Filed 4/29/14 Garcia v. Eastland Plaza CA3
                                          NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                     THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




LUZ GARCIA et al.,                                                                      C066667

                   Plaintiffs and Appellants,                               (Super. Ct. No. CV031243)

         v.

EASTLAND PLAZA et al.,

                   Defendants and Respondents.




         Decedent Marco Garcia, manager of Ybarra’s Jewelers, was found stabbed to
death near an open safe in the back of the store after hours. Plaintiffs (his widow and
children) brought this wrongful death action against Eastland Plaza (Eastland), the
shopping center in which the jewelry store is located; Delta Hawkeye Security (Delta),
the shopping center’s security firm; PAQ, Inc. (the corporate name of Food 4 Less), the
shopping center’s anchor tenant that had control over the lighting in the section of the
mall parking lot outside its store and the adjacent jewelry store; and Hussman
Corporation (Hussman), the firm that maintained the electrical and other systems for

                                                             1
Food 4 Less. During trial, plaintiffs settled with Delta for $200,000 (purportedly one-
fourth of the overall demand in negotiations), and with Hussman for $100,000 (one-
eighth of the demand). The jury thereafter returned verdicts for Eastland Plaza and
Food 4 Less, finding that they were not negligent on a vote of nine to three.

       On appeal from the September 2010 judgment, plaintiffs contend the trial court
erred in refusing their special instructions on the doctrine of vicarious liability for a
nondelegable duty, in limiting evidence of previous incidents of violence to only 12 of
the 30 that their expert wanted to offer in support of his opinion, and in excluding
evidence of decedent’s purported habit of declining to reenter the jewelry store after
locking up and activating the alarm. We shall affirm the judgment.

                               FACTUAL BACKGROUND

       Eastland is a large Stockton mall (containing 160,000 square feet of tenant space)
not far from the intersection of California State Routes 4 and 99. As its counsel candidly
noted in one hearing, “it’s probably not the nicest part of Stockton.” Its property
manager oversaw security issues for the mall. The property manager had engaged the
services of Delta to provide uniformed security guards, who would ride through the
property in distinctive electric vehicles with strobe lights, as well as conduct bicycle
patrols during the day and foot patrols on major holidays. Eastland’s property manager
was aware that “major crimes” had occurred in the parking lot. However, he directed
Delta to focus on preventing property crimes in the rear of the stores to thwart a nearby
homeless encampment from scavenging. Accordingly, Delta gave orders to its
employees to this effect. Among other work orders was a directive to report to the
property manager whenever lights in the parking lot did not come on.1 There was also a



1 The Eastland property manager also checked daily to see whether the lights in the
parking lots were illuminated, both before dawn and then in the evening.


                                               2
one-hour cycle of checkpoints throughout the parking lot (which did not include the
fronts of Food 4 Less or the jewelers) to which the guards were expected to adhere.
Food 4 Less had its own guards at the doors to watch for shoplifting and keep an eye on
the sidewalk outside.

       Food 4 Less operates 24 hours a day. It is a store with a large amount of foot
traffic (300 to 400 people per hour) from early evening until later at night. As the only
Eastland tenant with round-the-clock operations, it arranged with Eastland to assume
control over the lighting in the parking lot in the vicinity of its store. It engaged the
services of Hussman, its original electrical contractor, to install and operate a new
computerized lighting system that included the lights in the parking lot outside its store.
The controls were in a locked alcove to the rear of the Food 4 Less store. Only Hussman
had the ability to operate the complex computer system. However, there was a manual
override that could turn on the lights for 90 to 120 minutes. Lights in other sections of
the parking lot operated independently of the Food 4 Less controls.

       In September 2005, the Food 4 Less night manager arrived just after midnight
and noticed the lights in the parking lot were off. Apparently, he did not take any action
on his own to turn them on (being unaware of the manual override), but reported the light
issue to his superior. When his superior arrived at the store at 6:00 a.m., the lights were
on and remained on during the day. He did not call Hussman about the problem until late
that afternoon, at which point Hussman could not send a technician until the next day. In
the interim, the lights in the parking lot again failed to turn on that night.

