Bits & Pieces

Gee v. Fong

KeyCite Red Flag – Severe Negative Treatment
2018 WL 1044950
Not Officially Published
(Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115)

California Rules of Court, rule 8.1115, restricts citation of unpublished opinions in California courts.
Court of Appeal,
Fourth District, Division 3, California.
RANDIE GEE et al., Plaintiffs and Appellants,
FONG QUACH et al., Defendants and Appellants.
Filed 2/26/2018
(Super. Ct. No. 30-2014-00706038)
Appeal from an order of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed.
Attorneys and Law Firms
Murchison & Cumming and Edmund G. Farrell III for Defendants and Appellants.
Esner, Chang & Boyer, Holly N. Boyer, Shea S. Murphy and Joseph S. Persoff; McNicholas & McNicholas and Patrick M. McNicholas; Law Offices of Thomas E. Rockett III and Thomas E. Rockett III for Plaintiffs and Appellants.

*1 This negligence case arises from a tractor-trailer accident in which a commercial transport truck being driven by defendant Ahn Tran (Tran) crashed through a highway guard rail and plunged down an embankment during a very heavy rainstorm. Tran’s co-driver on the job, plaintiff Randie Gee (Gee), was asleep in the sleeping area of the truck in the early morning hours when the accident occurred. Gee allegedly suffered life-changing injuries.

After a jury found Tran was not negligent, Gee and his wife filed motions for a partial judgment notwithstanding the verdict (JNOV) on the issue of negligence and for a new trial. The trial court denied the former, but granted the latter based on insufficiency of the evidence. Sitting as an independent trier of fact, the court concluded “the jury clearly should have reached a different verdict on the issue of negligence.”

Defendants appeal the new trial order. They argue it does not contain the grounds for, or sufficient reasoning explaining, the court’s decision. In addition, they contend the trial court abused its discretion because there is “nothing in [the] record” to support the court’s “conclusion that the jury clearly should have reached a different verdict.” Plaintiffs filed a protective cross-appeal, challenging the court’s denial of their motion for a partial JNOV.

We find no issue with the content of the court’s order, and we find no error in the court’s determinations. Accordingly, we affirm the order in full.

At the time of the events giving rise to this case, defendant Fong Quach (Quach) owned a commercial trucking business, and Gee and Tran were both truck drivers. Quach needed certain goods to be transported from California to Kentucky. He hired Gee and Tran, both of whom had previously worked for him, to do the job.

The trip from California to Kentucky occurred without incident. Gee and Tran took turns driving and sleeping, eventually dropping the first load at its destination during one of Gee’s driving shifts. While they waited approximately five hours for the merchandise to be unloaded, the drivers got something to eat and took showers. Also during that time, they received a message from Quach telling them to pick up another load nearby and return with it to California.

By the time Gee and Tran left their first destination, it had started to rain. With Tran driving, they proceeded to the pickup location of the second load. Gee went to sleep so he would be sufficiently rested for his next driving shift.

Workers finished loading the truck around midnight, at which point it was raining heavily. Due to the rain and “very low visibility,” Tran felt it was unsafe to drive. He wanted to wait for the weather to get better, so he asked people at the warehouse if he and Gee could stay. They would not let him.

Rather than looking for another place to park in the immediate area, Tran used his GPS to search for the closest truck stop. Although it was two hours away and his visibility was impaired due to the heavy rain, Tran decided to drive to the truck stop.

*2 As Tran drove, the rain remained heavy. He considered taking one of the exits off the highway to see if he could find a place to rest, but did not because he “was not familiar with [the] local area.” Despite feeling it was unsafe to drive, he pushed on toward the truck stop.

About 45 minutes into the drive, while Gee was asleep in the sleeping compartment of the truck, Tran transitioned onto a three-lane highway, the right lane of which was closed off with cones due to construction. The normal speed limit was 70 miles per hour, but there were temporary signs indicating a speed limit of 45 miles per hour.

Roughly one hour away from the truck stop, Tran suddenly “heard a very loud bang.” The truck drove through the guard rail which lined the highway and tumbled down an embankment. It landed on its side, the cab of the truck crushed by the fall.

