Villa v. City of Long Beach

• Decision Date: 17 September 2021
• Docket Number: B300054
• Citation: Villa v. City of Long Beach, B300054 (Cal. App. Sep 17, 2021)
• Court: California Court of Appeals
• Parties: FERMIN VILLA, Plaintiff and Appellant, v. CITY OF LONG BEACH, Defendant and Respondent.

FERMIN VILLA, Plaintiff and Appellant, v. CITY OF LONG BEACH, Defendant and Respondent.

B300054

California Court of Appeals, Second District, Seventh Division

September 17, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC518613, Patrick T. Madden, Judge. Affirmed.

Balaban & Spielberger, Daniel K. Balaban, and Andrew J Spielberger; Esner Chang & Boyer, Holly N. Boyer, and Shea S. Murphy for Plaintiff and Appellant.

Charles Parkin, City Attorney, and Theodore B. Zinger, Deputy City Attorney; Alderman & Hilgers and Allison R. Hilgers for Defendant and Respondent.

SEGAL J.

INTRODUCTION

Fermin Villa sustained significant injuries when the driver of a car he was a passenger in lost control of the car and hit a 200-pound decorative boulder, which caused the car to roll over. After filing this action against the City of Long Beach for allegedly creating and maintaining a dangerous condition by placing the boulder in the median of the road, Villa went to trial twice and lost both times. In the first trial, a jury returned a verdict for the City, finding there was no dangerous condition. After the trial court failed to disclose it had received a note from a juror during deliberations about potential jury misconduct, however, the court granted Villa's motion for a new trial. The City appealed, and we affirmed. (See Villa v. City of Long Beach (Sept 28, 2017, B268270) [nonpub. opn.] (Villa I).)

In the second trial, a jury again found there was no dangerous condition. Villa again moved for a new trial-the subject of this appeal-arguing that the jury engaged in misconduct during deliberations and that counsel for the City committed misconduct during closing argument. This time the trial court denied the motion for a new trial. Villa appealed again, arguing that, “in what appears to be an uncanny twist of fate, ” juror and attorney misconduct require a second reversal.

We conclude that the trial court did not err in denying Villa's second motion for a new trial and that Villa is not entitled to a third trial. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Villa Sues the City After He Is Injured in a Car Accident

On August 20, 2012 Carlos Arrieta was driving a car in Long Beach. Villa was the passenger. As Arrieta drove on a ramp connecting two streets, the car rolled over and landed on its roof. Villa suffered injuries, including to his head and spine, which required hospitalization, surgery, and rehabilitative care. Villa subsequently sued the City for negligence and dangerous condition of public property, alleging the accident occurred when the car hit a boulder the City placed and maintained on the ramp.

B. The Jury Finds in Favor of the City, but the Trial Court Grants Villa's Motion for a New Trial

The first trial commenced in June 2015. The City presented evidence Arrieta had been drinking and driving recklessly shortly before the accident, which occurred when Arrieta was speeding and lost control of the car. Competing traffic engineering experts for Villa and the City testified about whether the ramp was in a dangerous condition. (Villa I, supra, B268270.)

On the second day of jury deliberations, a juror submitted a handwritten note to the clerk stating one of the other jurors was “talking about what they know as engineer” and asking the court to instruct the jurors again to decide the case based on the evidence, not on their life experiences. The jury, however, reached, and the trial court accepted, a verdict before the court disclosed the note to counsel. The jury found in favor of the City, voting nine to three the ramp was not a dangerous condition. (Villa I, supra, B268270.)

Villa filed a motion for a new trial under Code of Civil Procedure section 657, ^[1] arguing that the court's failure to disclose the juror note was an irregularity in the proceeding and that there was juror misconduct. Four jurors submitted declarations stating that during deliberations the presiding juror repeatedly commented about his experience as an engineer and said that, based on his engineering experience, there was no problem with the design of the ramp. The trial court granted Villa's motion for a new trial, ruling that the court's failure to disclose the note to counsel prior to taking the verdict was an “[i]rregularity in the proceedings of the court by which [Villa] was prevented from having a fair trial” for purposes of section 657, subdivision (1). We affirmed the order granting a new trial. (Villa I, supra, B268270.)

