Filed 10/9/13 Camberos v. Lewis CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


LAURO CAMBEROS et al.,                                               B230562

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. VC047977)
         v.

RAYMOND LEWIS et al.,

         Defendants and Appellants.




         APPEAL from a judgment and order of the Superior Court of Los Angeles
County. Michael A. Cowell, Judge. Affirmed.


         Hoffman & Osorio and Nathan V. Hoffman for Plaintiffs and Appellants.


         Carlson & Messer, Jeffrey J. Carlson, Jeanne L. Zimmer and Stephen A. Watkins
for Defendants and Respondents.




                                                 ____________________
       This case arises from a multi-vehicle accident, which led to the death of 15-year-
old Lauro Alberto Camberos (the decedent). The decedent’s parents, Lauro and Sandra
Camberos, and his estate (appellants) sued the Los Angeles Unified School District
(LAUSD) and one of its school bus drivers (Raymond Lewis) (Lewis) (collectively
respondents) for wrongful death. The trial court granted respondents’ motion for nonsuit
on the ground that appellants had no expert testimony on causation. We affirm. We also
affirm the trial court’s order denying respondents’ motion for attorney fees.
                  FACTUAL AND PROCEDURAL BACKGROUND
The Accident
       On July 20, 2006, the decedent was walking on a sidewalk on Gage Avenue in
Huntington Park, California. A van driven by Jerry Lee Smith (Smith) westbound on
Gage Avenue struck the rear of a car driven by Eduardo Bonilla (Bonilla). Smith’s van
continued westbound, striking another car driven by Iris Meija (Meija). Smith’s van and
Meija’s car came to rest at a curb. Meanwhile, Bonilla’s car crossed the center divider
into opposing eastbound traffic lanes, striking a LAUSD school bus driven by Lewis in
the eastbound number one lane. The bus crossed into opposing traffic, striking a sport
utility vehicle (SUV), then went up the curb, striking the decedent and a wall. The
decedent died of his injuries after being hospitalized.
       The California Highway Patrol (CHP) investigated the accident and Sergeant Tai
Vong prepared a 33-page traffic collision report, in which he concluded that Smith was
the cause of the accident due to driving at an unsafe speed. Sergeant Vong recommended
that the case be forwarded to the Los Angeles County District Attorney’s Office for
prosecution of Smith for vehicular manslaughter with gross negligence.
       The CHP’s Multi Accident Investigation Team (MAIT) also responded, and did
extensive investigation and accident reconstruction. The MAIT prepared a physical
evidence diagram and a dynamics diagram, reconstructing the collisions, and included
more than 250 photographs of the scene and the vehicles involved. CHP Officer Paul
Gray testified at his deposition and at trial about the investigation and preparation of the
MAIT diagrams and accident reconstruction. He also provided all counsel with copies of

                                              2
a security videotape from a liquor store across the street from the accident that caught a
portion of the accident. Appellants’ counsel played the videotape at trial, which showed
that the accident lasted less than two seconds.
The Operative Complaint
       In the second amended complaint, appellants sued LAUSD and Lewis for
wrongful death based on negligence. Appellants also sued the other drivers, who are not
parties to this appeal.
Appellants’ Expert Witness
       Appellants designated as their expert witness Augustine Zemba (Zemba) to testify
as to “passenger transportation and the operation of school buses, and the standard of care
while driving buses.” Appellants conceded that Zemba was not an expert on accident
reconstruction.1 Respondents’ motion in limine No. 9 sought to exclude Zemba’s
testimony based on speculation, lack of proper foundation, improper opinion, and lack of
relevance. The trial court granted the motion in part, ruling that Zemba could not testify
as to whether Lewis was negligent.2
Motion for Nonsuit
       Immediately following appellants’ opening statement, respondents moved for
nonsuit on the ground that appellants lacked expert testimony on causation. The trial
court took the matter under submission and permitted briefing on the issue. In the
meantime, the trial court heard three days of testimony by Officer Gray, Zemba, and
Lewis’s supervisor. After holding a hearing on the motion for nonsuit, the trial court
granted the motion. The trial court explained: “Everything your expert has said is
predicated on one thing only, that is the statement by Mr. Lewis in his deposition that he
believes he had 100 feet within which to react. [¶] . . . [¶] There’s no other evidence
that he’s taken into consideration. He didn’t look at the reports, he didn’t look at the time

