KeyCite Red Flag – Severe Negative Treatment
2021 WL 613161
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)
California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Court of Appeal, Second District, Division 3, California.
KAREN GARCIA, Plaintiff and Respondent,
TRI-MODAL DISTRIBUTION SERVICES, INC., Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Peter A. Hernandez, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC536714)
Attorneys and Law Firms
Horvitz & Levy, David M. Axelrad and Mark Kressel; The Rodolff Law Firm and Barry L. Rodolff for Defendant and Appellant.
The Vartazarian Law Firm and Steven R. Vartazarian; The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiff and Respondent.
EDMON, P. J.
*1 Karen Garcia (plaintiff) brought the present wrongful death action following the death of her 25-year-old husband, Jose Garcia (Jose).1 Jose was killed when the van in which he was a passenger collided with a tractor-trailer owned by defendant Tri-Modal Distribution Services, Inc. (Tri-Modal). The case was tried to a jury, which found Tri-Modal’s driver to have been entirely responsible for the accident, and awarded plaintiff economic and noneconomic damages in excess of $11 million.
Tri-Modal makes three contentions on appeal. First, it contends the trial court erred in excluding evidence that the driver of Jose’s van pled guilty to misdemeanor vehicular manslaughter as a result of the accident. Second, it urges the trial court improperly permitted plaintiff’s counsel to ask hypothetical questions of a lay witness who testified for the defense. Finally, it urges the trial court erred in instructing the jury, pursuant to CACI No. 452, that it could find Jose’s driver not negligent if it concluded that he encountered a sudden emergency not of his own making. As we discuss, Tri-Modal failed to preserve any of these issues for appellate review, and thus we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. The May 22, 2013 Collision
On the morning of May 22, 2013, Sergio De La Torre (De La Torre) was driving a delivery van for Dependable Vending (Dependable); his coworker, Jose, was riding in the van’s passenger seat. Separately, Jorge Garcia (Jorge) was driving a tractor-trailer for Tri-Modal.2
Shortly before 8:47 a.m., Jorge pulled onto the shoulder of the transition road from the eastbound 60 Freeway to the southbound 71 Freeway. Jorge left the tractor-trailer running, exited the cab, and stood between the tractor and the trailer. At that moment, De La Torre veered from the right lane of the transition road onto the shoulder, striking the rear of the tractor-trailer and causing it to move forward 12 to 17 feet. Jorge and Jose were killed instantly; De La Torre was injured, but survived.
Immediately after the collision, De La Torre told a California Highway Patrol (CHP) officer that he swerved onto the shoulder to avoid a white car that had cut him off. A CHP officer subsequently recovered video footage recorded by cameras located inside the cab of Jorge’s vehicle. The footage showed a white car pass the tractor-trailer in the right-hand lane of the connector road.
B. The Present Action
Jose’s widow, individually and as Jose’s personal representative, filed the present action for wrongful death against Tri-Modal in February 2014. Plaintiff alleged that the collision occurred as a result of Jorge’s negligence in parking his tractor-trailer on the highway shoulder.
The case was tried to a jury over 10 days in January 2019. Plaintiff’s theory at trial was that Jorge’s negligence was the sole cause of the accident. In support, plaintiff introduced evidence that a tractor-trailer is permitted to park on the shoulder of a highway only in the case of a serious mechanical failure. A witness testified that there was no evidence that Jorge’s vehicle suffered such a failure; to the contrary, no problems were apparent during a pre-trip safety inspection, and the California Highway Patrol team that inspected the tractor and trailer after the accident found no mechanical defects. Instead, plaintiff’s trucking expert testified that Jorge likely parked on the shoulder to urinate. He based his opinion on Jorge’s position and orientation when he was killed, the nature of the injuries to his body, evidence that his bladder was empty, and the fact that when Jorge exited the cab, he left the engine running, the door to the cab open, and the radio on.
