Navarra v. City of Oakland

Filed 10/26/07 Navarra v. City of Oakland CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant City of Oakland (City) appeals from a judgment awarding Carl J. Navarra damages for personal injuries he sustained in a vehicular accident. The City contends the evidence of causation was insufficient to support the jurys verdict, the trial court made various erroneous rulings, and the verdict should be set aside for juror misconduct. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The action arose from an August 6, 2003, accident that occurred when a car driven by Valerie Alexandrovich collided with a motorcycle driven by Carl Navarra at the intersection of Redwood Road and Atlas Avenue in Oakland. The cause of the collision was in sharp dispute. Alexandrovich and Navarra were traveling in opposing traffic lanes on Redwood Road. Alexandrovich allegedly failed to yield the right of way in making a left turn across the lane in which Navarra was traveling. Navarra allegedly was traveling above the posted speed limit of 30 miles per hour. The City allegedly created and failed to remedy a dangerous condition based on the landscaping in a median island that separated the opposing traffic lanes on Redwood Road that obscured the sight lines of both Alexandrovich and Navarra, thereby preventing them from seeing each other in sufficient time to avoid the collision. After a trial, the jury found Navarra was 1% at fault, Alexandrovich was 50% at fault, and the City was 49% at fault.

DISCUSSION

I. Sufficiency of Evidence of Causation

A. Relevant Facts

The accident occurred on at about 1:30 p.m. on August 6, 2003, a sunny, weekday, at the intersection of Redwood Road and Atlas Avenue. Redwood Road has two west bound lanes and two east bound lanes. Lane number two on each side of Redwood Road was designated as the lane closest to the sidewalk curb and Lane number one was designated as the lanes closest to center median islands that divided the opposing lanes of traffic on Redwood Road, which had a posted speed limit of 30 miles per hour in the area of the intersection. There was an unmarked opening between two median islands to permit a left turn from eastbound Redwood Road onto Atlas Avenue northbound.[1] The median island to the west of the opening (west median) was shaped somewhat to facilitate large vehicles turning left onto Atlas Avenue, but there was no designated marked lane or turn pocket for car traffic attempting to make such turns, and drivers were basically allowed to use any part of the opening to make the left turn in a way that was safe to do so. In the median island to the east of the opening (east median), a luminaire light pole at the nose or end, followed by the landscaping of bushes, vegetation, and three Redwood trees, placed relatively close to the northern curb of the island, obscured the sightlines of each driver traveling in opposing lanes on Redwood Road, thereby allowing each driver to see the other for a distance under 200 feet from the intersection, with a driver in Alexandrovichs position being able to see westbound traffic for only two-thirds of a second between two of the trees. The sight line distance was well below the Caltrans standards, which were in effect on the date of the accident. Further, the City had notice of the visibility limitations and difficulties in making left turns safely from Redwood Road onto Atlas Avenue based on complaints on two different occasions, one in 1978 (four years after the 1974 median islands were built) and one in 1997.

Just before the collision, Alexandrovich was driving her car on the south side of Redwood Road in lane number one. She stopped her vehicle as she prepared to make a left turn and merge onto Atlas Avenue. She had never made a left turn at the intersection before the day of the accident. When she stopped, she positioned her car close to the east median. It was difficult for her to judge how far the front of her car was in relation to the east median because of the poles, trees and shrubbery in the east median island. But, she did not extend her car out into the opposing westbound traffic lane of Redwood Road. Her car was angled towards Atlas. She stopped for a few seconds, looked to the right, and she thought she saw a street. Distance, maybe 20 feet. To the best of her ability, Alexandrovich looked up Redwood Road while stopped but she did not see any traffic coming towards her. She took her foot off the brake and tried to go ahead to see if she could see more. Her car moved forward a few feet. As her car was moving forward, she did not remember where her attention was directed. She thought it was most likely that she was looking right because there was no where else for her to look. She was not sure if she was looking to the right at the time of the impact because she never saw Navarra. After she did not see any traffic, she figured it was okay to cross Redwood Road. As her car moved forward, the front seat passenger said, Careful, careful, and the impact was an instant later. Alexandrovich did not see the motorcycle before it collided into her moving car; she was aware of an impact but she had no idea what it was until she saw Navarra on the pavement. She never saw the motorcycle. After the impact, Alexandrovich went to Navarra, who was lying on the street about 30 feet away. When Navarra asked what he did wrong, Alexandrovich replied she just did not see him. Alexandrovich believed she did not hit the motorcyclist, but that the motorcyclist hit her. After the accident, Alexandrovich returned to the intersection to determine why the accident had happened, and she realized it was because when you sit there you cant see.

