Codner v. Wills, 2d Civil No. B198675 (Cal. App. 12/22/2009)

• Decision Date: 22 December 2009
• Docket Number: 2d Civil No. B202091.,2d Civil No. B198675.
• Court: California Court of Appeals Court of Appeals
• Parties: DANIEL CODNER et al., Plaintiffs and Respondents, v. JOHN STEVENSON WILLS, Defendant, Cross-complainant and Appellant, IN-N-OUT BURGERS, Defendant, Cross-complainant and Appellant. DANIEL CODNER et al., Plaintiffs, JOHN STEVENSON WILLS, Cross-complainant and Appellant, v. IN-N-OUT BURGERS, Cross-complainant and Appellant.

Page 1

DANIEL CODNER et al., Plaintiffs and Respondents, v. JOHN STEVENSON WILLS, Defendant, Cross-complainant and Appellant, IN-N-OUT BURGERS, Defendant, Cross-complainant and Appellant.

DANIEL CODNER et al., Plaintiffs, JOHN STEVENSON WILLS, Cross-complainant and Appellant, v. IN-N-OUT BURGERS, Cross-complainant and Appellant.

2d Civil No. B198675.

2d Civil No. B202091.

Court of Appeals of California, Second Appellate District, Division Six

December 22, 2009

Appeal from the Superior Court of Ventura Count, No. CIV 239017, Vincent J. O'Neill, Jr., Judge.

Horvitz & Levy LLP, Julie L. Woods, Adam M. Flake; Law Offices of Lloyd J. Michaelson and Lloyd J. Michaelson for Defendant, Cross-complainant and Appellant Wills.

Shulman Hodges & Bastian LLP, Ronald S. Hodges, John Mark Jennings and Aileen U. Rodriguez for Defendant, Cross-complainant and Appellant In-N-Out Burgers.

Corsiglia McMahon & Allard, B. Robert Allard, Jeffry W. Lochner; Kirby, Kirby & Kirby, Steven C. Kirby and Aimee E. Kirby for Plaintiffs and Respondents Codner.

Hinton, Alfert & Sumner, Scott H.Z. Sumner and Jeremy Lateiner for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiffs and Respondents Codner.

Not to be Published in the Official Reports

PERREN, J.

A motorcycle driven by respondent Daniel Codner collided with a car driven by appellant John Stevenson Wills near the exit of appellant In-N-Out Burger, a restaurant on Harbor Boulevard in Ventura. The cause of the accident was sharply disputed. The Codners claim that Wills failed to yield the right of way in making a left turn across the lane in which Codner was traveling. Wills claims that Daniel Codner was traveling in excess of the posted speed limit of 35 miles per hour. Appellant In-N-Out Burger allegedly contributed to the accident by violating its conditional use permit and a City of Ventura ordinance, causing cars to back up on Harbor Boulevard, impairing Wills' line of sight, and preventing him from seeing the motorcycle in time to avoid the collision.

Daniel; his son, Cody, who was a passenger on the motorcycle; and wife, Rebecca, sued Wills and In-N-Out alleging negligence, premises liability and loss of consortium. Wills and In-N-Out filed cross-complaints against each other for indemnity. In-N-Out settled with Codner for $500,000 prior to trial allocating $ 145,000 to economic damages and $355,000 to noneconomic damages. The trial court approved the settlement, finding it was made in good faith. Despite the settlement, In-N-Out participated in the trial. The jury found by special verdict that Wills was 100 percent at fault and awarded damages totaling $3,084,305.29. The verdict apportioned the award between economic and noneconomic damages in a percentage different than that allocated in the settlement agreement.

On appeal, Wills contends the court made three errors during trial: (1) admitting photographs showing crash test results of a collision between an automobile and motorcycle, (2) refusing to give a negligence per se jury instruction as to In-N-Out, and (3) precluding Wills from informing the jury of the settlement between Codner and In-N-Out. Wills also contends the trial court erred in denying his post-verdict motion to reduce the award for past medical expenses to the amount actually paid by Codner's insurer.

In-N-Out cross-appeals asserting the trial court made several post-verdict procedural errors, including amending the judgment after Wills filed an appeal. In-N-Out also asserts the trial court erred in awarding it indemnity only for economic damages and, alternatively, the trial court erred in using the apportionment between economic and noneconomic damages contained in the settlement agreement rather than the apportionment made by the jury. We affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Daniel and Cody Codner were riding a motorcycle northbound on Harbor Boulevard in Ventura. As they were passing the In-N-Out Burger restaurant, they struck a car driven by John Wills who was attempting to make a left-hand turn onto Harbor Boulevard from the restaurant. Daniel sustained serious injuries, including brain damage, a fractured pelvis and shattered kidney. Cody sustained a fractured clavicle requiring multiple surgeries.