*2 Plaintiff also introduced evidence that De La Torre had not acted negligently in driving onto the shoulder. In support, De La Torre testified that the white car had pulled in front of him without any warning, and he believed the white car would have collided with his van had he not pulled onto the shoulder. He said he made the decision to pull onto the shoulder in a matter of seconds, and he applied the brakes once he realized he was going to hit the tractor-trailer. He was not able to stop in time, however.
Tri-Modal’s theory at trial, in contrast, was that De La Torre’s negligence was the sole cause of the accident. A witness for the defense testified that prior to the accident, De La Torre was speeding, drifted into the right lane, and then swerved and hit the parked tractor-trailer. The same witness testified that immediately after the accident, De La Torre told him, “I messed up. I messed up. It was my fault.” Other witnesses reviewed video footage recovered from the tractor-trailer and opined that, based on their review of the video, the white car was too far ahead of De La Torre to have cut him off. Finally, a defense witness testified that Jorge had called his employer to report a mechanical problem the morning of the collision.
After deliberating, the jury returned a special verdict for plaintiff, finding that (1) Tri-Modal was negligent, and its negligence was a substantial factor in causing Jose’s death; (2) De La Torre was not negligent; and (3) Tri-Modal was responsible for 100 percent of plaintiff’s damages. The jury awarded plaintiff $11,050,000 in economic and noneconomic damages.
The trial court entered judgment on February 8, 2019. Tri-Modal filed post-trial motions, which the trial court denied. Tri-Modal timely appealed.
Tri-Modal urges on appeal that the jury failed to allocate fault to De La Torre as a result of legal errors by the trial court. Specifically, Tri-Modal contends the trial court erred by: (1) excluding evidence that De La Torre suffered a conviction for misdemeanor vehicular manslaughter as a result of the accident; (2) permitting plaintiff’s counsel to ask improper hypothetical questions of a CHP officer, who testified as a percipient witness, not as an expert; and (3) instructing the jury, pursuant to CACI No. 452, that it could find De La Torre not negligent if it concluded he encountered a sudden emergency not of his own making. As we discuss, none of these contentions was preserved for appeal, and thus we will affirm the judgment.
Tri-Modal Forfeited Its Contention That the Trial Court Erred by Excluding Evidence of De La Torre’s Vehicular Manslaughter Conviction
Tri-Modal contends the trial court prejudicially erred by excluding evidence that De La Torre had been charged with, and pled no-contest to, misdemeanor vehicular manslaughter in connection with the deaths of Jorge and Jose. We conclude that Tri-Modal did not preserve the issue for appeal, and thus the issue has been forfeited.
A. Additional Facts
In December 2013, De La Torre was charged under Penal Code section 192, subdivision (c)(2), with two counts of misdemeanor vehicular manslaughter. De La Torre pleaded no contest to both counts.3 In January 2016, the court accepted De La Torre’s no-contest plea and sentenced him to three years of summary probation.
In the present action, plaintiff filed a motion in limine to exclude evidence of De La Torre’s conviction. Plaintiff urged the conviction was inadmissible pursuant to section 1016, subdivision (3), which provides that in non-felony cases, “ ‘[a nolo contendere] plea and any admissions required by the court during any inquiry it makes as to the voluntariness of, and factual basis for, the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.’ ” Plaintiff also contended that De La Torre’s conviction was inadmissible pursuant to Evidence Code sections 787 and 788 (specific acts inadmissible to attack credibility) and 352 (evidence inadmissible if more prejudicial than probative).
*3 In opposition, Tri-Modal contended that Penal Code section 1016 did not bar evidence of De La Torre’s criminal conviction because De La Torre was not a defendant in this case. Tri-Modal also contended that the Evidence Code did not categorically preclude the use of misdemeanor convictions as impeachment evidence.
At the in limine hearing, Tri-Modal’s counsel told the court that Tri-Modal had considered stipulating to plaintiff’s motion, but had not done so because De La Torre “is an untethered witness” who “can potentially come in and say just about anything.” Counsel argued the motion to exclude therefore was “premature.” Counsel said, however, that he did not intend to raise De La Torre’s conviction “unless for some reason Mr. De La Torre makes it relevant” by his testimony. If De La Torre’s testimony made the conviction relevant, counsel said he “would like the opportunity to talk to the court to discuss it.” The court responded, “I will do that.”