C. A Second Jury Finds in Favor of the City

1. Percipient Witnesses Testify About the Accident

At the second trial, Villa's friend, Adrian Rayon, described the events leading to the accident. Rayon said that Arrieta started drinking at 1:00 p.m. and that he appeared intoxicated by the evening. At 8:30 or 9:30 p.m., Villa, Arrieta, Rayon, and Gregorio Aguilera went to the beach; Aguilera drove Rayon in one car, and Arrieta drove Villa in another, a Mazda RX7. At a gas station, Arrieta started drinking from a bottle of dark liquor. Back on the road, Arrieta stopped at a red light and began doing “donuts, ”^[2] at one point spinning off and hitting the curb. Aguilera pulled his car up next to Arrieta's car, and Rayon, believing Arrieta was “obviously” drunk, told Arrieta to “stop doing that” and “calm down.”

Arrieta sped away, with Aguilera following him. Five to 10 minutes later, as Arrieta approached the ramp, Rayon used his phone to record Arrieta's driving, thinking Arrieta might take the ramp quickly. As Rayon was filming, Arrieta “sped off into the curb and... flipped [the car] over” toward the passenger side.

A bus driver also witnessed the accident. He heard tires “peeling out” and what sounded like brakes “burning out.” The bus driver said he thought Arrieta's car was going “too fast to be coming up that ramp” and that, based on the direction of the car's headlights, the car was “drifting or fishtailing” and “sliding... around the curve.” The bus driver saw Arrieta's car hit the curb, hit the boulder, and then roll over twice.

2. Villa's Experts Testify the Ramp Was Dangerous

Edward Stevens, Villa's traffic engineering expert, testified that there were no problems with the City's design of the ramp because the plans were almost “straight out of the California Highway Design Manual for an onramp.” After conducting a survey, however, Stevens determined the ramp was not constructed as designed. In particular, he said that, while the plans called for a 400-foot curve radius toward the end of the ramp, the radius as constructed was closer to 118 feet. As Stevens explained, “the curvature continues to be very sharp” at the point where a driver would “begin to accelerate, ” causing the driver to “drift over to the left side” (and toward the curb where the boulders were).

Stevens also testified that, in his opinion, there should have been a “chevron sign”-a sign, usually in yellow and black, with an arrow pointed to the right-on the ramp, to alert drivers there was a sharp curve. Finally, Stevens testified that the California Highway Design Manual required any fixed objects, such as the boulders on the ramp, to be at least 18 inches from the face of the curb and that the boulders served no traffic engineering purpose.

Villa's accident reconstruction expert, Thomas Green, acknowledged the car was going approximately 40 miles per hour when it hit the curb, which was well over the posted recommended speed of 15 miles per hour. But according to Green the critical speed at which the car would lose control and slide was 45 miles per hour, and Arrieta's car never reached that speed. Green stated that the boulder was between six to 18 inches away from the curb when the car hit it and that it “definitely” caused the car to roll.

3. The City's Experts Testify It Was Not

The City's traffic engineering expert, John Fisher, disagreed with almost everything Stevens said. Fisher concluded that the ramp conformed to the design plans and that the ramp was not in a dangerous condition. He testified Stevens's methodology for measuring the curve radius was faulty because Stevens did not measure enough points on the ramp to accurately calculate the radii of the various compound curves in the ramp.^[3]

Fisher testified the boulders were not unsafe because they were not so large that they were unmovable-as demonstrated by the fact that Arrieta's car in fact dislodged the boulder into the street-and because, in Fisher's opinion, they were at least 30 inches away from the face of the curb. Fisher also testified that there had been no reported accidents during the previous five years involving a car crashing into the boulders or the area around them. Finally, Fisher testified a chevron sign was not necessary on the ramp because there were other traffic control devices, including signs warning drivers of the ramp and curve and recommending a speed of 15 miles per hour; yield signs halfway up the ramp and at the end of the ramp; and a “high visibility ladder style crosswalk” at the end of the ramp.

The City's accident reconstruction expert, Stein Husher, calculated that the critical speed on the ramp at which a car would tend to slide was 36 miles per hour, not 45 miles per hour, as Green had testified. Husher did not have an opinion on how the car rolled over because he said there was not enough information about how the car hit the curb. But Husher did state that, in his opinion, the car “either rolled or tripped on the road surface or the curb... before it impacted” the boulder.

4. The Jury Again Finds for the City

The first question on the special verdict form asked the jury whether “the property [was] in a dangerous condition at the time of...