The opinion
Filed 8/20/19
Reposting with correct title
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
PETER FULLER, 2d Civil No. B287689
(Super. Ct. No. 14CVP0073)
Plaintiff and Appellant, (San Luis Obispo County)
v.
DEPARTMENT OF
TRANSPORTATION,
Defendant and Respondent.
A public entity is not liable for an injury caused by a
dangerous condition of public property unless the injury was
proximately caused by the dangerous condition and the
dangerous condition created a reasonably foreseeable risk of the
kind of injury which was incurred. (Gov. Code, § 835 ; Cordova v.
1
City of Los Angeles (2015) 61 Cal.4th 1099, 1105 (Cordova).)
Here a motorist with a willful and wanton disregard for the
safety of others, recklessly tried to pass a tour bus on State Route
All statutory references are to the Government Code
1
unless otherwise stated.
1 near Hearst Castle. He struck a car driven by appellant, Peter
Fuller, head-on. Appellant was severely injured and his wife was
killed. The jury returned a special verdict that a dangerous
condition of public property existed but did not “create a
reasonably foreseeable risk that this kind of incident would
occur.” (Italics added.) Appellant claims the special verdict is
fatally inconsistent warranting a new trial. We disagree and
affirm the judgment in favor of State of California, Department of
Transportation (Caltrans).
Facts and Procedural History
This head-on collision occurred on State Route 1 near Vista
Point 1, about two miles south of Hearst Castle. The two-lane
highway runs north/south, is S-shaped with a slight slope, and
has a dashed center line that permits motorists to pass slower
vehicles when it is safe to do so. Jeffrey LaChance drove this
portion of highway four times a day, Monday through Friday for
19 years, commuting to work and dropping his wife off at work at
Hearst Castle. On the afternoon of October 10, 2011, LaChance
was going northbound and tried to pass a 45-foot tour bus after it
crossed Pico Creek Bridge. Appellant was driving southbound at
55 miles per hour, the posted speed limit. LaChance failed to
pass the tour bus and struck appellant’s Toyota head-on, a few
feet north of Vista Point 1, a highway scenic turnout.
After the collision, LaChance told CHP Officer Paul
Budrow that he could see 3/4 a mile ahead and appellant’s Toyota
suddenly appeared in front of him. LaChance pled no contest to
misdemeanor reckless driving causing injury and vehicular
manslaughter. (Veh. Code, § 23105, subd. (a); Pen. Code, § 192,
subd. (c)(2).)
2
Appellant sued Caltrans. His theory was premised upon
two dangerous conditions: (1) the road striping north of Pico
Creek Bridge allowed passing despite an alleged dip or blind spot
in the road that limited sight distance and obscured visibility,
and (2) passing should have been prohibited at the scenic turnout
(Vista Point 1) because it was like an intersection and created
traffic conflicts when vehicles turned into the scenic turnout.
The evidence showed that there were no dips in the road
and the road striping conformed with federal and state highway
standards requiring a 900 foot minimum sight distance for safe
passing. Using a road survey and the highway as-built plans,
traffic safety expert Kim Nystrom opined that the sight distance,
looking north from where LaChance started to pass the bus, was
1,500 feet. That was consistent with the bus driver’s and
LaChance’s statements that there was a clear line of sight.
LaChance did not say anything about a dip in the road or limited
visibility when he spoke to CHP Officer Budrow after the
collision. A third motorist, Elizabeth Rizzo, was following the
Fuller car and saw LaChance pull into the southbound lane.
Rizzo said it was “way too late” for LaChance to safely pass the
bus. Rizzo was “[a] hundred percent” sure a collision would occur
the moment LaChance pulled into the southbound lane to make
the pass.
The jury was provided a special verdict form that was
drafted by appellant and asked: “1. Was the property in a
dangerous condition at the time of the incident? [¶] If your
answer to Question No. 1 is ‘yes,’ then answer Question No. 2.”
