Filed 7/9/14 Kim v. County of San Bernardino CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


HYANG KIM,

   Plaintiff, Cross-defendant and                                      G049332
Respondent,
                                                                       (Super. Ct. No. CIVVS703203)
                   v.
                                                                       OPINION
COUNTY OF SAN BERNARDINO,

   Defendant, Cross-complainant and
Appellant.



                   Appeal from judgment of the Superior Court of San Bernardino County,
John P. Vander Feer, Judge. Affirmed.
                   Jean-Rene Basle, County Counsel and Matthew J. Marnell, Deputy County
Counsel for Defendant, Cross-complainant and Appellant.
                   Law Offices of Kim L. Bensen, Eric W. Bladh; Pollak Vida & Fisher,
Michael M. Pollak and Anna L. Birenbaum for Plaintiff, Cross-defendant and
Respondent.
                                          *                  *                  *
              Appellant County of San Bernardino (County) contends the trial court
prejudicially erred in instructing the jury. We disagree and affirm.
                                               I
                                            FACTS
              An accident involving a County ambulance and a car occurred on January
14, 2007. Plaintiff’s car went off the side of the road going down the mountain from
Wrightwood.


The Ambulance
              Firefighter/paramedic Nathan Armstrong saw heavy traffic in both
directions when he went up to a ski resort in Wrightwood to pick up a patient. He
explained: “We respond Code 3 to most — you know, most, if not I’d say 99 percent, of
calls with lights and sirens to get there expediently.”
              With regard to the mode of transport, there were two options, by ground or
by air ambulance helicopter. The decision was made to take the patient by ambulance,
and the duration of the transport was estimated to be one hour.
              After the pick-up, Armstrong was in the back of the ambulance with the
patient, a 15-year-old boy in good physical condition who was injured while skiing. The
boy had a mid-shaft fracture of the femur on which a traction splint had been applied.
Armstrong explained the purpose of the splint: “[W]hen . . . that bone breaks, those
muscles are really strong and pull the bone ends past each other. So we apply that
traction splint so it effectively pulls the leg back to its regular length to relieve pain and
decrease the possibility of any internal injury.” Because the patient was already in the
splint when Armstrong first saw him, Armstrong was unable to observe the injured leg.
The patient’s pulse in his foot remained the same from when the boy was first placed in
the ambulance, and Armstrong never reported observing any signs of internal bleeding
during the transport.

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              Armstrong was the person responsible for designating which code was to
be used when they left Wrightwood. Someone circled “Code 2” on a County transport
form for the departure from Wrightwood, but Armstrong testified: “[I]t was as we were
pulling out of the parking lot, remembering how heavy the traffic was getting there I told
[the driver] if he needed to go Code 3 to get through all of the traffic to go ahead.” He
explained his reasoning: “[T]he patient’s condition is serious, potentially even more
serious than I can tell, and that it was necessary to get him to the hospital as quickly as
possible.”
              The ambulance driver, Julio Ramirez, testified the reason he was going
Code 3 to get through traffic was because the patient had a fractured femur bone. He said
he turned on the lights and siren and three cars pulled over to the side of the road until he
came up behind the Kim vehicle.
              Ramirez admitted to being surprised at the lack of maneuverability of the
ambulance. He also testified he crashed into the rear of the other vehicle because he was
driving too fast and following too closely.


Firefighter Most Knowledgeable
              Jeffrey Birchfield was designated the person most knowledgeable about the
training and supervision of ambulance driver Ramirez by the County in its discovery
responses. Birchfield testified ambulance drivers are required to maintain a safe distance
from the vehicle ahead of it. Drivers are trained to never assume another driver will yield
the right-of-way.
              With regard to lights and sirens, Birchfield was asked about situations when
the driver cannot get through traffic due to congestion. He testified: “They’re directed to
shut off their siren and lights so they don’t force someone to do an illegal maneuver,” in
order to protect public safety. Birchfield explained: “When they’re at congested traffic
at an intersection some people tend to panic. If we have our lights and sirens going and

                                              3
they have nowhere to go, they may panic and go through a red light as traffic is going
through a green light and cause them to get into a collision.” Birchfield also explained
that some driver’s do not hear sirens right away because of the travel of sound waves in
the topography of the mountains.