After hearing argument from both sides, the court said it would grant the in limine motion “at this time,” but that Tri-Modal’s counsel “[o]bviously … can address the court at a later point in time if it becomes necessary.” Tri-Modal’s counsel then asked under what circumstances the court would allow him to ask De La Torre about his conviction; the court said it could not “think of a reason right now.”
De La Torre subsequently testified at trial. He said that he drove into the shoulder to avoid a collision with the white car; he was not asked, and did not testify, that he had not been found responsible for the accident. Tri-Modal did not raise the issue of De La Torre’s plea or conviction at any point before, during, or after his testimony.
Tri-Modal urges the trial court abused its discretion by excluding evidence of De La Torre’s criminal conviction because the evidence was relevant, was not inadmissible pursuant to Penal Code section 1016, subdivision (3), was proper impeachment evidence, and was not excludable pursuant to Evidence Code section 352. Plaintiff contends Tri-Modal forfeited the issue by failing to raise it during De La Torre’s testimony; alternatively, plaintiff argues that Tri-Modal’s claim fails on the merits.
We conclude that Tri-Modal failed to preserve the issue for appellate review. “It is axiomatic that a party may not complain on appeal of rulings to which it acquiesced in the lower court. [Citation.] …. It is unfair to the trial judge and the adverse party to attempt to take advantage of an alleged error or omission on appeal when the error or omission could have been, but was not, brought to the attention of the trial court in the first instance. [Citation.]” (Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 912; see also Hood v. Gonzales (2019) 43 Cal.App.5th 57, 70 [“ ‘an appellant may waive his [or her] right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure objected to on appeal’ ”].)
Here, although Tri-Modal argued in its written opposition that De La Torre’s conviction was admissible regardless of the substance of his testimony, its counsel took a different position at the hearing, telling the court that the motion was “premature” because “we don’t know” what De La Torre would say at trial. Counsel also said that he had considered stipulating to the motion and did not intend to introduce evidence of the conviction “unless for some reason Mr. De La Torre makes it relevant.” Notwithstanding its written opposition, therefore, Tri-Modal’s position at the hearing was that it did not oppose the exclusion of the evidence unless De La Torre made the conviction relevant through his testimony. Tri-Modal thus did not preserve for appeal a wholesale opposition to the motion in limine.
*4 Moreover, although the trial court invited Tri-Modal to re-raise the issue of the admissibility of the conviction during trial, Tri-Modal did not do so. As Tri-Modal concedes, a party seeking to admit evidence that is the subject of a motion in limine normally must renew its attempt to admit the evidence during trial in order to preserve the issue for appeal. (People v. Thompson (2016) 1 Cal.5th 1043, 1108 (Thompson), quoting People v. Brown (2003) 31 Cal.4th 518, 547 (Brown); People v. Morris (1991) 53 Cal.3d 152, 189–190, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) There is an exception to this general rule if an in limine motion is aimed at a specific body of evidence, and the trial court makes “ ‘a sufficiently definite and express ruling.’ ” (Thompson, supra, at p. 1108, quoting Brown, supra, at p. 547.) If the court has not finally ruled on an in limine motion, however, a timely request during the presentation of the evidence is necessary to preserve the issue on appeal. (People v. Navarette (2003) 30 Cal.4th 458, 491; Christ v. Schwartz (2016) 2 Cal.App.5th 440, 452–453 (Christ).)
