Pedroza v. Pedroza CA4/1

Filed 5/20/13 Pedroza v. Pedroza 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CHRISTOPHER D. PEDROZA, a Minor, D060263
etc., et al.,

Plaintiffs and Respondents,
(Super. Ct. No. 37-2009-00082385-
v. CU-PA-CTL)

ANGELA PEDROZA, as Executor, etc.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Linda B.

Quinn, Judge. Affirmed.

Neil, Dymott, Frank, McFall & Trexler, David P. Burke and Andrea P. Bayly for

Defendant and Appellant.

James E. Friedhofer; Law Offices of Robert Ryan and Robert Ryan for Plaintiffs

and Respondents.

Angela Pedroza, as the executor of the Estate of John P. Pedroza, Sr., (the Estate)

appeals from a jury verdict in a personal injury and wrongful death lawsuit against the
Estate by the surviving passengers of an automobile accident in which John P.

Pedroza, Sr. (Pedroza, Sr.) was the driver. The Estate contends that the verdict against it

should be reversed because of purportedly erroneous evidentiary rulings and because

substantial evidence did not support the verdict. We conclude that the Estate's arguments

lack merit, and we affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

On the morning of January 9, 2009, members of the Pedroza family were on a

long-distance drive through Mexico on their way home to San Diego. In their van were

the mother and father, Rosa Garcia and Raymond Pedroza, Sr.; the 10- and 13-year-old

sons, Raymond M. Pedroza, Jr., and Christopher D. Pedroza; and the paternal

grandfather, Pedroza, Sr. The family had been driving since the previous morning,

stopping only for short breaks to buy gas, to eat or to use the restroom. The father and

grandfather (Raymond Pedroza, Sr., and Pedroza, Sr.) were taking turns driving, with

each having driven twice by the time they reached Altar, Mexico, near the city of

Hermosillo, at approximately 6:00 a.m. While Pedroza, Sr., was driving, the van crashed

into the side of a large tractor-trailer truck that was parked on the side of the highway

near the entrance to a convenience store and gas station in Altar. Only the children

(Raymond and Christopher) survived the crash, with both of them sustaining injuries that

required hospitalization.

Raymond and Christopher, through their guardian ad litem Maria Refugio Garcia

(collectively, plaintiffs), filed a lawsuit against the Estate alleging that Pedroza, Sr.,

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negligently operated a motor vehicle. They sought to recover for the wrongful death of

their parents and for their own injuries. The original complaint also included claims

against the owners and operators of the truck involved in the collision, but those

defendants were dropped from the amended complaint.

No witness testified at trial who saw the collision occur. However, plaintiffs

presented details of the accident through the testimony of (1) a convenience store worker,

Maria del Socorro Portillo Rodriguez (Portillo), who heard the crash and saw its

immediate aftermath; and (2) a journalist, Rafael Leon Pineda (Pineda), who arrived

shortly after the collision and took photographs of the scene, some of which were

displayed to the jury.

Both Portillo and Pineda, referring to photographs and to their recollection,

testified that the truck involved in the collision was parked in a shoulder area of the

highway that was separated from the four lanes of traffic by a dotted white line. Portillo

and Pineda both explained that under Mexican traffic law, a dotted white line next to the

highway indicates a rest area where vehicles can park, and trucks regularly park where

the truck was parked during the collision. The photographs and Portillo's and Pineda's

testimony established that during the collision, the truck was parked completely within

the area indicated by the dotted white line and was not protruding into the lane of traffic.

The photographs showed that the van crossed over the dotted white line and hit the side

of the parked truck at an angle and at a high enough speed to cause major damage to the

van and to kill three of the van's five occupants. There was no evidence of a tire blowing

out, screeching brakes, skid marks on the road or the sound of a car horn that would have

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indicated an attempt to stop or take evasive action. Portillo testified that the area in

which the truck was parked was illuminated by the lighting of the convenience store, and

the truck also had on small lights around the trailer and its rear. According to witness

testimony, no rain or clouds were present on the morning of the collision.

In a special verdict, the jury found that Pedroza, Sr., was negligent,1 and judgment

against the Estate was entered in the amount of $2,061,581.60, inclusive of costs.

