KeyCite Red Flag – Severe Negative Treatment
2020 WL 3120354
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Court of Appeal, Sixth District, California.
SVETLANA OWENS, Plaintiff and Appellant,
ROBERT BURTON et al., Defendants and Respondents.
(Monterey County Super. Ct. No. M126276)
*1 Plaintiff Svetlana Owens appeals from a judgment entered after a jury returned a defense verdict in her action against defendants Robert Burton and Ace Hardware Corporation (Ace). Burton, who was employed by Ace, was driving a tractor-trailer eastbound on Highway 68 when Owens’s westbound car collided with the trailer portion of the tractor-trailer. The key disputed issue at trial was which vehicle had crossed over the double yellow lines into the other vehicle’s lane. Two eyewitnesses and an investigating California Highway Patrol (CHP) officer gave testimony relevant to that issue along with Owens, her expert, and a defense expert.
On appeal, Owens claims that the trial court prejudicially erred in (1) refusing to instruct the jury that Burton had a standard of care of “extreme caution,” (2) admitting evidence of “gouge marks” found on the roadway after the collision, (3) admitting into evidence a computer animation prepared by a defense expert, (4) excluding an exhibit offered by Owens, (5) precluding some testimony that Owens sought to offer from one of her experts, and (6) denying her new trial motion. We reject her contentions and affirm the judgment.
I. Evidence Presented At Trial
On January 20, 2012, Burton was driving a big rig that consisted of a tractor pulling a trailer. The trailer was about eight and a half feet wide and had dual axles. Burton was a very experienced truck driver, had been driving big rigs for over 25 years, had worked for Ace for 17 years, and had never been in an accident. Burton was well aware that, when making a turn, the trailer “tends to take a more inside route than” the tractor, a phenomenon known as “off-tracking.” When the tractor makes a sharp turn, the driver must adjust for the “off-tracking” of the trailer during the turn. “[Y]ou can’t just take the turn like in a car. You have to adjust…. [Y]our tractor has to turn out further so you don’t go into the other lane or other things like that.” “[I]f you do it too sharp, then you will go in the other lane.” “[I]t’s just a standard adjustment anybody would do who has been driving a truck.” Burton also understood that it would be dangerous for his trailer to go over the double yellow line.
Burton had been driving the same route twice a week in the early morning for about five years, and he knew the route “[e]xtremely well.” Burton’s trip began in Rocklin, and his first stop that day was at an Ace Hardware store in Salinas at about 4:45 a.m. After that stop, he took Highway 68 to his next stop in Pacific Grove. The roads were wet, and it was drizzling. His headlights were on, and his windshield wipers were “[o]n intermittent.” Burton made a third stop at another Ace Hardware store in Pacific Grove. His final stop was to be in Marina. Burton got onto Highway 68 again. The weather had not changed, but it was starting to get light outside. Although he no longer needed his headlights to see, he kept them on “for safety.” His visibility was “[f]ive to six” on a 10-point scale, where 10 was “absolutely crystal clear visibility.” “[T]here was a little bit of mist out there,” or maybe “a heavy drizzle.”
*2 Burton knew that the portion of Highway 68 he was driving on was “a dangerous road” due to the S-curves “if you are not paying attention.” He was aware of five to seven accidents on that section of Highway 68 in the five years he had been driving that route. Because the “biggest potential problem” on those curves was “crossing over into oncoming lanes,” Burton kept his tractor “as close to that white line or, if not, even sometimes on it….” By “white line,” he meant the “fog line to the right.” At about 7:00 a.m., Burton was eastbound on the “S-curves” section of Highway 68, proceeding at about 30 miles per hour. When he saw headlights from a westbound car, he checked his rearview mirror and saw that his trailer was a foot to a foot and a half inside his lane. Burton focused on keeping his vehicle in his lane as he entered the curve. He was at “the apex of that turn” when the accident occurred.
Ronald Lee Berti was driving his pickup truck eastbound on Highway 68, and he was 80 feet behind Burton’s tractor-trailer and going 30 miles per hour at the time of the accident. The weather was “wet and misty” but not dark, and visibility was good. It was clear, not foggy, and he was using his windshield wipers only “[i]ntermittently.” Berti considered the portion of Highway 68 with the “S-curves” to be “dangerous” when it was “wet and overcast and dark.” The entire time that Berti was behind Burton’s vehicle, he never saw Burton’s tractor-trailer deviate from its lane.
Berti saw lights coming around the curve from a westbound car. The lights were not shining in his eyes or off the wet asphalt. Burton’s “tractor and trailer was all in its own lane.” The trailer “never left its lane.” Berti saw the lights reflecting off of Burton’s trailer. “I saw lights coming, and the lights never turned. They went straight under the truck.” “[T]he car came around, and instead of making the turn, it went right under the trailer.” When Owens’s car went under the trailer, the left side of the trailer was “2 to 3 feet” from the centerline. “The whole truck was in the lane.” Berti was “100 percent” certain that Owens’s car crossed the double yellow lines and hit the trailer. Berti saw Owens’s car “hit the rear tires” of the trailer, bounce off, and start sliding down the road, and then he saw the car behind Owens’s car strike Owens’s car.
Rizelle Custodio was driving the car directly behind Owens’s car. Custodio drove this section of Highway 68 nearly every day. She considered this section of Highway 68 to be “dangerous” because it “is zigzag.” Consequently, she drove slowly and cautiously on it. On the morning of the accident, it was drizzling, and the road was wet. Custodio had been following Owens’s car for about 15 minutes. After going around a curve that curved to the right, Custodio saw a truck on the other side of the road. The truck was in its own lane.1 Custodio noticed Owens’s car “turn left,” hit something and then “flipped and goes to my car and go to the hillside.” The front of Custodio’s car collided with the driver’s side of Owens’s car. Custodio suffered a broken sternum in the accident.
Owens testified that she was driving her Chrysler Sebring convertible on Highway 68 that day on her way to work. She had been driving that route for a couple of months. Owens recalled that there was “drizzling rain,” and that, due to the “[w]indy road” and “weather” it was “dangerous driving.” However, it “was not that dark.” Because “it was an unusual road for me…. I was very cautious.” She recalled that she was “very focused on the road” and “trying to be in the middle of the lane.” Owens was turning to the right when she suddenly saw a trailer “in front of me,” and “I just went straight under that.” She did not see the tractor pulling the trailer. Owens testified that she did not cross the double yellow lines and that she had no opportunity to avoid hitting the trailer. Owens suffered a severe traumatic brain injury, a fractured pelvis, and other injuries, but she subsequently made “a remarkable recovery.”