Concerned the truck would explode, Tran unbuckled his seatbelt and crawled out of the truck. Smoke emanated from the truck’s engine and Tran heard Gee screaming for help. Gee pulled himself from the crushed sleeping compartment of the truck and made his way to the roadway. The trailer caught fire, resulting in a complete loss of both the tractor and trailer. Gee and Tran were transported to two different hospitals where they were treated for injuries.

At trial, Tran testified the truck was “in excellent condition” and played no role in the accident. Although he admitted there was “low visibility” in the time leading up to the accident, he said he did not feel it was unsafe to be driving at the time, particularly given his years of experience driving trucks in inclement weather. Tran explained he “was very cautious” and drove under the 45-mile-per-hour posted speed limit. He, however, could not describe the road’s characteristics (e.g., incline, decline, curved) at the time of the accident because it was raining so heavily he could not see the road. Tran further testified he did not fall asleep and he did not recall losing control of the truck.

Quach testified about the condition of the truck at the time it left California and two conversations he had with Tran shortly after the accident. With respect to the former, he stated the truck was inspected by mechanics before the trip and “it was in very good condition.” As for the latter, Quach testified that Tran called him twice shortly after the accident and related what had occurred. In the first conversation, Tran explained to Quach that “it was raining and the roadway on the freeway was wet[,] and somehow the truck was sliding off the freeway.” He conveyed similar information during the second conversation, and additionally stated that “ ‘the truck lost control.’ ”

Gee testified about the cross-country job, including the time leading up to the pickup of the second load of goods. He said that after they got something to eat and took showers, they returned to the location where the goods were to be loaded. Tran was driving and, according to Gee, lost control of the truck twice because he was driving too fast. As Gee explained it, the truck “lost traction of the highway, so [it] started weaving back and forth.” Gee, who was sitting in the passenger’s seat at the time, asked Tran to slow down twice. After the second time, it appeared to Gee that Tran slowed down.

*3 After arriving at the pickup location, Gee helped Tran open the trailer and then went to sleep in the sleeping area of the truck. Gee testified he was still asleep at the time Tran left the pickup location and remained so until the accident occurred.

Gee described what he did and how he felt when he was startled awake by the accident. He testified he awoke feeling “like [his] skin was on fire” due to being covered in, what he believed to be, gasoline and battery acid. After struggling to free himself, he made his way up the adjacent slope to the highway from which the truck had plunged and encountered Tran at the top. His entire body hurt; he felt “like [he] was in a tin can being crushed.”

In addition to testifying about preaccident details and the aftermath of the accident, Gee testified concerning his physical injuries and how the accident otherwise impacted his life. A variety of medical experts also testified about Gee’s physical health and opined about the cause of his ailments. And, Gee’s wife testified concerning the impact of the accident on her husband and their relationship.

The jury was instructed concerning simple negligence and the doctrine of res ipsa loquitur (res ipsa). It returned a 9 to 3 verdict in favor of the defense, finding Tran was not negligent. The court entered judgment accordingly.

Plaintiffs filed a motion to set aside the judgment and have the court enter a judgment for the plaintiffs on the issue of negligence notwithstanding the jury’s verdict. They also filed a motion for a new trial. Following a hearing, the trial court issued a written order denying the request for a JNOV, but granting a new trial based on insufficiency of the evidence. “[S]itting as an independent trier of fact, [it found] the jury clearly should have reached a different verdict on the issue of negligence.” The court’s order specified reasons for its conclusion.

Defendants appealed the part of the order granting a new trial. Plaintiffs filed a protective cross-appeal concerning the denial of the JNOV.

A. Defendants’ Appeal
Defendants challenge the new trial order both from a content standpoint and from a reasoning standpoint. First, they contend the order “[does] not adequately specify the grounds or [the] reasons for granting a new trial.” Second, they assert there is “nothing in [the] record” to support the court’s “conclusion that the jury clearly should have reached a different verdict.” We disagree with both contentions.

“The determination of a motion for a new trial rests so completely within the [trial] court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside. [Citations.]” (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.) “[G]iven the latitude afforded a judge in new trial motions, orders granting new trials are ‘infrequently reversed.’ ” (Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.)