Before the collision, Navarra was on his way to work, traveling on his motorcycle in the middle of lane number one on westbound Redwood Road. Although half the time he used Redwood Road to get to work, he had never seen a car turning left across Redwood Road onto Atlas before the day of the accident. As Navarra traveled on Redwood Road towards Atlas Avenue, there was a downhill slope or crest as he approached the intersection of the two roads, and there was no other vehicular traffic either in front of him or to his side. As he started down the hill, he gradually built up speed but he was not sure of his actual speed. He was moving up through the gears but he had not finished accelerating to his final speed at the time of impact. He remembered shifting from first to second gear, and he did not remember going into third gear before the impact. He was scanning the road from one side to the other, peripherally, and he did not see anything up to that point. He did not remember anything. As he was traveling in the middle of the lane towards the opening between the medians at the intersection with Atlas Avenue, he could not see any vehicles in that opening. That median when youre driving down that number one lane, it actually -- as I think back on it now, it looks -- its like a curtain. The first indication he had an accident was just a huge bang. He felt himself being slammed from the side. It seemed like it all happened in a second, he looked down at his leg and he saw a big hole. After the impact, he recalled that a woman put her arms around him and said that she was so sorry, she had not seen him, it was all her fault. He did not remember asking the woman what had happened or what he had done wrong. Navarra claimed he felt an impact from the side. It felt like the car hit him but he was not sure.

John Michael Stephenson, a qualified accident reconstructionist in the area of motorcycle and car accidents, described in as accurate terms as possible the movement of the vehicles through the time of the collision. With the assistance of Paul Kayfetz, a qualified expert in engineering photography, Stephenson reconstructed and prepared a video of the accident placing a car in three positions in the opening between the median islands and using a motorcycle traveling at 20 and 30 miles per hour on westbound Redwood Road. Based on his analysis, as well as additional work done by the Citys experts, Stephenson believed that the east median islands landscaping prevented both Alexandrovich and Navarra from seeing each other as Navarra approached the intersection before Alexandrovich started to cross the westbound lanes of Redwood Road. Given the placement of three Redwood trees in the east median island, from Alexandrovichs position before she made the turn onto Redwood Road, she would not have been able to see the motorcycle while it passed by the first tree to the second tree, and from the second tree to the third tree. She would have seen the motorcycle for about two-thirds of a second if she were looking in that direction. If after she stopped and saw no vehicles, she then moved forward into westbound Redwood Road, Alexandrovich would have lost even that brief view of the motorcycle. Stephenson believed that at the time Alexandrovich started to move forward, the motorcycle was behind a tree and obscured from her view by that tree. The physical evidence did not support Navarras deposition testimony that he was traveling 20 miles per hour at the time of impact; rather, Stephenson believed that Navarra was traveling between 30 and 35 miles per hour at the time of impact. That Alexandrovich did not see the motorcycle until after impact would suggest that she had not looked back to the right as she pulled out into the opposing lane of traffic, and her failure to see could be explained by her looking ahead as she pulled out. If Alexandrovich had accelerated at a normal rate of speed, it would have taken her 3.8 seconds to clear the area of the impact, and over 4 seconds to clear the lane in which Navarra was traveling. But, by that time, Navarra was less than 3.8 seconds away from the area of impact. Navarra was three seconds away when Alexandrovichs car started into the opposing lane of traffic and the motorcycle collided with the front of the car. If Alexandrovich had made a rapid transfer from brake peddle to accelerator and accelerated normally, there would have still been a collision but the motorcycle would have run into the side of the car instead of the front of the car. The damage to Alexandrovichs car started at the center of the car hood, with the major car damage on the drivers side of the front hood. The damage was apparently caused by Navarra hitting the cars hood and then immediately tumbling down into the traffic lane past the car.

B. Analysis

Government Code section 835 provides, in relevant part, that a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [] (b) The public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

The jury found that that the Citys property was in a dangerous condition at the time of the accident, that the condition created a foreseeable risk that this kind of incident would occur, that the City had notice of the dangerous condition for a long enough time to have protected against it, and that the dangerous condition was a substantial factor in causing harm to Navarra.

