Filed 3/7/14 Monroe v. Yurosek Farms CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

JASON MONROE et al.,
                                                                                           F066028
         Plaintiffs and Appellants,
                                                                              (Super. Ct. No. CV-271218)
                   v.

YUROSEK FARMS LLC et al.,                                                                OPINION
         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
         Gibson & Gibson, Edward Gordon and John D. Gibson; Law Offices of Ralph B.
Wegis and Ralph B. Wegis for Plaintiffs and Appellants.
         Horvitz & Levy, David S. Ettinger and Katherine Perkins Ross; Law Office of
Kevin Piekut and Kevin Piekut for Defendants and Respondents.
                                                        -ooOoo-
       This is an appeal from a judgment of the Superior Court of Kern County entered in
favor of defendants and respondents Yurosek Farms, LLC,1 Yurosek Farming Company,
LLC (Yurosek Farming), and Y & Y Management Company, LLC (Y & Y
Management), identified en bloc as the Yurosek entities.
       Plaintiff and appellant Jason Monroe (Monroe) was driving an all-terrain vehicle
(ATV) on real property controlled by the Yurosek entities when he collided with a cable,
sustaining multiple injuries. He pled causes of action for negligence, premises liability,
and negligent infliction of emotional distress while his wife, plaintiff and appellant
Amanda Monroe, pled a cause of action for loss of consortium.2 The Yurosek entities
claimed recreational use immunity under Civil Code section 846.3 Prior to jury
deliberations, the trial court determined as a matter of law that respondents were licensees
and issued instructions on recreational use immunity over appellants’ objection.
Thereafter, the jury pronounced by special verdict that Monroe entered the property for a
recreational purpose and the Yurosek entities, while negligent in the use or maintenance
of the property, did not willfully or in conscious disregard of the safety of others fail to
protect others from the dangerous condition. As respondents were exempt from liability
pursuant to section 846, recovery was barred.
       Appellants make four contentions on appeal. First, the Yurosek entities admitted
in answers to interrogatories that they lacked any interests in the property where Monroe
was injured and should not have been allowed to claim recreational use immunity as an
affirmative defense. Second, whether respondents held qualifying interests was a

1     In this opinion, “Yurosek Farms, LLC” refers to the limited liability company and
“Yurosek Farms” refers to the former sole proprietorship.
2      Warren Ag Services, Inc., and Imperium Insurance filed a complaint in
intervention, but filed a dismissal before the start of trial.
3      All subsequent statutory citations refer to the Civil Code unless otherwise
indicated.



                                              2.
question of fact that should have been determined by the jury. Third, the trial court
erroneously excluded relevant evidence. Fourth, the modified special verdict form and
the court’s clarifying instructions during deliberations improperly suggested to the jury
that the willful misconduct exception applied only if respondents subjectively intended to
harm Monroe.
       We conclude: (1) the Yurosek entities did not admit in answers to interrogatories
that they lacked any qualifying property interests; (2) the trial court properly decided as a
matter of law that respondents were licensees; (3) the court did not erroneously exclude
relevant evidence; and (4) the modified special verdict form and the court’s clarifying
instructions fairly and clearly stated the standard for the willful misconduct exception.
We affirm the judgment.
                                 FACTUAL HISTORY4
       Jedessa Partners (Jedessa) owned real property in the unincorporated area of Kern
County,5 including a plot of land known as the Tong parcel. In 2005, Jedessa leased five
parcels “[to] be used exclusively for the growing of agricultural products” to Yurosek

4       Appellants’ 54-page opening brief contains a scant three-page statement of facts
that is argumentative and fails to delineate the significant facts, though subsequent
portions of the brief recite some facts. “An appellant’s opening brief must” “[p]rovide a
summary of the significant facts limited to matters in the record.” (Cal. Rules of Court,
rule 8.204(a)(2)(C); see also Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107,
113 [“[A]ppellate counsel should be vigilant in providing us with effective assistance in
ferreting out all of the operative facts that affect the resolution of issues tendered on
appeal. They can accomplish this only by summarizing all of the operative facts, not just
those favorable to their clients ….”].) Without an adequate statement of facts, we
summarize the significant facts in the light most favorable to the judgment. (In re S.C.
(2006) 138 Cal.App.4th 396, 402.)
5      Exhibit A of the grant deed provides the following description of the property:
“The East half of the East half of Section 31, Township 25 South, Range 27 East, Mount
Diablo Base and Meridian, in the unincorporated area of the County of Kern, State of
California, according to the Official Plat thereof. [¶] Excepting therefrom the North
1760 fee thereof.”



                                             3.
Farms for a 20-year term. In 2006, the agreement was amended to add two other parcels
to the farm. On both occasions, Jeffrey Yurosek (Jeffrey), general partner of Jedessa and
sole proprietor of Yurosek Farms, signed as lessor and lessee. Neither the original lease
nor the 2006 amended lease mentioned the Tong parcel. Jedessa and Yurosek Farms
“inadvertently left off Tong on the description of property as part of the lease,”
“intend[ed] to include Tong as part of the property falling within that lease,” and “treated
[Tong] as being part of the lease” until November 1, 2008.6 Prior to June 2008, Yurosek
Farms planted avocados and pomegranates in the Tong parcel and paid rent.7
       In 2008, Jeffrey converted Yurosek Farms into three limited liability companies:
Yurosek Farms, LLC, Yurosek Farming, and Y & Y Management.8 These entities
comprised a “single enterprise consisting of farming, harvesting, and selling crop.”
Yurosek Farms, LLC, received and shipped orders. Yurosek Farming leased and
improved the property that made up the farm. Regarding the Tong parcel, it planted
crops and installed an underground irrigation system. Y & Y Management managed the
property and procured equipment. Jeffrey was the sole owner of Yurosek Farms, LLC,
and Yurosek Farming and majority owner of Y & Y Management. He personally
oversaw the operations of the enterprise. Jeffrey hired David Yurosek (David), his
cousin, to serve as farm manager for the period of November 2007 to November 2008.
David supervised Filiberto Carranza, the foreman.

6     On November 1, 2008, the lease was amended to include the Tong parcel and
change the lessee from Yurosek Farms to Yurosek Farming.
7    Starting June 2008, Yurosek Farming paid rent. Until the lease was amended on
November 1, 2008 (ante, at fn. 6), Jedessa treated Yurosek Farming as the lessee.
8      Articles of organization were filed for Y & Y Management on January 18, 2008,
and for Yurosek Farms, LLC, and Yurosek Farming on June 25, 2008. (See former Corp.
Code, § 17050, subd. (c), added by Stats. 1994, ch. 1200, § 27 and repealed by Stats.
2012, ch. 419, § 19 [“The existence of a limited liability company begins upon the filing
of the articles of organization.”].)