*4 As for the content of a new trial order, Code of Civil Procedure section 657 requires an order granting a new trial to specify “the ground or grounds relied upon by the court” and, except in limited circumstances not present here, the reasons for its conclusion. “When the ground relied upon is insufficiency of the evidence, the court must briefly state why it finds the evidence legally inadequate. In other words, the ‘order must briefly identify the portion of the record which convinces the judge “that the court or jury clearly should have reached a different verdict or decision.” [Citation.]’ [Citations.]” (Candido v. Huitt (1984) 151 Cal.App.3d 918, 923 (Candido).) “Specifying reasons as well as grounds serves the two-fold purpose of encouraging careful deliberation by the trial court before granting a new trial motion and making a sufficiently precise record for appellate review.” (Id. at p. 922.)

The language in the trial court’s order meets these mandates. Although the court did not come out the starting gate with the phrase “insufficiency of the evidence,” a later statement in the order makes clear such was the grounds on which it granted a new trial. In explaining its general hesitancy to grant new trial motions, the court stated “this is the first time the court has granted a new trial on the ground of insufficiency of the evidence.” (Italics added.) The grounds could hardly be more clear.

The court’s recitation of evidence supporting its decision is likewise adequate. Among the evidence referenced in the order is the following: (1) Tran was driving a “large commercial truck in a substantial rainstorm”; (2) Tran stated it was raining so heavily at the time he considered stopping, but chose to press on for what would have been two hours to the nearest truck stop instead; (3) one moment the truck was on the road, the next moment it slid off the road, “hit a guardrail and went down an embankment”; and (4) there was no evidence of any hidden hazard, “such as black ice.”

This is not a mere statement of “ultimate facts,” as defendants suggest. Rather, it provides specific enough information to facilitate our review of the court’s determination and avoids the need for us to rely on speculation or inference. This is all that is required. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 634; Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1227 [no need to state inferences drawn, or to “specifically cite pages, lines in testimony, or extensively describe a witness’s testimony”].)

Turning to the validity of the court’s conclusion, our thorough review of the record confirms the court acted within the bounds of its authority in granting a new trial. Whatever factual conclusions the jury may have made, and whatever reasoning they may have used, the judge was not bound thereby. When faced with a new trial motion, “[i]n weighing and evaluating the evidence, the court is a trier-of-fact and is not bound by factual resolutions made by the jury.” (Candido, supra, 151 Cal.App.3d at p. 923.) Similarly, it is not bound by any credibility determinations the jury may have made. (Valdez v. J. D. Diffenbaugh Co. (1975) 51 Cal.App.3d 494, 512.) “The court may grant a new trial even though there be sufficient evidence to sustain the jury’s verdict on appeal, so long as the court determines the weight of the evidence is against the verdict.” (Candido, supra, 151 Cal.App.3d at p. 923.)

Given the evidence, the court was not outside the bounds of reason in concluding, based on its independent judgment, it was more likely than not that Tran was negligent. Tran testified it was raining heavily and visibility was very poor. It was so poor, in fact, Tran wanted to wait for the storm to clear before even leaving the warehouse where he and Gee picked up the second load of goods. But, he did not wait. Instead, he pushed on toward a location two hours away as the downpour continued. Despite having contemplated stopping multiple times, Tran unilaterally chose to continue driving. And, he pushed on and pushed on, to a point right before the accident where he could not see the road at all.

*5 Although Tran testified he did not believe it was unsafe to drive at the time because of his past experience driving in inclement weather, the court was free to come to a different conclusion in light of the above-described evidence. (See Jones v. Citrus Motors Ontario, Inc. (1973) 8 Cal.3d 706, 711 [when considering new trial motion, court “entitled to disbelieve or discount” evidence in record tending to show alternative explanation for accident].) And, it did.

Similarly, the court acted within the bounds of reason to the extent it concluded the weight of the evidence leaned the other way under a res ipsa theory. The evidence showed the truck was on the road one minute, and the next minute it was crashing through a guard rail and down an embankment. The parties stipulated the truck was in a good, safe condition at all times, and it “played no role in causing the accident.” In addition, there was no evidence an outside hazard caused the truck to leave the road. These facts could justify a res ipsa negligence finding. (Ellis v. Jewett (1937) 18 Cal.App.2d 629, 634-637, disapproved of on another ground in Scott v. Burke (1952) 39 Cal.2d 388, 395-396.)