Christ, supra, 2 Cal.App.5th 440, is instructive. There, a plaintiff filed a motion in limine to exclude evidence of her husband’s extramarital affair as irrelevant and unduly prejudicial. The trial court tentatively ruled that evidence of the affair was admissible, but said that all motions in limine were “subject to being revisited at any time during the trial as the evidence is developed.” (Id. at p. 451.) Subsequently, when defendant raised the subject of the affair during cross-examination, plaintiff’s counsel did not object. (Ibid.) Under these circumstances, the Court of Appeal held that the plaintiff had not preserved the issue for appeal: “When a court has not finally ruled on an in limine motion, as in this case, Evidence Code section 353 requires a timely objection during presentation of the evidence at trial to preserve the issue on appeal. By failing to object during trial to admissibility of the evidence on the grounds advanced in the in limine motion, [plaintiff] failed to preserve the issue for review on appeal.” (Id. at pp. 452–453, fn. omitted.)
The court reached a similar result in People v. Ramos (1997) 15 Cal.4th 1133, 1170–1172 (Ramos). There, defense counsel made a pretrial motion to exclude evidence of items seized during a search of defendant’s apartment. The trial court discussed generally the admissibility of the evidence, but did not make a specific ruling. Defense counsel expressly reserved future argument, but did not reassert an objection on any ground when the prosecution introduced a rifle seized during the search. Under these circumstances, the court held, “defendant has failed to preserve the issue for appeal.” (Id. at pp. 1170–1171.)
In the present case, as in Christ and Ramos, the trial court’s ruling on the motion in limine expressly was not final—although the court told the parties that it was granting the motion in limine “at this time,” it was explicit that Tri-Modal could “address the court at a later point in time if it becomes necessary.” Notwithstanding that invitation, Tri-Modal did not attempt to introduce evidence of De La Torre’s conviction at any time during his testimony. It thus forfeited any objection to the exclusion of the conviction. (Thompson, supra, 1 Cal.5th at p. 1108; Brown, supra, 31 Cal.4th at p. 547.)
Tri-Modal suggests it did not have to seek to introduce De La Torre’s conviction during his cross-examination to preserve the issue for appeal because the trial court, after saying that it would allow Tri-Modal to revisit the admissibility of the conviction during trial, subsequently “at plaintiff’s insistence, expressly firmed up its ruling, stating twice on the record it could imagine no way the evidence could come in.” We do not agree. In the colloquy on which Tri-Modal relies,4 the trial court said it could not anticipate what kind of testimony by De La Torre would make the conviction admissible, but it did not revoke its invitation to Tri-Modal’s counsel to raise the issue of De La Torre’s conviction if appropriate.
*5 In short, the court made clear to the parties that it would reconsider the admissibility of De La Torre’s conviction in light of the testimony during trial. Tri-Modal’s failure to seek to introduce evidence of the conviction during trial, therefore, forfeited the issue on appeal.
Tri-Modal Forfeited Its Objection to Plaintiff’s Questioning of Officer Ruiz
Tri-Modal next contends that plaintiff’s counsel asked improper questions of CHP Officer Robert Ruiz, whom Tri-Modal called as a witness during the defense case. As we discuss, Tri-Modal did not object to the questions during trial, and thus Tri-Modal’s objections were not preserved for appeal.
A. Additional Facts
Officer Ruiz was the first officer on the scene after the accident. He took a statement from De La Torre, who said he had been forced off the road by a white car. Subsequently, Officer Ruiz reviewed a copy of a video recorded by a “SmartDrive” camera situated inside the cab of Jorge’s tractor-trailer.5 Based on what he saw in the video, Officer Ruiz formed the opinion that De La Torre’s van and the white car were sufficiently far apart that the car did not force De La Torre off the road.
Through a motion in limine and again during trial, plaintiff sought to exclude Officer Ruiz’s opinion regarding the white car. The court denied the motion. Thereafter, Officer Ruiz was called by Tri-Modal and testified during direct examination as follows:
“Q: [A]t some point in time, were you given access to view a SmartDrive video that is actually a video camera attached to the front of the tractor-trailer?
“A: Yes. The camera is situated inside the cab and projects out the front windshield and part of the right and left window as well.
“Q: And you reviewed that video … in order to evaluate the truth of Mr. De La Torre’s assertion that he was forced off the road by a white car, correct?
