Filed 3/9/16 Castro v. Los Angeles County Sheriff’s Dept. CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


ERNESTO CASTRO,                                                      B262516

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC500939)
         v.

LOS ANGELES COUNTY SHERIFF’S
DEPARTMENT et al.,

         Defendants and Respondents.



         APPEAL from an order of the Superior Court of Los Angeles County, Patrick T.
Madden, Judge. Affirmed.
         Layfield & Wallace, Philip J. Layfield for Plaintiff and Appellant.
         Hurrell Cantrall, Thomas C. Hurrell, Melinda Cantrall for Defendants and
Respondents.
       Plaintiff and appellant Ernesto Castro was in a motor vehicle accident with
defendant and respondent Larry Walter Reed on the 101 Freeway. Reed’s truck struck
Castro’s car from behind after Castro’s car stalled in traffic. Castro brought a negligence
action against Reed and Reed’s employer, defendant and respondent Los Angeles County
Sheriff’s Department (LASD). The jury determined defendants were not negligent, and
the trial court entered judgment in defendants’ favor. The trial court denied Castro’s
subsequent motion for judgment notwithstanding the verdict. Castro argues the trial
court erred in denying his motion, contending he was entitled to a presumption of
negligence under the doctrine of res ipsa loquitur and defendants failed to present
sufficient evidence at trial to rebut that presumption. Because Castro waived the claims
he asserts on appeal by withdrawing his request for the trial court to instruct the jury on
res ipsa loquitur, we affirm.


                                     BACKGROUND
       About 10:55 p.m. on August 31, 2012, Castro was driving a 1971 Pontiac Firebird
southbound in the far right or number four lane on the 101 Freeway. Reed, who was
driving an 18-wheel truck, also was driving southbound in the number four lane on the
101 Freeway. There was a “fair amount of traffic,” but it was mostly in the left lanes and
flowing well—there was “no real traffic in the right lanes.”
       Reed was traveling 50 miles per hour, the appropriate speed in light of the traffic
conditions. He was not driving too fast for the traffic conditions, and the traffic was “all
pretty much” traveling faster than his truck.
       As Reed was traveling in the number four lane, an SUV in front of him quickly
swerved from the number four lane into the number three lane as if it was trying to go
around something. Reed applied the brakes, whereupon the trailer on his truck skidded
sideways and started to jackknife. He took his foot off the brakes to control the truck,
and immediately regained control. As the SUV swerved, its headlights illuminated
Castro’s car which Reed saw for the first time. Castro’s car was stopped directly in front
of Reed’s truck in the number four lane. Reed reapplied the brakes to try to avoid hitting

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Castro’s car, but was unsuccessful. His truck hit the back of Castro’s car at about 15 to
20 miles per hour.
       Reed was unsure how close he was to Castro’s car when he first saw it. At his
deposition, Reed testified that he was a “good 5- to 600 yards” from Castro’s car when he
first saw it and started to brake. Reed had not misjudged the degree of force he needed to
apply to the brakes to avoid hitting Castro’s car. He applied 100 percent of the available
brake pressure—his truck had air pressure brakes—when he first saw Castro’s car.
Although he had not misjudged the degree of force he needed to apply to the brakes,
Reed was unable to stop in time to avoid hitting plaintiff’s car. He did everything
imaginable and possible to stop his truck. There was nothing else he could have done to
prevent his truck from running into Castro’s car.
       Reed’s Captain at the LASD signed a report on which he commented that “unsafe
speed was the primary causal factor” in the accident. The report also stated the accident
was preventable. Although Reed signed the report without expressing disagreement with
it, he disagreed with his Captain’s conclusion that he was traveling at an unsafe speed.
He explained he was traveling under 50 miles per hour and suggested he would have
been a hazard to other drivers if he had been driving slower.
       Castro testified traffic was heavy on the night of the accident. Traffic had stopped
about 25 feet ahead of Castro, and he had applied the brakes. When applying the brakes,
Castro “heard the car was having some trouble.” His car began to lose power. He
thought about pulling from the number four lane to the shoulder, but did not have the
opportunity because traffic was too heavy. In addition, when he looked to the right, there
was an on-ramp with merging vehicles and not a shoulder. Castro decided the most
reasonable course of action was to remain in the lane he was in and coast to a stop. He
planned to restart his car when he came to a stop. Castro’s car had never previously
stalled on the freeway.
       Castro’s car coasted for about 20 seconds before stopping. Castro realized his car
was “clearly disabled long before” it came to a stop. When his car stopped, Castro put it
in park and attempted to restart it. Castro had just restarted his car, which had been

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stopped for about seven seconds, when Reed’s truck struck Castro’s car. Castro did not
believe there was anything else he could have done to avoid the accident.
       On cross-examination, defense counsel asked Castro, “[A]s you’re traveling down
the freeway, after you loss [sic] power in your vehicle, nothing prohibited you from
parking the car on the shoulder of the road; is that true?” Castro responded, “That is
correct.”
       On a special verdict form, the jury was asked, “Was defendant Larry Reed
negligent in operating the motor vehicle owned by defendant Los Angeles County
Sheriff’s Department.” The jury answered the question, “No.” The trial court entered
judgment in favor of defendants.
       Castro filed a motion for judgment notwithstanding the verdict in which he argued
there was a rebuttable presumption under the doctrine of res ipsa loquitur that Reed was
negligent in striking Castro’s car from behind, which presumption defendants failed to
rebut with substantial evidence. The trial court denied the motion. Castro appealed from
the order denying his motion for judgment notwithstanding the verdict.