       As scheduled, the Hussman technician arrived the following afternoon. He told
the store manager that the problem had been a “pinched wire.” A former Hussman
employee testified that a pinched wire would not have had anything to do with the
problem with the timer’s programming. The former employee also thought someone at



                                               3
Food 4 Less must have operated the manual override, because this would change the
timer’s programming.

        There was only one security guard on duty that evening of September 13, 2005.
He was 21 years old, and had been working for Delta for about a month. He was deaf in
one ear, hard of hearing in the other, and had an affect that could make one question his
mental acuity. He would try to patrol the entire mall each hour. That night, he first
patrolled the parking lot on a bicycle, then began patrolling in the rear of the stores. At
some point, he noticed the lights in the parking lot by Food 4 Less had turned off. He
notified both his supervisor and the Eastland property manager; the latter testified that he
would have told the guard to focus his surveillance on the parking lot as a result of the
lighting problem, but the guard did not recall him saying this. The guard later told a
police investigator that he had patrolled in the rear of the stores from 8:00 to 8:50 p.m.

        That night decedent was working with two other employees. They closed the
jewelry store in the customary fashion, beginning the process at 7:30 p.m. to finish by
8:00 p.m. Once everything was locked into the safe, the other employees waited by the
front door as decedent set the alarm. The records of the alarm company indicated that it
was activated at 8:14 p.m. Decedent locked the front door, and the group commented
that it looked unusually dark outside.2 Their cars were all parked near each other in the
spaces along the walkway outside the store. Decedent and one employee watched as the
other walked to her car; decedent then walked with the other employee to her car before
heading toward his own. The employees last saw him getting into his car and closing the
door.



2 Both the security guard and the jewelry store employees noted that it was not pitch
black outside, because there were still some lights on; one employee believed she could
discern the race of a person at over 60 feet under the lighting conditions, and the other did
not have any difficulty observing decedent from 15 feet away.


                                              4
       According to the alarm company’s records, the alarm was turned off five minutes
after activation. One of the employees testified that she had never observed decedent
return to the store after locking up.

       When decedent did not arrive home at his customary time, his wife called her
brother (the store’s owner). The owner went to the mall, arriving shortly after 10:00 p.m.
The owner saw decedent’s car, still in its parking place. The lights in the parking lot
were still off. Decedent’s car was locked. The owner called the alarm company, and
learned that the alarm had been turned off two hours earlier. While speaking with the
alarm company, the owner noticed the front door of the store was unlocked. Opening the
door, he could see that the door to the safe was open. The owner was afraid to enter the
store. The police, whom the alarm company had summoned, arrived soon after. They
turned on the parking lot lights.

       When the police entered the store, they found decedent’s body in the back; there
were signs of a struggle. The officer who testified at trial said that when he checked the
scene, he did not see any signs of a struggle at the store entrance (which was a focus of
his attention) or in the path between decedent’s car and the entrance. The officer
examined decedent’s car, which seemed undisturbed. When the officer checked the
surveillance cameras in the jewelry store, he discovered that they had not been recording
that evening. He did not recall seeing any blood on the door to the store that night, and
thought it “highly unlikely” that everyone on the crime scene would have overlooked it if
any had been present. However, when they returned a day later, there was blood outside
the door and on the window evident to everyone, and a police investigator took pictures
of it.3 The officer did not have any way of determining whether decedent had returned to


3 Another police investigator took a picture of the outside of one of the entry doors to
the store on the night of the homicide because she thought there was blood on a portion
of the outside surface, apparently by the handle. She did not recall whether she ever

                                             5
the store on his own or under coercion. As of the trial, the police had not identified
anyone responsible for the homicide.

       As an exhibit graphically shows, decedent had numerous shallow stab wounds in
the back of his neck; the pathologist also described over a dozen deeper stab wounds
elsewhere on his body. The neck wounds (and some shallow back wounds) were
consistent with some sort of coercion being applied to the victim, but the pathologist
could only speculate whether this was to induce decedent to reenter the store, or to open
the safe after he was already inside the store. Decedent was also beaten. There were
three fatal stab wounds to his chest and the right side of his neck. He likely died within a
matter of minutes, but could have survived as long as 30 minutes.