II

DISCUSSION

A. The Estate Did Not Preserve the Argument that Testimony About the Location of
Truck Was Improperly Admitted Lay Opinion

The Estate contends that the trial court abused its discretion by (1) admitting

testimony from Portillo and Pineda that the area in which the truck was parked was a

designated parking and rest area under Mexican traffic law, and (2) allowing Pineda to

state that the van driven by Pedroza, Sr., "invaded" the area in which the truck was

parked.2 According to the Estate, the testimony consisted of improper lay witness

1 In assigning a percentage of responsibility for the harm to plaintiffs, the special
verdict form assigned 80 percent of the responsibility to Pedroza, Sr., and 20 percent of
the responsibility to "Other."

2 Specifically, Pineda gave the following testimony during questioning by plaintiffs'
counsel that the van "invaded" the truck's area:
"Q: And what was your observation with respect to the angle, if any, or the
position of the van with respect to the dotted white line?
"A: The one that came into that lane was the van.
"Q: And what was your observation with respect to the angle of that, or the
position of that van?
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opinion testimony because it concerned matters "sufficiently beyond the competence of

common persons" and should have been presented through an expert witness.

The argument fails because counsel for the Estate did not preserve the objection in

the trial court.

"Evidence Code section 353, subdivision (a) allows a judgment to be reversed

because of erroneous admission of evidence only if an objection to the evidence or a

motion to strike it was 'timely made and so stated as to make clear the specific ground of

the objection.' Pursuant to this statute, ' ". . . 'defendant's failure to make a timely and

specific objection' on the ground asserted on appeal makes that ground not cognizable," ' "

and the defendant forfeits his appellate arguments based on the erroneous admission of

the evidence. (People v. Demetrulias (2006) 39 Cal.4th 1, 20-21.) " 'The reason for the

requirement is manifest: a specifically grounded objection to a defined body of evidence

serves to prevent error. It allows the trial judge to consider excluding the evidence or

limiting its admission to avoid possible prejudice. It also allows the proponent of the

evidence to lay additional foundation, modify the offer of proof, or take other steps

designed to minimize the prospect of reversal.' " (People v. Partida (2005) 37 Cal.4th

428, 434.) "What is important is that the objection fairly inform the trial court, as well as

the party offering the evidence, of the specific reason or reasons the objecting party

believes the evidence should be excluded, so the party offering the evidence can respond

"A: It was the one that came in, the one that invaded, let's say, invaded that
place.
"Q: Now, why do you use the word 'invaded'?
"A: Because it shouldn't have been driving into that lane."

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appropriately and the court can make a fully informed ruling." (Id. at p. 435.) Even

when counsel raises an objection at some point in the proceedings but fails to obtain a

ruling on the objection, "counsel's failure to obtain a ruling is fatal to defendant's

appellate contention, for a party objecting to the admission of evidence must press for an

actual ruling or the point is not preserved for appeal." (People v. Hayes (1990) 52 Cal.3d

577, 619.)

Here, it is undisputed that, during Pineda's and Portillo's testimony, counsel for the

Estate made no objection to the admission of the evidence that it now claims should have

been excluded.

The Estate contends that although it did not object during Portillo's and Pineda's

testimony, it preserved the objection during pretrial discussions of jury instructions and

motions in limine. Specifically, the Estate points to discussions of a proposed jury

instruction on opinion testimony of lay witnesses. While discussing that jury instruction,

the trial court asked whether the parties would be presenting lay witness opinion

testimony. Plaintiffs' counsel indicated, "We may have some." Counsel for the Estate

stated, "Your Honor, I think that if anything tries to come in, you'll hear objections."

Plaintiffs' counsel agreed, explaining that "[o]n both sides you're going to hear objections,

but it may — both sides may try to introduce some opinion testimony of lay witnesses."

When Plaintiffs' counsel stated that he did not currently know what kind of lay witness

opinion testimony might be presented, counsel for the Estate stated, "Your Honor, I don't

think that there is any lay opinion testimony in a case like this that's proper." The trial

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court ended the discussion by stating "We'll reserve on that." The record reflects no

further discussion about the admissibility of lay witness opinion testimony.