On appeal, the City challenges on various grounds only the jurys finding that the collision was proximately caused by a dangerous condition at the intersection. We see no merit to the contentions.

The City seeks to overturn the verdict on the ground that there was no certainty as to where Alexandrovich first stopped, where the motorcycle was located when Alexandrovich began to drive into the intersection, where the point of impact was, and what Alexandrovich was doing before she moved out into the opposing lane of traffic on Redwood Road. However, causation does not have to be proven with absolute certainty. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1243.) A plaintiff need only  introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.  [Citation.] (Ibid.) In a case involving allegations of multiple causes, [t]he substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 978.) As the jury was instructed in this case: 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. Thus, [t]he [City] may be held liable if its negligence in maintaining dangerous property and the negligence of [Alexandrovich and Navarra] concur as proximate causes of [Navarras] injury. [Citations.] This was a question of fact for the jury [citation]. (Harland v. State of California (1977) 75 Cal.App.3d 475, 485.) The City contends, however, that the fact the intersection is dangerous does not mean it caused the accident. (See Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 8-9.) Undoubtedly the latter proposition is true. But, the issue of whether the acts of Alexandrovich and Navarro broke the chain of causation, or whether they were simply concurring acts with the dangerous intersection is simply a question of proximate cause for the jury. (Bauman v. San Francisco (1940) 42 Cal.App.2d 144, 154.)

The City also argues that in determining the cause or causes of the accident, the jury could not have given credence to certain portions of the experts testimony regarding how various factors might have affected the acts of Alexandrovich and Navarra. We disagree. As the triers of fact, the jurors were free to consider the testimony and all the reasonable inferences to be drawn therefrom to resolve the conflicts in the evidence and to pass upon the weight to be given the evidence. [Citations.] It is well settled that the trier of fact may accept part of the testimony of a witness and reject another part even though the latter contradicts the part accepted. [Citations.] As [the court] said in Nevarov v. Caldwell (1958) 161 Cal.App.2d 762, 777, the jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material. [Citations.]  (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 67-68.) [I]n accordance with established principles of appellate review, we must presume on appeal that the [trier of fact] found disputed issues of fact in favor of the prevailing party at trial, and we must indulge every reasonable inference from the evidence to support the verdict. [Citation.] (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1028.) [T]he fact that inconsistencies may occur in the testimony of a given witness does not . . . mean that such testimony is necessarily insufficient to support the verdict. It is for the trier of fact to consider internal inconsistencies in testimony, to resolve them if this is possible, and to determine what weight should be given to such testimony. (Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 878.) These rules will obtain even though to some triers of fact the evidence in the instant case would have seemed so improbable, impossible and unbelievable that a judgment contrary to that now on appeal would have inevitably followed. (Romero v. Eustace (1950) 101 Cal.App.2d 253, 254.)

Although the evidence was conflicting, the jury could have concluded that had the City not maintained a dangerous condition at the intersection, the accident would not have occurred because either Alexandrovich or Navarra, or both drivers, would have seen each other in sufficient time to avoid a collision, and that the negligent acts of Alexandrovich and Navarra were concurring, but not superseding, causes of the accident. Proximate causation exists where the [dangerous] condition. . . . is a substantial factor in causing the injury; that is, there is reason to believe the absence of the condition . . . would have prevented or lessened the likelihood of injury. [Citation.] (City of Los Angeles v. Shpegel-Dimsey, Inc. (1988) 198 Cal.App.3d 1009, 1021.) On this record, the jury could reasonably have inferred that [the Citys] maintenance of a dangerous condition was a proximate and contributing cause of the accident. (Harland v. State of California, supra, 75 Cal.App.3d at p. 486.)

II. Trial Courts Rulings

A. Denial of Citys Motion for Directed Verdict

 [T]he power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit. [Citation.] A motion for a directed verdict is in the nature of a demurrer to the evidence, and is governed by practically the same rules, and concedes as true the evidence on behalf of the adverse party, with all fair and reasonable inferences to be deduced therefrom.  [Citation.] (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 210, fn. omitted.) A directed verdict is . . . subjected to de novo appellate review. (Ibid.) But, defects not specifically pointed out by the moving party cannot be considered by the trial court, or by us, in determining the merits of the motion. (Consolidated World Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 378.) Additionally, [r]eversal of the denial of a motion for . . . directed verdict is only proper when no substantial evidence exists tending to prove each element of the plaintiffs case. (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 263.)