“An abuse of discretion cannot be found in cases in which the evidence is in conflict and a verdict for the moving party could have been reached under the theory expressed in the order for a new trial.” (Jones v. Citrus Motors Ontario, Inc., supra, 8 Cal.3d at p. 711.) In other words, “so long as the evidence can support a verdict in favor of either party[,] a properly constructed new trial order is not subject to reversal on appeal.” (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 414.) Such is the case here.

B. Plaintiffs’ Cross-Appeal
Although labeled by plaintiffs as a “protective cross-appeal,” we address it notwithstanding our affirmance of the new trial order because plaintiffs challenge the court’s denial of their motion for a JNOV, not merely the underlying judgment. Plaintiffs contend a JNOV on the issue of negligence should have been granted because the jury’s verdict is not supported by substantial evidence. We disagree.

“Where appropriate a partial JNOV may be granted. [Citation.]” (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510.) However, “ ‘ “[t]he trial court’s discretion in granting a motion for judgment notwithstanding the verdict is severely limited.” [Citation.] “ ‘The trial judge’s power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict [citations]. The trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses. [Citation.] … “A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” [Citation.]’ ” [Citation.]’ [Citation.]” (Simmons v. Ware (2013) 213 Cal.App.4th 1035, 1047-1048.) The same is true “[i]f the evidence is conflicting or if several reasonable inferences may be drawn[.]” (Id. at p. 1047.)

On appeal, we apply the same principles as would a trial court. (Linear Technology Corp. v. Tokyo Electron, Ltd. (2011) 200 Cal.App.4th 1527, 1532.) If we determine “there is any substantial evidence, contradicted or uncontradicted, supporting the jury’s verdict,” we must affirm the denial of the JNOV. (Wolf v. Walt Disney Picture & Television (2008) 162 Cal.App.4th 1107, 1138.)

*6 Viewing the evidence as a whole in the light most favorable to defendants, there is substantial evidence to support the jury’s conclusion that Tran was not negligent. Tran testified he had prior experience driving trucks in rainy weather, he was driving below the speed limit, his lights and windshield wipers were on at all times, he was being very cautious, he did not fall asleep, he did not swerve or apply the brakes immediately before the accident, and he did not recall losing control of the truck. He further testified he was well rested and there were other vehicles driving in the same conditions.

The jury could have concluded from such evidence the accident was a type that may occur even in the absence of a person’s negligence, meaning no inference of negligence under the res ipsa doctrine. (See Turner v. Mannon (1965) 236 Cal.App.2d 134, 140-141 [“Common knowledge tells us that accidents frequently occur due to heavy rainstorms, wet streets and the presence of slippery substances on the highway”].)

In addition, though the court did otherwise when considering plaintiffs’ new trial motion, it was the jury’s prerogative to credit Tran’s testimony and conclude he acted as a reasonable person would under the circumstances. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 [negligence “consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm”]; Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 508 [“ ‘[E]very mistake of judgment is not negligence, for mistakes are made even in the exercise of ordinary care, and whether such mistakes constitute negligence, is a question of fact’ ”].) Such a finding would have been enough to conclude a lack of negligence under a simple negligence theory and to rebut an inference of negligence, if any, under the res ipsa doctrine. (Roberts v. Trans World Airlines (1964) 225 Cal.App.2d 344, 352 [“Whether the inference of negligence [under res ipsa] is rebutted by the defendant’s evidence is a question of fact for the trier of fact”].)

Because the res ipsa doctrine permits, but does not require, a jury to draw an inference of negligence, and because several reasonable inferences may be drawn from the evidence, the court did not err in denying plaintiffs’ motion for a JNOV.

The order denying plaintiffs’ motion for JNOV and granting a new trial is affirmed. Plaintiffs are entitled to their costs on appeal.

All Citations
Not Reported in Cal.Rptr.3d, 2018 WL 1044950

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