*3 John Yerace, who had investigated more than a thousand accidents, was a CHP officer who responded to the accident scene, and he was responsible for investigating the accident. Yerace testified that the S-curves area of Highway 68 “can be” dangerous if a driver is not “[p]aying attention to what’s ahead of you and traveling at the correct speed.” Yerace arrived at the scene at about 7:30 a.m. When he arrived, it was dawn and somewhat dark, and the roadway was wet. Other CHP officers, including Yerace’s partner, Officer Peli, were also at the scene.
CHP officers use orange paint to mark “significant objects,” “like left front tires and gouges,” at the scenes of accidents. Yerace’s attention was drawn to gouge marks in the middle of the roadway that had been outlined with orange paint. Yerace believed that Peli had placed the orange paint around the gouges. Yerace made diagrams of the accident scene based on the physical evidence that he observed. He did not look at the bottom of Owens’s car or the bottom of the trailer to see if there was “asphalt scraping.” Based on the statements of the eyewitnesses and the physical evidence at the scene, including the gouge marks, Yerace concluded that Owens’s car had crossed over the double yellow lines and collided with Burton’s trailer, which was in Burton’s lane.
Ted Kobayashi testified at trial for Owens as an expert in accident reconstruction. He had input information about the accident into a computer program to try to determine “could the accident have happened in the westbound lane?” Kobayashi did not believe that the gouge marks were related to the accident based on the locations where “the two vehicles … end up.” He believed that Burton’s trailer “came into the lane” of Owens’s car, and the “impact” occurred in Owens’s lane. However, his simulation was inconsistent with Owens’s description of her position at the time of the accident and inconsistent with the undisputed evidence that Owens’s car had made contact not with Burton’s tractor but with the rear axle of Burton’s trailer. Kobayashi conceded that Owens’s car was at least “very close” to the double yellow line. He also conceded that “you can come up with scenarios” where the impact occurred in Burton’s lane. He conceded that “the impact could have occurred in Mr. Burton’s lane.”
Frank A. Perez, who worked for Kobayashi, also testified at trial on Owens’s behalf. He authenticated a video he had taken on January 20, 2016 at 7:00 a.m. travelling eastbound at the location of the accident. It was not wet or raining when he took the video. Perez testified that the radius of the curve at the location of the accident was 282 feet, the downhill slope of the roadway was 6.6 percent, and the slope of the embankment was 15.86 percent.
Anthony Dominic Cornetto III, an engineer, testified for the defense as an expert on accident reconstruction. Cornetto used a computer software program to reconstruct the accident. He took into account the damage to the vehicles, the “final rest positions” of the vehicles, the directions they had been travelling, the relative weights of the vehicles, the gouge marks, the location of a fluid deposit on the roadway near the gouges, the approximate speeds of the vehicles, and visible marks across the double yellow lines that could be seen in photographs of the accident scene. These factors helped him to determine the angle of impact. Cornetto concluded that the left side of Owens’s car was 2.5 feet inside the dimensions of the trailer at the point of impact with the trailer’s axle. Cornetto believed that the gouge marks were created when the front end of Owens’s car was “driven down into the ground” by the collision with the trailer’s axle. Cornetto created four different “probable views” of his accident reconstruction simulation solution. These four views showed Owens’s view, an overhead view, Berti’s view, and Custodio’s view.
*4 During his investigation of this accident, Cornetto “random[ly]” followed and videotaped an Ace tractor-trailer driving through the accident scene in 2015. It turned out later that this tractor-trailer was being driven by Burton. Cornetto held the video camera to the right of the driver’s right shoulder. The video showed that the tractor-trailer never touched the double yellow line. It also demonstrated that a driver behind the tractor-trailer could see the entire left side of the trailer as it went around the curve at the location of the accident. Cornetto testified that off-tracking is where “the trailer does not, in a curve, track in the same location as the tractor.” His simulation determined that the off-tracking at the time of the accident was 1.8 feet.
Cornetto testified that Kobayashi’s reconstruction of the accident was inaccurate because Kobayashi’s software program treated the impact as if it had been into the side of the trailer or the front of the tractor rather than into the underside of the trailer and the trailer’s wheels. Kobayashi’s reconstruction was also inconsistent with the final resting places of the vehicles. Cornetto testified that the evidence of the locations of the vehicles, the damage to the vehicles, the gouge marks, the other physical evidence, and his reconstruction established that the impact occurred in Burton’s lane.
II. Procedural Background
Owens filed a negligence action against Burton, Ace, and others, and she proceeded to a jury trial against Burton and Ace.2
Owens’s trial counsel argued to the jury that Burton was liable because the trailer had crossed the double yellow lines and come into Owens’s lane. He asked the jury to credit Owens’s testimony that she was in her lane and that Burton’s trailer crossed the double yellow lines into her lane. He asserted that the gouges were not related to the accident and that they must have been caused by a prior accident. Owens’s trial counsel urged the jury to credit Kobayashi’s testimony and to reject Cornetto’s testimony.
Defense counsel argued to the jury that Owens “caused this accident by herself.” He asked the jury to rely on the testimony of Berti, Custodio, and Yerace because they were witnesses with “no bias.” He also argued that Cornetto’s video of Burton’s tractor-trailer in 2015 disproved Owens’s claim that Berti could not have seen whether Burton’s trailer was in his lane at the time of the accident. Defense counsel told the jury: “I think honestly the experts get in the way of this case. It’s perfectly clear from the two eyewitnesses and the officer as to what happened.”
During deliberations, the jury requested a readback of Owens’s testimony about the position of her vehicle just before the collision. After the readback, the jury returned a unanimous special verdict finding that Burton had not been negligent. Owens filed a motion for a new trial raising the same issues that she now raises on appeal. The court denied her motion and entered judgment on the jury’s verdict. Owens timely filed a notice of appeal from the judgment.
A. Extreme Caution Instruction
Owens contends that the trial court prejudicially erred in denying her request that the jury be instructed that the applicable standard of care was “extreme caution” because “[d]riving a tractor-trailer through the S’s on [Highway 68] is dangerous in and of itself.”