       Plaintiffs presented a security expert. He related the circumstances underlying a
dozen incidents of violent crime in the mall parking lot between January 2003 and May
2005—primarily armed robberies and assaults with deadly weapons—and asserted these
would put a reasonable owner of property on notice of the need to take remedial action
for the safety of patrons. As a result, it was his opinion that at the time of the homicide
the absence of lighting in the parking lot (or a protocol for promptly restoring the
lighting) or a visible security presence in the parking lot (as opposed to the focus on
securing property in the rear of the mall) breached a standard of due care. The expert
also offered his opinion about the circumstances of the homicide, asserting that assailants
must have confronted decedent in some fashion at his car and forced him at knifepoint to
return to the store (relying on the first police investigator’s picture of purported blood on
the store door’s exterior). The stab wounds to the back of the neck were prototypical of
15 other robberies with which the expert was familiar. The absence of lighting or a



determined if it was in fact blood. This picture is not included in the record on appeal,
which prevents us from comparing it with the later pictures.


                                              6
visible security guard who might have seen the felons allowed this to occur. He also
asserted that it was industry practice never to reenter a jewelry store after locking up.

                                       DISCUSSION

                      I. The Special Instructions Were Not Proper
                                A. Procedural Background
       On the first day of trial, plaintiffs submitted a list of proposed jury instructions.
Among the nine special instructions are what plaintiffs described as four instructions
(Nos. 4 through 7) on nondelegable duties of landowners for dangerous conditions and
the vicarious liability of a landowner for the negligence of independent contractors.
During the instruction conference at the end of trial, the court refused special instruction
Nos. 1 to 3, and plaintiffs withdrew Nos. 4 and 9. After argument, the court refused Nos.
5 and 6, and did not see how No. 7 was applicable to the facts of the case.

       On the following day, plaintiffs withdrew No. 7 in favor of a new instruction,
No. 10, which read: “The duty which a possessor of land owes to others to put and
maintain it in reasonably safe condition is nondelegable.” (As authority, instruction
No. 10 cited Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 260 [error
to instruct that negligence of elevator repairman could not be imputed to landowner,
because duty to maintain land in safe condition nondelegable], Srithong v. Total
Investment Co. (1994) 23 Cal.App.4th 721, 726-728 (Srithong) [discussing vicarious
nature of nondelegable duty to maintain property in safe condition—as a result,
landlord’s liability for noneconomic damages resulting from roof repairman’s negligence
not limited under Civ. Code, § 1431.2] and Rest.2d Torts (1965) § 422, p. 405 [noting,
however, in com. b that rule applies to harm caused by unsafe condition of a structure
(accord, 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1215, pp. 591-592)].)

       Plaintiffs also offered a new instruction No. 11, which read: “A person who owes
a duty to exercise reasonable care for the safety of others and who employs an

                                               7
independent contractor to perform work, but who retains control of any part of the work,
is liable for physical harm caused by the failure to exercise his or her control with
reasonable care.” (No. 11’s supporting authority was Kinney v. CSB Construction, Inc.
(2001) 87 Cal.App.4th 28, 32-33, 36 [discussing rule of negligent exercise of retained
control in general, but refusing to apply it where contractor’s affirmative conduct did not
create or add to risk of injury and subcontractor was immune under workers’
compensation law from liability to injured employee] and Rest.2d Torts, § 414, pp. 387-
388 [which notes in com. b that the rule principally applies to construction contractors
and subcontractors].)

       Eastland argued the provision of security services was not among a landowner’s
nondelegable duties. Food 4 Less argued that as a lessee it could not have a nondelegable
duty, and did not retain any type of control over the lighting system when it hired
Hussman.

       The trial court refused both special instructions (Nos. 10 & 11), making reference
to (1) it being only a landowner who has a nondelegable duty, (2) the doctrine’s purpose
of ensuring that an injured party receives compensation, and (3) the deep pockets of the
settling defendants whose actions were the basis of plaintiffs’ theories.

       In plaintiffs’ motion for a new trial, they raised the issue of the court’s refusal of
these special instructions. They conceded the evidence did not support a claim of direct
negligence on the part of either remaining defendant—negligence in the hiring of Delta
or Hussman, or negligence in ceding control of the lighting to Food 4 Less. As a result,
plaintiffs claimed they were prejudiced when the court refused to instruct on
nondelegable duties as a basis for vicarious liability. The trial court rejected this
argument, asserting vicarious liability was an “unfair” theory of liability after plaintiffs
had settled with Delta and Hussman.



                                               8
                                  B. Instruction No. 10
1. Eastland.
       Relying on the general principle that the duty of a landowner to protect others
from injuries arising out of the condition of the property is nondelegable (Srithong,
supra, 23 Cal.App.4th at p. 726; Prosser & Keaton, Torts (5th ed. 1984) § 71, pp. 511-
512), plaintiffs argue the duty to protect customers from the criminal assaults of third
parties is simply another aspect of this duty and thus should also be nondelegable.
To this end, they cite a number of decisions in other states reaching this conclusion.

