Filed 2/9/16 Smith v. Moghaddam CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


SHARON MECHELE SMITH,                                                B254775

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. EC057332)
         v.

MAJID SHEIBANI MOGHADDAM et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Frank J.
Johnson, Judge. Affirmed.
         Snyder ♦ Dorenfeld, Bradley A. Snyder and Rodger S. Greiner for Plaintiff and
Appellant.
         Knapp, Petersen & Clarke, Stephen C. Pasarow and Maria A. Grover for
Defendants and Respondents.


                                           ______________________
                                    INTRODUCTION
       Plaintiff Sharon Mechele Smith brought this action against defendants Majid
Sheibani Moghaddam and Tri City Transport Systems, Inc. (Tri City), claiming that
Moghaddam’s negligent operation of his taxi caused her to fall while she was riding her
motor scooter. At trial, the parties presented competing versions of the facts, each
asserting that the other was at fault in causing the accident. A jury sided with defendants,
finding in a special verdict form that Moghaddam was not negligent, and the court
entered judgment in defendants’ favor.
       Smith appeals from that judgment and raises a single issue, asserting instructional
error. She contends that the trial court’s refusal to instruct the jury on the sudden
emergency doctrine, as set forth in CACI No. 452, requires reversal of the judgment.
That doctrine, when applicable, holds a party confronting a sudden emergency to a lesser
standard of care. Smith claims that she was entitled to have the jury apply that standard
when evaluating whether she was responsible for the accident. Because the jury found
that Moghaddam was not negligent, however, any error in failing to give an instruction
bearing on Smith’s comparative negligence could not have prejudiced her. We
accordingly affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
A.     THE ACCIDENT
       In September 2011, Smith bought a new motor scooter. At that time, she was an
“inexperienced” rider. The accident occurred approximately one month later.
       On October 11, 2011, Smith was driving her scooter on San Fernando Road in
Glendale, California. San Fernando Road is a two-way street with two lanes in each
direction of travel. The Golden Farms Market Plaza (Plaza) is located on, and has a
driveway that exits onto, San Fernando Road. There is curb parking on either side of that
driveway. The number one lane on San Fernando Road is the one closest to the center of
the street; the number two lane is the one closest to the curb.
       Smith claimed that she was driving approximately 35 miles per hour in the number
two lane on San Fernando Road. As she approached the Plaza area, a taxi driven by

                                              2
Moghaddam pulled out of the Plaza driveway “very quickly.” The taxi drove beyond the
parked cars along the curb on San Fernando Road and moved into her lane of travel. The
taxi was directly in front of her, approximately two to three car lengths away. Because
the taxi appeared before her so suddenly, she had no time to react or reflect on the best
course of action. She therefore panicked: she slammed on the brakes, applying both the
front and back brakes simultaneously, and “screamed bloody murder.” Smith admitted
that this was not the proper way to use the scooter’s braking system. Smith fell down and
suffered extensive damage to her knee, requiring surgery and knee replacement.
        Moghaddam, a taxi driver for Tri City, gave a very different account of the facts.
He testified that he was off duty that day and had driven into the Plaza. He was very
familiar with the Plaza, the parking lot, and the surrounding area because he had driven
there numerous times in the past. When he left the Plaza parking lot, he drove towards
the exit onto San Fernando Road. After the two cars in front of him turned right onto San
Fernando Road, Moghaddam drove his car four feet into the street and stopped before
getting beyond the cars parked alongside the curb on San Fernando Road. In other
words, the front of his car never crossed into the traffic lane. He looked to his left and
saw a scooter travelling on San Fernando Road about 100 feet from him. As he remained
in his stopped position, he saw Smith lose control of her scooter, fall, and skid, stopping
10 feet away from him. Moghaddam never moved his car into Smith’s lane before she
fell.
        A third party witness, Albert Sarkis, who was walking in the area, testified at trial.
Sarkis was 35 to 40 feet away from the taxi and heard the sound of a tire skid as he was
watching the taxi pull out of the parking lot. Sarkis turned toward the noise to his left
and observed Smith skid on her scooter and fall to the ground. When Sarkis turned back
to his right, he saw that the taxi had stopped before reaching the number two lane. The
taxi’s front bumper had not passed the cars parked alongside the curb.
        The officer who investigated the accident testified about the marks the scooter left
on the road. He explained that “the scooter locked up its rear wheel and left a brake mark