Owens asked the trial court to instruct the jury with a modified version of CACI No. 414 as follows: “ ‘People must be extremely careful when they deal with dangerous items or participate in dangerous activities. Driving a tractor-trailer through the S’s on the Holman Highway [ (a portion of Highway 68) ] is dangerous in and of itself. The risk of harm is so great that the failure to use extreme caution is negligence.’ ”3 The court declined to do so because it “did not believe it was important to give in this case ….”
*5 The court instructed the jury with a modified version of CACI No. 401 as follows: “Negligence is the failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. [¶] The amount of caution required in the exercise of ordinary care depends upon the danger in the particular situation. [¶] You must decide how a reasonably careful person would have acted in Robert Burton’s and Svetlana Owens’ situation.”4
The court also instructed the jury: “A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles, and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence.” The court specifically told the jury that crossing double yellow lines was negligence: “If double parallel solid yellow lines are in place, a person driving a vehicle shall not drive to the left of the lines. [¶] If you decide that Robert Burton violated this law and that the violation was a substantial factor in bringing about the harm, then you must find that Robert Burton was negligent.”
Owens claims that the trial court prejudicially erred in refusing to give the modified version of CACI No. 414 that she requested.
The trial court’s decision to refuse to give the requested instruction was based on the California Supreme Court’s decision in Menchaca v. Helms Bakeries, Inc. (1968) 68 Cal.2d 535 (Menchaca). In Menchaca, a bakery delivery truck that sold doughnuts to children ran over a small child who was standing in front of the truck when, after making a delivery and selling doughnuts to a group of children, the truck began pulling forward without honking its horn. (Menchaca, at pp. 539-540.) There was “a substantial blind spot in front of the truck” that obscured the driver’s vision. (Id. at p. 540.) The California Supreme Court found that the trial court had made several instructional errors. The trial court had erroneously precluded the jury from considering whether the truck was negligently equipped because it did not have a mirror that would allow the driver to see into the blind spot. (Id. at p. 541.) The trial court also erred in failing to instruct on whether the driver had breached a duty to sound his horn and by failing to give an instruction detailing the standard of “ ‘ordinary care.’ ” (Id. at pp. 542-544.) These errors were prejudicial and required reversal of the judgment.
However, the California Supreme Court found no error in the trial court’s refusal to instruct that the truck driver had a duty “ ‘to exercise extreme caution.’ ” (Menchaca, supra, 68 Cal.2d at p. 544.) “The quantum of care required by ordinary prudence varies with the danger of the activity undertaken; an instruction in the form requested by plaintiffs is appropriate to the case in which the defendant uses highly explosive or inflammable materials, firearms, or other inherently hazardous instrumentalities with which the slightest misjudgment may constitute negligence. [Citations.] Driving a motor vehicle may be sufficiently dangerous to warrant special instructions [citations], but it is not so hazardous that it always requires ‘extreme caution.’ ” (Ibid.) The California Supreme Court approved of the trial court’s instruction that “ ‘the amount of caution required in the exercise of ordinary care depends upon the danger … in the particular situation’ ….” (Ibid.) The court also distinguished Borenkraut v. Whitten (1961) 56 Cal.2d 538 (Borenkraut), in which it had held that a trial court prejudicially erred in refusing to give an “ ‘extreme caution’ ” instruction where the facts of the case were that the defendant poured gasoline into an open carburetor and then started the engine while the plaintiff was in the area. (Id. at p. 546.)
*6 Although Menchaca supports the trial court’s decision to reject Owens’s requested instruction, Owens relies heavily on the Second District Court of Appeal’s decision in Weaver v. Chavez (2005) 133 Cal.App.4th 1350 (Weaver). Weaver was driving on a crowded and wet freeway in the rain when another car struck her car and knocked her car into another lane, where her car stopped. Weaver’s car stopped 120 feet in front of Chavez’s tractor-trailer, but Chavez was unable to stop and struck Weaver’s car. (Weaver, at p. 1352.) Chavez admitted that he was driving too fast to be able to stop before hitting Weaver’s car. (Id. at p. 1353.) The primary issue at trial was whether Chavez was driving “at a proper speed for the weather conditions.” (Id. at p. 1357.)
Weaver’s trial counsel asked the trial court to instruct the jury on the “ ‘extreme caution’ ” standard of care set forth in a federal regulation: “ ‘Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist.’ ” (Weaver, supra, 133 Cal.App.4th at p. 1352.) The trial court refused to give the requested instruction. On appeal, the Second District, relying on Borenkraut (and without substantial analysis), found that the trial court had erred in failing to give the instruction. (Id. at pp. 1355-1356.) It also held that the error was prejudicial under the circumstances. (Id. at pp. 1356-1357.)
Owens’s reliance on Weaver is misplaced. The federal regulation at issue in Weaver provided: “Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.” (49 C.F.R. § 392.14.) In Weaver, the issue at trial was whether the commercial truck driver’s speed exceeded that appropriate for the weather conditions, an issue explicitly addressed by the federal regulation. In contrast, in this case, the issue at trial was whether it was Burton’s vehicle or Owens’s vehicle that crossed over the double yellow line, and there was no evidence that Burton’s speed or the weather conditions played any role in the accident. Hence, the subject matter of the federal regulation was not at issue here. “As a general rule, it is improper to give an instruction which lacks support in the evidence, even if the instruction correctly states the law.” (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875.) Consequently, it would have been improper for the trial court to give any instruction pertaining to the federal regulation, and the trial court did not err in failing to do so.
The trial court also properly refused to give the modified version of CACI No. 414 requested by Owens. Despite Owens’s attempt to adapt CACI No. 414 to the facts of this case, this was not a case in which a defendant was “participat[ing] in dangerous activities” within the meaning of that instruction. While there was testimony that the S-curves on Highway 68 are “dangerous,” that evidence did not establish that the “risk of harm” in merely driving a tractor-trailer (or any other vehicle) on that stretch of public highway was “so great” that an “extreme caution” standard of care applied. As the California Supreme Court observed in Menchaca, an “ ‘extreme caution’ ” instruction is appropriate only where “the defendant uses highly explosive or inflammable materials, firearms, or other inherently hazardous instrumentalities with which the slightest misjudgment may constitute negligence.” (Menchaca, supra, 68 Cal.2d at p. 544.) A tractor-trailer is not an “inherently hazardous instrumentalit[y],” and “[d]riving a motor vehicle … is not so hazardous that it always requires ‘extreme caution.’ ” (Ibid.) As the California Supreme Court explained in Menchaca, the appropriate instruction in a case such as this one is that “ ‘the amount of caution required in the exercise of ordinary care depends upon the danger … in the particular situation’ ….” (Ibid.) That is precisely the instruction given by the trial court in this case.