The City moved for a directed verdict based on the affirmative defense of design immunity under Government Code section 830.6, which reads, in relevant part: Neither a public entity nor public employee is liable . . . for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or standards therefor. Thus, [a] public entity claiming design immunity must establish three elements: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. [Citations.] (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 66 (Cornette).)

Nevertheless, [d]esign immunity does not necessarily continue in perpetuity. [Citation.] (Cornette, supra, 26 Cal.4th at p. 66.) Government Code section 830.6 also provides, in relevant part: Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. To demonstrate loss of design immunity a plaintiff must . . . establish three elements: (1) the plan or design has become dangerous because of a change in physical conditions; (2) the public entity had actual or constructive notice of the dangerous condition thus created; and (3) the public entity had a reasonable time to obtain the funds and carry out the necessary remedial work to bring the property back into conformity with a reasonable design or plan, or the public entity, unable to remedy the condition due to practical impossibility or lack of funds, had not reasonably attempted to provide adequate warnings. [Citations.] (Cornette, supra, 26 Cal.4th at p. 66.)

In support of its motion for a direct verdict, the City argued it had presented sufficient evidence to show that it had met the three elements of the defense. The City also argued that there was not sufficient evidence regarding any loss of design immunity due to changed circumstances. Navarra and Alexandrovich opposed the motion, arguing that the City failed to submit sufficient evidence to show that the as-built 1974 plans had been appropriately approved by the City. Additionally, it was argued that regardless of the courts findings regarding design immunity, there was sufficient evidence to submit to the jury the question of the loss of design immunity due to changed circumstances at the intersection.

In its opening and reply briefs, the City extensively argues that it presented sufficient evidence establishing the three elements of the design immunity defense to warrant a directed verdict. As noted by Navarra, however, the City does not expressly address in its opening brief whether the denial of the directed verdict is sustainable because the loss of design immunity was a question of fact for the jury. The Citys attempts to remedy any deficiency in its reply brief regarding the latter issue is unavailing. Even assuming the City had established all the elements of the design immunity defense, it has failed to establish that the trial court erred in denying its motion for a directed verdict.

Addressing the Citys procedural arguments, we are not persuaded that the issue of the loss of design immunity did not play any part in the trial courts denial of the Citys motion for a directed verdict. The City, Navarra, and Alexandrovich each presented arguments on the issue before the trial court ruled on the Citys motion for a directed verdict.

We also reject the Citys argument that it failed to address the loss of design immunity in its opening brief because Navarra failed to ask the court to instruct the jury on the issue. Nothing precluded the City from putting Navarra to his burden of proving the elements of the loss of design immunity by requesting an appropriate instruction. The City could have asked the court to consider using the recommended language in BAJI No. 11.68 or appropriate language in the newly issued CACI instructions. Alternatively, the City could have crafted its own instruction on the issue.

As to its substantive arguments, the City commented in its opening brief regarding the roles of the court and jury, acknowledging that whether the City had lost its design immunity defense due to changed circumstances was a question for the jury. In the course of discussing whether there was substantial evidence that the original design of the intersection was reasonable, the City argued that its expert witness had testified that the sight distances at the intersection met the standards set out by the American Association of State Highway and Transportation Officials (AASHTO), and that those sight distances were valid even under the current condition of the intersectionthat is, the presence of mature redwood trees, light poles, vegetation, etc., did not obstruct the view of a driver in Alexandrovichs position of oncoming traffic under the AASHTO design standards. However, neither the comment nor argument supports the grant of a directed verdict.

In seeking a directed verdict, the City was required to demonstrate that there was no substantial evidence in the record to allow the matter to go to the jury on the issue of the loss of design immunity. (Adams v. City of Fremont, supra, 68 Cal.App.4th at pp. 262-263.) Here, the City does not rely on the insufficiency of Navarras evidence, but rather on the conclusive nature of the testimony of its own expert witness that established without dispute that the design currently met AASHTO sightlines. In other words, the record established that the design was reasonable even assuming circumstances had changed. The Citys argument fails for two reasons.