Indeed, at no point did counsel for the Estate ever indicate that he objected to a lay

witness testifying about the proper designation, under Mexican traffic law, of the area in

which the truck was parked. On the contrary, during a pretrial hearing the next day,

when discussing whether plaintiffs had made a judicial admission in the original

complaint about the location of the truck, plaintiffs' counsel stated that, during Pineda's

testimony, he would inquire about how to characterize the lane where the truck was

parked. Counsel for the Estate expressed no objection to such a line of questioning.

Further, as we have discussed, counsel for the Estate made no objection whatsoever

during Portillo's and Pineda's testimony as to the admission of the evidence that the

Estate now contends should not have been admitted.

The Estate contends that it would have been futile for counsel to make an

objection during Portillo's and Pineda's testimony because the trial court had already

indicated it would admit the testimony. (See People v. Chavez (1980) 26 Cal.3d 334, 350

fn. 5 [argument that admission of witness's prior statements violated defendant's

constitutional rights was cognizable on appeal, despite lack of objection in trial court,

when an objection would have been futile due to the current state of the case law on the

issue].) The record does not support such an assertion. As we have explained, when the

parties raised the issue of lay opinion testimony during a pretrial hearing, the trial court

expressed no view at all and simply reserved the issue, with an implicit understanding

that, as counsel both indicated, they would object during trial if opposing counsel

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attempted to introduce objectionable testimony. Further, when counsel for the Estate did

make a specific objection at trial to the admission of lay witness opinion testimony on

Mexican traffic law, the trial court was receptive to the objection and sustained it.

Specifically, plaintiffs' counsel asked Pineda whether a sign with an "E" is required if the

shoulder of a highway is intended to be used as a parking or rest area. Counsel for the

Estate objected on the basis that the question "calls for expert testimony." The trial court

sustained the objection, and it sustained a further objection when plaintiffs' counsel

reworded the question by basing it on Pineda's personal driving experience. In light of

this ruling, and the trial court's specific reservation on the general issue of the

admissibility of lay opinion testimony, the Estate cannot establish that it would have been

futile to make a similar objection to admission of other lay opinion testimony about

Mexican traffic law.

In sum, counsel for the Estate simply never indicated any objection to Portillo's

and Pineda's testimony about the proper designation, under Mexican traffic law, of the

area in which the truck was parked and did not object to Pineda's testimony that the van

"invaded" a lane where it was not supposed to be driving. The trial court had no

opportunity to pass on the admissibility of such evidence, and the Estate therefore may

not complain on appeal that the evidence was improperly admitted.

B. The Trial Court Did Not Abuse Its Discretion in Rejecting the Estate's Contention
that the Original Complaint Contained a Judicial Admission as to the Location of
the Truck

During pretrial motions, the Estate argued that the trial court should treat a

statement in the original complaint about the location of the truck at the time of the

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collision as a binding judicial admission by plaintiffs on that subject. Counsel for the

Estate explained, "If they're going to try to put on evidence during this trial that is

contrary to their admission that the vehicle was stopped in a lane of traffic, . . . I'm going

to be objecting to it, because it's an issue that should already be conclusively proved."

At issue is a statement in plaintiffs' original complaint relevant to the claims

against the owners and operators of the truck involved in the collision. The original

complaint alleged, "An 18-wheel truck owned by defendant A. Perez Alba and

'Transportes Refrigerados "Peral" ' operated by defendant Eduardo Perez Garcia, is

believed to have been parked on the side of the highway to Santa Ana Sonora, Mexico,

with a portion of it sticking onto the lane of traffic." Along with removing the owners

and operators of the truck as defendants, the amended complaint deleted that allegation,

pleading instead that the truck "is believed to have been parked on the side of the

highway." The trial court rejected the Estate's argument that plaintiffs should be bound to

their pleading that the truck was "sticking onto the lane of traffic" and barred from

presenting evidence to the contrary, but it allowed the Estate to introduce evidence of the

original complaint's allegation to the jury.

"The admission of fact in a pleading is a 'judicial admission.' " (Valerio v. Andrew

Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271.) " ' "A judicial admission

in a pleading . . . is not merely evidence of a fact; it is a conclusive concession of the

truth of a matter which has the effect of removing it from the issues . . . ." ' " (Addy v.