                                             4.
        In or around February 2008, Jeffrey installed pipe gates and cable gates9 on the
farm, including the Tong parcel, to deter trespassing, theft, and vandalism.10 He hired
Demetrio Garcia, who built the pipe gates and erected and painted the posts for the cable
gates. Carranza and his crew connected the cables and attached 10 to 12 strands of
flagging tape to each cable. All the gates were completed before September 1, 2008.
        Jeffrey was aware that the cables were difficult to see and had them marked with
flagging tape to improve their visibility and reduce the risk of collision. Because the tape
could fade after a few months or be blown off by the wind, he and his workers carried
extra tape and replaced any faded or missing strands they came across. In addition,
wooden pallets flanked each cable gate and displayed “No Hunting” and “No
Trespassing” signs.
        Two days before the opening of dove season on September 1, 2008, David and
Carranza inspected each cable gate and ensured each cable was marked with flagging
tape. On September 1, 2008, at or around 7:00 a.m., they again inspected each cable gate
and ensured each cable was still marked. Sometime after 9:00 a.m., Monroe, a manager
at Warren Farms, and two coworkers drove ATV’s in the vicinity and examined various
objects, including pistachio bushes, a boat, horse statues, a steamer trunk, a “burnt-out”
car, and the body of a deceased dog. While they were passing through the Tong parcel en
route to the reservoir and “Mr. Yurosek’s new shop,” Monroe collided with an unmarked
cable.11 The impact severed his left fingers, ruptured his left femoral artery, and broke
his left femur.

9      Whereas a pipe gate could swing open, a cable gate consisted of a cable fastened
to two posts and stretched across a roadway.
10     Jeffrey and David specified that hunters entered the farm and tended to shoot “at
anything” out of frustration, including wells and electrical panels.
11      At the time of the accident, other cables in the area were still marked with flagging
tape.



                                              5.
                                       DISCUSSION
I.     Summary of California’s Recreational Use Immunity Statute.
       In general, a property owner owes a duty of reasonable care to any person coming
upon the land. (See § 1714; Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1099
(Ornelas).) Section 846, however, provides the following immunity:

       “An owner of any estate or any other interest in real property, whether
       possessory or nonpossessory, owes no duty of care to keep the premises
       safe for entry or use by others for any recreational purpose or to give any
       warning of hazardous conditions, uses of, structures, or activities on such
       premises to persons entering for such purpose, except as provided in this
       section. [¶] A ‘recreational purpose,’ as used in this section, includes such
       activities as … riding, including animal riding, snowmobiling, and all other
       types of vehicular riding, … sightseeing, ... nature study, nature contacting,
       … and viewing or enjoying historical, archaeological, scenic, natural, or
       scientific sites.”
Two elements must be established as a precondition for recreational use immunity. First,
the defendant must be the owner of an estate or any other possessory or nonpossessory
interest in real property. Second, the plaintiff’s injury must result from the entry or use of
the premises for any recreational purpose.12 (Ornelas, supra, at p. 1100.)
       a. Qualifying property interests
       Section 846 presents an “‘exceptionally broad and singularly unambiguous’
definition of protected property ‘interests.’” (Miller v. Weitzen (2005) 133 Cal.App.4th
732, 736 (Miller), quoting Ornelas, supra, 4 Cal.4th at pp. 1102-1103; accord Hubbard v.
Brown (1990) 50 Cal.3d 189, 192 (Hubbard).) As originally enacted, section 846 only
exempted from liability “‘owner[s] of any estate in real property.’” (Hubbard, supra, at
p. 194, quoting Stats. 1963, ch. 1759, § 1, p. 3511.) The Third Appellate District then
ruled in Darr v. Lone Star Industries, Inc. (1979) 94 Cal.App.3d 895 and O’Shea v.

12     Monroe does not dispute on appeal that he entered the Tong property for a
recreational purpose.



                                              6.
Claude C. Wood Co. (1979) 97 Cal.App.3d 903 that the statute only immunized holders
of possessory interests in real property. (Hubbard, supra, at p. 194.) In 1980, however,
the California State Legislature amended section 846 by inserting the phrases “‘or any
other interest’” and “‘whether possessory or nonpossessory’” into the opening sentence,
thus “remov[ing] the Darr and O’Shea limitations” and “immuniz[ing] the owner of any
interest in real property regardless of whether the interest includes the right of exclusive
possession.” (Hubbard, supra, at pp. 194, 195, original italics.) For instance, a license,
which confers only “‘a personal, revocable and unassignable permission to do one or
more acts on the land of another without possessing any interest therein’” (Beckett v. City
of Paris Dry Goods Co. (1939) 14 Cal.2d 633, 637; accord San Jose Parking, Inc. v.
Superior Court (2003) 110 Cal.App.4th 1321, 1329), constitutes a qualifying interest
under section 846 (see Hubbard, supra, at pp. 194-197). Independent contractors, on the
other hand, who “work[] on the property of another in the interest of that other or the
party in control of the premises” and “may be entitled to be present on the property
during such time as the work is being performed” are merely business invitees and cannot
invoke recreational use immunity. (Jenson v. Kenneth I. Mullen Inc. (1989) 211
Cal.App.3d 653, 658 (Jenson).)
       b. The willful misconduct exception
       Section 846 “does not limit the liability which otherwise exists … for willful or
malicious failure to guard or warn against a dangerous condition, use, structure or
activity.” Regarding the phrase “willful or malicious,” the First Appellate District
detailed:

       “‘[I]t has been generally recognized in the context of tort liability that the
       usual meaning assigned to “willful,” as well as to “wanton” and to other
       similar terms, is that “‘“the actor has intentionally done an act of an
       unreasonable character in disregard of a risk known to him or so obvious
       that he must be taken to have been aware of it, and so great as to make it
       highly probable that harm would follow.” [Citation.]’” [Citations.] One
       common description of willful misconduct is that it refers to “intentional

                                              7.
       wrongful conduct, done either with a knowledge that serious injury to
       [another] probably will result or with a wanton and reckless disregard of the
       possible results.” [Citations.] More recently, that same description has
       been used to define “willful or wanton misconduct,” a phrase which in turn
       has been utilized to explain when a failure to guard or warn against a
       dangerous condition has been “willful or malicious” for purposes of the
       recreational use immunity statute codified at section 846. [Citations.]’”
       (Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 939
       (Manuel).)
“‘Unlike negligence, which implies a failure to use ordinary care, and even gross
negligence, which connotes such a lack of care as may be presumed to indicate a passive
and indifferent attitude toward results, willful misconduct is not marked by a mere
absence of care. Rather, it “‘“involves a more positive intent actually to harm another or
to do an act with a positive, active and absolute disregard of its consequences.”’”
[Citations.]’” (Id. at p. 940.)
       “‘[W]illfulness generally is marked by three characteristics: (1) actual or
constructive knowledge of the peril to be apprehended; (2) actual or constructive
knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3)
conscious failure to act to avoid the peril. [Citations.]’” (Manuel, supra, 173
Cal.App.4th at p. 940.) Willful misconduct “‘does not invariably entail a subjective
intent to injure. It is sufficient that a reasonable person under the same or similar
circumstances would be aware of the highly dangerous character of his or her conduct.
[Citations.]’” (Ibid.)
II.    The Yurosek entities did not admit in answers to interrogatories that they
       lacked any qualifying property interests in the Tong parcel.
       a. Background
               i. Answers of Yurosek Farms, LLC, to certain interrogatories
       Intervenors (ante, at fn. 2) propounded to Yurosek Farms, LLC, the following
special interrogatories dated October 13, 2011:




                                              8.
      “[Special Interrogatory No. 6:] [¶] Do YOU contend that on September 1,
      2008, you had a property interest in the PROPERTY on which the
      INCIDENT of the subject litigation occurred?”