Question No. 2 asked: “Did the dangerous condition create a
reasonably foreseeable risk that this kind of incident would
occur?” (See Judicial Council Cal. Civ. Jury Instructions (2018) 1
3
CACI,VF-1100, p. 687.) The jury answered “Yes” to Question No.
1 (10-2) and “No” to Question No. 2 (12-0), finding there was a
dangerous condition of public property, but the dangerous
condition did not create a reasonably foreseeable risk that this
kind of incident would occur. Appellant did not object to the
2
verdict form that he drafted. Nor did he ask the jury for
clarification before the verdict was entered.
Claimed Inconsistent Jury Verdict
Appellant contends the special verdict findings are fatally
inconsistent and not supported by the evidence. (See Oxford v.
Foster Wheeler LLC (2009) 177 Cal.App.4th 700, 716 (Oxford)
[verdict is inconsistent when it is beyond the possibility of
reconciliation under any possible application of evidence and
instructions].) Caltrans asserts that appellant forfeited the
inconsistent verdict claim by not objecting or seeking clarification
before the verdict was entered. No objection was required to
preserve the issue. (Lambert v. General Motors (1998) 67
Cal.App.4th 1179, 1182; Zagami, supra, 160 Cal.App.4th at p.
1093, fn. 6.)
On appeal, we review the special verdict de novo. (Singh v.
Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358.)
“A special verdict is inconsistent if there is no possibility of
reconciling its findings with each other. [Citation.]” (Id. at
p. 357.) If the special verdict is not “hopelessly ambiguous,” the
court may interpret the verdict “‘from its language considered in
The CACI instruction, VF-1100 uses the word “incident”
2
instead of the word “injury” as specified in § 835. (See discussion,
post at pp. 6-7.) We do not recommend this change as it varies
the meaning of § 835.
4
connection with the pleadings, evidence and instructions,’” and
counsel’s argument to the jury. (Woodcock v. Fontana
Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456-457; see
Oxford, supra, at pp. 718-720 [evidence, instructions and
argument]; Zagami Inc. v. James A. Crone, Inc. (2008) 160
Cal.App.4th 1083, 1092 (Zagami) [pleading, evidence, and
instructions].)
The fair import of the special verdict is that the unsafe
condition did not create a reasonably foreseeable risk that a
driver would attempt to recklessly pass a bus when it was unsafe
to do so. The trial court instructed on section 835 which
prescribes the conditions on which a public entity may be held
liable for injuries caused by a dangerous condition of public
property. (Cordova, supra, 61 Cal.4th at p. 1105.) The jury was
instructed that appellant had to prove: “One, that the property
was in a dangerous condition at the time of the incident. Two,
that the dangerous condition created a reasonably foreseeable
risk of the kind of incident that occurred. Three, the negligent or
wrongful conduct of Caltrans created the dangerous condition.
Four, that Peter Fuller was harmed. And five, that the
dangerous condition was a substantial factor in causing Peter
Fuller’s Harm.” (Italics added.) It is presumed that the jury
followed the instructions and that its verdict reflects the legal
limitations those instructions imposed. (Cassim v. Allstate Ins.
Co. (2004) 33 Cal.4th 780, 803.)
Appellant tried the case on the theory there were two
dangerous conditions. The special verdict form, however, did not
ask which dangerous condition it was. Was it the road striping
north of Pico Creek Bridge which permitted passing even though
the line of sight was allegedly restricted due to a dip or blind spot
5
in the road? Or was it Vista Point 1 which created traffic
conflicts for vehicles turning into the rest stop or was it both?
Because the special verdict form did not ask the jury to decide the
issue with specificity, the jury finding on dangerous condition is
tantamount to a general verdict and all reasonable inferences are
drawn to support it. (Jonkey v. Carignan Construction Co. (2006)
139 Cal.App.4th 20, 26.) “If any conclusions could be drawn
thereunder which would explain the apparent conflict [in the
verdict], the jury will be deemed to have drawn them.” (Hasson
v. Ford Motor Co. (1977) 19 Cal.3d 530, 540-541 (Hasson),
overruled on other grounds in Soule v. General Motors Corp.
