Filed 2/18/15 Wong v. Tom CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


LORAINE WONG et al.,
          Plaintiffs, Cross-defendants and
          Respondents,                                               A137464

v.                                                                   (San Mateo County
RICHARD TOM,                                                         Super. Ct. No. CIV464944)
          Defendant, Cross-complainant and
          Appellant.


          While driving at high speed and impaired by alcohol, defendant Richard Tom
struck the car of plaintiff Loraine Wong, killing a passenger in her car. He argues the
jury’s findings that Wong was not comparatively negligent and he had acted with malice,
supporting an award of punitive damages, were not supported by the evidence. We
affirm.
                                               I. BACKGROUND
          Tom and a longtime friend had dinner at Tom’s house. They drank cocktails
before dinner. After nightfall, the two drove in separate cars on the residential streets of
San Carlos, where the posted speed limits were between 30 and 35 miles per hour. Wong
drove her car through an intersection and into the path of Tom’s car, and they collided.
In the kilometer of road just prior to the point of impact, Tom’s car had traveled at speeds
as high as 85 miles per hour. At the time of impact, he was traveling more than 51 miles
per hour. Wong’s two daughters were in the car with her, and one was killed by the
impact of the collision.1
       Wong, her husband, and their surviving daughter filed suit. At trial, Tom did not
dispute he was negligent in causing the collision, but he contended Wong, who was using
her cell phone at the time of impact, was comparatively negligent, and he disputed her
request for punitive damages. After a 19-day trial featuring a painstaking reexamination
of the events of that night by several different police officers and other experts, the jury
imposed sizable compensatory damages, found Wong not comparatively negligent, and
levied $8,000 in punitive damages. The trial court denied Tom’s motions for partial
judgment notwithstanding the verdict and a new trial.
                                     II. DISCUSSION
       As he did at trial and in posttrial motions, Tom contends the jury’s findings that
Wong was not comparatively negligent and he acted with malice for purposes of
imposing punitive damages were not supported by the evidence.
A. Wong’s Comparative Negligence
       Tom contends the finding Wong was not comparatively negligent was not
supported by substantial evidence because (1) she was using her cell phone at the time of
the accident and (2) she did not see the headlights of Tom’s onrushing vehicle.
       “The general rule in California is that ‘[e]veryone is responsible . . . for an injury
occasioned to another by his or her want of ordinary care or skill in the management of
his or her property or person . . . .’ [Citation.] In other words, ‘each person has a duty to
use ordinary care and “is liable for injuries caused by his failure to exercise reasonable
care in the circumstances . . . .” ’ ” (Cabral v. Ralph’s Grocery Co. (2011) 51 Cal.4th
764, 771.) “Under comparative fault, ‘liability for damage will be borne by those whose



       1
         Given the complexity of the expert testimony and our limited standard of review,
we have not attempted to summarize the voluminous evidence presented at trial regarding
the precise circumstances of the accident. We describe such evidence as is relevant to
our disposition in the discussion section.


                                              2
negligence caused it in direct proportion to their respective fault.’ ” (Leung v. Verdugo
Hills Hospital (2012) 55 Cal.4th 291, 303.)
       We review a jury’s findings regarding comparative negligence for substantial
evidence. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1285–1286
(Pfeifer).) “On review for substantial evidence, we ‘consider the evidence in the light
most favorable to the prevailing party, giving that party the benefit of every reasonable
inference and resolving conflicts in support of the judgment. [Citation.]’ [Citation.]
Under this standard, ‘ “the appellate court may not substitute its judgment for that of the
jury or set aside the jury’s finding if there is any evidence which under any reasonable
view supports the jury’s apportionment.” ’ ” (Id. at p. 1286.)
       1. Wong’s Cell Phone Use
       Wong testified that the intersection where the accident occurred was less than a
mile from her home, and she was familiar with it. As she approached the intersection,
Wong was holding a cell phone to her ear and conversing with her sister. At some point
as she approached the intersection, Wong ended the conversation but continued holding
the cell phone in her hand. The intersection was marked by a stop sign, and Wong
stopped her car at the first line of the pedestrian crosswalk and looked both ways.
Because her vision was blocked in one direction from that vantage point, Wong eased her
car across the second line of the crosswalk, again looking both ways. From here, her line
of sight was unobstructed, allowing her to see to the next nearest intersection on the cross
street. Seeing no oncoming traffic, Wong made a slow left turn onto the cross street. Her
recollection was that she had reached the middle of the intersection when she felt the
impact of the collision. It came with no warning at all. Wong was uncertain what
happened to the cell phone, but she did not believe it distracted her in making the turn.2
       Wong’s sister, who was at home at the time of the telephone call, essentially
confirmed Wong’s account, testifying that when she finished the call with Wong she put

       2
           On critical issues, Wong’s account at trial was not consistent with her account to
investigating officers immediately after the accident. The credibility of Wong’s account
at trial, of course, was an issue for the jury.