      “[Special Interrogatory No. 12:] [¶] On September 1, 2008, what was the
      nature of your activities and/or responsibilities on the PROPERTY on
      which the INCIDENT of the subject litigation occurred?”13
In a response dated November 14, 2011, respondent objected to Special Interrogatory
No. 6 on the basis that the phrase “‘property interest’” was “vague, ambiguous and overly
broad.” It objected to Special Interrogatory No. 12 on the grounds that the question was
compound and the phrase “‘nature of your activities and/or responsibilities’” was “vague,
ambiguous and overly broad,” but stated “[w]ithout waiving the foregoing objections”:

      “Technically speaking, responding party had no role with respect to the
      approximate 105 acre lot that included the scene of plaintiff’s accident, but
      the answer is not that simple. Before Yurosek Farms, LLC, officially
      existed, it entered into an agricultural lease with Jedessa Partners, LP, under
      the name ‘Yurosek Farms.’ Said lease was in existence at the time of
      plaintiff’s accident and included the 105 acre lot. The lease agreement
      does not include the legal for the 105 acre parcel at issue, but it was
      intended to be and the property has been treated as if it was included in the
      lease. Furthermore, Jeff[rey] A. Yurosek is the sole member of Yurosek
      Farming Company, LLC, the sole member of Yurosek Farms, LLC,
      managing member of Y&Y Management Company, LLC and general
      partner of Jedessa Partners, LP. The Yurosek entities and their
      activities/responsibilities are intertwined by virtue of Jeffrey A. Yurosek’s
      involvement in said entities.”


13    The intervenors provided the following definitions:
              “(a) INCIDENT includes the circumstances and events surrounding
      the alleged accident, injury, or other occurrence by Jason Monroe on
      September 1, 2008. [¶] (b) YOU includes you, your agents, your
      employees, your insurance companies, their agents, their employees, your
      attorneys, your accountants, your investigators, and anyone else acting on
      your behalf. [¶] … [¶] (f) PROPERTY means that real property adjacent
      to Peterson Road on which the cable gate Jason Monroe impacted with an
      ATV on September 1, 2008 is located.”



                                            9.
       On November 21, 2011, Richard Kern, representing intervenors, sent an e-mail to
Kevin Piekut, representing the Yurosek entities. Kern detailed that Special Interrogatory
No. 6 was propounded “in response to the affirmative defense raised by each of the []
defendants in which they cite … section 846 as a basis for immunity under the
recreational use statute” and designed to elicit “whether the defendants have a ‘property
interest’ in the real property so as to enjoy the benefits of the immunity ….” Regarding
the objections to the phrase “‘property interest,’” he pointed out that section 846
immunized owners of “‘any estate or any other interest in real property, whether
possessory or nonpossessory’” and quoted language in Miller, supra, 133 Cal.App.4th
732, holding the definition of “‘property interest’” to be “‘exceptionally broad and
singularly unambiguous’ ….” Kern warned that “failure to respond with an answer that
can be used to discover the defendants[’] actual possessory or nonpossessory interest is
not appropriate ….” On November 22, 2011, Piekut replied, “One of the problems was
how the term ‘property interest’ was being used. I see from your email that it is being
used in the strict legal sense, in terms of ownership or possessory rights….”
       In a supplemental response dated December 5, 2011, Yurosek Farms, LLC,
answered regarding Special Interrogatory No. 6, “Assuming that ‘property interest’
means ownership or possessory interest, the answer is no.” Regarding Special
Interrogatory No. 12, it replied, “This entity is simply engaged in the sales of product
which may or may not have come from the property. It also does shelling, but it has
nothing what[so]ever to do with the ownership, control or operation of the subject parcel
except in the sense that what it sells may (or may not) have come from there.”
              ii. Answers of Yurosek Farming to certain interrogatories
       Appellants propounded to Yurosek Farming the following special interrogatory:14


14     The record shows the date of the interrogatory as March 19, 2012.



                                            10.
       “[Special Interrogatory No. 4:] Identify any [writings you] contend give
       Yurosek Farming Company, LLC ownership of an estate or other interest in
       the land where the accident occurred as of September 1, 2008.”
In a response dated November 27, 2011, respondent objected to the interrogatory on the
basis that the phrase “‘or other ownership interest’” was vague and ambiguous and,
“[w]ithout waiving said objection, ... identif[ied] the January 1, 2005, Agricultural Lease
between Jedessa Partners and ‘Yurosek Farms’” as proof of an interest in the Tong
parcel. It explained, “Before Yurosek Farming Company LLC officially existed, said
lease was entered into under the name ‘Yurosek Farms.’”
       Intervenors propounded to Yurosek Farming the following special interrogatories
dated October 13, 2011:

       “[Special Interrogatory No. 6:] [¶] Do YOU contend that on September 1,
       2008, you had a property interest in the PROPERTY on which the
       INCIDENT of the subject litigation occurred?”

       “[Special Interrogatory No. 11:] [¶] If YOU contend that on September 1,
       2008, you did not have a property interest in THE PROPERTY on which
       the INCIDENT of the subject litigation occurred, identify the nature of
       your relationship to the subject property.”
In a response dated November 14, 2011, respondent objected to the interrogatories on the
basis that the phrase “‘property interest’” was “vague, ambiguous and overly broad.”
Following receipt of Kern’s e-mail (ante, at pp. 10-11), it provided a supplemental
response dated December 3, 2011. Regarding Special Interrogatory No. 6, Yurosek
Farming answered, “Assuming by ‘property interest’ you mean ownership or possessory
interest, the answer is no,” Regarding Special Interrogatory No. 11, it stated:

       “Yurosek Farming Company LLC did not form until November 2008.
       Because this entity did not exist on September 1, 2008, it could not have
       possibly had any such interests. Once it was formed, the agricultural lease
       with Jedessa Partners was amended to substitute the name of ‘Yurosek
       Farming Company LLC’ for ‘Yurosek Farms,’ which was a sole
       proprietorship owned solely by Jeffrey Yurosek. Because Yurosek



                                            11.
       Farming Company LLC did not exist on September 1, 2008, it is not an
       appropriate party to this suit.” (Contra, ante, at fn. 8.)
             iii. Answers of Y & Y Management to certain interrogatories
       Appellants propounded to Y & Y Management the following special interrogatory
dated October 11, 2011:

       “[Special Interrogatory No. 4:] Identify by name, address, and telephone
       number the custodian of any such [writings you] contend give David
       Yurosek ownership of an estate or other interest in the land where the
       accident occurred as of September 1, 2008.”
In a response dated November 22, 2011, respondent objected to the interrogatory on the
basis that the phrase “‘or other interest’” was vague and ambiguous and, “[w]ithout
waiving said objection,” specified that it “did not have an ownership interest in the
property” and “[i]ts interest was the management of the property.”
       Intervenors propounded to Y & Y Management the following special interrogatory
dated October 13, 2011:

