Tran v. 2000 Senter Road, LLC CA4/1

Filed 7/22/21 Tran v. 2000 Senter Road, LLC CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BA TRAN, D078576, D078577

Plaintiff and Appellant,

v. (Super. Ct. No. 114CV260736)

2000 SENTER ROAD, LLC,

Defendant and Respondent.

CONSOLIDATED APPEALS from a judgment of the Superior Court of
Santa Clara, Mark H. Pierce, Judge. Affirmed.
The Veen Firm, Elinor M. Leary, Kimberly A. Wong; Law Office of
Joseph S. May, Joseph S. May; Law Office of Valerie T. McGinty and Valerie
T. McGinty for Plaintiff and Appellant.
Cholakian & Associates, Kevin Cholakian, Colin H. Jewell; Hayes,
Scott, Bonino, Ellingson, Guslani, Simonson & Clause, Mark G. Bonino and
Ryan P. Snyder for Defendant and Respondent.
 I
INTRODUCTION
Thirty-seven-year old Viet Tran (Viet) was shot and killed by unknown
assailants outside a commercial warehouse that a tenant was using as an

illegal nightclub.1 Viet’s mother, Ba Tran (Ba), filed a premises liability
action against the owner of the warehouse, 2000 Senter Road, LLC (Senter
Road). She alleged Senter Road was negligent for failing to evict the tenant
who operated the nightclub, failing to hire security guards to monitor the
premises, and failing to notify law enforcement about the nightclub. After a
trial, a jury returned a special verdict finding that Senter Road was not
negligent and judgment was entered in favor of Senter Road.
Ba appeals the judgment and claims it must be reversed due to three
evidentiary errors. First, she challenges the trial court’s exclusion of bank
records showing that cash deposits totaling $106,600 were made into Senter
Road’s bank account—deposits that, according to Ba, were kickback
payments from the tenant in furtherance of his illegal nightclub operation.
Second, Ba argues the court erred in admitting evidence that Viet was a
member or associate of the South Vietnam (SVN) criminal street gang.
Third, Ba contends the court erred when it admitted an unredacted version of
the lease agreement between Senter Road and its tenant, which included a
provision stating Senter Road was not liable for injury to the tenant’s
invitees.
We conclude the trial court’s evidentiary rulings did not constitute
reversible error. Therefore, we affirm the judgment.

1 Several individuals involved in this case share the surname Tran.
After we introduce these individuals by their full names, we will refer to
them by their first names only. No disrespect is intended.
2
 II
BACKGROUND
A
Senter Road owned a 54,000-square foot, eight-unit commercial
warehouse in San Jose. Husband Tan Lu and wife Anh Du are the sole
members of Senter Road. Their son-in-law David Castaneda was the
property manager of the warehouse.
In March 2009, Senter Road leased an 11,420-square foot unit in the
warehouse to Tam Van Tran (Tommy) and a cotenant for $5,000 per month.
When the four-year lease began, the unit consisted of retail space on the first
floor, unimproved space on the second floor, and warehouse space in the rear
of the unit. The lease stated Tommy would use the unit to perform car
stereo, alarm, and window tinting services. He purported to perform these
services under the moniker Sound Image.
In 2010, Tommy fell behind on his rent payments. Between April 2010
and February 2011, Senter Road sent Tommy several letters detailing his
outstanding rent obligations and demanding payment. Castaneda also spoke
regularly with Tommy in person and over the phone regarding his delinquent
rent payments. According to Castaneda, Tommy consistently tried to get
caught up on his rent, but was never able to pay off the full rent balance.
B
Sometime after signing the lease, Tommy renovated the upstairs
portion of his unit to make it suitable for use as an illegal after-hours
nightclub. He added a bar area, bathrooms, and private rooms in which