                                              3
her own cell phone down on a counter. She turned to clean her desk and was startled by
the sound of her sister screaming for her children, which she realized was coming from
her phone. Wong’s sister did not know how much time elapsed between the end of the
conversation and the screaming, but she had “time to turn around and start shuffling [her]
papers and [her] laptop.”
       This testimony provides substantial evidence to support a conclusion Wong’s cell
phone use did not constitute negligence. A driver’s use of a cell phone can constitute
negligence because attention to the device distracts a driver from single-minded
concentration on the tasks of driving. Because, as Wong testified, she had completed the
telephone conversation around the time she stopped at the intersection, there was no
reason to presume her cell phone use distracted her or otherwise interfered with her
driving in the crucial seconds as she entered the intersection. Tom does not contend
merely holding the cell phone interfered with Wong’s driving in any material way.3
       Further, regardless of the cell phone, Wong’s conduct at the intersection, as
described in her testimony, was appropriately careful: she stopped, as required, and
looked both ways at least twice before proceeding into the intersection. Assuming, as we
must, that this testimony was true, it demonstrates the cell phone did not impair her
driving. Wong confirmed this, testifying the cell phone did not “somehow . . . distract[]
[her] or prevent[] [her] from being able to see what [she was] doing” as she made the
turn. Tom argues the latter testimony was “conclusory,” but Wong’s description of her
actions in making the turn gives evidentiary support to the conclusion. Tom also derides
her testimony as “unsupported” and “self-serving,” but these are characterizations going

       3
         Although Tom’s opening brief states more than once that Wong continued to hold
the cell phone to her ear during the turn, in fact Wong testified she did not recall where
the phone was, other than still in her hand. Tom’s brief does state in passing that
“Holding the phone encumbered a hand that should have been on the wheel,” but there is
no basis for believing Wong would have avoided the accident had she had both hands on
the wheel. Tom also contends Wong only testified about her cell phone use before she
made the turn, but did not address what occurred during the turn. Because Wong
concluded the conversation before the turn, it can be inferred the nature of her use of the
cell phone before the turn continued during the turn.


                                             4
to the credibility of the testimony, and credibility is the province of the jury. We do not
find Wong’s description of her actions that night to be so implausible that it cannot be
believed.
       Tom almost contends the jury was required to find Wong negligent as a matter of
law under Evidence Code section 669, subdivision (a), which codifies the doctrine of
negligence per se. (Elsner v. Uveges (2004) 34 Cal.4th 915, 927.) We say “almost
contends” because Tom acknowledges Wong’s conduct was not illegal at the time of the
accident. The accident occurred in February 2007. The law banning the use of handheld
cell phones while driving, Vehicle Code section 23123, was enacted in 2006, but the
Legislature set an effective date of July 1, 2008, over a year after the accident.
(Stats. 2006, ch. 290, § 4, pp. 2366–2367.) As a result, as Tom concedes, the statute
cannot be invoked as a standard of care under Evidence Code section 669.4
       Despite the concession, Tom argues we should adopt Vehicle Code section 23123
as a rule of thumb for negligence, based on the public policy it embodies. Even under
Evidence Code section 669, however, the violation of a statutorily established standard of
care creates only a presumption of negligence. Assuming Wong’s use of the cell phone
as she approached the intersection constituted negligence per se, the jury could have
found the presumption rebutted by Wong’s testimony that as she approached the
intersection she ended her conversation and gave her undivided attention to the road.
Accordingly, even if we did adopt Vehicle Code section 23123 as a rule of law, we would
have no basis for finding negligence as a matter of law on this evidence.5
       2. Wong’s Failure to See Tom’s Car
       Tom also contends Wong should have been found negligent because she did not
see his approaching car. First, Tom claims Wong’s testimony that she was looking left,


       4
        If, as Tom argues, the Legislature expressed its intent through this legislation that
use of handheld devices would be considered negligence per se, it appears to have
intended that to be the rule only after July 2008.
       5
       Nor is there any basis for remanding for retrial on this issue. Tom waived the
argument by failing to make an appropriate request at trial.