*7 Owens concedes that driving a tractor-trailer on the S-curves on Highway 68 alone did not merit an extreme caution instruction. She also concedes that the weather conditions did not merit an extreme caution instruction. She argues that the combination of the two did merit such an instruction. However, her argument lacks both legal and evidentiary support. An instruction on the federal regulation must be premised on evidence that weather conditions and speed played a role, while CACI No. 414 must be premised on evidence that the defendant was engaged in “hazardous activities.” No evidentiary support for either premise was introduced at trial. Consequently, neither instruction was merited.
Furthermore, any error in connection with the standard of care instructions could not have been prejudicial in this case because the standard of care played no role in the jury’s special verdict in this case. “ ‘[I]nstructional error requires reversal only “ ‘where it seems probable’ that the error ‘prejudicially affected the verdict.’ ” [Citation.] The reviewing court should consider not only the nature of the error, “including its natural and probable effect on a party’s ability to place his full case before the jury,” but the likelihood of actual prejudice as reflected in the individual trial record, taking into account “(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” ’ ” (Guernsey v. City of Salinas (2018) 30 Cal.App.5th 269, 282.)
The sole issue resolved by the jury in this case was the factual dispute about which vehicle crossed over the double yellow line. Resolution of that factual dispute did not turn in any respect on the standard of care. It hinged on the physical evidence, the testimony of the eyewitnesses, and the expert testimony reconstructing how the accident had occurred. The jury was essentially instructed that it was required to find Burton negligent if his vehicle crossed over the double yellow line. Under these circumstances, the trial court’s instructions on the standard of care, even if they had been erroneous, could not have had any impact on the jury’s verdict.
Owens claims in her reply brief that “[t]he evidence in this case developed such that the jury could have found that both Owens and Burton improperly crossed the double yellow line on SR 68.” She asserts: “The record does not support a simple ‘either/or’ option as to whether it was Burton or Owens who crossed the lines because the evidence shows it could have been that each vehicle crossed the double-yellow lines ….” She does not support these claims with a single citation to the record. The parties’ positions at trial were that one and only one of the vehicles crossed over the double yellow lines. Owens’s opening brief on appeal, consistent with those positions, acknowledged that “[t]he central dispute at trial was whether Burton’s semi-tractor crossed the double-yellow lines on the Holman Highway when this accident occurred.” Her reply brief concedes, consistent with those positions, that the “conclusion reached by the jury in this case [was] that Owens crossed the double yellow line ….” Because her unsupported claim in her reply brief conflicts with her own appellate briefs and with her position at trial and lacks any support in the record, we reject it.
B. Gouge Marks
Owens argues that evidence of the gouge marks found on the roadway after the accident should not have been admitted because there was no foundation for a finding that the gouge marks had been caused by the accident, rather than preexisting the accident.
Owens filed an in limine motion seeking exclusion under Evidence Code sections 350 and 352 of any evidence “related to the subject matter of the two (2) asphalt gouges on the highway discovered after the accident in this case ….” She claimed that there was no foundation for a finding that “the gouge marks were created by this accident,” and “no evidence showing the gouge marks were not pre-existing.” Owens claimed that evidence of the gouges would be “speculative, irrelevant, misleading, confusing, argumentative and unduly prejudicial.” Her motion stated that it was based on “the supporting Memorandum of Points and Authorities, the pleadings and papers on file in this action, and upon such argument and evidence as may be presented prior to or at the hearing of this matter.” Owens’s in limine motion was heard at an unreported June 29, 2017 trial management conference and “DENIED without prejudice.” There is no indication in the record as to whether the defense produced foundational evidence at that hearing.
*8 On July 11, 2017, at the commencement of trial, Owens’s trial counsel told the court that the parties had stipulated to the admission of 21 “Highway Patrol photos,” which included photographs of the gouges. Owens introduced into evidence at trial photographs of the gouges, outlined in bright orange paint, that had been taken by the CHP at the scene of the accident. She also introduced into evidence Yerace’s CHP traffic collision report, which noted the two gouge marks as “Physical Evidence.” The report stated: “[B]ased upon the physical evidence (gouge marks), I can determine that V-1 [ (Owens’s car) ] crossed over into the oncoming lane at the time of impact with V-2 [ (Burton’s tractor-trailer) ].”
Owens’s trial counsel questioned Yerace about the gouge marks during his direct examination of Yerace. He asked Yerace if he had done anything “to determine whether or not these gouge marks are related to this accident.” Yerace responded: “To me they were apparent at that time based on the texture of the gouge. Usually over time gouge marks will become rounded as more additional vehicles drive over them.” “[B]ased on my experience and being able to see different scenes and kind of determine whether or not evidence at that scene is specifically related to that incident as opposed to something that may have been preexisting, I felt confident that these two specific items that are marked in orange paint occurred that morning.” He thought at least one of the gouge marks looked “like a very fresh gouge mark that wouldn’t have happened four months previously.” Owens’s trial counsel adduced Yerace’s testimony that it would “possibly” change his opinion about “who caused the accident” if “these gouge marks are not related to the accident.” Owens’s expert, Kobayashi, testified that it was his opinion that, based on their location, the gouge marks were not associated with this accident. Because he did not believe that the gouge marks were related to the accident, his position was that there was “no physical evidence in which lane this accident occurred.”
Defense expert Cornetto testified that the gouge marks were related to the accident and were caused by the left front of Owens’s car being “driven down into the ground” by the impact. Cornetto testified that gouge marks are characteristic of “head-on accidents.” He explained that “fresh” gouge marks have “jagged edges,” which “wear down” over time. These gouge marks appeared to him to be “fresh.” Cornetto testified that he was “certain” that the gouge marks were the result of this accident. The gouge marks permitted Cornetto to closely identify the location of the impact; otherwise, the area of impact could have varied as much as several feet to the left or to the right. Cornetto testified that the gouge marks were important to his conclusion that the impact occurred in Burton’s lane.