First, the City ignores that the stated principleuncontroverted expert opinion testimony may be conclusive on the juryis actually the single exception to the general rule that expert testimony, like any other, may be rejected by the trier of fact, so long as the rejection is not arbitrary. [Citation.] (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632 (Howard).) The testimony of an expert may only be conclusive to the extent that it may not be contradicted by the testimony of a nonexpert witness. (Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89, 95.) Expert testimony is not conclusive in the sense that it must be accepted as true. (Ibid.) It is really an argument of an expert . . ., and is valuable only in regard to the proof of the facts and the validity of the reason advanced for the conclusions. [Citation.] The weight to be given to the opinion of an expert depends on the reasons he [or she] assigns to support that opinion. [Citations.] (People v. Martin (1948) 87 Cal.App.2d 581, 584; see Howard, supra, 72 Cal.App.4th at pp. 632-633.) Thus, had the issue of loss of design immunity been presented, the jury would not have been required to accept the testimony or opinions of the Citys expert witness. (Howard, supra, 72 Cal.App.4th at p. 633.)

Second, the City misconstrues the concept of the loss of design immunity. The questions involved in loss of design immunity, e.g., whether the plan or design has become dangerous because of a change of physical conditions, are not the identical questions considered by the government officers who adopted or approved the plan. (Cornette, supra, 26 Cal.4th at p. 73.) The rationale for design immunity is to prevent a jury from second guessing the decision of a public entity by reviewing the identical questions of risk that had previously been considered by the government officers who adopted or approved the plan or design. [Citation.] (Id. at p. 69.) A public entity, however, does not retain immunity for a second design decisionwhen an entity, having been put on notice that the original design may have become dangerous because of changed physical circumstances, decides that the design is still reasonable . . .  (Id. at p. 79.) As explained by the Cornette court, The [statutory] language in question does not allude to a finding by the public entity as to whether its design is or is not reasonable in light of changed circumstances, but merely indicates that, notwithstanding the public entitys notice that its design immunity may have become unreasonable, its immunity continues to provide it with a reasonable time and opportunity to remedy or warn of the inadequacy of the existing design. (Id. at pp. 79-80, emphasis in original and added.) Because the testimony of the Citys expert that the design was still reasonable even in the face of changed circumstances does not address the issues involved in the loss of design immunity under Government Code section 830.6 (Cornette, supra, 26 Cal.4th at pp. 77, 79), such evidence cannot support the grant of a directed verdict in favor of the City.

B. Refusal to Instruct the Jury on Vehicle Code Section 22100

During conferences regarding proposed jury instructions, the City sought to have the jury instructed using certain language in subdivision (b) of the Vehicle Code section 22100. The proposed written instruction is not included in the record on appeal. At the conferences, the Citys counsel asked the court to instruct the jury using some of the language of subdivision (b), which reads: The approach for a left turn shall be made as close as practicable to the left-hand edge of the extreme left-hand lane or portion of the roadway lawfully available to traffic moving in the direction of travel of the vehicle . . . . (Veh. Code,  22100, subd. (b)). As applied to the facts of the case, the City argued that the Vehicle Code required Alexandrovich to adhere as close as possible to the left-hand edge of the west median island, and the accident occurred because Alexandrovichs failure to properly position her car impaired her visibility as she attempted to make the left turn. The City also noted that its expert witness had testified that the median had been designed consistent with Vehicle Code section 22100 to guide the driver to that position for the left turn. Navarra and Alexandrovich opposed the request on the ground that the Vehicle Code section was not applicable to the intersection in question, that the section did not require a driver to turn left hugging the median strip, and that there was contrary expert witness testimony that a left turn could be made onto Atlas Avenue from various positions in the opening between the median islands. After agreeing with counsel that there was conflicting expert witness testimony on the applicability of the Vehicle Code section, the court denied the request on the ground that giving the instruction would confuse the jury.

The City renews its argument that the court should have instructed the jury on the requirements of making left turns using the language in Vehicle Code section 22100, subdivision (b). We conclude the City has failed to affirmatively show any prejudicial error.

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. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the partys theory to the particular case. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) Thus, when a proposed instruction correctly states the law, and there is evidence to support it, a trial court commits error if it refuses to give it. (Id. at pp. 573-574.) But, there is no rule of automatic reversal or inherent prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. [Citation.] (Id. at p. 580; see Cal. Const., art VI,  13.) Thus, as an appellate court, in evaluating whether instructional omission is prejudicial, we consider (1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsels arguments, and (4) any indications by the jury itself that it was misled. (Soule v. General MotorsCorp., supra, at pp. 580-581, fn. omitted; see Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1156.)