                                              5
in the direction of Tom’s oncoming car, at the time she entered the intersection did not
constitute substantial evidence to support such a finding because it contradicted her
contemporary statement to police that she was looking the other direction. This was an
issue for the jury, which was presented with both versions. The cases cited by Tom in
support of his argument are inapplicable because they are premised on a witness’s
attempt to contradict prior testimony or judicial admissions. (D’Amico v. Board of
Medical Examiners (1974) 11 Cal.3d 1, 21–22, disapproved on other grounds in
Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 944 [affidavit
used to contradict deposition testimony]; Roddenberry v. Roddenberry (1996)
44 Cal.App.4th 634, 654 [“Involved in the instant case is . . . a prior attorney declaration,
representations to the court, admissions in pleadings, and a long history of conduct.”].)
Wong’s statements to police were not made under oath as part of judicial proceedings.
       Second, Tom claims Wong’s statement that she looked left but did not see the
oncoming car is not credible in light of the other evidence. According to Wong’s expert
witness, Tom’s car was approximately 211 feet away from the intersection when she
entered it. Tom argues Wong necessarily would have seen it had she looked in that
direction, since it was dark and Tom’s headlights were illuminated. If she did not see the
car, he argues, it could only have been because she did not look in his direction.
       Tom’s argument proves too much. As with other cases of internally inconsistent
testimony, it cannot be determined what part of the inconsistency is true and what part is
false. It could be, as Tom argues, Wong was not telling the truth about looking to the
left. Alternatively, it could be that she did look left, saw Tom’s car, but no longer recalls
seeing the car, perhaps because it was far enough away that it did not register as a threat.
As noted earlier, resolving this type of conflict is the province of the jury. We decline to
rule as a matter of law about what “must have” happened that night.
       In any event, the ultimate issue is not whether individual portions of Wong’s
testimony were credible but whether her decision to enter the intersection was negligent.
As Tom argues, Wong was required to yield to Tom’s car if it presented an “immediate
hazard” (Veh. Code, § 21802, subd. (a)), which the trial court defined to exist if Tom’s


                                              6
car “[was] so near or [was] approaching so fast that a reasonably careful person would
realize there is a danger of collision or accident.” Wong’s expert testified that Tom’s car
was far enough away at the time Wong entered the intersection that, had Tom been
travelling at the posted speed limit, or even only 10 to 15 miles per hour above the speed
limit, there would have been no accident. He would have had time to slow his car and
avoid Wong’s car. Instead, Tom did not even have time to apply the brakes before the
collision. Given the difficulty of judging a distant vehicle’s speed at night, the jury could
have concluded Wong’s decision to proceed was not negligent, given what she could
have perceived about the speed and distance of Tom’s car.
B. Punitive Damages
       Tom contends there was no substantial evidence to support a finding he acted with
malice, as necessary to support an award of punitive damages.
       “Generally, punitive damages may be awarded only when the trier of fact finds, by
clear and convincing evidence, that the defendant acted with malice, fraud, or oppression.
[Citation.] As nonintentional torts support punitive damages when the defendant’s
conduct ‘involves conscious disregard of the rights or safety of others,’ our focus is on
malice and oppression. [Citation.] As defined in the punitive damages statute, ‘[m]alice’
encompasses ‘despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights and safety of others,’ and ‘[o]ppression’ means
‘despicable conduct that subjects a person to cruel and unjust hardship in conscious
disregard of that person’s rights.’ [Citation.] The term ‘ “despicable,” ’ though not
defined in the statute, is applicable to ‘circumstances that are “base,” “vile,” or
“contemptible.” ’ [Citation.]
       “Under the statute, ‘malice does not require actual intent to harm. [Citation.]
Conscious disregard for the safety of another may be sufficient where the defendant is
aware of the probable dangerous consequences of his or her conduct and he or she
willfully fails to avoid such consequences. [Citation.] Malice may be proved either
expressly through direct evidence or by implication through indirect evidence from which
the jury draws inferences. [Citation.]’ [Citation.]


