Dr. Eminhizer. Further, in O'Mary and W.T. Grant the authorized admissions were of concrete facts about company policy as opposed to statements of causation. Dr. Eminhizer was allowed to testify as to all relevant factual matters, including the development of the Firecat and the testing procedures, and his failure to remain at the scene or in radio contact with White at the time of the accident.

Lastly, as with the hearsay statement, we conclude that any arguable error the court made in its disallowance of Dr. Eminhizer's effort to take responsibility for the accident in direct testimony was not prejudicial because of the videotape showing White's conduct. (Cal. Const., art. VI, § 13.) Even if Dr. Eminhizer were to testify he believed the accident would not have occurred had he been present, it is unlikely the jury would reached a different result on causation.

DISPOSITION

The judgment is affirmed. FAV is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

HALLER, J.

McDONALD, J.

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^[1] White also alleged the accident was caused by the absence of a safety shield on the Firecat's blades, but that allegation is not at issue on appeal.

^[2] Statutory references are to the Evidence Code unless otherwise specified.

^[3] In Markley v. Beagle, supra, 66 Cal.2d at pages 959-960, the court concluded section 1224 applies in "those situations in which . . . an obligation or duty was an essential operative fact in establishing the cause of action or defense involved. Such situations may arise when the declarant and the party have a privity of interest in the property involved [citation] or the party is one who has assumed responsibility for the obligations of the declarant, such as the guarantor, surety, or insurer, or one, such as a shareholder, made liable by statute for his [or her] corporation's debts."