(1994) 8 Cal.4th 548, 574.) This is a daunting standard of review
because the jury found (12-0) there was no reasonably foreseeable
risk that this kind of incident would occur. “Where, as here, the
judgment is against the party who has the burden of proof, it is
almost impossible for him to prevail on appeal by arguing the
evidence compels a judgment in his favor.” (Bookout v. State of
California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th
1478, 1486.)
Appellant argues that “the jury was repeatedly instructed
that, in order to find that the property was in a dangerous
condition, it must find inter alia that the dangerous condition
created a reasonably foreseeable risk of the kind of injury which
was incurred.” The argument assumes that section 835
foreseeability encompasses any kind of injury or incident once a
dangerous highway condition is established. But that would
make foreseeability boundless. Section 835 requires that
appellant prove that “that the injury was proximately caused by
the dangerous condition,” and “that the dangerous condition
created a reasonably foreseeable risk of the kind of injury which
6
was incurred . . . .” Here the jury was instructed to consider a
more restrictive foreseeability which required that the dangerous
condition “create a reasonably foreseeable risk that this kind of
incident would occur.” (Italics added.) Appellant does not
contend that the special verdict form misstates the law, and for
good reason. If appellant claimed, for the first time on appeal,
that the special verdict form or its questions were defective, the
issue would be deemed waived. (See Zagami, supra, 160
Cal.App.4th at p. 1093, fn. 6.)
“Before the enactment of the Government Claims Act, the
only requirement was that the dangerous or defective condition
be a proximate cause of the injury. [Citation.] However, after
the enactment of Govt C §835, the plaintiff was also required to
establish that the dangerous condition created a reasonably
foreseeable risk of the kind of injury that was incurred. The fact
that the Act included both requirements suggests that the
legislature intended to change the former law from requiring only
a showing of general foreseeability to requiring a showing that
the precise manner in which the injury occurred was reasonably
foreseeable.” (Van Alstyne et al., Cal. Government Tort Liability
Practice (Cont.Ed.Bar 2019) § 12.40, p. 12-61.)
We do not agree that the verdicts are “fatally” or
“hopelessly” inconsistent. The jury may have found that the T
aspect was the only dangerous condition and it had nothing to do
with the collision. Or, it may have found that it was the “sight
line” condition but the collision was solely caused by the reckless
driver. Or, it may have found that it was both conditions but that
the collision was solely caused by the reckless driver. (See
Wysinger v. Automobile Club of Southern California (2007) 157
Cal.4th 413, 424.)
7
What appellant is augering for is an appellate holding that
once the jury finds an unsafe condition of public property, the
public entity is at least 1 percent at fault and a reckless driver
cannot be 100 percent at fault. This would do violence to section
835, the special verdict form, and the jury’s factual
determination. Carried to appellant’s logical conclusion, once the
jury found a dangerous condition, there was no reason to proceed
with other questions and they are superfluous. We are not in
agreement with this theory.
Claimed Dangerous Intersection
Appellant claimed there were two dangerous conditions
and, in closing argument, told the jury “[t]here is a second ground
for dangerous condition.” “[T]he vista point is an intersection . . .
and that intersection had to be striped a hundred feet either
side.” “Why is the vista point clearly an intersection? . . . People
drive in and out . . . . It must be striped. If it’s not, that’s a
dangerous condition.”
That is how the case was pled and presented to the jury.
The First Amended Complaint alleged that “[t]he presence of a
west side turnout (Rest Area) in the middle of this passing zone”
was dangerous because “motorists would not have a clear vision
of cars that are either entering or exiting the turnout in a
constant and unpredictable nature.” Appellant’s traffic engineer,
Edward Ruzak, testified that Vista Point 1 “operates as a
conventional, in my idea of conventional, intersection, that
should have been striped as double yellow and . . . passing
prohibited going through there. . . . [J]ust envision yourself
traveling northbound, and someone is in front of you and you
wish to pass . . . . And as you start to pull out, the person in front
of you makes a left turn right into the vista [point]. Trouble, big
8
trouble.” Ruzak opined that motorists traveling northbound
“can’t see who’s coming out of the vista point.” “So you’ve got,
basically, T-bones in those situations.”