1
        Appellants initially designated their experts on April 12, 2010, but de-designated
their accident reconstruction expert on May 20, 2010.
2
       Appellants do not challenge this ruling.


                                             3
frame, the time sequence of these things; he’s assuming that this is gospel.” The trial
court continued, “The fact that a man with so little . . . exposure to the circumstances of
the case, without any examination of the vehicles that were involved . . . that he could
presume to make a statement that somebody killed a boy because of his negligence; that’s
the basis of my opinion.” 3
Motion for Attorney Fees
       Respondents subsequently moved for an award of attorney fees and costs in the
amount of $331,210.16, which the trial court denied.
       Appellants’ appeal from the judgment and respondents’ cross-appeal from the
order denying their motion for attorney fees ensued.
                                       DISCUSSION
I. The Motion for Nonsuit
       A. Standard of Review
       “‘A defendant is entitled to a nonsuit if the trial court determines that, as a matter
of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his
favor. [Citation.] “In determining whether plaintiff’s evidence is sufficient, the court
may not weigh the evidence or consider the credibility of witnesses. Instead, the
evidence most favorable to plaintiff must be accepted as true and conflicting evidence
must be disregarded. . . .” A mere “scintilla of evidence” does not create a conflict for
the jury’s resolution; “there must be substantial evidence to create the necessary
conflict.” [Citation.].’” (Fillpoint, LLC v. Maas (2012) 208 Cal.App.4th 1170, 1176,
citing Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) A defendant may
move for nonsuit after the plaintiff’s opening statement. (Code Civ. Proc., § 581c,
subd. (a).) “‘In reviewing a grant of nonsuit, we are “guided by the same rule requiring
evaluation of the evidence in the light most favorable to the plaintiff.” [Citation.] We
will not sustain the judgment ‘“unless interpreting the evidence most favorably to
plaintiff’s case and most strongly against the defendant and resolving all presumptions,

3
       The trial court referred to Zemba as “a hack.”

                                               4
inferences and doubts in favor of the plaintiff a judgment for the defendant is required as
a matter of law.”’ [Citation.]’” (Fillpoint, LLC v. Maas, supra, 208 Cal.App.4th at
p. 1176.)
         B. Improper Reliance on Abolished Doctrines
         The elements of negligence are (1) duty of care, (2) breach of that duty,
(3) proximate cause, and (4) injury. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200,
1205; John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188.) The plaintiff must show
that the defendant’s actions were a substantial factor in causing injury. (Mitchell v.
Gonzales (1991) 54 Cal.3d 1041, 1049; Viner v. Sweet (2003) 30 Cal.4th 1232, 1239–
1240.)
         Appellants contend that they made a prima facie showing of negligence in their
opening statement and by the testimony given at trial under the doctrines of “last clear
chance” and “discovered peril.” They argue that under these doctrines, causation is not
an issue, but that in any event they established causation by Zemba’s testimony.
Specifically, they cite to Zemba’s testimony that he had considered Lewis’s deposition
testimony, in which Lewis recalled seeing the accident developing and thinking of two
ways to avoid it—by braking and moving to the number two lane—and Zemba’s
conclusion that a bus driver “should” move to the next lane if it is available.
         Appellants spend much of their opening brief discussing “last clear chance” cases
they claim are similar, and do so under different headings in their brief. The problem
with appellants’ arguments, though, is that the last clear chance doctrine was expressly
abolished by our Supreme Court in favor of comparative negligence. (Li v. Yellow Cab
Co. (1975) 13 Cal.3d 804, 829 (Li) [“The doctrine of last clear chance is
abolished, . . . ”].) As respondents note, commentators routinely refer to “last clear
chance” and “discovered peril” interchangeably. (See Prosser, Law of Torts (3d ed.
1964) § 65, p. 439.) Indeed, there are no reported California decisions applying the
“discovered peril” doctrine since Li.
         Accordingly, appellants’ contention that they made a prima facie showing of
negligence based on these doctrines is without merit.