Our review of the prejudicial effect of the trial courts ruling is hampered by the Citys failure to include in its appendix a copy of counsels closing arguments. Navarras appendix contains a copy of the written instructions given to the jury. A review of those instructions indicates the jury was adequately instructed on a drivers obligations in making left turns at the intersection at issue. The court told the jury that [a] driver must use reasonable care when turning or moving . . . to the left, must keep a lookout for . . . other vehicles, and must also control the . . . movement of . . . vehicles. As to Alexandrovichs statutory obligation, the court told the jury that under Vehicle Code section 21801, a driver intending to turn to the left . . . , or to turn left into public . . . property . . . , shall yield the right-of-way to all vehicles approaching from the opposite direction which are close enough to constitute a hazard at any time during the turning movement, and shall continue to yield the right-of-way to the approaching vehicles until the left turn . . . can be made with reasonable safety. The jury was also told that a hazard as used in the statute exists if any approaching vehicle is so near or is approaching so fast that a reasonably careful person would realize that there is a danger of a collision or accident, and that [a] driver who is attempting to make a left turn must make sure that no oncoming vehicles are close enough to be a hazard before he or she proceeds across each lane. Given the courts specific instruction pertaining to the statutory provision regarding yielding right of way, violation of which constitutes, of course, negligence per se, the jury apparently found Alexandrovich negligent. (Gunter v. Claggett (1944) 65 Cal.App.2d 636, 640, disapproved on another ground in Prichard v. Veterans Cab. Co. (1965) 63 Cal.2d 727, 732.) The City speculates that the omitted instruction regarding left turns at intersections was necessary to allow the jury to fully assess Alexandrovichs conduct and that an instruction regarding the position of her car would have resulted in, at the very least, a higher apportionment of fault to her and less to the City. On the limited record before us, we cannot conclude the courts refusal to give the proposed instruction prejudiced the Citys rights.

C. Continuance of Deliberations After Request for Read Back of Testimony

The jury heard closing arguments and the courts instructions on Friday, October 28, 2005. After deliberating for about five days, on Friday, November 4, the jury asked for a read back of Alexandrovichs trial testimony. The court informed the jury that the testimony would not be available until the coming Monday and encouraged them to deliberate if you feel you can do so. And if not, of course we would see you Monday. So thats where it is now. In response to the courts statement, the jury foreman replied, We should continue for a little bit. We are deliberating. The court responded, All right, Thank you. And then youre asked to resume your deliberations . . . . 

Outside the presence of the jury, the Citys counsel expressed his concern that the jury might reach some compromise verdict if they did not hear a read back of Alexandrovichs testimony. Navarras counsel agreed with the Citys concern that one of the parties might be potentially affected by the jury not hearing the requested testimony and asked the court to dismiss the jury and to continue the deliberations until the following week. The court considered dismissing the jury until Monday, but if the jury were close to a decision, the court was prepared to allow the jury to deliberate for another hour or two. The Citys counsel then indicated that it was not clear how many jurors wanted to hear the requested testimony, and the foreman had seemed to say there were things the jurors could talk about not involving this testimony. Although the court apparently did not interpret the foremans statement as indicating that the deliberations would be so limited, the court agreed that if it was not likely a decision would be reached, the jury should be told that after lunch, they would be discharged until Monday.

When the jury returned to the courtroom, the court stated that it thought the jury should be able to hear a read back of Alexandrovichs trial testimony. The court told the jury they were discharged and asked them to come back on Monday. When the court asked if the jury had strong feelings one way or the other, the jury foreman replied that one juror was unavailable on Monday. The court replied that the jury could return on Tuesday. The jury foreman then stated, We still want to continue today. The court replied, Absolutely then. You can continue today and do the other things that you were going to resolve. Is that correct ? to which the foreman replied, Thats correct. The court then told the jury that lunch was on its way. Another juror asked the court, If we dont finish today, is Tuesday okay for us to come in? After asking counsel if that was agreeable, the court indicated the jury was to return on Tuesday. The courts minute orders indicate that at 12:00 p.m. the jury recessed for lunch, remaining in the jury room, and that deliberations resumed at 12:30 p.m. for another hour and a half, with a 15 minute recess. At 1:50 p.m., the jury notified the court that it had reached a verdict. Ten minutes later, the jury returned to the courtroom and delivered its verdict.