But this was not a “T-bone” collision with a vehicle turning
into Vista Point 1. Assuming that the jury believed that Vista
Point 1 was a dangerous condition, substantial evidence
supported the jury finding that the dangerous condition did not
create a reasonably foreseeable risk that this kind of incident
would occur. Appellant did not object to the special verdict or ask
for clarification. He is barred from arguing that there was only
one dangerous condition (i.e., that no portion of the 1,500+ foot
section of road should have been striped for passing) and that
foreseeability was proven as a matter of law.
If the rule were otherwise, a plaintiff could engage in
“litigious strategy” and reap a “technical advantage” by
redefining what the dangerous condition is on appeal. (Little v.
Amber Hotel Co. (2011) 202 Cal.App.4th 280, 299-300.) Where
the parties try the case on the assumption that certain issues are
raised by the pleadings, or that a particular issue is controlling,
neither party can change this theory for purposes of review on
appeal. (Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa
Holdings, LLC (2012) 205 Cal.App.4th 999, 1026.) “‘This doctrine
of “theory on which the case was tried,” referred to more briefly
as “theory of trial,” is a well-established rule of appellate
practice.’ [Citation.]” (Ibid.)
Claimed Blind Spot in the Road
Appellant claimed the dashed center line north of Pico
Creek Bridge was a separate dangerous condition due to a dip or
blind spot in the road. Appellant introduced no expert testimony
to this effect. His expert said that the passing sight distance was
9
“woefully short.” This claim was refuted. Highway safety expert
Kim Nystrom opined that LaChance had a 2,000-foot line of sight
after Pico Creek Bridge and that the highway was “completely
safe” if a motorist used care in passing a northbound vehicle.
LaChance confirmed that he could see “straight down the road”
all the way to the vista point.
Appellant contended that the road should have been
striped as a no-passing zone for motorists approaching Vista
Point 1 because there was a limited line of sight. That was
refuted by a three-day road survey, LaChance’s statement to the
CHP, the CHP accident report, and the bus driver who confirmed
there were no road dips or blind spots. LaChance did not see
“any dips or anything like that” and had driven the same route
2,000 or 3,000 times. Before that day, he never saw an oncoming
vehicle pop out of a blind spot. Elizabeth Rizzo, the motorist
following Fuller, confirmed there was no sight distance problem
and that she could see LaChance’s pickup “perfectly.” Accident
reconstruction expert Nathan Rose calculated that LaChance was
1,568 feet away from the Fuller vehicle when he changed lanes to
pass the bus. LaChance had sufficient time and space to abort
the maneuver and drop behind the bus. Instead, LaChance
veered onto the road shoulder for the southbound lane, blocking
the only escape route for the Fuller vehicle.
Here, the jury found that Vista Point 1 was a dangerous
condition of public property (Special Verdict, Question #1), but
did not create a reasonably foreseeable risk “that this kind of
incident,” i.e., a head-on collision with a southbound vehicle
passing Vista Point 1, would occur (Special Verdict, Question #2).
(Italics added.) In the words of appellant’s expert, Vista Point 1
was “[t]rouble, big trouble” and created a foreseeable risk of “T-
10
bone” collisions. But that is not what happened. No vehicle
turned into or out of Vista Point 1 when LaChance tried to pass
the tour bus and veered into the southbound road shoulder,
striking the Fuller vehicle head on. The jury was instructed on
Vehicle Code section 21751 as follows: “‘On a two-lane highway,
no vehicle shall be driven to the left side of the center of the
roadway in overtaking and passing another vehicle proceeding in
the same direction unless the left side is clearly visible and free of
oncoming traffic for a sufficient distance ahead to permit such
overtaking and passing to be completed, completely made,
without interfering with the safe operation of any other vehicle
approaching from the opposite direction.’”