3
strippers could entertain patrons. He also furnished the space with couches,
tables, a karaoke machine, televisions, and refrigerators.
In April 2012, Tommy opened his nightclub (which he also called Sound
Image) to patrons. The nightclub was unlicensed and cash-only. It was
typically open each night from 9:00 p.m. to 3:00 a.m., though it sometimes
remained open as late as 6:00 or 7:00 a.m. Waitresses, busboys, a security
guard, and several strippers and prostitutes worked at the nightclub.
When the nightclub first opened, it had approximately 30 patrons per
night. By early 2013, it had 50 to 100 patrons per night. The patrons were
predominately, but not exclusively, members of the Vietnamese community.
Members and associates of criminal street gangs, including the Viet Nation
and Evil Viet Outlaw (EVO) gangs, regularly attended the nightclub.
At its peak, the nightclub had revenue of $3,000 per weeknight from
the sale of alcohol and food. On weekends, it had revenue of up to $5,000 per
night.
C
In mid-2012, Senter Road decided to sell its warehouse. It accepted an
offer to buy the warehouse and a property inspection was scheduled in
connection with the sale.
The inspection took place on March 29, 2013, with the inspector,
Castaneda, Senter Road’s real estate broker, and the buyer in attendance.
During the inspection, Castaneda and the inspector went into the Sound
Image unit, walked up to the second floor where Tommy ran his nightclub,
and observed the renovations Tommy had made to the upstairs space.
Castaneda testified he was “taken aback” by the renovations, which he
claimed were “not permitted” and “not authorized” by Senter Road.
Castaneda testified he “wasn’t sure what it was” he was looking at, but he

4
“knew it wasn’t supposed to be there.” He testified he immediately told
Tommy the renovations needed to be removed and the property needed to be
returned to its original condition within 30 days, or else Tommy would be
evicted. According to Castaneda, Tommy agreed to remove the renovations.
Castaneda testified he intended to check in periodically to ensure Tommy
was removing the renovations. He testified he intended to consult an
attorney about serving Tommy with a notice of default if he delayed or did
not remove the renovations.
D
In the early morning hours of April 6, 2013—approximately one week
after the inspection—the fatal events giving rise to this lawsuit took place.
On the night of April 5 and the early morning of April 6, the
Sound Image nightclub was open to patrons. Approximately 20 EVO gang
members were in attendance. At about 2:00 a.m., Viet and a group of his
friends arrived at the nightclub. An individual named Jimmy Nguyen was
part of the group. According to a law enforcement officer who testified at

trial, Nguyen was an associate of the SVN gang.2
At some point after Viet, Nguyen, and their friends arrived, Nguyen got
into an altercation with some of the EVO gang members. The reason for the
altercation is unknown. However, a Sound Image waitress testified that
Nguyen was kicked out of the nightclub due to the altercation.
Approximately five to seven of Nguyen’s friends left with him. The EVO gang
members followed Nguyen and his friends out of the nightclub.
A short time later, an exchange of gunfire erupted outside Sound
Image. Viet was shot twice and killed during the incident. His body was

2 A witness who went to the nightclub with Viet denied that Nguyen was
a member of SVN.
5
found in a public street adjacent to the warehouse. Law enforcement was
unable to identify the shooter or shooters whose bullets struck Viet.
However, they determined that at least two firearms were fired from the
direction of the warehouse toward Viet and at least one firearm was fired
from the direction of Viet toward the warehouse.
On April 10, 2013—four days after the shooting—Senter Road served
Tommy with a notice to pay rent or quit. It stated Tommy’s rent was
$7,199.00 in arrears. Tommy did not pay the rent and was evicted soon after
as part of an unlawful detainer judgment.
E
In February 2014, Ba filed a negligence action against Senter Road,
among other defendants. The operative complaint alleged Senter Road was
aware that Tommy operated an illegal nightclub on its premises and that the
nightclub attracted gang members. It alleged Senter Road was negligent
because it did not evict Tommy for his nightclub operation, hire security for
the nightclub, or notify law enforcement about the nightclub. According to
the complaint, Senter Road’s alleged negligence was a proximate cause of

Viet’s death.3
Prior to trial, the parties filed competing motions in limine, three of
which are pertinent to this appeal.
In one of the motions in limine, Senter Road sought to exclude bank
records that Ba subpoenaed from Senter Road’s bank. The records showed
four cash deposits totaling $106,600 were made into Senter Road’s bank
account between June 2012 and February 2013. Ba theorized the deposits