                                               3
approximately 12 feet long.” After the scooter went down, it slid for approximately 28
more feet. When Smith came to a stop, she was eight to 10 feet from Moghaddam.
B.     THE JURY VERDICT
       On December 29, 2011, Smith filed this negligence action against defendants,
alleging that Moghaddam “failed to yield the right-of-way” to her “when he drove his
vehicle from a private driveway onto San Fernando Road . . . .”
       On October 31, 2013, the case proceeded to trial. The jury returned a unanimous
special verdict1 in favor of Moghaddam.2 In response to the first question—“Was Majid
Sheibani Moghaddam negligent?”—the jury answered, “No.” The special verdict form
directed the jury not to complete the remaining questions about the elements of the claim
if it found that Moghaddam was not negligent. The jury therefore did not answer any
further questions, including whether Smith was comparatively negligent.
       On November 18, 2013, the trial court entered judgment on the special verdict in
favor of defendants. On December 11, defendants’ counsel served Smith’s counsel with
notice of entry of judgment on the special verdict.
C.     THE NEW TRIAL MOTION AND APPEAL
       On December 20, 2013, Smith filed a notice of intention to move for a new trial on
the ground that the trial court committed legal error at trial. Ten days later she filed her
motion, arguing that the trial court’s erroneous refusal to instruct the jury with CACI
No. 452 entitled her to a new trial. The court heard argument and denied the motion on
January 31, 2014. Smith then timely appealed.3


1      The special verdict form submitted to, and filled out by, the jury is not part of the
record on appeal. The relevant portion of the special verdict form is set forth in the
judgment on special verdict, however.
2      Tri City was not mentioned in the body of the special verdict form. The parties
stipulated that a finding that Moghaddam was liable would impose ownership liability on
Tri City pursuant to Vehicle Code section 17150.
3      In her notice of appeal, Smith purports to appeal from the order denying her new
trial motion, which is nonappealable. (Walker v. Los Angeles County Metropolitan

                                              4
       In pursuing her appeal, Smith violates a number of basic procedural rules. Smith’s
opening brief fails to “[p]rovide a summary of the significant facts” (Cal. Rules of Court,
rule 8.204(a)(2)(C)) and fails to cite to the six-volume trial transcript when reciting facts
in her legal argument (id., rule 8.204(a)(1)(C)). In addition, though Smith asks us to
review the propriety of the trial court’s failure to instruct the jury as requested, she has
not provided us with a copy of the requested instruction. “[O]n appeal a party cannot
predicate error on a refusal to give an instruction unless the proposed written instruction
is made a part of the record [citation].” (Green v. County of Riverside (2015) 238
Cal.App.4th 1363, 1370.) She also has not provided a copy of the actual instructions
given by the trial court so that we can evaluate the impact of any instructional error in the
overall context of the instructions. While we have the trial transcript, it does not contain
the reading of the instructions because the parties waived transcription of it.
       These violations are sufficiently serious to warrant our finding that Smith has
forfeited her claim of instructional error. (In re S.C. (2006) 138 Cal.App.4th 396, 407.)
In the interests of justice, however, we elect not to do so. We will rely on the proposed
version of CACI No. 452 as set forth in defendants’ trial brief (which is part of the
appellate record).
                                       DISCUSSION
A.     THE STANDARD OF REVIEW AND APPLICABLE LAW
       A trial court, upon request, must instruct the jury on each theory of the case
supported by substantial evidence. (Alamo v. Practice Management Information Corp.
(2013) 219 Cal.App.4th 466, 475.) We review de novo a trial court’s decision not to give
a requested instruction, and we evaluate the record in the light most favorable to the
requesting party to determine if substantial evidence supported the request. (Ibid.) If the
trial court erred in refusing to give an instruction, we will reverse the judgment only if the

Transportation Authority (2005) 35 Cal.4th 15, 19 [order denying new trial “is not
independently appealable and may be reviewed only on appeal from the underlying
judgment”].) She has not included that order, nor provided any argument challenging it,
on appeal.


                                               5
error produced a “‘“miscarriage of justice.”’” (Id. at pp. 475-476.) Such injustice occurs
if it is reasonably probable that the appealing party would have obtained a more favorable
result had the instructional error not occurred. (Id. at p. 476; accord, Green v. County of
Riverside, supra, 238 Cal.App.4th at p. 1371 [“Instructional error in a civil case is not
ground[s] for reversal unless it is probable the error prejudicially affected the verdict.”].)
B.     ANY INSTRUCTIONAL ERROR WAS NOT PREJUDICIAL
       1.     The Requested Instruction
       Smith asked the trial court to instruct the jury on the sudden emergency doctrine
using the following modified version of CACI No. 452:
       “Plaintiff Sharon Mechele Smith claims that she was not negligent
       because she acted with reasonable care in an emergency situation.
       Plaintiff . . . was not negligent if she proves all of the following:
       “1. That there was a sudden and unexpected emergency situation in
            which someone was in actual or apparent danger of immediate
            injury;
       “2. That plaintiff . . . did not cause the emergency; and
       “3. That plaintiff . . . acted as a reasonably careful person would
            have acted in similar circumstances, even it appears later that a
            different course of action would have been safer.”
       The trial court sustained defendants’ objection to this instruction, finding that the
doctrine did not apply here. Relying on the instructional guidance in CACI No. 452, the
trial court noted that the instruction was “reserved for those occasions where a conscious
choice between two or more alternatives is made . . . [a]nd in light of later events, it turns
out that one of the other choices would have been a better choice.” The court found no
substantial evidence that Smith made a choice between reasonable alternatives when
responding to a perceived sudden danger. The court agreed that “[t]here may have been
other choices available to Ms. Smith, but locking up the brakes was not one of them.”
The court then declined to give the requested instruction over Smith’s objection.