       “[Special Interrogatory No. 6:] [¶] Do YOU contend that on September 1,
       2008, you had a property interest in the PROPERTY on which the
       INCIDENT of the subject litigation occurred?”
In a response dated November 14, 2011, respondent objected to Special Interrogatory
No. 6 on the basis that the phrase “‘property interest’” was “vague, ambiguous and overly
broad.” Following receipt of Kern’s e-mail (ante, at pp. 10-11), it stated in a
supplemental response dated December 3, 2011, “Assuming that ‘property interest’
means ownership or possessory interest, the answer is no.” In an amended response
dated March 26, 2012, Y & Y Management explained:

       “Assuming that ‘property interest’ means ownership or possessory interest,
       the answer is no. However, as has been stated previously, Y&Y
       Management, L.L.C. manages the various farm properties, including the
       parcel in question. While its status as a farm management company does
       not give it ownership or possession rights to the property, it does, as a
       matter of law, create a license to use, manage and/or cross-over the subject



                                            12.
       property in furtherance of its role in the agricultural production taking place
       there.”
             iv. Appellants’ requests to the trial court to treat respondents’ answers to
                 certain interrogatories as disclaimers of any interests in the Tong
                 parcel
       On December 1, 2011, appellants moved for judgment on the pleadings and asked
for an order “precluding [the Yurosek entities] from relying on [the recreational
immunity defense provided by section 846] as they do not own any estate or any other
interest in the real property where this accident occurred.” On December 13, 2011,
appellants requested, pursuant to Evidence Code sections 452 and 453, “judicial notice of
admissions … [made by the defendants in] answers to interrogatories,” namely those of
Yurosek Farms, LLC, to intervenors’ Special Interrogatories Nos. 6 and 12, Yurosek
Farming to intervenors’ Special Interrogatories Nos. 6 and 11, and Y &Y Management to
intervenors’ Special Interrogatory No. 6.15 On December 27, 2011, following a hearing,
the trial court denied the request for judicial notice and the motion for judgment on the
pleadings.
       On July 16, 2012, appellants moved in limine “[f]or an order preventing evidence,
testimony and/or argument concerning recreational immunity from (1) any defendant
having previously denied ownership of an estate or other interest in the real property
where the accident occurred and (2) any defendant failing to prove such ownership.”
They reiterated that respondents admitted in answers to certain interrogatories (ante, at
pp. 9-13) “that they do not own any … interest in the land where the accident occurred.”
On July 30, 2012, the court denied the motion without prejudice:




15     The grounds for a motion for judgment on the pleadings must appear on the face
of the challenged pleading or from matters that may be judicially noticed. (Code Civ.
Proc., § 438, subd. (d); Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205,
1216 & fn. 5.)



                                             13.
       “I think it’s a motion that pretries issues in the case…. I don’t think I can
       prerule on that without hearing the evidence and the testimony regarding
       the role that these defendants play with respect to the property and the role
       they play with respect to the owner or any predecessors in interest….
       [¶] … [¶]

               “… [I]f [defendants] were on the property and they strung the cable,
       the issue is: What authority did they have to be on the property? And I
       don’t know that I can determine that without hearing the full testimony on
       the relationship of the parties. Were they acting as an agent of the owner?
       Were they acting as a possessor? Do they have some sort of lease interest?
       These are all -- this goes to the recreational immunity defense. And so
       these are issues that the defense is going to have to prove. And the defense
       may be impeached by whatever they said in their interrogatory responses.
       That may very well be the case. And then I may end up -- after hearing all
       that, I may end up having to make a legal determination before it goes to
       the jury on any type of motion that might obtain [sic] to the affirmative
       defense. But I just don’t think I can rule on that as the matter is now
       presented to me. [¶] … [¶]

              “If someone gets on the witness stand and contradicts a statement
       made in deposition or by interrogatory, then they can be impeached with
       the discovery. This is -- it’s somewhat different if there is a request for
       admission, because that -- a request for admission goes to the legal
       question, but what you’re presenting to me is interrogatory responses, and
       then we get into the issue of what was meant by interest in property, what
       do they understand interest in property to mean….”
       On August 20, 2012, appellants submitted a trial brief arguing the Yurosek
entities’ answers to intervenors’ Special Interrogatory No. 6 constituted admissions that
they lacked any qualifying interests and such admissions were “conclusive and binding”
and “preclude[d] any recreational immunity defense as a matter of law.” The court
remarked:

       “I’m comfortable with the fact that I can make the ruling on this legal
       question upon the state of the evidence; and if the contention interrogatory
       is as stated by the plaintiff, I can deal with the issue on any motions that
       might be made with respect to the evidence in connection with the
       contention interrogatory. I’m going to take the evidence and deal with it in
       that fashion.”



                                            14.
       On August 22, 2012, before jury deliberations, the court “denied … the plaintiffs’
motion on the preclusive effect of the defendants’ answers to the intervenor[s’] three
interrogatories” because the answers “were not sufficiently conflicting with the trial
testimony or the entire scope of the discovery responses” and the interrogatories “did not
refer to the nonpossessory rights.”
       b. Analysis
       The parties do not dispute the words offered in response to the aforementioned
interrogatories. Appellants maintain, however, that these words must be interpreted as
admissions by the Yurosek entities that they lacked any property interests in the Tong
parcel, thus precluding recreational use immunity. We review de novo the legal
significance of these words (cf. In re Alanna A. (2005) 135 Cal.App.4th 555, 562) and
reject appellants’ argument.16 First, the answers of Yurosek Farms, LLC, to intervenors’
Special Interrogatories Nos. 6 and 12 indicated it did not own the Tong parcel or retain a
possessory interest, but was nonetheless permitted by Jedessa to sell the harvested crops,


16     To the extent appellants contend the trial court should have taken judicial notice of
respondents’ answers to interrogatories, we find no abuse of discretion. (See Washington
v. County of Contra Costa (1995) 38 Cal.App.4th 890, 901 [judicial notice under Evid.
Code, §§ 452 and 453 reviewed for abuse of discretion]; see also Willis v. State of
California (1994) 22 Cal.App.4th 287, 291 [“‘[T]he decision of the judge not to take
judicial notice will be upheld on appeal unless the reviewing court determines that the
party furnished information to the judge that was so persuasive that no reasonable judge
would have refused to take judicial notice of the matter.[’]”].)
       To the extent appellants contend the trial court should have granted its motions to
preclude all evidence, testimony, and argument concerning recreational use immunity on
the basis that respondents “admitted” that they lacked any property interests in the Tong
parcel, we find no abuse of discretion. (See Shaw v. County of Santa Cruz (2008) 170
Cal.App.4th 229, 281 (Shaw) [“We review a trial court’s evidentiary rulings for abuse of
discretion.”]; Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 530, quoting People ex rel.
Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 640 [“‘The trial court’s
“discretion is only abused where there is a clear showing [it] exceeded the bounds of
reason, all of the circumstances being considered.”’”].)