Owens’s only objection below to the admission of evidence of the gouge marks was her in limine motion, which was premised on an alleged lack of foundation. That motion was “DENIED without prejudice” at an unreported hearing, and she not only did not renew the motion but herself introduced evidence of the gouge marks, stipulated to the admission of evidence of the gouge marks, and examined witnesses extensively about the gouge marks.
The defense contends that Owens failed to preserve her evidentiary objection for appellate review. “[A] motion in limine to exclude evidence is a sufficient manifestation of objection to protect the record on appeal when it satisfies the basic requirements of Evidence Code section 353, i.e.: (1) a specific legal ground for exclusion is advanced and subsequently raised on appeal; (2) the motion is directed to a particular, identifiable body of evidence; and (3) the motion is made at a time before or during trial when the trial judge can determine the evidentiary question in its appropriate context. When such a motion is made and denied, the issue is preserved for appeal. On the other hand, if a motion in limine does not satisfy each of these requirements, a proper objection satisfying Evidence Code section 353 must be made to preserve the evidentiary issue for appeal.” (People v. Morris (1991) 53 Cal.3d 152, 190, italics added (Morris), disapproved on a different point in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn.1.) “In some cases, a specific objection to a particular body of evidence can be advanced and ruled upon definitively on a motion in limine, thus satisfying the requirements of [Evidence Code section 353]…. [¶] In other cases, however, a motion in limine may not satisfy the requirements of Evidence Code section 353…. Actual testimony sometimes defies pretrial predictions of what a witness will say on the stand. Events in the trial may change the context in which the evidence is offered to an extent that a renewed objection is necessary to satisfy the language and purpose of Evidence Code section 353.” (Id. at pp. 189-190.)
*9 Owens has not met her burden as the appellant of showing that her in limine motion was “made at a time … when the trial judge c[ould] determine the evidentiary question in its appropriate context.” A foundational objection calls into question whether the proponent of the evidence can establish a foundation for the evidence to be admitted. Here, the gouge marks were relevant only if they were a result of the collision between Owens’s car and Burton’s vehicle. Therefore, the requisite foundation was evidence “sufficient to sustain a finding” that the gouge marks resulted from this collision. (Evid. Code, § 403, subd. (a)(1).) The appellate record that Owens has produced reflects only that Owens’s motion was denied “without prejudice” at an unreported pretrial hearing. We cannot discern from this record whether the defense presented the requisite foundational evidence at that hearing or whether the court’s “without prejudice” ruling was intended as a tentative ruling pending the defense’s presentation of the requisite foundational evidence at trial. Since we cannot review the trial court’s basis for its in limine ruling due to the lack of a reporter’s transcript of the pretrial hearing, and Owens explicitly abandoned any further foundational objection by stipulating to the admission of the evidence at trial, we can only conclude that Owens has failed to preserve this issue for appellate review.
Furthermore, at trial the defense produced evidence “sufficient to sustain a finding” that the gouges were the result of this collision. Both Yerace and Cornetto testified that the condition of the gouges when Yerace arrived at the scene demonstrated that they were “fresh” and had not preexisted the accident. Cornetto also testified that the nature of the gouges was characteristic of a head-on collision, which rebutted Owens’s claim that the gouges could have been caused by a rear-end collision that had occurred at the same location four months earlier. Since the requisite foundation was established at trial, the trial court did not err in admitting evidence of the gouges over Owens’s in limine foundational objection.5
C. Computer Animation
Owens claims that the trial court prejudicially erred in failing to exclude Cornetto’s “demonstrative evidence” because it “was not based on the facts of the case.” She argues on appeal that Cornetto’s computer animations showing his reconstruction of the accident inaccurately depicted the weather conditions at the time of the accident, the “point of impact,” and the position of Burton’s trailer at the time of the collision. Owens premises her argument on Kobayashi’s testimony that Cornetto’s animations were “deceptive and misleading.” Owens maintains that the animations should have been excluded because they “portrayed disputed opinions as fact.” She also claims that the trial court prejudicially erred by failing to give a cautionary instruction warning the jury that the animations were just a depiction of the defense’s view of the evidence.
Owens filed an in limine motion asking the court to bar Cornetto from using “demonstrative evidence, including computer generated animation cartoons, attempting to depict a demonstrative presentation of the accident, not based on the facts of the case.” She claimed that such evidence was inadmissible under Evidence Code sections 350 and 352 because it would be “speculative, irrelevant, misleading, confusing and prejudicial.” Owens asserted in her motion: “Through discovery of this expert, it has been established that the depiction of the facts reflected in the demonstrations are not based on the facts of this case and are substantially dissimilar to the facts of this case and therefore are speculative, misleading, irrelevant and prejudicial.” She argued that Cornetto “has inputted misleading and inaccurate information into [his] computer animation cartoon program thus distorting the real facts of the case, which will both mislead and confuse the jury.” Her in limine motion did not specifically identify how Cornetto’s animation was inconsistent with “the facts of this case.” At the unreported pretrial trial management conference, this motion was “DENIED without prejudice.” Owens made no further objection to Cornetto’s animations.
*10 At trial, before Cornetto testified, Owens’s trial counsel questioned Kobayashi about several of Cornetto’s animations, including exhibit JJ, which he said the defense “has already used in their opening,” and exhibits R, S, and U.6 When Cornetto testified, he explained how he had reconstructed the accident. He took into account the damage to the vehicles, the “final rest positions” of the vehicles, the directions they had been travelling, the relative weights of the vehicles, the speeds of the vehicles, the gouge marks, the location of a fluid deposit on the roadway near the gouges, and marks across the double yellow lines. When the defense moved four of Cornetto’s animations (exhibits HH, II, JJ, and KK) into evidence, Owens’s trial counsel stated that he had “[n]o objection.”
The defense maintains that Owens failed to preserve this contention for appellate review because she did not object at trial to the admission of Cornetto’s animations. We agree. As was true with her appellate claim that the trial court erred in admitting evidence of the gouge marks, Owens has failed to show that her in limine motion challenging the admissibility of Cornetto’s animations was “made at a time … when the trial judge c[ould] determine the evidentiary question in its appropriate context.” (Morris, supra, 53 Cal.3d at p. 190, italics added.) Owens’s in limine motion provided no “context” upon which the trial court could base a determination of whether Cornetto’s animations were “not based on the facts of the case.” The trial court’s in limine ruling was made at an unreported hearing, so we cannot review any evidence that was possibly presented to the court at that hearing. Furthermore, the court’s ruling was expressly “without prejudice,” which necessarily invited Owens to renew her objection if the evidence at trial established the animations were improperly premised. But Owens did not renew her objection. Instead, she presents an appellate argument based on the evidence presented at trial. The record does not reflect that she made these specific contentions either at the unreported hearing or at trial, where she made no objection whatsoever. We find that Owens has not preserved this contention for appellate review.