Daniel, his son, and wife filed a complaint for damages against Wills and In-N-Out alleging negligence, premises liability and loss of consortium. Wills and In-N-Out cross-complained against each other for equitable indemnity.

The Codners and In-N-Out settled before trial for $500,000. The agreement allocated $145,000 to economic damages and the remainder to noneconomic damages. The trial court approved the settlement agreement, including the allocations made to economic and noneconomic damages, and determined that the settlement was made in good faith. Wills' cross-complaint for equitable indemnity against In-N-Out was dismissed as a result of the court's good faith determination. In-N-Out participated in the trial, seeking indemnity from Wills.

Prior to trial, Wills made a motion in limine to exclude photographs contained in an article published by the Society of Automotive Engineers (SAE) showing damage resulting from a motorcycle colliding with an automobile at varying rates of speed. The trial court denied the motion. In-N-Out moved in limine to exclude evidence of Codner's claims against In-N-Out and of the settlement and to preclude reference to negligence per se based on alleged violations of In-N-Out's conditional use permit (CUP) and City of Ventura ordinances. The trial court granted these motions.

At trial, Wills testified that his vision was obscured when he was attempting to make the left-hand turn because In-N-Out permitted cars using its drive-thru lane to back up onto Harbor Boulevard. Wills also testified that Codner was responsible for the accident because he was exceeding the speed limit.

Accident reconstruction experts called by Codner and In-N-Out testified that the motorcycle was traveling between 35 and 42 miles per hour. The jury was shown the SAE photographs during the experts' testimony. The experts stated that the photographs were consistent with their opinions but that they relied on other factors in reaching their conclusions as to the speed of the motorcycle. Wills did not present expert testimony. Several percipient witnesses called by Wills estimated the motorcycle was going much faster than the speed limit and was accelerating just before the accident.

The jury returned a special verdict totaling $3,084,305.29. Daniel was awarded $1,200,648.23 in economic damages and $1,750,000 in noneconomic damages; Cody was awarded $58,657.06 in economic damages and $25,000 in noneconomic damages; Rebecca was awarded $ 50,000 in noneconomic damages.¹ The trial court entered a judgment in favor of Codner for that amount and a separate judgment in favor of In-N-Out for "Complete Indemnity." Wills filed a motion to reduce the verdict based on the amount of paid medical expenses.

On April 30, 2007, Wills filed a notice of appeal. On the same day, he filed a motion to set aside and vacate the judgment under Code of Civil Procedure section 663 on the ground that In-N-Out's judgment for indemnity must be reduced to $145,000 under Proposition 51—the allocation made for economic damages in the settlement agreement. On May 3, Wills filed a motion for new trial. Codner and In-N-Out opposed the motions. The trial court denied the motions for new trial and to reduce the verdict and granted the motion to vacate the judgment. The court filed an amended judgment that limited In-N-Out's indemnity judgment against Wills to $145,000. Both Wills and In-N-Out appeal from the amended judgment. The Consumer Attorneys of California filed an amicus curiae brief in support of Codner.

DISCUSSION

A. Wills' Appeal

1. No Reversible Error in Permitting Photographs to be Shown to the Jury

Wills asserts the trial court erred in denying his motion to preclude the jury from viewing the SAE photographs. Wills asserts that showing the photographs to the jury was prejudicial error because they were inadmissible hearsay, not properly authenticated and did not represent circumstances similar to the accident.

The photographs depicted crash test results and were part of a study done by the SAE. They were shown to the jury in conjunction with testimony by two accident reconstruction experts testifying for the plaintiffs as well as in plaintiffs' counsel's opening statement and closing argument. The photographs depicted the results of a crash between a Kawasaki 1000 motorcycle and a 1989 Ford Thunderbird automobile colliding at a 90-degree angle. The motorcycle in the photographs was substantially similar to that driven by Codner; Wills' Thunderbird, however, was a 2003 and its body style differed from the Thunderbird in the photographs. In addition, Codner's motorcycle hit the Thunderbird at less than a 90-degree angle.

The photographs should not have been shown to the jury. It is well established that, while experts may rely on hearsay evidence, such evidence may not be shown to the jury. (See, e.g., People v. Campos (1995) 32 Cal.App.4th 304, 308 ["An expert witness may not, on direct examination, reveal the content of reports prepared or opinions expressed by nontestifying experts"].) "`[T]he rule which allows an expert to state the reasons upon which his opinion is based may not be used as a vehicle to bring before the jury incompetent evidence.'" (Ibid.)

Respondents contend that the photographs were admissible as experimental evidence. We disagree. The cases relied on by respondents where photographs were deemed admissible evidence all have one characteristic absent in this case. In People v. Cummings (1993) 4 Cal.4th 1233, DiRosario v. Havens (1987) 196 Cal.App.3d 1224, and Culpepper v. Volkswagen of America, Inc. (1973) 33 Cal.App.3d 510, the experiments were performed by the testifying witness. Thus, the...