The City now argues that the trial court erred in allowing deliberations to continue to verdict. However, the issue is not preserved for our review. At no time did the City request that the court admonish the jury not to reach a verdict until they had heard the requested testimony. Nor did the City respond when the jury indicated it had reached a verdict by either objecting to the courts acceptance of the verdict and requesting that the jury continue deliberations, or by moving for a mistrial. Any reliance by the City on certain statements made by counsel, the court, and the jurors during the discussions regarding the continuation of deliberations is misplaced. Counsel recognized, and the jurors statements in the courtroom so indicated, that even without hearing the requested testimony, the jurors were deliberating to reach a verdict, and that only if they did not finish on Friday would they return on the following Tuesday.

The Citys argument that the failure of the jury to hear the read back of the requested testimony could easily have had a dramatic effect on the outcome of the trial is speculative. The City relies on an affidavit submitted by one juror after the verdict, in which the juror indicated the testimony was requested because some of the jurors did not believe that Alexandrovich had testified that she could not recall if she had looked before she proceeded into the intersection. However, the juror does not indicate that the failure to hear the requested testimony caused any juror to vote in a certain way or otherwise had an impact on the verdict that was ultimately reached.

D. Post Trial Allocation of Settlement

Before trial, Alexandrovich and her husband, Abraham Alexandrovich, and ABA Investments, LLC, who were named parties to the lawsuit, settled their claims with Navarra for $1.1 million. Although the court found the settlement was entered into in good faith pursuant to Code of Civil Procedure section 877.6, there was no allocation of the settlement representing economic and noneconomic damages.

After the verdict was rendered, the City sought certain offsets against the economic damages of $1,219,528 awarded by the jury.[2] The parties agreed that the City was entitled to an offset pertaining to Navarras paid medical bills. [3] Without objection, the jury had properly received evidence of about $927,000 in medical bills incurred by Navarra, which reflected on the nature and extent of his injuries and were therefore relevant to the jurys assessment of the overall general damage award. (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1295-1296.) However, under Government Code section 985, subdivision (b), Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 306, and Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 641, Navarra was only entitled to recover damages for the actual sums expended or incurred for past medical services. The parties agreed that Navarra had paid medical bills of $428,357.13, and because the jurys award of $927,000 for medical expenses exceeded that amount by $498,642.87, the latter sum was to be subtracted from the jurys award of economic damages.

The parties, however, disputed the allocation of the $1.1 million settlement. The City sought an offset of 21 percent of the settlement, which reflected the jurys finding allocating 21 percent of the total damage award to economic damages. Navarra argued the City should be allowed only an offset of 16 percent, which would accurately reflect that Navarra was entitled to recover only for the actual sums expended or incurred for past medical services. The trial court awarded damages using the 16 percent figure requested by Navarra.

On appeal, the City renews its argument that the allocation of the $1.1 million settlement should have reflected the jurys allocation of economic and noneconomic damages. According to the City, a court cannot adopt a formula for calculating an offset that is different from the jurys apportionment of economic and noneconomic damages, citing to Greathouse v. Amcord, Inc. (1995) 35 Cal.App.4th 831, 838 (Greathouse). However, Greathouse does not require the court to use a specific formula in allocating a pretrial settlement. (Cf. Ehret v. Congoleum Corp. (1999) 73 Cal.App.4th 1308, 1322 [settlement credit should reflect jurys allocation of economic damages to total damages in the absence of showing of some alternative basis for allocation].)

The City argues that while Navarra may be correct in that the reduction for paid or incurred medical expenses more accurately reflects the economic damages he suffered, the adjustment was improper because there is no way of knowing how the jury itself would have adjusted its award if it had been aware that the medical damages claimed were substantially overstated. It cannot be assumed that the jury would simply have reduced the award by a comparable amount, given the inherently unpredictable character of jury awards in general, and the divisiveness of this panel in particular. We disagree. Even though Navarras recovery for past medical expenses was limited, there was no basis in law to prevent the jurors from receiving evidence of the amounts billed [as medical expenses], [because] they reflected on the nature and extent of [his] injuries and were therefore relevant to their assessment of an overall general damage award. (Katiuzhinsky v. Perry, supra, 152 Cal.App.4th at pp. 1295-1296.) Further, if Alexandrovich had not settled, any award of past economic damages that she would have been required to pay would have been subject to a credit to reflect that Navarra was only entitled to recover those medical expenses actually paid. (See Nishihama v. City and County of San Francisco, supra, 93 Cal.App.4th at p. 306; Hanif v. Housing Authority, supra, 200 Cal.App.3d at p. 641.) Thus, we see no error in the trial courts conclusion that the allocation of the settlement should reflect payment of only past medical expenses that could be recovered by Navarra. Because there was an affirmative showing of some alternative basis to allocate economic and noneconomic damages compensated by the settlement that supports the trial courts discretionary ruling, the Citys request for a modification of the judgment is denied.