The Other Vehicle
              Hyang Kim had been driving down the mountain from Wrightwood for
about 30 to 40 minutes along “the curvy road” when he realized there was an ambulance
behind him. He was traveling “20 – 25” miles per hour. He testified about what he
thought at that moment: “I just remembered that I – I had to pull over if I hear
ambulance.”
              Kim pulled his car over to the right and stopped. At the spot where Kim
stopped, there was not enough room for him to pull completely outside the lane of traffic.
To Kim’s right, he saw “the mountains.” He said he stopped his car when he first heard
the ambulance.
              Kim heard screeching tires. Two to three seconds after Kim stopped his
car, he felt an impact from his rear. Kim described what happened next: “My car went
down through the slope. It was like a plane was landing.” Both air bags deployed. Kim
was in pain and bleeding, and his wife, Yuji Piao, lost consciousness.
              When his car came to a stop, Kim was able to exit through the car door, and
his son, who was about 11 years old at the time, got out from the back door. The
paramedics got his wife out of the car, put something on her neck and “took her away.”
              Another driver who was traveling in the opposite direction first saw the
ambulance when he was about one-eighth of a mile away from it. The other driver
stopped in the lane of travel, not off the roadway. He observed the ambulance was
“maybe within 5 feet or so” behind the SUV in front of it.



                                             4
Special Verdict
              The jury answered questions on the special verdict form stating Ramirez’s
negligence was a substantial factor in causing harm to the Kims. The jury also found that
Kim’s negligence was a substantial factor in causing the harm. They divided the
percentage of responsibility as 78 percent to Ramirez and 22 percent to Kim. The jury’s
award of $594,053 to Kim and $111,749 to Yuji Piao were reduced by 22 percent.
                                             II
                                      DISCUSSION
Basic Speed Law Instruction
              The County contends the trial court erred when it instructed the jury with
CACI No. 706 instead of CACI No. 730. The instruction that was given did not state that
because the County ambulance was being driven under an authorized emergency, using
lights and siren, it was exempt from following the basic speed law.
              The basic speed law is set forth in Vehicle Code section 22350: “No
person shall drive a vehicle upon a highway at a speed greater than is reasonable or
prudent having due regard for weather, visibility, the traffic on, and the surface and width
of, the highway, and in no event at a speed which endangers the safety of persons or
property.”
              Exemptions of authorized emergency vehicles are set forth in Vehicle Code
section 21055: “The driver of an authorized emergency vehicle is exempt from Chapter 2
(commencing with Section 21350), Chapter 3 (commencing with Section 21650),
Chapter 4 (commencing with Section 21800), Chapter 5 (commencing with Section
21950), Chapter 6 (commencing with 22100), Chapter 7 (commencing with Section
22348), Chapter 8 (commencing with Section 22450), Chapter 9 (commencing with
Section 22500), and Chapter 10 (commencing with Section 22650) of this division, and
Article 3 (commencing with Section 38305) and Article 4 (commencing with Section
38312) of Chapter 5 of Division 16.5, under all of the following conditions: [¶] . . . [¶]

                                             5
(b) If the driver of the vehicle sounds a siren as may be reasonably necessary and the
vehicle displays a lighted red lamp visible from the front as a warning to other drivers
and pedestrians. [¶] A siren shall not be sounded by an authorized emergency vehicle
except when required under this section.”
                 The scope of Vehicle Code section 21055 is placed in perspective by
Vehicle Code section 21056: “Section 21055 does not relieve the driver of a vehicle
from the duty to drive with due regard for the safety of all persons using the highway, nor
protect him from the consequences of an arbitrary exercise of the privileges granted in
that section.”
                 “The effect of Vehicle Code sections 21055 and 21056 is: where the driver
of an authorized emergency vehicle is engaged in a specified emergency function he may
violate certain rules of the road, such as speed and right of way laws, if he activates his
red light and where necessary his siren in order to alert other users of the road to the
situation. In such circumstances the driver may not be held to be negligent solely upon
the violation of specified rules of the road, but may be held to be negligent if he fails to
exercise due regard for the safety of others under the circumstances. [Citation.]” (City of
Sacramento v. Superior Court (1982) 131 Cal.App.3d 395, 402-403.)
                 At the center of the County’s contention is that the court allegedly erred
when it did not include reference to the basic speed law found in Vehicle Code section
22350 when it gave the following instruction to the jury: “The Defendant County of San
Bernardino claims that [Ramirez] was not required to comply with Vehicle Code Sections
21650, 21750, 21751 and 21752 because he was operating an authorized emergency
vehicle and was responding to an emergency at the time of the accident. To establish that
[Ramirez] was not required to comply with Vehicle Code Sections 21650, 21750, 21751,
and 21752, the Defendant must prove all of the following: [¶] 1. That [Ramirez] was
operating an authorized emergency vehicle; [¶] 2. That [Ramirez] was responding to an
emergency situation at the time of the accident; And [¶] 3. That [Ramirez] sounded a