                                              7
       “In addressing [a challenge to the award of punitive damages], we ‘inquire
whether the record contains “substantial evidence to support a determination by clear and
convincing evidence . . . .” [Citation.]’ [Citation.] Under that standard, we review the
evidence in the light most favorable to the [plaintiffs], give them the benefit of every
reasonable inference, and resolve all conflicts in their favor, with due attention to the
heightened standard of proof.” (Pfeifer, supra, 220 Cal.App.4th at p. 1299.)
       The jury was instructed consistently with this decisional law. The court told the
jury the imposition of punitive damages required a finding of malice or oppression.
“Malice” was defined as meaning Tom “acted with the intent to cause injury” or Tom’s
“conduct was despicable and was done with a willful and knowing disregard of the rights
or safety of another.” “Oppression,” the court instructed, “means that [Tom’s] conduct
was despicable and subjected [plaintiffs] to cruel and unjust hardship and knowing
disregard of their rights. [D]espicable conduct is conduct that is so vial [sic: vile], based
for [sic: base, or] contemptible that it would be looked down on and despised by
reasonable people.”
       Tom does not dispute he was familiar with the intersection where the accident
occurred and knew it had impaired visibility due to perennially parked cars, was driving
more than 51 miles an hour as he approached that obscured intersection, had been driving
85 miles an hour within less than a mile of the accident site, was operating at these speeds
on residential streets with posted speed limits of 30 and 35 miles per hour after dark, and
had been drinking. At the speeds Tom chose to drive, approaching an intersection with
an impaired view, inattention to the road by a sober driver could result in disaster. Yet
Tom was driving in this manner after drinking, thereby gravely increasing the risk he
would not be able to respond adequately to unexpected events. Tom must have known
such conduct carried “probable dangerous consequences.”
       We presume the jury followed the trial court’s instructions in awarding punitive
damages (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1250), and “ ‘our role in
reviewing the jury’s work is a deferential one’ ” (Amerigraphics, Inc. v. Mercury



                                              8
Casualty Co. (2010) 182 Cal.App.4th 1538, 1560). Here, there is no basis for second-
guessing.
       Tom’s argument consists largely of quibbling with the opinions of plaintiffs’
experts. Tom first contends that because the evidence of his exact speed at the time of
impact was “a morass of conflicting opinions and inferences . . . that could not be fully
reconciled,” there was no clear and convincing evidence of his speed as required to
support a finding of malice. As discussed above, however, Tom was concededly
traveling faster than 51 miles per hour at the time of impact; the only issue was how
much faster.6 Accordingly, clear and convincing evidence supported a finding of more
than 51 miles per hour, which, as discussed above, was sufficient to support a finding of
malice under the circumstances.
       Tom argues driving at a speed of somewhat greater than 51 miles per hour on this
particular stretch of road cannot be considered “vile” because there was testimony other
drivers exceeded the speed limit on the street and a police officer testified she did not
ticket speeders below 50 miles per hour. While we do not necessarily accept Tom’s
argument that conduct cannot be considered reckless if everyone else does it, we need not
resolve the issue. As noted, it was not Tom’s speed alone that supported a finding of
malice, it was his decision to use very excessive speed at night, while approaching an
intersection he knew to have an impaired view, while his judgment was impaired by
alcohol. For these reasons, the exact degree of excess in his speed at the time of impact is
not critical to the substantial evidence review.
       Tom also argues there was no clear and convincing evidence he was impaired by
alcohol because the evidence “is as consistent with impairment as lack of impairment.”

       6
         A sensor inside Tom’s car measured his speed a split second after the collision at
51 miles per hour, setting a floor under his speed just prior to collision. The expert who
testified about the sensor said the reading indicated the speed of Tom’s car at the point of
the collision was “some small speed higher than 51.” That expert seems to have placed
Tom’s likely speed at collision at 60 miles per hour, although his testimony is a bit
ambiguous on this point. Soon after the accident, Tom told a paramedic he was traveling
about 55 miles per hour at the time of the accident.


                                              9
The argument disregards our substantial evidence standard of review. The jury could
easily have concluded, based on evidence in the record, that Tom still had alcohol on his
breath nearly two hours after the accident. At that time, after some two hours to sober up,
Tom still failed a field sobriety test. When the police attempted to give Tom a
breathalyzer test, he attempted to cheat the test by “covering the device with his tongue
and with his lips and not actually blowing any air into the [device],” suggesting he was
well aware of the possibility he could be found intoxicated. A blood test for alcohol was
not performed until three hours after the accident, at which time Tom’s blood-alcohol
level was still at 0.04 percent. Based on that blood-alcohol level, and recognizing that
alcohol is metabolized over time, plaintiffs’ expert testified plausibly that Tom’s blood-
alcohol level at the time of the accident was between 0.09 and 0.10 percent, over the legal
limit. Together, this constitutes substantial evidence of impairment by alcohol at the time
of the accident, even with “due attention to the heightened standard of proof” owing to
the requirement of clear and convincing evidence. (Pfeifer, supra, 220 Cal.App.4th at
p. 1299.) The contrary evidence discussed by Tom, including his expert’s testimony, is
not so persuasive as to undermine the value of this substantial evidence.
                                   III. DISPOSITION
       The judgment of the trial court is affirmed.




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                                 _________________________
                                 Margulies, J.


We concur:


_________________________
Humes, P.J.


_________________________
Dondero, J.




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