III. Juror Misconduct

The City seeks a new trial because the jury rendered an improper quotient verdict. It relies on affidavits of five jurors that were filed in the trial court after the verdict was rendered. In response, Navarra argues the issue is not properly before us because the City did not move for a new trial on this basis in the court below. We conclude that the City is not entitled to relief based on its contention of juror misconduct.

Unlike the situation in Estate of Barber (1957) 49 Cal.2d 112, 118-119, cited by the City, we are not concerned with an incurable defect or an error of law, which may be considered on appeal for the first time in the absence of a motion for a new trial. Nor are we concerned with a trial error that was litigated in the court below for which the City now seeks relief.

In determining whether a new trial is warranted for juror misconduct, it is for the trial court to consider the declarations and counterdeclarations, assess credibility, and determine the facts. (Fredrics v. Paige (1994) 29 Cal.App.4th 1642, 1647.) The City argues that because the jurors affidavits were filed in the trial court without objection, they are part of the record on appeal that th[is] court must consider. Even assuming the jurors affidavits were part of the record, they serve no purpose on this appeal. (Markaway v. Keesling (1963) 211 Cal.App.2d 607, 610.) As an appellate court, we cannot take cognizance of such affidavit[s] as evidence to be considered . . . in the first instance. (Ibid.) That the affidavits were subscribed under penalty of perjury does not warrant a different result. Consideration of such affidavits at this time would be unfair to Navarra and Alexandrovich, who have had no opportunity to produce counter affidavits and to litigate the relevant facts.

A trial court has broad discretion in ruling on a motion for a new trial, and its ruling will not be disturbed absent a clear abuse of discretion. (People v. Perez (1992) 4 Cal.App.4th 893, 906; see People v. Delgado (1993) 5 Cal.4th 312, 328.) To permit a party [to raise the issue of juror misconduct] without a motion for new trial would unnecessarily burden reviewing courts with issues which can and should be resolved at the trial court level. (Glendale Fed. Sav. & Loan Assn. v. Marina ViewHeights Dev. Co. (1977) 66 Cal.App.3d 101, 122; see Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 919.) Chronakis v. Windsor (1993) 14 Cal.App.4th 1058, and Young v. Brunicardi (1986) 187 Cal.App.3d 1344, cited by the City, do not support its argument that the issue of juror misconduct is properly before us. In both cases, the issue of juror misconduct was considered on appeal only after appellants unsuccessfully sought new trials on that basis in the trial courts. (Chronakis v. Windsor, supra, 14 Cal.App.4th at p. 1064, Young v. Brunicardi, supra, 187 Cal.App.3d at p. 1348.)

DISPOSITION

The judgment is affirmed.

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McGuiness, P.J.

We concur:

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Siggins, J.

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Horner, J.*

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[1] The Oakland Police Department designated Redwood Road as a north/south road, but at the point at which it intersects with Atlas Avenue, the road runs east/west. For clarity, we refer in this opinion to Redwood Road as an east/west road and Atlas Avenue as a north/south road.

[2] The City conceded it was not entitled to any offset against the jurys award of $4.5 million for noneconomic damages. However, pursuant to Proposition 51, the City was only required to pay 49% of the noneconomic damages, or $2,205,000, based on the jurys determination of its proportionate fault.

[3] We note that although the jury was instructed that economic damages consisted of past medical expenses and loss of wages, it was directed to return a verdict for economic damages in a single sum. For purposes of computing offsets, the parties apparently assumed that the award of $1,059,000 for past economic damages, represented $927,000 for medical bills and $132,000 for lost wages, which was consistent with the evidence presented at trial.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.