                                            15.
implicating a profit à prendre. (See Kennecott Corp. v. Union Oil Co. (1987) 196
Cal.App.3d 1179, 1186 [“A profit à prendre has been defined as the ‘right to make some
use of the soil of another, … and it carries with it the right of entry and the right to
remove and take from the land the designated products or profit and also includes right to
use such of the surface as is necessary and convenient for exercise of the profit.’”].)
Second, the answers of Yurosek Farming to appellants’ Special Interrogatory No. 4 and
intervenors’ Special Interrogatories Nos. 6 and 11, read in conjunction rather than in
isolation, did not deny a nonpossessory interest. Finally, the answers of Y & Y
Management to appellants’ Special Interrogatory No. 4 and intervenors’ Special
Interrogatory No. 6 specified that Jedessa conferred on it a license to enter, use, and
manage the Tong parcel. Appellants’ assertion that Kern’s e-mail to Piekut on
November 21, 2011, somehow converted respondents’ answers into disclaimers of any
property interests is unpersuasive in view of Piekut’s reply, which evinced his
understanding that “‘property interest’” was confined to “‘ownership or possessory
rights,’” and respondents’ use of the modifying phrase “Assuming that ‘property interest’
means ownership or possessory interest” in subsequent answers.
       Appellants believe the facts of this case parallel those of Universal Underwriters
Ins. Co. v. Superior Court (1967) 250 Cal.App.2d 722 and Estate of Luke (1987) 194
Cal.App.3d 1006. We disagree. In the first case, Universal Underwriters (Universal)
issued to Lynch Motors a policy “insuring the persons covered therein against liability
incurred through the ownership and use of certain automobiles” and requiring Universal
to “defend any actions brought against its insured to establish liability within the terms of
the policy.” (Universal Underwriters Insurance Co. v. Superior Court, supra, at pp. 724-
725.) The driver of a vehicle owned by Lynch Motors was involved in an accident and
Pacific Indemnity Group (Pacific), the driver’s insurance company, sought indemnity.
(Id. at p. 725.) Universal claimed the policy did not extend coverage to the driver



                                              16.
because an endorsement to the policy limited its liability. (Ibid.) Pacific propounded to
Universal the following interrogatories:

       “[Interrogatory No. 4]: ‘Do you contend that there was legal consideration
       passing from your company to the insured [Lynch Motors] for the
       endorsement …?’ … [Interrogatory No. 5]: ‘Do you contend that no legal
       consideration was necessary in order for the aforesaid endorsement … to be
       valid?’” (Id. at pp. 725-726.)
Universal answered “‘No’” to Interrogatory No. 4 and “‘Yes’” to Interrogatory No. 5.
(Id. at pp. 725-726.) Because Universal “did not contend that there was any legal
consideration passing from [it] to Lynch Motors for the endorsement[]” and “contend[ed]
that no legal consideration was necessary in order to make the endorsement effective,”
the court found “no issue as to the matter involved remained to be determined at the time
of trial, and no further discovery was necessary.” (Id. at p. 729.)
       In the second case, the decedent died intestate in 1984, six years after his wife.
(Estate of Luke, supra, 194 Cal.App.3d at p. 1010.) The wife’s heirs wanted to share in
the decedent’s estate and had to trace his assets to the couple’s community property. (Id.
at pp. 1012, 1019.) They propounded to the decedent’s heirs the following
interrogatories:

       “‘Do you contend that at any time between the date of marriage of decedent
       and his predeceased wife and the date of decedent’s death that he received
       any real or personal property by way of gift, devise, bequest or descent?
       [¶] ... [¶] … Do you contend that any assets owned by the decedent at the
       time of his death had a source other than joint tenancy assets owned by his
       predeceased wife and himself at the time of her death, plus accumulations
       thereon? [¶] ... [¶] … Do you contend that any of the real or personal
       property in which the decedent and his predeceased wife owned any interest
       in at the time of the death of his predeceased wife was acquired by gift,
       devise, bequest or descent, excluding forty acres of Iowa farm land in the
       name of the predeceased wife?’” (Id. at pp. 1020-1021.)
The decedent’s heirs answered “‘Not at the present time’” to each interrogatory. (Id. at
pp. 1020-1021.) The court determined the decedent’s heirs “did not contend [the



                                             17.
decedent]’s estate had a source other than the assets owned by [the couple]” and therefore
“no issue as to the source of the assets in [the decedent]’s estate remained to be
determined at the hearing.” (Ibid., original italics.)
         Whereas the succinct answers of the responding parties in Universal Underwriters
and Estate of Luke set a triable issue at rest, those of respondents in the instant case did
not.17
III.     The trial court properly found as a matter of law that the Yurosek entities
         were licensees.
         a. Background
         Prior to jury deliberations, the trial court decided the issue of whether the Yurosek
entities held qualifying property interests:

         “I had reviewed Hubbard vs. Brown …. I’ve reviewed other cases or read
         them: the Ornelas vs. Randolph case and the Jensen [sic] case. And I
         came to the conclusion that the evidence is sufficient to meet the statutory
         terms of Section 846 that … the defendants at a minimum have a license as
         a matter of law upon the premises involved in the case, which allows the
         giving of the [CACI No. 1010] instruction.”
The court then rejected appellants’ requests for two special instructions, titled “Pre-
Condition to Affirmative Defense—Recreation Immunity” and “No Recreational
Immunity Under Civil Code § 846 For Agents or Business Invitees” (boldface omitted),
respectively:

         “I think it is incongruous for the Court to decide the issue as a matter of law
         and then have the jury essentially nullify the underlying basis for the


17     Our ruling on this issue renders moot appellants’ ancillary contention that
respondents’ “admissions” were binding. As an aside, we point out that appellants cite
Universal Underwriters Ins. Co. v. Superior Court, supra, 250 Cal.App.2d 722 and Coy
v. Superior Court (1962) 58 Cal.2d 210 for the proposition that answers to interrogatories
are conclusively binding, but immediately concede that these cases “were decided before
revisions to the discovery act which allowed amendments to discovery answers without
leave of court.”



                                               18.
       affirmative defense, so I won’t give those instructions. Again, I state the
       jury, of course, makes the decision whether the defense applies to the facts.
       That’s my decision on that.”
       b. Analysis
       An issue of law must be decided by the trial court. (Code Civ. Proc., § 591; Evid.
Code, § 310, subd. (a); see also Lysick v. Walcom (1968) 258 Cal.App.2d 136, 158, citing
Huebotter v. Follett (1946) 27 Cal.2d 765, 770 [“It [is] error … to submit to the jury as a
question of fact an issue that on the record was one of law.”].) Where the evidence
bearing on the issue is undisputed and permits only one reasonable conclusion, the issue
is one of law for the court to resolve. (See Curcic v. Nelson Display Co. (1937) 19
Cal.App.2d 46, 53; see also People v. Great American Ins. Co. (1963) 222 Cal.App.2d
552, 554-555 [where facts essential to the determination of a legal issue are not in
dispute, a trial court’s determination as to the issue is a conclusion of law and not binding
on an appellate court].)
       We conclude the trial court properly found as a matter of law that the Yurosek
entities were licensees.18 As previously stated, a license is “‘a personal, revocable and
unassignable permission to do one or more acts on the land of another without possessing
any interest therein’” (Beckett v. City of Paris Dry Goods Co., supra, 14 Cal.2d at
p. 637.) “‘The one essential of a license is that it be assented to by the licensor; and any
acts may serve to show such assent.’” (Eastman v. Piper (1924) 68 Cal.App. 554, 560,
italics added.) “‘The consent from which a license arises may be manifested … in the
use of language, or in conduct other than the use of language. Such conduct may consist
of acts indicative of a consent by the actor to the use of his land by another, or it may
consist in failure to take reasonable action when inaction may reasonably lead to an
inference of consent.’” (Zellers v. State of California (1955) 134 Cal.App.2d 270, 273.)