Furthermore, her contention lacks merit. “ ‘Animation is merely used to illustrate an expert’s testimony while simulations contain scientific or physical principles requiring validation. [Citation.] Animations do not draw conclusions; they attempt to recreate a scene or process, thus they are treated like demonstrative aids. [Citation.] Computer simulations are created by entering data into computer models which analyze the data and reach a conclusion.’ [Citations.] In other words, a computer animation is demonstrative evidence offered to help a jury understand expert testimony or other substantive evidence [citation]; a computer simulation, by contrast, is itself substantive [citations]. [¶] Courts have compared computer animations to classic forms of demonstrative evidence such as charts or diagrams that illustrate expert testimony. [Citations.] A computer animation is admissible if ‘ “it is a fair and accurate representation of the evidence to which it relates ….” ’ [Citations.] A trial court’s decision to admit such demonstrative evidence is reviewed for abuse of discretion. [Citations.] A computer simulation, by contrast, is admissible only after a preliminary showing that any ‘new scientific technique’ used to develop the simulation has gained ‘general acceptance … in the relevant scientific community.’ ” (People v. Duenas (2012) 55 Cal.4th 1, 20-21 (Duenas).)
It is difficult to even address the merits of Owens’s contention because her in limine motion did not identify any specific exhibit (or exhibits), and her appellate briefs also fail to identify the specific exhibit (or exhibits) that she claims should have been excluded. It seems as if her contention is aimed at exhibit JJ, a 15-second animation representing Cornetto’s reconstruction of the accident. Exhibit JJ was shown during Cornetto’s testimony on direct and again by Owens’s trial counsel during cross-examination of Cornetto. When the defense moved exhibit JJ into evidence, Owens’s trial counsel had “[n]o objection.” Cornetto testified at trial that this animation illustrated the results of his “final solution” as to how the accident occurred based on his computer-generated simulations. Owens’s trial counsel cross-examined Cornetto at length about exhibit JJ.
*11 Assuming for the sake of argument that Owens’s contention is directed at exhibit JJ, we would find no merit in it even if it had been preserved for appellate review. “In a case like this one, where the animation illustrates expert testimony, the relevant question is not whether the animation represents the underlying events of the [accident] with indisputable accuracy, but whether the animation accurately represents the expert’s opinion as to those events.” (Duenas, supra, 55 Cal.4th at p. 21.) Owens’s attack on Cornetto’s animation simply disputes whether the animation accurately represented the accident. However, the trial court did not abuse its discretion in concluding that exhibit JJ accurately represented Cornetto’s expert opinion about how the accident had occurred. There was a substantial basis for the trial court to reach such a conclusion because Cornetto testified that exhibit JJ accurately represented his reconstruction of the accident and explained why.
Owens’s additional claim that the trial court was obligated to give a limiting instruction concerning the animation is also without merit. A trial court is not obligated to give a limiting instruction except upon request. (Daggett v. Atchison, T. & S. F. R. Co. (1957) 48 Cal.2d 655, 665-666.) Owens forfeited any claim that a limiting instruction was necessary by failing to request any limiting instruction.
D. SWITRS Records
Owens claims in her opening appellate brief that the trial court erred in failing to take “judicial notice” of SWITRS records that would have shown “the number, location and type of collisions occurring prior to the subject accident to explain other sources of the asphalt gouges.” In her reply brief, she claims that the trial court erred in failing to admit the SWITRS records as public records under Evidence Code section 1280.
While Yerace was testifying on direct examination, Owens’s trial counsel asked Yerace if he knew what SWITRS was, and Yerace said “I have heard of it, and I can’t recall off the top of my head what it stands for.” Owens’s trial counsel then asked Yerace “what SWITRS is,” and Yerace said “I believe it’s a system that’s used to document location, dates, possibly the primary collision factor for accidents, maybe some other general information like that.” Yerace testified: “It’s not something I use.” Owens’s trial counsel asked him to look at a document that had been marked as exhibit 35. Owens’s trial counsel referred to this document as a “SWITRS report.”
Exhibit 35 is a 38-page document entitled: “#150780 2005 – AV 2014/2015 COLLISIONS ON RT 68 BETWEEN SCENIC RD & S CURVE IN MONTEREY COUNTY.” The document appears to list information about 276 collisions occurring between 2005 and 2012. The sources of the information in the document are not identified in the document.
When Owens’s trial counsel asked Yerace about specific information listed on exhibit 35, defense counsel objected on hearsay and foundation grounds. The court sustained these objections. Yerace thereafter testified that he was aware of other accidents on the S-curves on Highway 68 because he had “personally investigated other traffic collisions” in that area, which were “common place through the S-curves ….”
Kobayashi testified that “a SWITRS report” was “a listing that’s maintained where the state records all of the accidents in an area, because what they are looking at is a certain area where you have more accidents. So they record basic data on all the accidents that are reported.” Kobayashi testified that he had looked at “the SWITRS report” and “could not find any accident in that specific area.”
Owens’s trial counsel returned to exhibit 35 later in his questioning of Yerace. Defense counsel again objected on hearsay grounds. After Yerace admitted that he was just reading from exhibit 35, the court sustained the objection. Owens’s trial counsel admitted that he had not provided any foundation for the document, but he argued that exhibit 35 was admissible as “an official record of the State of California.” The court responded: “Well, it has to be authenticated as such first, does it not?” Owens’s trial counsel replied: “I think it is self-authenticating, Your Honor, but if it does, we withdraw the question.” The court said: “Unless it’s certified, it’s not self-authenticating.” Owens’s trial counsel withdrew the question and terminated his examination of Yerace.