Bliss & Glennon (1996) 44 Cal.App.4th 205, 218.) "Well pleaded allegations in the

complaint are binding on the plaintiff at the trial." (4 Witkin Proc., Pleading, § 455,

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p. 587.) "[T]he trial court may not ignore a judicial admission in a pleading, but must

conclusively deem it true as against the pleader." (Thurman v. Bayshore Transit

Management, Inc. (2012) 203 Cal.App.4th 1112, 1156.)

However, "[a] judicial admission is a party's unequivocal concession of the truth

of a matter . . . ." (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 48, italics

added.) "An unclear or equivocal statement does not create a binding judicial

admission." (Stroud v. Tunzi (2008) 160 Cal.App.4th 377, 385.) Thus, for example, a

party's testimony that an event " 'probably' " occurred on a certain date, was too equivocal

to constitute a judicial admission. (Howard v. American Nat. Fire Ins. Co. (2010) 187

Cal.App.4th 498, 515-516 (Howard); see also Kirby v. Albert D. Seeno Construction Co.

(1992) 11 Cal.App.4th 1059, 1066 [judicial admission was not created by "an ambiguous

statement in an unverified complaint"]; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596

[observing in dicta that "[m]aking a statement on information and belief . . . might avoid

a judicial admission].)

We apply an abuse of discretion standard of review to the trial court's conclusion

that plaintiffs did not make a binding judicial admission about the location of the truck.

(Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 871.)

Here, the original complaint did not make an unequivocal statement admitting that

the truck was sticking into the lane of traffic. Instead, the original complaint expressly

stated a belief about the location of the truck. As plaintiffs' counsel explained to the trial

court during motions in limine, and as witness testimony established during trial, that

allegation was amended because the belief was disproved when the parties obtained more

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evidence about the circumstances surrounding the collision. When applying the doctrine

of judicial admissions, "[a] court may disregard fragmentary and equivocal statements,

especially when contradicted by other credible evidence." (Howard, supra, 187

Cal.App.4th at p. 516.) The trial court was within its discretion — in light of the

equivocal nature of the original complaint's allegation and the clear photographic

evidence showing that the truck was not sticking into the lane of traffic — to conclude

that plaintiffs did not make a judicial admission about the location of the truck.

C. The Trial Court Did Not Abuse Its Discretion in Sustaining an Objection to
Questions About the Status of a Witness's Visa

The Estate contends that the trial court prejudicially abused its discretion in

sustaining an objection when counsel attempted to elicit testimony about the status of

Pineda's visa to be in the United States. According to the Estate, the excluded testimony

was relevant because it could have called into question Pineda's credibility.

During direct examination of Pineda on March 29, 2011, plaintiffs' counsel

engaged Pineda in the following line of questioning:

"Q. Mr. Pineda, when did you come to San Diego to give testimony in
this case?"

"A. March 4th.

"Q. And was there any reason you came March 4th?

"A. Because my visa was going to expire right after.

"Q. And have you since reapplied to reinstate your visa so it's going to
be effective since you came here?

"A. No, I just applied for an extension.

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 "Q. You applied for an extension, and that's in process; is that right?

"A. Yes."

On cross-examination of Pineda, counsel for the Estate undertook the following

line of questioning:

"Q: [A]s I understood it, sir, you came on March 4th because your visa
was going to expire literally within days?"

"A: Yes.

"Q: Okay. As you're here today, your visa has expired, true?"

Plaintiffs' counsel objected on relevancy grounds, and the trial court sustained the

objection, rejecting defense counsel's assertion that the question "goes to credibility."3

The Estate argues that the trial court should not have sustained the objection to the

question about the expiration of Pineda's visa because the answer would likely have

undermined Pineda's credibility. According to the Estate, "Given the lengthy process of

applying for and obtaining a ruling on a visa extension, it is highly unlikely Mr. Pineda

actually obtained a visa extension. In turn, any questioning on this matter would have

served to diminish his credibility." The Estate argues that if the trial court had not

sustained the objection, counsel would have been able "to show the jury Mr. Pineda had

been dishonest regarding the status of his visa."

3 On redirect examination of Pineda, plaintiffs' counsel asked:
"Q: . . . Mr. Pineda, you have applied and have a current visa, is that
right, an extension on your visa?
"A: That's right.
"Q: [T]here's nothing illegal about your presence in the United States?
"A: No, of course not."