                                                6
siren when reasonably necessary and displayed front red warning lights. . . . [¶] . . .
However, even if you decide that defendant proved all of these things, you may find
[Ramirez] negligent if he failed to operate his vehicle with reasonable care, taking into
account the emergency situation.”
              The instruction the County says it unsuccessfully requested is found in
CACI No. 730, which reads as follows: “[Name of defendant] claims that [name of
public employee] was not required to comply with Vehicle Code section [insert section
number] because [he/she] was operating an authorized emergency vehicle and was
responding to an emergency at the time of the accident. To establish that [name of public
employee] was not required to comply with section [insert section number], [name of
defendant] must prove all of the following: [¶] 1. That [name of public employee] was
operating an authorized emergency vehicle; [¶] 2. That [name of public employee] was
responding to an emergency situation at the time of the accident; and [¶] 3. That [name of
public employee] sounded a siren when reasonably necessary and displayed front red
warning lights. [¶] If you decide that [name of defendant] proved all of these things, then
you cannot find it negligent for a violation of section [insert section number]. However,
even if you decide that [name of defendant] proved all of these things, you may find it
negligent if [name of public employee] failed to operate [his/her] vehicle with reasonable
care, taking into account the emergency situation.”
              “A judgment may not be reversed on appeal, even for error involving
‘misdirection of the jury,’ unless ‘after an examination of the entire cause, including the
evidence,’ it appears the error caused a ‘miscarriage of justice.’ (Cal. Const., art. VI, §
13.) When the error is one of state law only, it generally does not warrant reversal unless
there is a reasonable probability that in the absence of the error, a result more favorable to
the appealing party would have been reached. [Citation.]” (Soule v. General Motors
Corp. (1994) 8 Cal.4th 548, 574.) Put another way, instructional error in a civil case



                                              7
requires reversal “‘where it seems probable’ that the error ‘prejudicially affected the
verdict.’ [Citations.]” (Id. at p. 580.)
              Under these circumstances we find in this record, we cannot conclude, even
if the trial court did err, and we do not make that finding, that any such error amounted to
a miscarriage of justice because there is overwhelming evidence to support the verdict.
There was evidence some drivers do not hear sirens on the road where the accident
happened and that Kim pulled to his right as soon as he heard the siren. Ramirez
admitted to being surprised at the lack of maneuverability of the ambulance, and that he
was driving too fast and too closely to the Kim vehicle which caused him to crash into it.
Also, a witness testified the ambulance was traveling within five feet behind Kim’s
vehicle.
              Considering the state of the evidence and the other instructions given by the
trial court, we cannot find any indication the jury was mislead by what the County
contends were erroneous jury instructions. (LeMons v. Regents of University of
California (1978) 21 Cal.3d 869, 876.)
              Even if the County’s favored instruction had been given by the court, it
would have included the language: “However, even if you decide that the County proved
all of these things, you may find it negligent if Ramirez failed to operate his vehicle with
reasonable care, taking into account the emergency situation.” From the totality of the
circumstances, we must conclude the result would have been the same even had the
County successfully prevailed upon the trial court to instruct the way it preferred.


Special Instruction No. 7
              The County argues: “The trial court also committed prejudicial error in
refusing defense special jury instruction 7 on the duties of the driver in front of an
ambulance.” However, the County has not given us a citation to the record for what it
now refers to as special instruction No. 7.

                                              8
              In its brief, without attribution to the record, the County quotes special
instruction No. 7 as stating: “Hyang Kim may be found to have violated a statutory
provision requiring that the right-of-way be ceded to an emergency vehicle emitting the
requisite warning signals based on his or her imputed awareness of such signals, that is,
that such a violation may occur not only where Hyang Kim actually observed or heard the
required warning signal, but where, under the circumstances, he or she should have
observed or heard the same.”
              We tried to find special instruction No. 7 in the clerk’s transcript on appeal
and found the following special instruction No. 7 attached as an exhibit to the County’s
designation of record on appeal: “Special Instruction No. 7: [¶] NOTICE TO DRIVER
REQUIRED TO YIELD THE RIGHT OF WAY [¶] A driver of a motor vehicle required
to give the Right of Way to an emergency vehicle provided by [statute], must be given:
[¶] 1. Reasonable notice of the need to yield the Right of Way; and [¶] 2. Reasonable
opportunity to stop or otherwise yield the Right of Way. [¶] Upon such a showing, if you
find that Hyang Kim knew, or in the exercise of ordinary prudence should have known of
the approach of an emergency vehicle in time to have allowed said Right of Way, and
that such failure, refusal, and neglect to allow such Right of Way was a substantial factor
resulting in the collision between the emergency vehicle and the vehicle driven by Hyang
Kim, then you must find that Hyang Kim was negligent.”
              After hearing argument about special instruction No. 7, the trial court ruled:
“I’m not going to give that one. I think it’s covered by some of the other instructions in
the specific Vehicle Code sections versus relying on a case. I’d rather have the Vehicle
Code section read than that.”
              With regard to record citations, the County had the obligation to cite “‘to
the volume and page number of the record where the matter appears.’” (In re Marriage
of Barth (2012) 210 Cal.App.4th 363, 366, fn. 4; California Rules of Court, rule
8.204(a)(1)(C).) The state of the record before us is so unclear, we are unable to even