3 Ba also brought a negligence claim against Tommy, Tommy’s cotenant,
Lu, Du, and TK Holdings, Inc., a corporation owned by Lu and Du. She
obtained default judgments against Tommy and his cotenant.
6
were kickback payments from Tommy to Senter Road. According to Ba, the
records showed Senter Road was a joint participant in Tommy’s nightclub
operation.
Senter Road argued the bank records at issue were irrelevant and
subject to exclusion under Evidence Code section 352. It asserted there was
no corroborating evidence to support Ba’s kickback theory, which Senter
Road described as “fanciful,” “fantastical,” and “speculative.” Further, it
argued the admission of the records would result in undue prejudice and
confusion by focusing the jury on the wealth of Senter Road and its members.
The trial court agreed with Senter Road, finding the relationship between the
deposits and Tommy was “speculative” and the admission of the bank records
would be “highly prejudicial.” On this basis, the court granted the motion in
limine and excluded the bank records.
In the second motion in limine, Ba sought to exclude evidence that Viet
was a current member, a former member, or an associate of the SVN gang.
She conceded gang evidence theoretically could be relevant to the issue of
comparative negligence. However, she claimed gang evidence was not
“material” in this particular case because there was no “evidence showing any
motive for Viet Tran’s death.” She also argued the probative value of the
gang evidence was substantially outweighed by a likelihood of undue
prejudice. The court denied Ba’s motion without elaboration.
In the third motion in limine at issue, Ba requested that the lease
agreement between Senter Road and Tommy be redacted in part if it was
admitted into evidence. She sought redaction of Paragraph 8.8, which states:
“Exemption of [Senter Road] from Liability. [Senter Road] shall not be
liable for injury or damage to the person … of [Tommy], [Tommy’s] …
invitees, customers, or any other person in or about the Premises … whether

7
the said injury or damage results from conditions arising upon the Premises
or upon other portions of the Building, or from other sources or places…..” Ba
argued this provision had “no effect” on Senter Road’s liability and its
admission would be “unduly prejudicial, extremely confusing, and improper.”

The court denied Ba’s motion without elaboration.4
F
After the trial court adjudicated the motions in limine, the case
proceeded to a jury trial. In accordance with the court’s evidentiary rulings,
an unredacted version of the lease agreement was admitted into evidence.
Evidence of Viet’s membership or association with SVN was admitted
into evidence as well. In particular, photographic evidence was admitted
showing Viet had a large tattoo of the letters SVN on his back. A law
enforcement officer testified an SVN tattoo indicates “that at one time or
some point in that person’s life, he associated with the criminal street gang,
South Vietnam.” However, the same officer testified, without further
explanation, that his “investigation led [him] to believe that [Viet] was not in
the gang at the time” of his death. A second law enforcement officer testified

4 The court also denied Ba’s request to redact Paragraph 40, which
states: “Security Measures. [Tommy] hereby acknowledges that the Rent
payable to [Senter Road] hereunder does not include the cost of guard service
or other security measures, and that [Senter Road] shall have no obligation
whatsoever to provide same. [Tommy] assumes all responsibility for the
protection of the Premises, [Tommy], [Tommy’s] agents and invitees and their
property from the acts of third parties.”
In her opening brief, Ba does not argue that the court erred in denying
her request to redact this provision. Insofar as Ba makes such an argument
in her reply brief, the argument is forfeited. (Julian v. Hartford
Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4 (Julian) [declining to
address cursory argument made for the first time in reply brief].)
8
he could not determine whether Viet was an active gang member, a former
gang member, or an associate of the SVN gang.
Evidence was also elicited regarding whether Senter Road knew, or
should have known, about the nightclub prior to the inspection performed in
connection with the property sale. A waitress from the nightclub provided
extensive testimony on this issue. According to the waitress, Tommy
instructed her to keep the nightclub secret from the police and Senter Road
at all costs. Tommy reportedly instructed her to describe the nightclub as a
private party if she was ever questioned about it. The waitress testified
about measures the nightclub took to remain secret as well. She testified the
nightclub did not advertise, operated after hours when other businesses were
closed, and cleaned up after every night. She further testified that until early
2013, the nightclub required patrons to make reservations to ensure there
were no visible lines of patrons outside the warehouse.
In support of her assertion that the shooting was foreseeable, Ba
elicited evidence that law enforcement received reports of illegal conduct at or
around the warehouse unit on six occasions prior to her son’s death. The
reports stated there was a “club upstairs” and there had been drug use, nude
entertainment, underage alcohol consumption, and altercations on or around
the premises. The law enforcement officer who testified about the reports
stated he was unaware whether the incidents or the reports were ever
communicated to the landlord, Senter Road.
Castaneda and Lu both testified law enforcement never notified them
about incidents occurring on Senter Road’s property prior to the shooting.
Castaneda testified he was unaware of prior criminal conduct at the
warehouse, except one or two instances of graffiti. Further, Castaneda