LaChance’s conduct was reckless and just as unforeseeable
as a wrong-way driver. (See, e.g., Chowdhury v. City of Los
Angeles (1995) 38 Cal.App.4th 1187, 1196 [no foreseeability “that
irresponsible drivers will race 100 miles per hour down a
highway or drive the wrong way down a one-way street, in
violation of the traffic laws”].) “As one court has observed, any
property can be dangerous if used in a sufficiently improper
manner. For this reason, a public entity is only required to
provide roads that are safe for reasonably foreseeable careful use.
[Citation.]” (Ibid.) “‘Thus, a public entity should not be liable for
injuries resulting from the use of a highway – safe for use at 65 –
at 90 miles an hour, even though it may be foreseeable that
persons will drive that fast. The public entity should only be
required to provide a highway that is safe for reasonably
foreseeable careful use.’” (Fuller v. State of California (1975) 51
Cal.App.3d 926, 940.) A public entity is not charged with
anticipating that a person will use the property in a criminal
11
way, here, driving with a “willful or wanton disregard for safety
of persons or property . . . .” (Veh. Code, § 23103, subd. (a).)
Manual on Uniform Traffic Control Devices
Appellant argues that the trial court erred in ruling that
the Caltrans Manual on Uniform Traffic Control Devices
(MUTCD) established a legal standard for passing sight distance.
Appellant claimed that the Caltrans Highway Design Manual
(HDM) required a 1,950-foot passing sight distance for vehicles
traveling 55 miles per hour. Caltrans relied on the MUTCD
which provided for a 900-foot minimum sight distance for safe
passing.
At a pretrial in limine hearing, the trial court was told that
the HDM was used to build new highways and that the MUTCD
applied to road striping and traffic controls on existing highways.
The trial court found that the MUTCD is “a general standard”
and is used by road engineers as “a starting point” in determining
a safe passing distance. Appellant claims that he was not
permitted to challenge the MUTCD 900-foot minimum passing
distance standard. That is not correct. The trial court ruled that
appellant’s expert could not “be heard to say, ‘[W]ell, the
[MUTCD] should have said something different.’”
Appellant cross-examined Caltrans’ expert about whether
the MUTCD was actually a legal standard. Highway safety
expert Kim Nystrom stated that the 900 foot sight distance
standard is “a starting point” and is not a legal standard or
substitute for good engineering, knowledge, experience or
judgment. “It’s a minimum,” and the line of sight “has to be at
least 900 [feet] to allow for safe passing. You can make it more if
you want to or are able to.” Appellant’s expert, Ruzak, agreed the
12
MUTCD 900-foot standard is a starting point, a minimum
guideline that is used “all over the United States.”
Assuming, arguendo, that the trial court erred in admitting
testimony that the MUTCD sight distance standard is the
minimum standard for safe passing, the error was harmless
because the jury returned a verdict in appellant’s favor (10-2)
that a dangerous condition of public property existed. (Post, p.
13.) The problem was not sight distance standards but
foreseeability. “There is no liability without [foreseeability or]
causation.” (Toste v. CalPortland Construction (2016) 245
Cal.App.4th 362, 369.)
Highway Design Manual
Appellant argues that highway engineer Ruzak was not
allowed to rely on the HDM in opining that the safe sight
distance for passing was greater than 900 feet. That misstates
the record. The trial court ruled that Ruzak could say he relied
on the HDM in forming his opinion, “but he cannot recite parts of
it.”
Appellant argues that the trial court erred in ruling that
Evidence Code section 721 (barring cross-examination of expert
about text materials expert did not rely on) prohibited Ruzak
from citing portions of the HDM on direct examination. The trial
court was right for the wrong reason. Evidence Code section
1200 bars an expert from reciting parts of a hearsay document for
the truth of the matter stated. There is a distinction to be made
between allowing an expert to describe the type or source of the
matter relied upon as opposed to presenting, as fact, case-specific
hearsay that does not otherwise fall under a statutory exception.