“A: Yes, sir. [¶] … [¶]
“Q: Is that what you were doing, looking at the SmartDrive video determining whether the white car was involved in some way in some type of criminal activity that could have caused this accident?
“A: Yes, we were looking into it. [¶] … [¶]
“Q: From reviewing that , did you reach any conclusion as to the involvement of the white car in this accident sequence?
“Q: And what conclusion did you reach in that regard?
“A: That the distance between the white vehicle in question and Mr. De La Torre’s vehicle would have been far enough apart from each other that they should not have [interfered] with each other at any time on the connector road.
“Q: So in terms of what Mr. De La Torre said about the accident, the SmartDrive video was inconsistent with what the statements were, correct?
“A: Yes, sir.”
On cross-examination, plaintiff’s counsel questioned Officer Ruiz extensively about the SmartDrive technology and his conclusion that De La Torre had not been forced off the road by the white car. In response, Officer Ruiz testified that he did not know how the SmartDrive video worked, he did not know what an accelerometer was, and he was not aware that the SmartDrive video was triggered by bumps in the road, as well as by impacts. Officer Ruiz agreed with plaintiff’s counsel that there were two impacts as a result of the collision between the van and the tractor-trailer—the first when the van hit the rear of the trailer, and the second when the van slid under the trailer and hit the driver’s side wheel. Officer Ruiz testified that in forming his opinion about the white car’s possible role in the accident, he had assumed that it was the initial impact that triggered the SmartDrive video. He agreed with plaintiff’s counsel that if instead the second impact triggered the video, De La Torre “would at least have some basis for saying that the white car cut [him] off.”
*6 Most of the cross-examination proceeded without objection. Tri-Modal’s counsel objected only twice. The first objection came approximately nine pages into the cross-examination, when plaintiff’s attorney asked Officer Ruiz to look at an exhibit described as a three-dimensional rendering of the impact.6 Tri-Modal’s attorney interjected that “[t]here’s a foundational issue with this;” the court overruled the objection. A second objection came several pages later, when plaintiff’s counsel asked whether Officer Ruiz would change his opinion concerning the white car if “I showed you objective evidence that it was the second impact that caused the trailer to move forward, not the first one.” Tri-Modal’s counsel objected that the question was vague and ambiguous; the court again overruled the objection.
Tri-Modal contends that plaintiff’s counsel should not have been permitted to cross-examine Officer Ruiz about the technical aspects of the SmartDrive video or accident reconstruction renderings because he had not been designated as an expert witness and he had no relevant percipient knowledge of them. Tri-Modal urges that once Officer Ruiz indicated he was not an expert in the SmartDrive video technology, plaintiff’s counsel should not have been allowed to continue questioning him about it because “Officer Ruiz lacked the knowledge required to answer these questions as a lay witness, and [he] was unqualified as an expert.” Further, Tri-Modal contends, the hypothetical questions posed were improper and misleading because they were based on assumed facts for which there was no evidentiary support.
The fundamental problem with each of these contentions is that Tri-Modal is making them for the first time on appeal. “ ‘Under California law, error in admitting evidence may not be the basis for reversing a judgment or setting aside a verdict unless “an objection to or a motion to exclude or to strike the evidence … was timely made and so stated as to make clear the specific ground of the objection or motion ….” (Evid. Code, § 353, subd. (a), italics added.) “In accordance with this statute, we have consistently held that the ‘defendant’s failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable. [Citations.]” (People v. Seijas (2005) 36 Cal.4th 291, 302.) Although no “particular form of objection” is required, the objection must “fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling.” ( [People v.] Partida [ (2005) ] 37 Cal.4th [428,] 435.)’ (People v. Zamudio (2008) 43 Cal.4th 327, 354.)” (People v. Nelson (2011) 51 Cal.4th 198, 223; see also People v. Seumanu (2015) 61 Cal.4th 1293, 1364 [“An objection is necessary to preserve for appeal questions regarding the admissibility of evidence”]; People v. Visciotti (1992) 2 Cal.4th 1, 52 [absent an objection, even if prosecutor’s questions were improper, “the failure to object bars reversal on that ground”]; Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 173 [party forfeited an objection by failing to raise it in the trial court: “It is a basic requirement of our adversary system that objections to evidence be voiced in a timely fashion or they are lost”].)