9
testified he was unaware of Tommy’s renovations to the unit until the
property inspection.
After deliberations, the jury returned a special verdict finding by a vote
of 10–2 that Senter Road was not negligent in the use or maintenance of its
property. Because this finding mandated entry of judgment in favor of
Senter Road, the jury did not return findings on the remaining special verdict
questions including whether Senter Road’s negligence was a substantial
factor in causing Ba’s harm, whether the criminal conduct of the shooter(s)
was a superseding cause of Ba’s harm, whether Viet was negligent, whether
Viet’s negligence was a substantial factor in causing his own harm, what
percentage of responsibility should be allocated between Senter Road, Viet,
Tommy, and the shooter(s), and what damages Ba suffered.
G
After judgment was entered, Ba moved for a new trial. She argued a
new trial was warranted, among other reasons, because the admission of the
unredacted lease agreement was an irregularity of the court proceedings
(Code Civ. Proc., § 657, subd. (1)) and an error in law (id., subd. (7)).
Together with her motion, Ba filed a declaration from a juror. The
juror averred the jury was divided “for a long time” on the question of
whether Senter Road was negligent, with eight jurors voting it was not
negligent and four jurors voting it was negligent. She averred that after
“lengthy deliberations, one of the jurors started going through the commercial
lease agreement for the Sound Image premises, and some of the jurors
started discussing that the lease provisions provided that [ ] Senter Road [ ]
could not be liable, and that the other jurors should therefore change their
vote from ‘yes’ to ‘no.’ ” According to the juror, a vote was taken “[s]hortly

10
after,” and, “[t]his time, ten jurors voted ‘no’ ” on the question of whether
Senter Road was negligent.
The court denied the motion for a new trial.
Ba then filed an ex parte request for reconsideration of the court’s
denial of her motion for a new trial. She argued there were new or different
facts or circumstances warranting reconsideration because she obtained a
declaration from a second, previously-unavailable juror. The juror averred
the jury was divided on the question of whether Senter Road was negligent.
He averred “some of the jurors” who did not believe Senter Road was
negligent “argued to the other jurors that the lease contained a provision that
provided that the tenant should be responsible and not the landlord.” He
added that “[s]hortly after … some of the jurors changed their vote” and the
jury found, by a 10–2 vote, that Senter Road was not negligent.
The court denied the request for reconsideration.

Ba appeals the judgment.5
III
DISCUSSION
A
Standard of Review
Ba claims the trial court erred in its rulings on the parties’ motions in
limine—rulings that excluded Senter Road’s bank records, admitted evidence
of Viet’s gang membership or association, and admitted the unredacted lease
agreement between Senter Road and Tommy. We apply an abuse of

5 Ba filed a notice of appeal from the judgment entered after the jury
returned its special verdict (appeal No. D078577). She then filed a second
notice of appeal from the judgment after the trial court amended it to specify
the costs owed by Ba to Senter Road (appeal No. D078576). On our own
motion, we ordered that the appeals be consolidated for all purposes.
11
discretion standard of review to these evidentiary rulings. (Unzueta v.
Akopyan (2019) 42 Cal.App.5th 199, 220; Shaw v. County of Santa Cruz
(2008) 170 Cal.App.4th 229, 281.) “This standard is not met by merely
arguing that a different ruling would have been better.” (Shaw, at p. 281.)
Instead, it requires a showing that the trial court “exercised its discretion in
an arbitrary, capricious, or patently absurd manner.” (Velasquez v.
Centrome, Inc. (2015) 233 Cal.App.4th 1191, 1211 (Velasquez).) “In appeals
challenging discretionary trial court rulings, it is the appellant’s burden to
establish an abuse of discretion.” (Shaw, at p. 281.)
Even if we conclude the trial court abused its discretion, we will not
reverse the judgment unless the error resulted in a miscarriage of justice.
(Cal. Const. art. VI, § 13; Evid. Code, §§ 353, 354.) “ ‘[A] “miscarriage of
justice” should be declared only when the court, “after an examination of the
entire cause, including the evidence,” is of the “opinion” that it is reasonably
probable that a result more favorable to the appealing party would have been
reached in the absence of the error.’ ” (Cassim v. Allstate Ins. Co. (2004) 33
Cal.4th 780, 800.) “ ‘ “Prejudice is not presumed and the burden is on the
appellant to show its existence.” ’ ” (McIntyre v. The Colonies-Pacific, LLC
(2014) 228 Cal.App.4th 664, 675.)
B
Bank Records
We begin with the order excluding Senter Road’s bank records. As
noted, the court granted Senter Road’s motion in limine excluding bank
records showing that four cash deposits totaling $106,600 were made into its
bank account. These included a $20,000 deposit on June 9, 2012, a $20,000
deposit on June 11, 2012, a $33,600 deposit on December 11, 2012, and a
$33,000 deposit on February 1, 2013.