                                               6
       2.      Smith Has Not Demonstrated Prejudice
       We need not decide whether the trial court should have given the requested
instruction because any error did not prejudice Smith in light of the jury’s finding that
Moghaddam did not drive negligently.
       The parties presented the jury with two conflicting versions of the facts.
Moghaddam claimed that he crossed the driveway when he exited the Plaza but never
entered Smith’s lane of travel, stopping before reaching that point. Smith, on the other
hand, claimed that Moghaddam suddenly appeared from the Plaza and crossed into her
lane of travel in violation of the traffic laws. Smith’s counsel argued to the jury that this
constituted negligence per se: “[The presumption of negligence instruction] cites the
Vehicle Code section 21804, and this says that the driver of any vehicle about to enter or
cross a highway from any public or private property shall yield the right of way to all
traffic approaching on the highway close enough to constitute an immediate hazard.”
Counsel continued: “So the bottom line is that Mr. Moghaddam violated this code
section, and that’s why we believe you should answer the first question yes.”
       In referring to the “first question,” Smith’s counsel was discussing the special
verdict form. He explained: “The first question is was Mr. Moghaddam negligent. And
assuming you answer that question yes, you move on to the next question as to whether
his negligence was a substantial factor in causing the accident, and so on and so forth.
And then we get into the issue of damages. And if you believe that Ms. Smith was also
negligent, then what you’ll do is you’ll answer those questions regarding her conduct.
And then at the conclusion of this form, if you believe that both drivers were responsible
for causing the accident, then you . . . apportion responsibility . . . .”
       Because the jury found that Moghaddam was not negligent (i.e., he did not violate
Vehicle Code section 21804 by protruding into Smith’s lane), the failure to give the
requested instruction was irrelevant to the outcome of the case. In light of that finding,
the jury was not required to consider whether Smith was comparatively negligent, and the
sudden emergency doctrine was only relevant to that question. Indeed, Smith’s counsel
made this point to the jury when explaining his client’s conduct, stating that

                                                7
Moghaddam’s “violation of this vehicle code section is what caused [Smith] to react and
respond.” Counsel explained that Smith “was confronted with this emergency situation,
and she had no choice but to slam on the brakes . . . .” This was reasonable, said counsel,
because when the driver of a scooter “is involved in a sudden emergency or confronted
with an obstacle, they don’t have time to sit back, ponder, think, react. What they do is
they instinctively respond. And this is exactly what Ms. Smith did here. She did not
have time to respond and make a better decision such as swerving out of the way, or
applying the brakes differently, or doing something that could have potentially avoided
. . . the accident.”
       In sum, the jury accepted Moghaddam’s version of the facts and found that he was
not negligent and did not violate Vehicle Code section 21804. This finding rendered the
sudden emergency doctrine irrelevant because the instruction addresses, as the proposed
language states, whether Smith was comparatively negligent. (CACI No. 452 as
modified [“Plaintiff Sharon Mechele Smith claims that she was not negligent because she
acted with reasonable care in an emergency situation.”].) As Smith’s counsel
acknowledged, a finding that Moghaddam was not negligent avoids the issue of
comparative negligence.4 Consequently, the trial court’s error, if any, in refusing to
instruct the jury with CACI No. 452 “was harmless, because it is not reasonably probable




4       The jury’s finding, moreover, contradicts Smith’s claim that she faced a sudden
emergency as defined in CACI No. 452. If Moghaddam did not negligently impede
Smith’s lane of travel, as the jury found, then it cannot be said that he created “a sudden
and unexpected emergency situation in which someone was in actual or apparent danger
of immediate injury.” (Ibid.) The jury clearly concluded that Smith panicked when she
locked up her brakes, and that Moghaddam did not negligently cause that reaction. This
is not the type of “emergency”—one of Smith’s own making—recognized by the sudden
emergency doctrine. (Ibid. [stating, as an element of proof, that the party relying on the
doctrine “did not cause the emergency”].)


                                             8
[Smith] would have obtained a more favorable result [if it had been given].” (Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 570.)5
                                    DISPOSITION
      The judgment is affirmed. Defendants are awarded their costs on appeal.



                                                BLUMENFELD, J.*


We concur:



             PERLUSS, P. J.



             ZELON, J.




5      The two cases upon which Smith relies are distinguishable: Fish v. Los Angeles
Dodgers Baseball Club (1976) 56 Cal.App.3d 620 [failure to instruct on concurrent
causes held prejudicial] and Phillips v. G. L. Truman Excavation Co. (1961) 55 Cal.2d
801 [failure to instruct on contributory negligence as a defense to liability held
prejudicial]. The rejected instructions in those cases bore on—and thus might have
affected—the determination made by the jury.
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            9