                                               5
       C. No Expert on Causation
       Appellants also contend that the trial court erred in requiring their standard of care
expert to qualify as an expert on accident reconstruction. Putting aside appellants’
continued reliance on last clear chance cases, which they claim do not require such an
expert, they correctly note that expert witness testimony is necessary when “[r]elated to a
subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) According to appellants,
the only matter that was beyond the common experience of the jury was the standard of
care for commercial bus drivers, for which Zemba was the designated expert.
       We disagree. While Zemba’s testimony may have been relevant to the scope of
Lewis’s duty as a school bus driver, it had nothing to do with the issue of causation, i.e.,
were Lewis’s actions a proximate cause of the harm. At best, Zemba could testify that
Lewis should have moved the bus into an empty traffic lane if available, without
discussing other critical factors in a traffic accident, such as reaction time, perception
time, distance, and the mechanics of the damage to the bus from the vehicle collisions.
The accident in this case involved multi-vehicle chain reaction collisions and a
complicated sequence of events and issues, including the nature of the severe damage to
the bus from both the collision with Bonilla’s car and the subsequent collision with the
SUV, and how the resulting damage affected Lewis’s operation of the bus. These issues
are plainly beyond the common experience of judges and juries. (See Visueta v. General
Motors Corp. (1991) 234 Cal.App.3d 1609, 1616 [truck driver, who was not an expert on
automobile accident reconstruction, could not give a lay opinion as to the cause of the
collision]; Haning, Flahavan & Kelly, Cal. Practice Guide: Personal Injury (The Rutter
Group 2012), § 2:370, p. 2(i)-61 [“Expert testimony is also required on the issue of
causation if the matter is so beyond lay experience that it can be explained only through
experts”].)
       “[W]here, as here, the complexity of the causation issue is beyond common
experience, expert testimony is required to establish causation.” (Stephen v. Ford Motor
Co. (2005) 134 Cal.App.4th 1363, 1373.) Appellants, who had the burden of establishing

                                              6
every element of their negligence claim, could not establish causation without an accident
reconstruction expert in this complicated accident case.
       Accordingly, the motion for nonsuit was properly granted. (Stephen v. Ford
Motor Co., supra, 134 Cal.App.4th 1363.)
       D. No Violation of Rules Governing Nonsuits
       Finally, appellants contend that the trial court violated “various rules of nonsuits”
by improperly weighing the evidence, failing to interpret the evidence favorably to them,
and failing to indulge every legitimate inference in their favor. Appellants list eight
instances of alleged violations. We have reviewed the record and find no error by the
trial court. It is clear the court understood its role: “Part of your motion is that the court
cannot evaluate defense evidence. You are right, I am not evaluating the defense
evidence here. They made an offer of proof . . . what they intended to put up. It is not a
question of [the] court evaluating the defense evidence, it’s a question of the standard of
whether you have established enough evidence to even get into the defense [evidence].”
The trial court continued, “The defendant is entitled to a nonsuit if the trial court
determines that it’s a matter of law the evidence presented by plaintiff is [in]sufficient to
permit a jury to find in his favor. It’s not a question of whether I believe or disbelieve
Mr. Zemba. I don’t disbelieve him. . . . [¶] . . . [¶] But I find that there is no basis to
justify the denial of the motion of a nonsuit as to LAUSD and Mr. Lewis.”
II. The Motion for Attorney Fees
       Respondents brought a motion for an award of attorney fees and defense costs in
the amount of $331,210.16 pursuant to Code of Civil Procedure section 1038 (section
1038), which the trial court denied.
       Section 1038, subdivision (a) provides that “In any civil proceeding under the
. . . Government Claims Act . . . the court, upon motion of the defendant or cross-
defendant, shall, at the time of the granting of . . . any nonsuit dismissing the moving
party . . . determine whether or not the plaintiff, petitioner, cross-complainant, or
intervenor brought the proceeding with reasonable cause and in the good faith belief that
there was a justifiable controversy under the facts and law which warranted the filing of