12
 Ba contends the court erred in excluding these records because a jury
could infer the deposits reflected in the records were kickback payments from
Tommy. According to Ba, the existence of a kickback scheme “would have
supported [her] argument that [Senter Road] had knowledge of the
nightclub.” Although Ba does not state as much, such knowledge presumably
would have tended to prove that Senter Road’s alleged negligence was the
proximate cause of Ba’s harm—an element of her negligence claim. (See
Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083.)
Senter Road asserts the bank records were irrelevant and properly
excluded because any inference of a kickback scheme was speculative. In the
alternative, Senter Road claims the court correctly excluded the records
because their admission would have unduly prejudiced Senter Road by
permitting the jury to consider its wealth when deciding its liability.
“Except as otherwise provided by statute, no evidence is admissible
except relevant evidence.” (People v. Babbitt (1988) 45 Cal.3d 660, 681
(Babbitt), citing Evid. Code, § 350.) “ ‘Relevant evidence’ means evidence …
having any tendency in reason to prove or disprove any disputed fact that is
of consequence to the determination of the action.” (Evid. Code, § 210.)
“ ‘The test of relevance is whether the evidence tends “ ‘logically, naturally,
and by reasonable inference’ to establish material facts ....” ’ ” (Velasquez,
supra, 233 Cal.App.4th at p. 1211.)
“Relevant evidence includes circumstantial evidence that tends to
establish a fact from which the existence or nonexistence of the fact in issue
can be inferred. [Citation.] The modifier ‘circumstantial’ is used to
emphasize the need to draw inferences from the evidence. [Citation.] ‘An
inference is a deduction of fact that may logically and reasonably be drawn
from another fact or group of facts found or otherwise established in the

13
action.’ ” (Phillips v. Honeywell Internat. Inc. (2017) 9 Cal.App.5th 1061,
1078.) “To be reasonable, an inference ‘ “ ‘cannot be based upon suspicion,
imagination, speculation, surmise, conjecture or guesswork.’ ” ’ ” (Cole v.
Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1113.)
“ ‘Speculative inferences that are derived from evidence cannot be
deemed to be relevant to establish the speculatively inferred fact in light of
Evidence Code section 210, which requires that evidence offered to prove or
disprove a disputed fact must have a tendency in reason for such purpose.’ ”
(Babbitt, supra, 45 Cal.3d at p. 681, italics added; see also People v. Morrison
(2004) 34 Cal.4th 698, 711 [“Evidence is irrelevant … if it leads only to
speculative inferences.”]; People v. Stitely (2005) 35 Cal.4th 514, 549–550
[“Speculative inferences are, of course, irrelevant.”].) Therefore, “[a] trial
court does not abuse its discretion by excluding evidence that produces only
speculative inferences.” (People v. Nieves (2021) 11 Cal.5th 404, 445.)
Applying these standards, we conclude the trial court did not abuse its
discretion in finding the inference of a kickback scheme was speculative and
excluding the bank records as irrelevant. Neither the bank records
themselves nor any other evidence in the appellate record indicates that
Tommy was the source of the four cash deposits that were made into Senter
Road’s bank account. There also is no evidence in the record linking the four
deposits at issue to any purported kickback scheme. In fact, there is no
evidence suggesting Senter Road was even aware, or potentially aware, of the
nightclub prior to the property inspection, let alone that it was a participant
in a kickback scheme. Because the deposits could have come from any
number of possible sources, their admission could give rise to nothing more

14
than a speculative inference of a kickback scheme. Such evidence is

irrelevant and properly excluded.6 (Babbitt, supra, 45 Cal.3d at p. 681.)
In her reply brief, Ba argues the court’s ruling was erroneous because
Senter Road’s motion in limine “sought to eliminate a whole theory of
liability,” namely her theory that Senter Road was engaged in a joint venture
with Tommy. (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 530 [“in limine
motions are disfavored in cases in which they are used … to serve as a
substitute for a dispositive statutory motion”].) This argument is forfeited
because Ba did not present it in her opening brief. (Julian, supra, 35 Cal.4th
at p. 761, fn. 4.) The argument is meritless as well. The motion in limine
was not the functional equivalent of a dispositive motion, as it did not seek to
preclude Ba from pursuing her negligence claim or even a particular theory of
liability. Instead, it sought “ ‘ “to preclude the presentation of evidence
deemed inadmissible and prejudicial by the moving party.” ’ ” (Amtower v.
Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1593.) That is the
intended purpose of a motion in limine. (Ibid.; Pellegrini, at p. 530.)
Ba also argues that Senter Road could have disclosed the source of the
cash deposits, thus confirming (or, of course, disproving) the inference she
hoped to establish with the bank records. She states she sought such
information while taking Lu’s deposition, but was unable to obtain the
information because Lu’s counsel instructed him not to answer the deposition
question.