18     Accordingly, the court properly refused to give appellants’ requested instructions
on this issue.



                                             19.
Here, while none of the Yurosek entities held a leasehold estate in the Tong parcel until
November 1, 2008 (ante, at fn. 6), they improved, farmed, harvested, managed, and
profited from the property with Jedessa’s knowledge and consent.
       Appellants counter that the Yurosek entities were business invitees akin to the
defendants in Jenson, supra, 211 Cal.App.3d 653. We disagree. In Jenson, the
landowner hired the defendants to excavate and perform percolation tests on his property
in contemplation of development. While the plaintiff was driving a motorcycle on the
landowner’s property, he crashed into an excavation. (Id. at pp. 655-656.) In
determining the defendants did not have an interest that triggered recreational use
immunity under section 846, the court emphasized that the agreement between the
landowner and the defendants did not confer a privilege on defendants. Instead, “the
import of the contract in this regard was simply to give defendants permission to enter
and be on [the landowner]’s property solely for the purpose of performing their
contractual obligation, i.e., perform percolation tests, which included excavating the
subject hole, for the sole benefit of [the landowner].” (Jenson, supra, at p. 657.) By
contrast, respondents were not hired to perform manual labor on the Tong parcel for the
sole benefit of Jedessa: they utilized and protected the property in furtherance of their
own enterprise.
IV.    The trial court did not erroneously exclude relevant evidence.
       a. Background
              i. Respondents’ objections to questions regarding Jeffrey’s and
                 Carranza’s conduct following Monroe’s accident
       On examination of Jeffrey as an adverse witness,19 Ralph Wegis, representing
appellants, asked:



19    “A party to the record of any civil action, or a person identified with such a party,
may be called and examined as if under cross-examination by any adverse party at any


                                            20.
               “Q. Sir, when you talked to Filiberto [Carranza] and learned of
       the accident, had you already been told by [David] or anybody else about
       the seriousness of the injuries?

              “A.    I don’t recall, sir.

             “Q. Now, when you talked to Filiberto, how long after the
       accident did you understand that occurred? How long after the accident did
       you get your phone call?

              “A.    I don’t recall that either. I’m sorry.

              “Q. Now, did you tell him -- let me back up here. [¶] Am I
       remembering correctly? You don’t remember whether he said anything
       about there not being any flags on the cable at that time or did he?

              “A. He said when he got to the accident site later there was [sic]
       no flags. I believe that’s what he told me, either him or David.

             “Q. Now, given that information, did you tell him to right then go
       check every other gate and make sure that it had flags on it before he went
       home?”
Piekut objected to the question on the basis of relevance. The trial court sustained the
objection. Immediately thereafter, Wegis asked:

               “Q. Now, did you ever -- after you looked at the accident site with
       no flags, did you go check every other cable gate on the ranch to make sure
       it had flags on it?
Piekut again objected on the basis of relevance. The court sustained the objection.
             ii. Respondents’ objection to Garcia’s unsigned declaration and
                 handwritten remarks
       Wegis proffered an unsigned declaration dated May 2011 that was given to
Demetrio Garcia (see ante, at p. 5). The declaration read:



time during the presentation of evidence by the party calling the witness.” (Evid. Code,
§ 776, subd. (a).)



                                             21.
      “I[,] Demetrio Garcia[,] hereby declare the following: [¶] Jeff Yurosek
      contracted me to install cables in several sites throughout the property of
      Yurosek Farms …. [¶] On each of the wires I put reflectors to signal and
      thereby making it possible to visibly see the cables. [¶] After installing the
      cables it depended on the owner if he wanted to leave those reflectors to
      signal.”
Garcia did not sign the document and wrote the following remarks on March 16, 2012:

      “I don’t know anything of what is written above. I did not put the cables
      when we started to work. It was told to one that we were dealing about job
      with that if wanted we would put the cables of steel he said no they were
      putting them on.”
Wegis made the following offer of proof:

      “I think the foundation that we have so far is from [Robert Gonzalez, a
      licensed private investigator], where he indicated that he spoke with Mr.
      Piekut; that he received this declaration from Mr. Piekut. He translated it to
      Spanish and assigned somebody to go out and get it signed and it wasn’t
      signed. [¶] Now, what is at issue here is the credibility of the Yuroseks,
      and the Yurosek position is that ‘We maintained flags on cable gates at all
      times.’ In fact, it was to the extent that we all carried rolls of tape in our car
      to do it. [¶] Now, with regard to Mr. Garcia, he is presented with a
      document prepared by the defendants, their agents, delivered by their
      agents and asked to execute that document under penalty of perjury. And
      he found it something that he could not do because he indicated it was, in
      fact, not true that he had done that.”
      Piekut objected to the evidence on the basis that it lacked foundation, inter alia.
The trial court excluded the unsigned declaration and handwritten remarks:

      “The issue here is whether the presentation of the declaration is probative
      evidence in the case. I would agree with you [Wegis] if it was done by Mr.
      Yurosek or somebody was going to him [Garcia] and saying, ‘Hey, will you
      testify that you did X, that you put reflectors and flags on it,’ and he said,
      ‘No, I won’t do that,’ that would go potentially to the credibility of the
      party, but that hasn’t been established. This came from the lawyers, and I
      don’t think you can attach the lawyers’ efforts to litigate the case to their
      client. I don’t think you can do that. [¶] … [¶] … I would have no
      problem with your argument if … Mr. Yurosek had directly hired Mr.
      [Gonzalez] and said, ‘Hey, go see if you can get Mr. Garcia to sign this.
      It’ll protect us in the litigation if he’s willing to do that.’ There’s no