The trial court ruled that Ruzak “may not, under the guise
of reasons [for expert opinion], bring before the jury incompetent
13
hearsay evidence” but could say that he looked at studies and
publications in forming his opinion. Relying on the HDM and
other documents, Ruzak opined that a sight distance of 2,000 to
2,300 feet was required for safe passing in a 55 mile per hour
zone. Highway safety expert Nystrom disagreed and opined a
sight distance of 900 feet or more was safe.
The question of whether the HDM (1,950 feet) or MUTCD
(900 feet) minimum sight distance standard applied is not
determinative. The jury found that a dangerous condition of
public property existed. Appellant, in his opening brief, concedes
the conflicting MUTCD and HDM standards have “nothing . . . to
do with whether the type of injury is foreseeable.”
Impeachment of LaChance Based on No Contest Plea
Appellant contends that the trial court abused its
discretion in admitting impeachment evidence about LaChance’s
no contest plea to misdemeanor reckless driving and vehicular
manslaughter. Penal Code section 1016, subdivision (3) provides
that such a “plea may not be used against the defendant.” (Italics
added.) Evidence Code section 1300 limits the admissibility of no
contest pleas to crimes punishable as a felony. “The inference is
3
3
Penal Code section 1016, subdivision (3) states in
pertinent part: “The legal effect of such a plea, to a crime
punishable as a felony, shall be the same as that of a plea of
guilty for all purposes. In cases other than those punishable as
felonies, the 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.”
Evidence Code section 1300 states: “Evidence of a final
judgment adjudging a person guilty of a crime punishable as a
14
clear that the exclusion of a nolo contendere plea from the reach
of Evidence Code section 1300 was intended to apply only where
the plea was offered against the defendant in a subsequent civil
suit for the same conduct to which the defendant pled.” (Atlas
Assurance Co. v. McCombs Corp. (1983) 146 Cal.App.3d 135,
145.) LaChance, however, was not a defendant within the
meaning of Penal Code section 1016. The plea was not offered
against LaChance to establish his civil liability.
Appellant argues that the no contest plea was irrelevant
because there was no factual basis for the plea. The plea form,
which was signed by LaChance and the trial court who took the
plea, stated “[t]here is a factual basis of the plea(s).” Here, there
was no abuse of discretion in permitting Caltrans to cross-
examine LaChance about the plea. LaChance testified that he
drove safely, exercised reasonable care, and that his actions did
not cause a substantial risk of harm. Pursuant to Evidence Code
section 780, a jury may consider “‘any matter that has any
tendency in reason to prove or disprove the truthfulness of [a
witness’s] testimony’ unless such evidence is inadmissible under
some other statutory provision.” (People v. Merriman (2014) 60
Cal.4th 1, 84.)
Appellant claims that Caltrans “lambasted” LaChance in
closing argument by saying that the plea form itself was an
admission that LaChance drove recklessly. Defense counsel
summarized LaChance’s testimony that he was arrested and
entered a no contest plea to avoid a felony charge. He also read
felony is not made inadmissible by the hearsay rule when offered
in a civil action to prove any fact essential to the judgment
whether or not the judgment was based on a plea of nolo
contendere.”
15
from page 4 of the plea form [Exhibit 306] which stated, “‘There is
a factual basis for the plea,’” and argued “that means that the
[criminal] judge found that there was a factual basis for the plea.”
Appellant objected, “that misstates the law.” Overruling the
objection, the trial court ruled “that’s what [Exhibit 306] says.” It
did not err. The plea form had already been admitted into
evidence, on appellant’s motion, during the direct examination of
LaChance, at which time the trial court ruled that the “[t]he jury
can look” at it. Even if no contest plea form been excluded, the
testimony of Elizabeth Rizzo, the bus driver, the CHP officer,
LaChance’s statements to the officer, and the expert opinion
testimony supported the finding that the dangerous condition,
whether it be Vista Point 1 or the road striping just after Pico
Creek Bridge, did not contribute to LaChance’s reckless driving
and did not create a reasonably foreseeable risk that this kind of
incident would occur.