                                               7
the complaint, petition, cross-complaint, or complaint in intervention. If the court should
determine that the proceeding was not brought in good faith and with reasonable cause,
an additional issue shall be decided as to the defense costs reasonably and necessarily
incurred by the party or parties opposing the proceeding, and the court shall render
judgment in favor of that party in the amount of all reasonable and necessary defense
costs, in addition to those costs normally awarded to the prevailing party.” Section 1038,
subdivision (b) defines “defense costs” to include “reasonable attorneys’ fees, expert
witness fees, the expense of services of experts, advisers, and consultants in defense of
the proceeding . . .”
       “‘Reasonable cause’ is an objective standard which asks whether any reasonable
attorney would have thought the claim tenable. [Citation.] ‘Thus, before denying a
[Code of Civil Procedure] section 1038 motion, a court must find the plaintiff brought or
maintained an action in the good faith belief in the action’s justifiability and with
objective reasonable cause.’ [Citation.]” (Austin B. v. Escondido Union School Dist.
(2007) 149 Cal.App.4th 860, 888.) “The ‘reasonable cause’ prong is reviewed de novo,
and the ‘good faith’ prong is reviewed for substantial evidence.” (Ibid.)
       At the outset, we note that while respondents’ written motion for attorney fees is
included in the record, appellants’ written opposition is missing. The trial court stated at
the beginning of the lengthy hearing on the motion that it had read and considered the
opposition filed by appellants. Respondents have therefore failed to provide us with a
complete record of the matter, in violation of well established appellate rules. For this
reason alone, we find the issue has been forfeited on appeal. (See Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1295–1296 [“Because [defendants] failed to furnish an adequate
record of the attorney fee proceedings, defendants’ claim must be resolved against
them”].)
       In any event, respondents essentially take the position in their appellate brief that
appellants lacked reasonable cause and good faith to maintain this action because they
did not have an accident reconstruction expert and they ignored repeated requests to
participate in settlement discussions. In denying the motion, the trial court stated: “The

                                              8
problem that I have in this case is that I think it was—well, I’ll say it quite frankly; I
think inadequate representation by plaintiff’s counsel. I think there’s ineffective
assistance of counsel here, that may come to the level of incompetence when it comes to
bringing this type of a lawsuit without a solid accident reconstruction expert. [¶] . . . [¶]
I disagree with [plaintiff’s counsel’s] representations . . . theor[ies]. But the fact remains
that however tenuous—Mr. Lewis did testify [before trial] that he might have gone to the
right-hand lane. You had another witness testify [before trial] that he [Lewis] did go into
the right-hand lane briefly, whether it was before or after the [initial impact]. And you
have Mr. Zemba, vague and unqualified expert though he is, testify to what was obvious
from the video, which was that the right-hand lane was clear and open and it was possible
for a bus to have gone into that lane had there been an opportunity to move into it. [¶]
. . . [¶] But I do not think that ineffective assistance of counsel [or attorney malpractice]
necessarily equates to bad faith.” Neither do we.
                                       DISPOSITION
       The judgment and order are affirmed. The parties to bear their own costs on
appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.




                                            ___________________________, Acting P. J.
                                                  ASHMANN-GERST

We concur:



____________________________, J.            ____________________________, J.*
           CHAVEZ                                      FERNS



*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                               9