                                             22.
       evidence of this. [¶] The evidence is, as you said, we learned it apparently
       for the first time from the witness stand from Mr. [Gonzalez] that this came
       from Mr. Piekut. That’s the problem. That’s where it becomes a problem.
       To introduce this as evidence on the issue of credibility for the Yurosek
       parties, it can’t come in for that purpose because there’s no foundation that
       they had anything to do with it. In other words, I view this as you’re
       sweeping with too broad a brush.”
       b. Analysis
       “We review a trial court’s evidentiary rulings for abuse of discretion.” (See Shaw,
supra, 170 Cal.App.4th at p. 281; see also People v. Tafoya (2007) 42 Cal.4th 147, 165 [a
trial court’s ruling on the sufficiency of foundational evidence is reviewed for abuse of
discretion].) “Discretion is abused only when in its exercise, the trial court ‘exceeds the
bounds of reason, all of the circumstances before it being considered.’ [Citation.] There
must be a showing of a clear case of abuse and miscarriage of justice in order to warrant a
reversal. [Citation.] A trial court will abuse its discretion by action that is arbitrary or
‘“that transgresses the confines of the applicable principles of law.”’” (Shaw, supra, at
p. 281.)
       First, we conclude the trial court did not abuse its discretion when it sustained
respondents’ relevancy objections to questions regarding whether Jeffrey or Carranza
checked and made sure other cable gates were marked with flagging tape after Monroe’s
accident. The court could reasonably infer from the appearance of these questions that
Wegis sought to elicit testimony that either Jeffrey or Carranza took subsequent remedial
measures. Such evidence would have been inadmissible to prove culpable conduct and
therefore irrelevant. (See Evid. Code, § 1151; see also Ault v. International Harvester
Co. (1974) 13 Cal.3d 113, 118, fn. 3 [the phrase “culpable conduct” in Evid. Code,
§ 1151 encompasses wanton and reckless misconduct and other faulty conduct besides
negligence].) Furthermore, when these objections were raised and sustained, Wegis did
not explain the relevance of these questions even though circumstances indicated the




                                              23.
court was likely unaware of another material purpose. (See People v. Coleman (1970) 8
Cal.App.3d 722, 730-731.)20
       Second, we conclude the trial court did not abuse its discretion when it sustained
respondents’ lack-of-foundation objection to Garcia’s unsigned declaration and
handwritten remarks. “Relevant evidence includes evidence relevant to the credibility of
a witness.” “Whether or not evidence tendered to affect the credibility of a witness is
admissible depends on a preliminary ruling by the trial court that such evidence would be
sufficient to sustain a finding that the witness’ credibility is, indeed, affected thereby.”
(Granville v. Parsons (1968) 259 Cal.App.2d 298, 304, citing Evid. Code, §§ 210, 403.)
Here, Wegis proffered Garcia’s unsigned declaration and handwritten remarks for the
purpose of impugning the Yurosek entities’ credibility, explaining Piekut, their agent,
attempted to procure false testimony. The court expressed reasonable reluctance to admit
purported evidence of Piekut’s misconduct in litigation as evidence relevant to
respondents’ credibility. Attorneys retained to conduct litigation in the courts are
independent contractors and “‘not subject to the control and direction of their employer
over the details and manner of their performance.’” (Channel Lumber Co. v. Porter
Simon (2000) 78 Cal.App.4th 1222, 1229.) In view of the latitude afforded to attorneys
over their work, the trial court justifiably required preliminary facts showing the Yurosek
entities directly endorsed the alleged misconduct before it would admit the unsigned
declaration and handwritten remarks. Absent this showing, it excluded these items.21

20     Appellants argue in their reply brief that Wegis made an offer of proof that prior
deposition testimony of Carranza and David indicated they did not check the gates after
the accident on the day in question. Contentions raised for the first time in the reply brief
are generally not entertained. (See Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th
307, 322.) In any event, the offer of proof does not provide further insight into the
relevancy of the questions to which Piekut objected.
21    Because we find the trial court did not erroneously exclude relevant evidence, we
need not address appellants’ arguments concerning prejudicial error.



                                              24.
V.     The modified special verdict form and the trial court’s clarifying instructions
       during jury deliberations fairly and clearly stated the standard for the willful
       misconduct exception.
       a. Background
              i. The modified special verdict form
       The trial court prepared CACI No. VF-1001 (Premises Liability—Affirmative
Defense—Recreation Immunity). Question No. 7 of this special verdict form originally
read, “Did Yurosek Farms, LLC knowingly fail to protect others from the dangerous
structure?” Respondents asked the court to modify Question No. 7 by replacing
“knowingly” with language that mirrored either section 846 or Special Jury Instruction
Nos. 6 and 7 (at p. 27, post). Appellants deemed the revision unnecessary. The court
sided with respondents:

       “I agree that [Question No.] 7 when it says ‘knowingly’ does not
       adequately state the requirements of the statute. I would change [Question
       No.] 7 to say, ‘Did any defendant willfully or in conscious disregard of the
       safety of others fail to protect others from the dangerous condition?’ And I
       think that appropriately sets forth the requirements of the statute. [¶] … [¶]
       … ‘Willfully or in conscious disregard of the safety of others,’ which is
       essentially the definition of ‘maliciously’ that’s contained in the statute.”
Thereafter, Question No. 7 of the modified special verdict form read, “Did any defendant
willfully or in conscious disregard of the safety of others fail to protect others from the
dangerous condition?”
              ii. Jury instructions
       The court issued CACI No. 1010 (Affirmative Defense—Recreation Immunity
(Civ. Code, § 846)):

              “The defendants are not responsible for Jason Monroe’s harm if the
       defendants prove that Jason Monroe’s harm resulted from his entry on or
       use of defendants’ property for a recreational purpose unless Jason Monroe
       proves all of the following: One, that any defendant knew or should have
       known of the condition that created an unreasonable risk of serious injury;
       two, that defendant knew or should have known that someone would
       probably be seriously injured by the dangerous condition; and, three, that


                                             25.
       defendant knowingly failed to protect others from the dangerous
       condition.”
The court then issued Special Jury Instruction No. 6 (Willful Misconduct):

              “Willful misconduct is intentional wrongful conduct done either
       with knowledge, express or implied, that serious injury to another will
       probably result or with a conscious disregard of such probable result. [¶]
       An intent to injure is not a necessary element of willful misconduct. To
       prove misconduct, it is not necessary to establish that the defendant
       recognized its conduct as dangerous. It is sufficient if it be established that
       a reasonable man under the same or similar circumstances would be aware
       of the dangerous character of such conduct.”
Last, the court issued Special Jury Instruction No. 7 (Recreational Immunity Exceptions):

               “If a defendant either willfully or with conscious disregard of the
       safety of others fails to guard or warn against a dangerous condition upon
       its land, a plaintiff who is injured as a proximate result of such failure is
       entitled to recover compensation for such injury from the defendant. Thus,
       the plaintiff is entitled to a verdict in this case if you find in accordance
       with any instructions, one, that the defendant willfully or with a conscious
       disregard of the safety of others failed to guard or warn against a dangerous
       condition upon its land with knowledge, express or implied, that serious
       injury to another would probably result; and, two, that such failure was a
       proximate cause of injury to the plaintiff. [¶] As previously stated, a
       person acts with conscious disregard for safety of others when he is aware
       of the probable dangerous consequences of his conduct and willfully and
       deliberately fails to avoid those consequences.”22
             iii. The jury’s request for clarification
       The jury asked the court for clarification of the phrases “‘willfully or in conscious
disregard’” in the special verdict form and “‘willfully and deliberately’” in Special Jury
Instruction No. 7. Wegis requested “very, very clear guidance” from the court that
“‘[c]onscious disregard[’] … does not require an intent to injure[]” and proposed that the

22     The record shows appellants proposed Special Jury Instruction Nos. 6 and 7.
Before jury deliberations, when Piekut did not object to either instruction, Wegis
withdrew Special Jury Instruction No. 7. The court then granted Piekut’s request for that
instruction.