*12 Owens’s trial counsel later attempted to cross-examine Cornetto using exhibit 35. Several defense objections on foundational grounds were sustained. However, at one point, the trial court ruled that “sufficient foundation” established that exhibit 35 “is a SWITRS report,” and Cornetto testified that exhibit 35 listed a September 14, 2011 accident as a “rear-end” injury collision that had occurred at the same location as the January 20, 2012 accident and in the lane that Burton was travelling in. Cornetto testified that the gouge marks were not a result of that prior accident, but a result of the Owens/Burton accident. On redirect, Cornetto explained that a rear-end accident would not cause a vehicle to be driven down into the road, so it was unlikely such an accident would cause gouges. The court thereafter changed its ruling and found that “there was insufficient foundation to allow Exhibit 35 in. That’s the excerpt from SWITRS.”
Owens’s claim in her opening brief that the trial court erred in failing to take “judicial notice” of exhibit 35 was not preserved for appellate review because she never asked the trial court to take judicial notice of exhibit 35. Her claim in her reply brief that the trial court erred in refusing to admit exhibit 35 as a public record under Evidence Code section 1280 was forfeited due to her failure to raise it in her opening brief. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [“ ‘ “Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief.” ’ ”].) In any case, neither claim has any merit.
Owens’s “judicial notice” argument seems to suggest that the trial court should have taken judicial notice of exhibit 35 because it was “indisputably true.” “Judicial notice may be taken of … [f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).) “The trial court shall take judicial notice of any matter specified in Section 452 if a party requests it and: [¶] (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and [¶] (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453, italics added.) “We apply the abuse of discretion standard in reviewing a trial court’s ruling denying a request for judicial notice (i.e., we affirm the ruling unless the information provided to the trial court was so persuasive that no reasonable judge would have denied the request for judicial notice).” (CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, 520.)
“The burden is on the party requesting judicial notice to supply the court with sufficient, reliable and trustworthy sources of information about the matter…. Whether information supplied by a party is sufficient for the purpose will vary from case to case. In some cases the original source documents may be required to provide the court with sufficient information. If the information supplied is not sufficient the trial judge is entitled to refuse to take judicial notice of the matter requested.” (People v. Maxwell (1978) 78 Cal.App.3d 124, 130-131.)
Owens never requested that the trial court take judicial notice of exhibit 35 or furnished the court with sufficient information to permit it to determine whether the document was reliable and trustworthy. Exhibit 35 is a lengthy document that purports to be a comprehensive list of information about a group of collisions on Highway 68 during a specific period. Although Owens claimed that the document was “self-authenticating,” the document itself contains no information about its source. No witness testified about the provenance of this document or the reliability or trustworthiness of the information that it purported to contain. Since neither the document nor the testimony established that exhibit 35 was indisputably accurate, the trial court did not abuse its discretion in failing to take judicial notice of this document.
*13 Owens’s Evidence Code section 1280 argument fares no better. “ ‘Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.’ (Evid. Code, § 1280.) ‘A trial court has broad discretion in determining whether a party has established these foundational requirements. [Citation.] Its ruling on admissibility “implies whatever finding of fact is prerequisite thereto …. [Citation.]” [Citation.] A reviewing court may overturn the trial court’s exercise of discretion “ ‘only upon a clear showing of abuse.’ ” ’ ” (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 138-139 (ConAgra).) Owens made no attempt to establish that exhibit 35 was a writing “made at or near the time of” any events or that its “sources of information and method and time of preparation were such as to indicate its trustworthiness.” Hence, the trial court did not abuse its discretion in refusing to admit exhibit 35 under Evidence Code section 1280.
We note also that any error would have been harmless since Owens’s expert denied that there were any prior accidents, and the defense expert testified that the prior accident could not have caused the gouge marks because it was a rear-end accident. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569 [judicial notice error subject to harmless error review]; Conagra, supra, 17 Cal.App.5th at p. 139 [Evid. Code, § 1280 error subject to harmless error review].) As this testimony eliminated any possible basis for Owens’s argument that the prior accident caused the gouges, any error in excluding exhibit 35 was harmless.
E. Limitations on Perez’s Testimony
Owens argues that the trial court prejudicially erred in refusing to allow Perez to testify about “how environmental and biological factors could have affected [Berti’s] perception and awareness of the accident.” She claims that Perez’s “credentials and legacy of testimony should have qualified him as an expert on visual perception and human factors issues.” Owens asserts that Perez could have properly testified about “Berti’s line of sight, vision distortions of refracting light off a wet roadway, sight angles, timing and focus.” She argues that limiting Perez’s testimony precluded him from testifying about “the ability of persons to have actually seen what their cognitive memory tells them they saw.”
At his deposition, Perez, an engineer, said his testimony would be “[v]ery limited” and restricted to serving as a “human factors expert” regarding Berti’s testimony. He proposed to testify that Berti would not have been able to see “the lane demarcation” due to “oncoming glare.”
The defense moved in limine to exclude Perez’s testimony about Berti’s “mental processes and computations, including Berti’s ability to accurately recall the incident,” Berti’s “perception of the accident and whether Berti was able to accurately perceive the accident,” and “any references” by counsel to such issues. The defense argued that Perez was not qualified to testify about “the mental component of human factors.” Alternatively, the defense argued that Perez’s testimony would invade the jury’s province because it pertained to a subject of common knowledge. The defense also objected to this proposed testimony under Evidence Code section 352 and requested an Evidence Code section 402 hearing.
The court granted the defense request for an Evidence Code section 402 hearing, noting that “there did not appear to be any sort of a foundation sufficient to base an opinion about what Mr. Berti saw or didn’t see but that properly foundational-wise, Mr. Perez might be able to give an opinion about the effects of lighting and glare on a wet roadway surface.”
Perez testified at the hearing that he had served as a human factors expert 30 times over a period of 20 years. However, he admitted that in only one or two of those cases had he testified solely as a human factors expert. In the remainder of those cases, he had testified as an expert on accident reconstruction. Perez’s proposed opinion testimony was “that the oncoming headlights would have [been] a very significant factor at determining or having an observer in Mr. Berti’s position—anybody that’s driving in the same direction that Mr. Berti would be driving would have difficulty seeing the demarcation line between opposing traffic.” He based this opinion on both the curvature and slope of the road and the movement of the oncoming headlights. “[T]he visual aspects of the scenery—oncoming headlights in that radius of curvature, elevated roadway—there is going to be what I would call oncoming glare that would make it virtually impossible to see” the position of the trailer’s tires. “He could not have seen what he testified to that he saw.” Perez based his opinion on a video he had taken as he drove through the scene of the accident at the same time and day of the year four years after the accident.