In the present case, Tri-Modal did not make a “timely and specific objection” to plaintiff’s cross-examination of Officer Ruiz on the grounds it asserts on appeal—i.e., that plaintiff improperly posed hypothetical questions to Officer Ruiz, and that the questions were based on assumed facts for which there was no evidentiary support. Indeed, as we have said, during the lengthy cross-examination of Officer Ruiz, Tri-Modal interposed only two objections, neither of which identified the asserted evidentiary weaknesses Tri-Modal urges on appeal. As such, the objections were insufficient to preserve Tri-Modal’s objections for appeal.
*7 Tri-Modal urges that its objections to Officer Ruiz’s cross-examination were sufficient because “[v]iewed in context, the [first] objection specified that Ruiz had no foundation to testify about [plaintiff’s] emerging and unsupported line of questioning”—i.e., that the SmartDrive video was triggered by the second impact, not the first. In fact, however, the foundational objection appeared to relate to a document that plaintiff’s counsel had just showed Officer Ruiz, not to the line of questions. As such, the first objection did not, as Tri-Modal suggests, preserve its objection to “this line of questioning.” (Compare People v. Johnson (2015) 61 Cal.4th 734, 761 [objection to witness’s testimony was properly preserved for appeal where the trial court granted defense counsel’s motion for a continuing objection to a line of questions]; People v. Boyette (2002) 29 Cal.4th 381, 451 [defense counsel made a continuing objection to a line of questioning, “thereby preserving the issue for appellate review”].)
Nor was the second objection a “renew[al] [of] the objection on a different ground,” as Tri-Modal urges. That objection was, instead, an objection to the form of a particular question as vague and ambiguous. It therefore did not preserve an objection to a line of questioning.
In short, Tri-Modal’s objections at trial to Officer Ruiz’s cross-examination did not preserve the objections to that testimony that Tri-Modal raises on appeal. As such, the objections were forfeited.
Tri-Modal Did Not Preserve an Objection to the “Sudden Emergency” Instruction (CACI No. 452)
A. Additional Facts
Prior to trial, plaintiff filed a document captioned “[Proposed] Jury Instruction List.” The list had three sections: “Joint Instructions,” “Plaintiff’s Requested Instructions; Defendant Objects,” and “Defendant’s Requested Instructions; Plaintiff Object[s].” CACI No. 452, “Sudden Emergency,” was listed as a joint instruction. The appellate record does not reflect that Tri-Modal objected to plaintiff’s list of instructions, separately submitted a set of proposed instructions, or advised the court that CACI No. 452 was not a jointly offered instruction.
On January 28, 2019, counsel and the court discussed the parties’ proposed jury instructions outside the jury’s presence. The trial judge told counsel he would discuss with them the instructions he intended to give, and he invited them to “let me know if you have any objections.” Tri-Modal’s counsel objected to several of the instructions the trial court proposed giving, but he did not object to CACI No. 452. To the contrary, when the court asked whether anyone wished to be heard regarding CACI No. 452 and a related instruction, CACI No. 406, Tri-Modal’s counsel responded, “No, Your Honor.” Counsel subsequently concurred that CACI No. 406 was unnecessary if CACI No. 452 was given.
At the conclusion of the conference, the court re-read the list of the jury instructions it intended to give and asked whether there were any objections. Both attorneys indicated there were none.
Subsequently, the court instructed the jury pursuant to CACI No. 452, which summarized the “sudden emergency” doctrine under California law. The instruction stated as follows:
“Sergio De La Torre claims that he was not negligent because he acted with reasonable care in an emergency situation. Sergio De La Torre was not negligent if he proves all of the following:
“1. That there was a sudden and unexpected emergency situation in which someone was in actual or apparent danger of immediate injury;
“2. That Sergio De La Torre did not cause the emergency; and
“3. That Sergio De La Torre acted as a reasonably careful person would have acted in similar circumstances, even if it appears later that a different course of action would have been safer.”