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 We review "for abuse of discretion a decision on admissibility that turns on the

relevance of the evidence in question." (People v. Waidla (2000) 22 Cal.4th 690, 717.)

We conclude that the trial court was well within its discretion to determine that

Pineda's response to the inquiry about his current visa status would not have been

relevant to attack Pineda's credibility as a witness. Although counsel for the Estate was

attempting to elicit testimony from Pineda that his visa had expired, that testimony would

not have called Pineda's credibility into question because it would not have contradicted

anything that Pineda stated during direct examination. As we have explained, Pineda

testified on direct examination that because his visa was expiring "right after" March 4,

he came to San Diego on that date, instead of closer to the March 29 date of his

testimony. The most logical implication from this testimony is that Pineda's visa had

expired before March 29, and that Pineda was attempting to extend it. Further, Pineda

did not testify on direct examination that his application to extend his expired visa had

been approved. Instead, he testified that it was "in process." In light of that testimony,

Pineda would not have been revealed as untruthful if he had testified on cross-

examination that his visa had expired. Accordingly, the excluded testimony would not

have been relevant to attack Pineda's credibility, and the trial court was well within its

discretion to sustain the objection on the basis of relevancy.

D. Substantial Evidence Supports the Verdict

The Estate contends that insufficient evidence supports the jury's verdict that

Pedroza, Sr., negligently caused the collision. In a very brief and undeveloped argument,

the Estate asserts that insufficient evidence supports the verdict because "[t]he only

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established facts in this case are the occurrence of the accident, the lack of any

eyewitnesses, and the presence of a parked truck." According to the Estate, "[w]ithout

any eyewitnesses and without any experts, the jury's findings are merely inferences

derived from speculation."

"When a party challenges the jury's findings based on insufficient evidence to

support those findings, we apply the substantial evidence standard of review." (Zagami,

Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1096.) Substantial evidence is

defined as evidence of " ' " ' " 'ponderable legal significance . . . reasonable in nature,

credible, and of solid value [, and]' " ' . . . ' "relevant evidence that a reasonable mind might

accept as adequate to support a conclusion" ' . . . ." ' " (Young v. Gannon (2002) 97

Cal.App.4th 209, 225.) We review the record as a whole, resolving all conflicts in favor

of the prevailing party and indulging all legitimate and reasonable inferences in favor of

the jury's findings. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th

559, 571.) If the jury's findings are supported by substantial evidence, contradicted or

uncontradicted, the judgment must be upheld regardless of whether the evidence is

subject to more than one interpretation. (Ibid.)

Here, the record contains sufficient evidence to support a finding that Pedroza, Sr.,

caused the collision through his negligence. The photographic evidence and witness

testimony supports a finding that the truck was properly parked in plain view outside of

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the lane of traffic.4 Based on the extensive damage to the van, as shown in the

photographs, a juror could reasonably conclude that Pedroza, Sr., veered out of the

normal lane of traffic and slammed into the side of the truck at a high speed. Further,

because witnesses testified to the favorable weather conditions and the lack of any skid

marks, squealing tires, horn sounds or any other evidence of an evasive maneuver, a

reasonable juror could conclude that it was Pedroza's own inattention rather than an

unexpected obstacle or foul weather that caused Pedroza to veer into the side of the truck.

The fact that the family had been driving for almost a full day without sleep or extended

rest breaks also supports a reasonable inference that the collision was caused by

Pedroza, Sr.'s tiredness or lack of attention. The verdict is supported by substantial

evidence.

4 To the extent that the Estate argues that insufficient evidence supports the verdict
because Portillo and Pineda were purportedly not competent, as lay persons, to offer
testimony about Mexican traffic law, we reject that argument. " 'It is settled law that
incompetent testimony . . . if received without objection takes on the attributes of
competent proof when considered upon the question of sufficiency of the evidence to
support a finding. [Citations.] "Evidence technically incompetent admitted without
objection must be given as much weight in the reviewing court in reviewing the
sufficiency of the evidence as if it were competent." ' " (People v. Bailey (1991) 1
Cal.App.4th 459, 463.)

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 DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

MCCONNELL, P. J.

BENKE, J.

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