6 The mere fact that the deposits were made during the period in which
the nightclub was in operation does not make the inference less speculative.
According to the bank records, substantial cash deposits—which Ba does not
acknowledge in her appellate briefs—were also made before the nightclub
opened and after it shut down.
15
 Perhaps Senter Road could have disclosed the source of its deposits to
its litigation opponent. But Ba makes no argument that Senter Road was
under any legal obligation to do so. Further, to the extent Ba was dissatisfied
with the discovery she received, she had avenues to pursue more fulsome
responses in the trial court. For instance, she could have filed a motion to
compel answers to her deposition questions (Code Civ. Proc., § 2025.480,
subd. (a)), and, if the witness continued to withhold discoverable information
notwithstanding a court order compelling an answer, she could have filed a
motion seeking sanctions for misuse of the discovery process (id., §§ 2023.010,
subd. (d), 2023.030, subds. (b)–(d)). Ba does not provide us any citation to the
appellate record establishing whether she took these steps.
More importantly, none of these discovery issues are relevant to the
question presented on appeal—that is, whether the trial court abused its
discretion in excluding Senter Road’s bank records on relevance grounds. For
the reasons previously stated, we conclude the court properly found the bank
records gave rise to purely speculative inferences and, therefore, the bank
records were inadmissible.
C
Gang Evidence
Next, we consider the trial court’s admission of evidence concerning
Viet’s membership in, or association with, the SVN gang. The court denied
Ba’s motion in limine seeking to exclude the gang evidence as irrelevant and
unduly prejudicial under Evidence Code section 352.
The court did not abuse its discretion in admitting the gang evidence,
which was probative to establish that Viet was comparatively negligent.
Comparative fault, or comparative negligence, is a defense in a negligence
action. (2 Schwing, Cal. Affirmative Def. (2d ed. 2020) § 48:16 [“Without

16
question, comparative and contributory negligence is a defense in actions
that are founded in negligence”].) Under comparative fault principles, a
“plaintiff's recovery is … diminished to the extent that his own actions [are]
responsible for his injuries.” (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 816.)
The defense can be asserted against a decedent’s heirs in a wrongful death
action. (Horwich v. Superior Court (1999) 21 Cal.4th 272, 284.) “Thus, if the
decedent had been comparatively negligent, a wrongful death judgment will
be reduced proportionately.” (Ibid.)
Senter Road asserted a comparative fault defense in its answer to the
complaint. During trial, evidence was elicited that Viet came to the Sound
Image nightclub with Nguyen, an associate of the SVN gang. There was
evidence that Nguyen got into a confrontation with members of the EVO
gang and was thrown out of the nightclub—events that were followed by an
exchange of gunfire during which Viet was killed. A jury could reasonably
infer from such evidence that the conflict between the gang members was, at
minimum, causally related to Viet’s death. A jury could also reasonably infer
that, to the extent Viet was a member, a former member, or an associate of
SVN, he was surely aware of his companion’s association with SVN, yet he
nonetheless chose to accompany him to the nightclub where other gang
members congregated and the potential for violent conflict existed. (See
People v. Montes (1999) 74 Cal.App.4th 1050, 1056 [“When rival gangs clash
today, verbal taunting can quickly give way to physical violence and gun fire.
No one immersed in the gang culture is unaware of these realities[.]”].)
Because these inferences tend to establish Viet’s comparative negligence, the
court did not abuse its discretion in finding the gang evidence was relevant.
The trial court also did not abuse its discretion in finding that the
probative value of the gang evidence was not substantially outweighed by