After judgment was entered, Tri-Modal filed motions for a new trial and for judgment notwithstanding the verdict. Neither motion addressed CACI No. 452. At the hearing on the motions, however, an attorney for Tri-Modal, who had not been present during trial, argued that CACI No. 452 should not have been given. The court asked why the instruction was an issue for purposes of the new trial motion and whether Tri-Modal had objected to the instruction at trial. Tri-Modal’s counsel did not respond directly, but said Tri-Modal “never agreed to it. It wasn’t in our list of submitted jury instructions. The plaintiff added it afterwards, and we never signed off on it.” Plaintiff’s counsel responded that Tri-Modal never objected to CACI No. 452, either generally or as given. The trial court denied the motions for new trial and for judgment notwithstanding the verdict.
*8 Tri-Modal contends the trial court erred by instructing the jury on the doctrine of sudden emergency (CACI No. 452) because that instruction was inapplicable to the facts of the case and did not accurately state California law. We find Tri-Modal invited or acquiesced in any error, and thus we do not consider Tri-Modal’s contention on the merits.
“ ‘The doctrine of invited error bars an appellant from attacking a verdict that resulted from a jury instruction given at the appellant’s request.’ (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653.) Indeed, the invited error doctrine ‘applies “with particular force in the area of jury instructions….” ’ (Ibid.) Reviewing courts will not consider claims regarding errors in jury instructions where the record does not show who requested the instructions. (Faulk v. Soberanes (1961) 56 Cal.2d 466, 471 [‘appellant … has the burden to present a record sufficiently complete to establish that the claimed errors were not invited by her, and in the absence of such a showing she may not properly complain’].)
“Under the invited error doctrine, where the record does not disclose which party requested an allegedly erroneous instruction, ‘the reviewing court must presume that the appellant requested the instruction and therefore cannot complain of error.’ (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 678, italics added.) Where the record is silent, we assume the appellant invited the instructional error. (Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548, 559 [absent ‘any indication before us which party requested the challenged instruction in the first instance …, it is presumed to have been given at appellant’s request’].)” (Regalado v. Callaghan (2016) 3 Cal.App.5th 582, 592–593 (Regalado).)
Here, it is not apparent from the record which party requested CACI No. 452.7 The only list of requested instructions included in the appellate record was filed by plaintiff, but identifies CACI No. 452 as a joint instruction. There is no indication that Tri-Modal separately submitted proposed jury instructions or told the court at any point before or during trial that CACI No. 452 had been requested by plaintiff only. Indeed, the only suggestion in the record that CACI No. 452 had not been jointly proposed was made at the hearing on the post-trial motions, by an attorney for Tri-Modal who was not present during the trial. His suggestion was not echoed by trial counsel for plaintiff or Tri-Modal, and Tri-Modal did not provide any evidentiary support for counsel’s suggestion that Tri-Modal had not joined in the request for CACI No. 452. Accordingly, Tri-Modal’s contention on appeal that “plaintiff unilaterally proposed CACI No. 452” is wholly without support in the record.
This case thus is similar to Regalado, supra, 3 Cal.App.5th at pp. 592–593, in which the appellant urged on appeal that the trial court had erred in giving several pattern jury instructions. The Court of Appeal rejected appellant’s contention, concluding that appellant had not demonstrated that it did not invite the error. The court explained: “Here, [appellant] does not point to and we see nothing in the record that discloses which party requested CACI Nos. 400 and 401 regarding the essential factual elements of general negligence and the basic standard of care in negligence cases. The parties provided the court with a list of jury instructions in dispute. CACI Nos. 400 and 401 were not on that list. Further, [appellant] did not complain about … CACI Nos. 400 and 401 … at the jury instruction conference. Without an indication to the contrary, we presume the court instructed the jury with CACI Nos. 400 and 401 at [appellant]’s request and he is barred from complaining about these instructions on appeal. (Bullock v. Phillip Morris USA, Inc., supra,159 Cal.App.4th at p. 678; Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1091.) Accordingly, we reject [appellant’s] instructional challenge to the extent it rests on supposed confusion resulting from the giving of CACI Nos. 400 and 401.” (Id. at p. 593.)