                                              9
ascertain just what special instruction No. 7 stated. Consequently, any argument
regarding special instruction No. 7 is waived for failure to cite to the record. (Roden v.
AmericsourceBergen Corp. (2010) 186 Cal.App.4th 620, 634.)
              Nonetheless, even assuming either the special instruction No. 7 the County
quoted in its brief on appeal or the special instruction No. 7 the County attached to its
request for preparation of the clerk’s transcript for appeal was the same one the trial court
denied, the County would not prevail because it has not demonstrated prejudice as a
result of its contention of error. The court instructed the jury regarding relevant Vehicle
Code sections. No judgment shall be reversed due to error in instructing a jury unless
prejudice is shown. (Code of Civ. Proc., § 475.) Here, the best we can glean from the
County’s argument is that it suffered prejudice because, had special instruction No. 7
been given, the jury might have decided Kim should have pulled to the side of the road
sooner. We do not find that argument persuasive.
              The jury heard significant evidence about the conditions under which Kim
pulled over, including evidence the ambulance was driving within five feet of Kim’s car
with lights and siren, certainly an indication Ramirez wanted Kim to yield to him. There
was also evidence people tend to panic when confronted with an emergency vehicle. The
jury was instructed that the “driver of every other vehicle shall yield the right-of-way and
shall immediately drive to the right-hand edge or curb of the highway . . . until the
authorized emergency vehicle has passed.” The jury was also instructed to give a
witness’s opinion whatever weight it thought it deserved, and Kim testified he pulled
over as soon as he was able to safely stop. Apparently the jury believed him to some
extent, but not completely since Kim was found to be 22 percent responsible.


Limiting Instruction
              The County next contends the trial court erred when it gave the following
special instruction, which it states, without a citation to the record, was requested by

                                             10
Kim: “Hyang Kim has testified that he has not had any surgeries because he cannot
afford them. This testimony has been admitted for the limited purpose of explaining the
reason for not having the surgeries. You may not consider this evidence for the purpose
of creating sympathy for Hyang Kim.”
              Kim testified on direct examination that he talked with Dr. Schiffman about
neck and knee surgeries, and that he told the doctor he wanted to have those surgeries,
but he testified he did not have them because: “I don’t have money.” The County asked
an orthopedic surgeon about one of the surgeries. The surgeon responded: “I told him
that I wouldn’t recommend that,” explaining his reason was Kim’s long-standing spinal
stenosis.
              There ensued much discussion, both on and off the court reporters record,
about whether Kim’s purported reason for not having the surgery was false because of
Yuji Piao’s discussion of insurance in her deposition wherein she testified she purchased
insurance after the accident. The court asked the County if it had any more information
than Yuji Piao’s testimony about insurance. The court and counsel discussed the lack of
an insurance policy, the collateral source rule and whether anything was actually paid
under an insurance policy. The court told the County’s lawyer he would be permitted to
question Kim about whether or not he had insurance which covered the recommended
surgeries.
              Additionally, the court stated: “[T]here’s a motion to strike testimony of
Mr. Kim that the reason he hasn’t obtained surgery, I guess, arthroscopic for his knee or
other more invasive surgery for his neck, is because he can’t afford it. There’s been a
motion to strike brought by [the County].” The court noted that no objection was made at
the time of the testimony, and denied the motion to strike, but stated it would give a
limiting instruction. Plaintiff’s counsel said: “I believe that’s the proper path to take,
your Honor.” The court directed the County to prepare the instruction.



                                             11
                In its brief, once again without citation to the record to support the
statement, the County argues it was prejudiced by the court’s limiting instruction,
because the evidence of Kim’s poverty was elevated “above other evidence in the minds
of the jury.”
                A cardinal rule of appellate review is that “a judgment or order of the trial
court is presumed correct and prejudicial error must be affirmatively shown.” (Foust v.
San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) Nonetheless, the
County requests just the opposite when it contends: “So, this prejudicial jury instruction
mandates reversal unless [plaintiffs] show that actual prejudice did not result.” Under the
circumstances contained in the record before us, we cannot conclude the County was
prejudiced.
                                               III
                                        DISPOSITION
                The judgment is affirmed. Kim is entitled to his costs on appeal.




                                                     MOORE, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



IKOLA, J.




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