*14 Owens’s trial counsel argued that Perez should be permitted to testify as an expert in human factors about “vision.” He claimed: “Perez will testify, in essence, that what one thinks one sees, one does not necessarily see depending on … certain physical factors.” He sought to have Perez testify that someone in Berti’s position would not have been able to perceive the location of the trailer’s tires.
Defense counsel argued that Perez’s proposed testimony was not a proper subject for expert testimony. He noted that the conditions when Perez’s video was taken were not similar to the conditions Berti encountered. Perez was not following a tractor-trailer when he made the video. Defense counsel also argued that Perez’s proposed testimony should be excluded under Evidence Code section 352 as unduly time consuming and confusing.
The court ruled that the video Perez had made could come in to show the height of oncoming headlights and relative heights on the roadway. However, the court found that there was insufficient foundation for Perez’s proposed testimony that a person in Berti’s position could not have seen the lane demarcation. The lack of foundation was due to both Perez’s lack of “qualifications” and “the lack of sufficient similarity” given that the video was not taken with a tractor-trailer in front of Perez’s vehicle. “You have a very large vehicle which is going to be—common sense could tell you that—obstructing the path of the headlight beams from hitting the roadway in that eastbound lane.”
The court ruled: “He could testify about the study and about, you know, why he conducted the study, the physical characteristics of the roadway, and he can point out there is glare on the roadway, but I do not believe that there is a sufficient foundational basis for rendering the opinion that someone in the position of Mr. Berti could not have seen what he saw. That’s for the jury to decide.” The court refused to permit Perez to testify regarding his “opinion as to the ability of the percipient witness or a percipient witness behind the semi rig to see the demarcation line.”
Perez proceeded to testify before the jury so that he could authenticate the video, which was admitted into evidence, and he very briefly described the radius of the curve and the slope of the roadway and the embankment at the location of the accident. On cross-examination, Perez admitted that he had “eyeballed” the location of the video camera. He could not remember which hand he had held the camera in or what kind of car he was driving at the time, although he believed it was a sedan.
In the defense’s closing argument, defense counsel argued: “[Perez] did not give one single opinion, not one opinion that Mr. Berti couldn’t have seen what he saw…. So I don’t know what Mr. Perez was trying to prove, but all he did was show you a video.” He argued that Owens had failed to satisfy “promises that plaintiff made in opening.” Defense counsel argued that Owens’s trial counsel had said that “An expert will testify that Mr. Berti was mistaken about what he saw. I didn’t hear it.”
“[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772 (Sargon).) We review the trial court’s ruling excluding expert opinion testimony for abuse of discretion. (Id. at p. 773.) “A ruling that constitutes an abuse of discretion has been described as one that is ‘so irrational or arbitrary that no reasonable person could agree with it.’ ” (Ibid.)
*15 Owens’s argument on appeal ignores the limited nature of the trial court’s ruling. The court permitted Perez to “testify about the study and about, you know, why he conducted the study, the physical characteristics of the roadway, and he can point out there is glare on the roadway ….” It precluded Perez only from “rendering the opinion that someone in the position of Mr. Berti could not have seen what he saw” and from giving his “opinion as to the ability of the percipient witness or a percipient witness behind the semi rig to see the demarcation line.”
The trial court did not abuse its discretion in precluding Perez from testifying to the opinion that Berti or “a percipient witness behind the semi rig” “could not have seen what he saw” or seen “the demarcation line.” Perez’s opinion was based on the video, but the video did not support his opinion because it had not been taken under similar conditions. Perez was not behind a tractor-trailer when he took the video, and he was not in a vehicle similar to Berti’s truck. Nor was there any evidence that the video camera was in a position similar to the position of Berti’s eyes at the time of Berti’s observations. Consequently, the trial court could reasonably conclude that Perez’s opinion was “unsupported by the material on which [he] relies.” (Sargon, supra, 55 Cal.4th at p. 772.)
F. New Trial Motion
Owens asserts that the trial court erred when it allegedly failed to act “As The ‘Thirteenth Juror’ ” when it denied her motion for a new trial. However, she bases her argument in support of this contention on all of her other claims of error, which we have already rejected. This claim too has no merit.
A trial court may grant a new trial motion when it concludes, “ ‘sitting as a thirteenth juror, the weight of the evidence appears to be contrary to the jury’s determination ….’ ” (Barrese v. Murray (2011) 198 Cal.App.4th 494, 503.) Owens moved for a new trial. The court denied her motion, saying: “I certainly can’t say that the weight of the evidence preponderates in favor of a different result ….” The trial court plainly fulfilled its role “as a thirteenth juror.”
G. Substantial Evidence
Owens asserts that the jury’s verdict is not supported by substantial evidence, but her one-paragraph argument contains no record citations or analysis independent of her claims of instructional and evidentiary error, which we have already rejected. Thus, she provides no support for this contention, and we therefore reject it.
The judgment is affirmed.
Premo, Acting P. J.
Not Reported in Cal.Rptr., 2020 WL 3120354
Custodio told a CHP officer that Burton’s vehicle “may have came [sic] into her lane, but she was not sure.”
Owens also sued Custodio and Ryder Truck Rental Inc.
CACI No. 414 provides: “People must be extremely careful when they deal with dangerous items or participate in dangerous activities. [Insert type of dangerous item or activity] is dangerous in and of itself. The risk of harm is so great that the failure to use extreme caution is negligence.” (CACI No. 414.)
CACI No. 401 provides: “Negligence is the failure to use reasonable care to prevent harm to oneself or to others. [¶] A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. [¶] You must decide how a reasonably careful person would have acted in [name of plaintiff/defendant]’s situation.” (CACI No. 401.) The trial court’s instruction added an additional sentence before the final sentence of the pattern instruction.
Although her in limine motion cited Evidence Code section 352, her “undue prejudice” claim was premised solely on her assertion that there was no evidence that the gouges were related to the accident. Since there was sufficient evidence that the gouges were the result of this accident, the trial court could reasonably conclude that the probative value of evidence of the gouges was not substantially outweighed by any danger of undue prejudice or any risk of confusion. (Evid. Code, § 352.) The testimony at trial established that the location of the gouges was highly probative evidence on the issue of the location of the impact.
Exhibit JJ was admitted into evidence, but exhibits R, S, and U were never admitted into evidence.