                                      DISCUSSION
       Castro contends the doctrine of res ipsa loquitur applied as a matter of law in this
case to create a rebuttable presumption that Reed was negligent when Reed’s truck struck
Castro’s stationary vehicle from behind. Castro argues that the burden shifted to
defendants to prove the accident was not caused in any part by Reed’s negligence and
defendants failed to make that showing. Because Castro withdrew his request that the
trial court instruct the jury on res ipsa loquitur, Castro waived his claims that Reed was
presumed negligent and defendants failed to provide sufficient evidence to rebut that
presumption.


I.     Res Ipsa Loquitur
       Under the doctrine of res ipsa loquitur, “certain kinds of accidents are so likely to
have been caused by the defendant’s negligence that one may fairly say ‘the thing speaks

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for itself.’” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825.) The
doctrine “is defined by statute as ‘a presumption affecting the burden of producing
evidence.’ (Evid. Code, § 646, subd. (b).) The presumption arises when the evidence
satisfies three conditions: ‘“(1) the accident must be of a kind which ordinarily does not
occur in the absence of someone’s negligence; (2) it must be caused by an agency or
instrumentality within the exclusive control of the defendant; (3) it must not have been
due to any voluntary action or contribution on the part of the plaintiff.”’ [Citation.] A
presumption affecting the burden of producing evidence ‘require[s] the trier of fact to
assume the existence of the presumed fact’ unless the defendant introduces evidence to
the contrary. (Evid. Code, § 604; see also id., § 646, subd. (c).) The presumed fact, in
this context, is that ‘a proximate cause of the occurrence was some negligent conduct on
the part of the defendant . . . .’ (Id., § 646, subd. (c)(1).) If the defendant introduces
‘evidence which would support a finding that he was not negligent or that any negligence
on his part was not a proximate cause of the occurrence,’ the trier of fact determines
whether defendant was negligent without regard to the presumption, simply by weighing
the evidence. (Id., § 646, subd. (c); see also id., § 604.)” (Id. at pp. 825-826.) The
doctrine of res ipsa loquitur may apply in cases in which a vehicle ran into the back of a
stationary vehicle. (Cordova v. Ford (1966) 246 Cal.App.2d 180, 185.)
       Whether the doctrine of res ipsa loquitur applies—i.e., whether the evidence
satisfies the three conditions—is a question of fact for the jury. (Gicking v. Kimberlin
(1985) 170 Cal.App.3d 73, 78 [“The issue of whether a plaintiff has met the three
conditions precedent before being entitled to a presumption of negligence is a question of
fact for the jury”]; Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74
Cal.App.3d 762, 777; see Evid. Code, § 646, subd. (c)1.) The trial court merely


1      Evidence Code section 646, subdivision (c) provides:
       “If the evidence, or facts otherwise established, would support a res ipsa loquitur
presumption and the defendant has introduced evidence which would support a finding
that he was not negligent or that any negligence on his part was not a proximate cause of
the occurrence, the court may, and upon request shall, instruct the jury to the effect that:

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determines whether the plaintiff produced substantial evidence to permit the jury to draw
the inference that the defendant’s negligence was the more likely explanation of the
accident. (Albers v. Greyhound Corp. (1970) 4 Cal.App.3d 463, 474.)


II.    Waiver
       “‘A waiver is the relinquishment of a known right. “A waiver may occur (1) by an
intentional relinquishment or (2) as ‘the result of an act which, according to its natural
import, is so inconsistent with an intent to enforce the right as to induce a reasonable
belief that such right has been relinquished.’ [Citation.]”’ [Citations.]” (Nordstrom
Com. Cases (2010) 186 Cal.App.4th 576, 583 [addressing whether, under the facts of the
case, the appellant had waived in the trial court issues raised on appeal].)
       During a discussion of jury instructions, the trial court said, “I have res ipsa
loquitur.” Castro’s attorney responded, “Withdrawn.” Because the question of whether a
plaintiff has adduced sufficient evidence at trial to meet the three conditions precedent to
be entitled to the res ipsa loquitur presumption of negligence is a jury question (Gicking
v. Kimberlin, supra, 170 Cal.App.3d at p. 78; Levy-Zentner Co. v. Southern Pac.
Transportation Co., supra, 74 Cal.App.3d at p. 777; Evid. Code, § 646, subd. (c)), and
Castro withdrew his request for a res ipsa loquitur jury instruction, Castro has waived his
claims that Reed was presumed negligent and defendants failed to provide sufficient
evidence to rebut that presumption. (Nordstrom Com. Cases, supra, 186 Cal.App.4th at
p. 583.)




       “(1) If the facts which would give rise to a res ipsa loquitur presumption are found
or otherwise established, the jury may draw the inference from such facts that a
proximate cause of the occurrence was some negligent conduct on the part of the
defendant; and
       “(2) The jury shall not find that a proximate cause of the occurrence was some
negligent conduct on the part of the defendant unless the jury believes, after weighing all
the evidence in the case and drawing such inferences therefrom as the jury believes are
warranted, that it is more probable than not that the occurrence was caused by some
negligent conduct on the part of the defendant.”

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       In his reply brief, Castro argues that independent of the res ipsa loquitur doctrine
substantial evidence does not support the jury’s verdict. We decline to address an issue
improperly raised for the first time in a reply brief. (Rose v. Bank of America, N.A.
(2013) 57 Cal.4th 390, 399, fn. 9.)


                                      DISPOSITION
       The order is affirmed. Defendants are awarded their costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  KUMAR, J.


We concur:



              TURNER, P. J.



              KRIEGLER, J.




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

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