17
other factors such as the danger of undue prejudice. Undoubtedly, “gang
evidence ‘may have a highly inflammatory impact on the jury,’ ” especially
when the evidence pertains to a defendant in a criminal case. (People v.
Schultz (2020) 10 Cal.5th 623, 670.) But here, we discern no such
inflammatory impact. The gang evidence did not relay to the jury any crimes
or violent acts perpetrated by members of the SVN gang. Further, evidence
that Viet—the victim of a possible gang-related shooting—voluntarily
accompanied a gang associate to a nightclub filled with other gang members
was relevant to whether Viet was comparatively negligent. Given these facts,
we conclude the court did not abuse its discretion in admitting the gang
evidence. (See Rauda v. City of Los Angeles (C.D.Cal. 2010) 2010 WL
11549632, at *2 [denying motion in limine seeking to exclude evidence of
shooting victim’s gang affiliation in wrongful death case, notwithstanding
claims that such evidence was unduly prejudicial]; accord People v. Williams
(1997) 16 Cal.4th 153, 194 [gang evidence was admissible where it “tended to
establish, among other things, that the victim appeared to be a member of a
gang which was a deadly rival of defendant’s gang”].)
Even if the court had erred in denying Ba’s motion in limine, we would
conclude the asserted error did not result in a miscarriage of justice. The
gang evidence was somewhat scant and, as just discussed, it did not focus on

any violent or criminal acts perpetrated by the SVN gang.7 Further, both of
the law enforcement officers who testified about the SVN gang stated they
could not determine from Viet’s tattoo whether he was a member, an
associate, or a dropout of the SVN gang. One of the officers even testified
that his investigation led him to believe Viet was not a member of SVN at the

7 Senter Road designated a gang expert as a witness, but did not call the
gang expert to testify at trial.
18
time of his death. Because the evidence of Viet’s membership in the SVN was
relatively sparse and equivocal, Ba has not demonstrated a reasonable
likelihood that the court’s in limine ruling affected the judgment.
D
Lease Agreement
We turn to the court’s admission of the unredacted lease agreement
between Senter Road and Tommy. As noted, the lease agreement had a
provision stating Senter Road was not liable for any injury to Tommy’s
invitees or customers. The court denied Ba’s request to redact the provision.
On appeal, Ba claims the exemption provision was “inapplicable” and
there was “no reason to admit it.” The precise contours of Ba’s appellate
argument are unclear. But, as best we can tell, she appears to assert the
trial court erred in finding that the exemption provision was relevant to
prove or disprove a fact of consequence to the determination of the action.
Senter Road responds that the lease agreement contained various
provisions that were relevant to the negligence claim, including whether
Tommy’s use of the warehouse unit as a nightclub was permitted, whether
the lease allowed Tommy to renovate the unit, and the circumstances under
which Senter Road was authorized to terminate Tommy’s lease. These
arguments are largely, if not entirely, nonresponsive to Ba’s claim of error,
which focuses on a single provision in the lease agreement—the exemption
provision.
We need not decide whether the exemption provision was relevant
because, assuming it was irrelevant, the court’s failure to redact the
exemption provision did not result in a miscarriage of justice. The sole
signatories to the lease agreement were Senter Road, Tommy, and his
cotenant—not Viet, Ba, or any other third party. Therefore, as can be

19
expected, the exemption provision by its plain terms does not purport to limit
any liability owed by Senter Road to third parties, as opposed to the liability
it might owe to the other lease signatories. (See Burnett v. Chimney Sweep
(2004) 123 Cal.App.4th 1057, 1070 [exculpatory clause in commercial lease
agreement “clearly” did not apply to non-signatories].)
Further, the exemption provision was never referenced at trial. No
party asked any witness about the exemption provision or addressed the
exemption provision in their opening or closing arguments to the jury. Given
these facts, it seems unlikely that redaction of the exemption provision would
have resulted in a more favorable outcome for Ba. (People v. Nelson (2011) 51
Cal.4th 198, 214–215 [any error in admitting evidence “was clearly harmless”
where the evidence was not referenced except during closing argument and,
even then, the prosecutor “did not argue to the jury” that the evidence was
probative of guilt].)
Ba argues prejudice can be discerned from the juror declarations she
filed with her motion for a new trial and her request for reconsideration of
her motion for a new trial. Senter Road responds that the juror declarations
do not establish prejudice because they were inadmissible under Evidence
Code section 1150. We agree with Senter Road.
Evidence Code section 1150, subdivision (a), provides as follows: “Upon
an inquiry as to the validity of a verdict, any otherwise admissible evidence
may be received as to statements made, or conduct, conditions, or events
occurring, either within or without the jury room, of such a character as is
likely to have influenced the verdict improperly. No evidence is admissible to
show the effect of such statement, conduct, condition, or event upon a juror
either in influencing him to assent to or dissent from the verdict or concerning
the mental processes by which it was determined.” (Italics added.)