                                             26.
parties be given an opportunity to brief the issue. The court determined that “th[e] matter
is resolved by the instructions that the jury already has.” It subsequently advised the jury:

              “The first thing I want to tell you is that the words ‘willfully and
       deliberately’ in [Special Jury Instruction No. 7] mean the same thing. That
       there’s no distinct -- ‘deliberately’ is ‘willfully’ and ‘willfully’ is
       ‘deliberately.’ It’s just a conjunction that’s used to mean the same thing.

              “As far as any other clarification you need, I believe that that’s
       contained … in the instructions you’ve already received …. ‘“Willfully”
       means willful misconduct. And willful misconduct is intentional wrongful
       conduct done either with knowledge, express or implied, that serious injury
       to another will probably result or with a conscious disregard of such
       probable results. An intent to injure is not a necessary element of willful
       misconduct.’ So please consult that instruction if you have any further
       question.

           “The issue of ‘conscious disregard’ and the definition of ‘conscious
       disregard’ is set forth in [Special Jury Instruction No. 7]. ‘A person acts
       with conscious disregard for the safety of others when he is aware of the
       probable dangerous consequences of his conduct and willfully’ -- and in
       this case it says ‘deliberately,’ which means the same thing -- ‘fails to avoid
       those consequences.’”
       b. Analysis
       Appellants claim the trial court’s instruction that “willfully” and “deliberately” in
Special Jury Instruction No. 7 were identical in meaning compelled the jury to read
Question No. 7 of the modified special verdict form as follows: “‘Did any defendant
deliberately or with a conscious disregard of the safety of others fail to protect others
from the dangerous condition?’” This, in turn, led the jury to believe that the willful
misconduct exception applied only if the Yurosek entities possessed a subjective intent to
harm Monroe. We must address this argument piecemeal.
       We review de novo the correctness of the modified special verdict form. (See
Saxena v. Goffney (2008) 159 Cal.App.4th 316, 325.) To the extent appellants assert the
revised Question No. 7 containing the phrase “willfully or in conscious disregard of the



                                             27.
safety of others” was improper, we disagree. A special verdict is “that by which the jury
finds the facts only, leaving the judgment to the Court.” (Code Civ. Proc., § 624.) It
must present conclusions of fact in such a manner that “nothing shall remain to the Court
but to draw from them conclusions of law.” (Ibid.) Question No. 7 of the special verdict
form originally asked whether respondents “knowingly” failed to protect others from the
dangerous condition. (See ante, at p. 26.) In view of Manuel, supra, 173 Cal.App.4th
927, this iteration did not accurately reflect the standard for the willful misconduct
exception. (Cf. Cal. Rules of Court, rule 2.1050(b) [“The Judicial Council endorses these
instructions for use and makes every effort to ensure that they accurately state existing
law. The articulation and interpretation of California law, however, remains within the
purview of the Legislature and the courts of review.”].) Manuel defined willful
misconduct as “‘“intentional wrongful conduct, done either with a knowledge that serious
injury to [another] probably will result or with a wanton and reckless disregard of the
possible results.” [Citations.]’” (Manuel, supra, at p. 939, italics added.) In other words,
willful misconduct “‘“‘“involves a more positive intent actually to harm another or to do
an act with a positive, active and absolute disregard of its consequences.”’”’ [Citations.]”
(Id. at p. 940, italics added.) The revised Question No. 7, which encompassed the
Manuel test, was more accurate.23 (Cf. Cal. Rules of Court, rule 2.1050(e) [“[I]t is
recommended that the judge use the Judicial Council instruction unless he or she finds
that a different instruction would more accurately state the law and be understood by
jurors.”].)
       Next, we review de novo the propriety of the jury instructions. (See Miller, supra,
133 Cal.App.4th at p. 736, fn. 3.) “‘Instructions must be considered in their entirety, and,
if, as so considered, they state the law of the case fairly and clearly, then they are, as a

23     We also note the revised Question No. 7 mirrored language found in Special Jury
Instruction No. 7. (See ante, at p. 27.)



                                              28.
whole, unobjectionable, even though by selecting isolated passages of single instructions
they may in some respects be amenable to just criticism.’” (Eagar v. McDonnell Douglas
Corp. (1973) 32 Cal.App.3d 116, 120; see also Hom v. Clark (1963) 221 Cal.App.2d 622,
643 [“The instructions must be considered together and as a whole, because ‘[s]emantic
analysis of a single line, sentence or instruction without regard to the whole charge can
only result in misleading distortion.’”].) We recognize that the term “deliberately,”
which was mentioned once in Special Jury Instruction No. 7, cannot be found in pertinent
statutory or case authority. Nevertheless, we find the instructions, as a whole, fairly and
clearly stated the standard for the willful misconduct exception.
       Finally, we review the court’s clarifying instructions during deliberations for
abuse of discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 745-746.) “After the
jury ha[s] retired for deliberation, if there be a disagreement between them as to any part
of the testimony, or if they desire to be informed of any point of law arising in the cause,
they may require the officer to conduct them into Court. Upon their being brought into
Court, the information required must be given in the presence of, or after notice to, the
parties or counsel.” (Code Civ. Proc., § 614; cf. Pen. Code, § 1138.) Here, in response to
the jury’s request for guidance, the trial court first advised that “willfully” and
“deliberately” in Special Jury Instruction No. 7 were synonymous. We consider the
harmonizing of these terms to be a sensible attempt to preserve instructional
uniformity.24 The court also reread portions of Special Jury Instruction Nos. 6 and 7 to
reiterate: (1) willful misconduct is performed “either with knowledge, express or
implied, that serious injury to another will probably result or with a conscious disregard
of such probable results”; (2) willful misconduct does not require a specific intent to

24     We point out, moreover, that appellants initially proposed Special Jury Instruction
No. 7 and “deliberately.” (Ante, at fn. 22.) Consequently, we are reluctant to criticize the
court’s manner for dealing with a possible semantic discrepancy that appellants
themselves prompted.



                                              29.
injure someone; and (3) the phrase “‘conscious disregard for the safety of others’”
describes one’s awareness of the probable dangerous consequences of his conduct and
willful failure to avoid those consequences. “[N]o error arises from a court’s choice to
reread instructions in response to jury requests for further information, so long as the
original instructions themselves do not constitute incorrect statements of law.” (Ramona
Manor Convalescent Hospital v. Care Enterprises (1986) 177 Cal.App.3d 1120, 1136-
1137; cf. People v. McCleod (1997) 55 Cal.App.4th 1205, 1219-1220.)
        We do not conclude the jury was led to believe that the willful misconduct
exception applied only if the Yurosek entities possessed a subjective intent to harm
Monroe.
                                      DISPOSITION
        The judgment of the superior court is affirmed. Costs on appeal are awarded to
respondents.
                                                                 _____________________
                                                                            DETJEN, J.
WE CONCUR:


    _____________________
    CORNELL, Acting P.J.


    _____________________
    HOFF, J.*




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



                                             30.