Trial Court’s Examination of Witnesses
Appellant argues that the trial court “crossed the line by
repeatedly asking questions designed to elicit testimony favorable
to the defense’s principal theory that the accident was
LaChance’s fault.” Appellant forfeited the issue by not objecting.
(People v. Cook (2006) 39 Cal.4th 566, 598.) On the merits, a trial
court may ask questions of witnesses to elicit material facts and
clarify testimony to assist the jury in understanding the evidence.
(Ibid.; People v. Hawkins (1995) 10 Cal.4th 920, 948 [same;
questions clarifying expert testimony], overruled on other
grounds in People v. Blakely (2000) 23 Cal.4th 82, 89.) This is not
a case where the trial court mocked a witness or became an
advocate for either party. (See, e.g., People v. Sturm (2006) 37
Cal.4th 1218, 1237-1238.)
16
Elizabeth Rizzo was asked what she saw. The questions
were neutral and non-adversarial, as were the questions asked of
LaChance’s criminal attorney, Ilan Funke-Bilu. Funke-Bilu
stated that a criminal judge has to satisfy himself or herself there
is a factual basis to enter a no contest plea in a felony case, but
not in a misdemeanor case. The trial court asked: “Did you
notice on the plea form that the [criminal] judge signed . . . said
there is a factual basis for the plea?” Appellant did not object.
(Evid. Code, § 353, subd. (a).) We reject the argument that the
question was improper or denied appellant a fair trial. The jury
was instructed that “pleas of no contest are not deemed
conclusive in subsequent civil proceedings as admissions of
wrongdoing” and “you must not let bias, sympathy, prejudice or
public opinion influence your decision.” Appellant claims the jury
was “primed to blame LaChance as the passing driver,” but there
is no evidence that the jury was biased or failed to follow the
instructions.
Lay Witness Opinion Testimony on Causation
Appellant asserts that the trial court abused its discretion
in ruling that CHP Officer Budrow could not offer a lay opinion
on causation. Appellant did not try to qualify Officer Budrow as
an expert witness. When the in limine motion was argued,
appellant conceded that an officer’s opinion as to ultimate fault or
responsibility for a traffic accident is a legal conclusion and not
the proper subject for expert opinion. (See Carlton v. Department
of Motor Vehicles (1988) 203 Cal.App.3d 1428, 1432.) A lay
witness may, however, testify in the form of an opinion if the
opinion is rationally based on the perceptions of the witness and
helpful to a clear understanding of the witness’s testimony.
17
(Evid. Code, § 800, subds. (a) & (b); People v. Jones (2017) 3
Cal.5th 583, 602.)
Appellant was permitted to ask Officer Budrow if a
descending slope could cause a northbound driver to have limited
sight distance. Officer Budrow agreed that it could lead to an
“obscurity” of a motorist’s view and that there were no “‘Limited
Visibility’” or “‘No Passing Ahead’” signs posted at Vista Point 1.
Appellant argues that Officer Budrow should have been
permitted to offer a lay opinion on causation, but that goes
beyond the facts of what the officer observed and is inadmissible.
(People v. McAlpin (1991) 53 Cal.3d 1289, 1308.) The jury
returned a 12-0 verdict that “this kind of incident” was not
reasonably foreseeable.
Appellant’s remaining arguments have been considered and
merit no further discussion. None of the alleged errors, nor
any cumulative effect, warrants reversal.
Disposition
The judgment is affirmed. Caltrans is awarded costs on
appeal.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
18
Donald G. Umhofer, Judge
Superior Court County of San Luis Obispo
______________________________
Kerr & Wagstaffe; Wagstaffe, Von Loewenfeldt, Busch &
Radwick, James Wagstaffe and Michael Von Loewenfeldt for
Plaintiff and Appellant.
Jeanne Scherer, Chief Counsel, G. Michael Harrington,
Deputy Chief Counsel, Lucille Y. Baca, Assistant Chief Counsel
and Derek S. van Hoften for Defendant and Respondent.