20
 Under Evidence Code section 1150, juror affidavit statements are
inadmissible if they disclose “ ‘ “the subjective reasoning processes of the
individual juror[.]” ’ ” (Mesecher v. County of San Diego (1992) 9 Cal.App.4th
1677, 1683.) “Likewise, evidence about a jury’s ‘subjective collective mental
process purporting to show how the verdict was reached’ is inadmissible to
impeach a jury verdict.” (Ibid.; see People v. Romero (1982) 31 Cal.3d 685,
695 [“ ‘The courts have been firm … in precluding affidavits which do no more
than characterize … the state of mind of other members of the jury’ ”].)
Further, “ ‘[t]he subjective quality of one juror’s reasoning is not purged by
the fact that another juror heard and remembers the verbalization of that
reasoning.’ ” (Mesecher, at p. 1683.) Thus, “[t]he statute may be violated not
only by the admission of jurors’ testimony describing their own mental
processes, but also by permitting testimony concerning statements made by
jurors in the course of their deliberations.” (People v. Hedgecock (1990) 51
Cal.3d 395, 418–419; see Guernsey v. City of Salinas (2018) 30 Cal.App.5th
269, 283 (Guernsey) [“ ‘ “[W]hen a juror in the course of deliberations gives
the reasons for his or her vote, the words are simply a verbal reflection of the
juror’s mental processes. Consideration of such a statement as evidence of
those processes is barred by Evidence Code section 1150.” ’ ”].)
The juror declarations filed with Ba’s post-trial motions clearly run
afoul of Evidence Code section 1150. They purport to describe unidentified
jurors’ statements verbalizing their subjective mental processes—namely,
why other jurors should vote to find Senter Road was not negligent. Because
this is precisely the type of evidence that Evidence Code section 1150 forbids,
the declarations cannot be used to establish prejudice. (Guernsey, supra, 30
Cal.App.5th at pp. 283–284 [statements in juror affidavits concerning impact
of jury instruction were inadmissible to establish prejudice in a negligence

21
case]; In re Hansen (2014) 227 Cal.App.4th 906, 928 [declining to consider
juror declarations in assessing prejudice from instructional error because the
“documents purport[ed] to reflect the jury’s reasoning and mental
impressions regarding their verdict”]; accord Bly-Magee v. Budget Rent-A-Car
Corp. (1994) 24 Cal.App.4th 318, 325–326 [jury affidavits discussing
confusing effect of jury instruction in negligence case were inadmissible].)
Even if we were to consider the juror declarations, we would still
conclude that Ba has not demonstrated prejudice. The juror declaration Ba
filed with her new trial motion states the jury was divided on the first special
verdict question (with eight votes finding Senter Road was not negligent and
four votes finding it was negligent). It then states that “[a]fter lengthy
deliberations, one of the jurors started going through the commercial lease
agreement,” “some of the jurors” referenced the exemption provision as a
reason Senter Road should be found not negligent, and another vote was
taken “[s]hortly after,” which resulted in a 10–2 vote that Senter Road was
not negligent. The second juror declaration states, with similar vagueness,
that “jurors were divided on the first question,” “[s]ome of the jurors” stated
the exemption provision required a finding that Senter Road was not
negligent, and “[s]hortly after … some of the jurors changed their vote”
resulting in a finding that Senter Road was not negligent.
These inadmissible declarations, even if credited, show that eight
jurors voted to find that Senter Road was not negligent before the exemption
provision was even discussed—just one vote shy of the threshold necessary to
find that Senter Road was not liable. Neither declarant averred that he or
she was one of the unidentified jurors who changed their votes and, if so,
whether the exemption provision was material to his or her decision to switch
votes. In fact, neither declarant stated that the switching jurors articulated

22
any reason or reasons why they switched their votes. Further, the
declarations shed no light on how the jury would have answered any of the
other outstanding special verdict questions, including whether Senter Road’s
alleged negligence was a substantial factor in causing Ba’s harm and whether
the conduct of the shooter(s) was a superseding cause of Ba’s harm.
For all these reasons, we conclude Ba has failed to establish that the
admission of the unredacted lease agreement resulted in a miscarriage of

justice.8
IV
DISPOSITION
The judgment is affirmed. 2000 Senter Road, LLC is entitled to its
costs on appeal.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

DO, J.

8 Given our determination that the evidentiary rulings do not compel
reversal of the judgment, we do not consider Senter Road’s argument that it
owed no legal duty to evict Tommy, hire security guards, or alert law
enforcement about the nightclub.
23