*9 As in Regalado, we cannot determine in the present case which party requested CACI No. 452. Accordingly, we must presume the trial court gave CACI No. 452 at Tri-Modal’s request, and thus conclude it invited any error.
In any event, even if Tri-Modal did not invite the alleged error by affirmatively requesting CACI No. 452, it unquestionably acquiesced to the trial court giving that instruction. Although a party need not object to an erroneous instruction to preserve the error on appeal (Bishop v. Hyundai Motor America (1996) 44 Cal.App.4th 750, 760 (Bishop)), a party that acquiesces in the giving of a civil jury instruction may not later appeal the giving of that instruction. (See People v. Bolin (1998) 18 Cal.4th 297, 326; Scott v. C.R. Bard, Inc. (2014) 231 Cal.App.4th 763, 787; Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 856–857.) Acquiescence need not be express, but includes “silence when given the opportunity to object or propose modifications.” (Bishop, at p. 760; see also People v. Hardy (2018) 5 Cal.5th 56, 99 (Hardy) [objection to jury instruction forfeited where the record “ ‘shows that defendant’s “lack of objection to the proposed instruction was more than mere unconsidered acquiescence” ’ ”]; Scott v. C.R. Bard, Inc. (2014) 231 Cal.App.4th 763, 787 [appellants estopped from asserting instructional error on appeal where they obtained a tactical advantage from failing to object].)
In the present case, the trial court invited the parties to “let me know if you have any objections” to the instructions it intended to give, and then went through the proposed instructions one by one. When the court addressed CACI No. 452, Tri-Modal’s counsel did not object to the instruction; to the contrary, it relied on it in asking that another instruction, CACI No. 406, be withdrawn as duplicative. And, when the court asked again at the conclusion of the conference whether there were any objections, Tri-Modal’s counsel responded he had none. On this record, we conclude that Tri-Modal’s counsel affirmatively acquiesced to the giving of CACI No. 452. (Bishop, supra, 44 Cal.App.4th at p. 760; Hardy, supra, 5 Cal.5th at p. 99.) Tri-Modal therefore forfeited the issue on appeal.
The judgment is affirmed. Tri-Modal’s request for judicial notice, filed March 9, 2020, is granted. Plaintiff is awarded her appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Not Reported in Cal.Rptr., 2021 WL 613161
Because several individuals involved in this appeal have the same last name, we will refer to them by their first names.
Jorge is called “George” by some witnesses. For consistency, we will refer to him throughout this opinion as Jorge.
Tri-Modal filed a request for judicial notice of several documents filed in De La Torre’s criminal case. We previously deferred ruling on the request, which we now grant.
The colloquy was as follows:
“The Court: I’m going to grant the motion [in limine] at this time. Obviously you can address the court at a later point in time if it becomes necessary.
“[Plaintiff’s counsel]: Very quickly. I don’t want it to ever come up because if it comes up this jury is going to find him negligent no matter what.
“The Court: I don’t see a particular way it would come in.
“[Tri-Modal’s counsel]: What would I have [to] do in order for the court to say, okay, I’m going to [allow] Mr. Leonard to ask him about his plea of no contest?
“The Court: I can’t think of a reason right now.
“[Tri-Modal’s counsel]: Okay.”
The SmartDrive camera records continuously, but saves video footage only in the event of an incident. If an incident occurs, “such as if there’s an impact [or] if the truck goes over a bump,” the SmartDrive will save ten seconds of video before and ten seconds after the incident.
That exhibit is not part of our appellate record.
On December 7, 2020, the court issued a letter asking the parties to be prepared to discuss at oral argument what the record reflected regarding which party requested CACI No. 452. Our discussion includes the record references offered by counsel during oral argument.