       As with the conclusion that a duty exists, the conclusion that an existing duty is
nondelegable is a question of law. (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th
1155, 1184 (Summers).) It is ultimately a policy question with undefined criteria, which
several sister states have described as requiring a sui generis answer on a case-by-case
basis. (Funk v. General Motors Corp. (1974) 392 Mich. 91, 101-102 [220 N.W.2d 641,
645]; Breeden v. Anesthesia West (2003) 265 Neb. 356, 363 [656 N.W.2d 913, 920]; see
Kleeman v. Rheingold (1993) 81 N.Y.2d 270, 275 [614 N.E.2d 712, 716]; see also
Prosser & Keaton, supra, § 71, pp. 511-512 [ultimate concern is need to protect
community].) As Srithong explains, the concern in California courts is to assure that
compensation is available for the injured party. (Srithong, supra, 23 Cal.App.4th at
p. 727.)

       However, California has treated the liability of landowners for third party criminal
conduct differently than the general duty to maintain property in a safe condition; a court
must balance the foreseeability of harm against the costs and burden of protecting against
the harm, and thus a heightened degree of foreseeability (established through prior
similar incidents or other probative evidence) is necessary to warrant anything more than
simple security measures. (Casteneda v. Olsher (2007) 41 Cal.4th 1205, 1213-1214;
Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243, 244 (Delgado).) The provision
of security guards in particular is considered an “onerous” duty. (Delgado, at pp. 243-

                                             9
244, fn. 24.) Plaintiffs fail to demonstrate whether the out-of-state decisions on which
they rely have a similar concern for this burden on a landowner. Therefore, it is
questionable whether a landowner who is not otherwise negligent in hiring a licensed
security firm (which thus subjects the firm to the oversight of the state’s licensing
authority and assures protection of the public (see Borg-Warner Protective Services
Corp. v. Superior Court (1999) 75 Cal.App.4th 1203, 1210-1211)) that has the resources
to compensate parties injured through any negligent provision of security services should
be held to the additional burden of vicarious responsibility for the security firm’s failings.

       We do not need to resolve the question, however. As proposed by plaintiffs,
instruction No. 10 simply states a general principle about nondelegability without
expressly stating that Eastland in fact owed this duty to plaintiffs, the nature of this duty,
the elements establishing a breach, and the resulting rule of vicarious liability. (Summers,
supra, 69 Cal.App.4th at pp. 1186-1187 [insufficient to instruct merely that nondelegable
duty applies to a private carrier, the breach of which subjects it to vicarious liability; must
expressly inform jury that defendant has this duty; see Judicial Council of Cal. Civ. Jury
Instns. (June 2010 rev.) CACI No. 3713 [expressly stating defendant at trial has
nondelegable duty, its source, and elements establishing breach].) Even if this was not
the basis for the trial court’s ruling, on appeal our review of the legal accuracy of
instructions is de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)

       Plaintiffs assert that the jurors could correlate instruction No. 10 with the
instructions on the direct negligence of Eastland. We do not agree. A lay juror cannot be
expected to discern the elements relevant to a theory of vicarious liability (a theory that
plaintiffs do not identify as covered in any other instruction) for a nondelegable duty
from the general negligence instructions. Plaintiffs also suggest the trial court had an
obligation to give their incomplete instruction. “Where, as in the case at bench, [a]
modification to the proffered instructions require[s] . . . major changes to cure [them,]


                                              10
such changes are best left to counsel submitting the instructions. It would not serve the
impartial role of the trial judge to [make] such major changes,” particularly if a pattern
instruction adequately states the applicable principles. (Wank v. Richman & Garrett
(1985) 165 Cal.App.3d 1103, 1114; accord, Hyatt v. Sierra Boat Co. (1978)
79 Cal.App.3d 325, 335 [court may properly reject defective instructions without making
modifications to them].) Finally, plaintiffs suggest trial counsel could have explained the
necessary legal principles in closing argument. The arguments of counsel cannot be a
substitute for a proper instruction from the trial court. (Carter v. Kentucky (1981)
450 U.S. 288, 304 [67 L.Ed.2d 241, 253].) As a result, the trial court was correct in
refusing to apply instruction No. 10 to defendant Eastland.
2. Food 4 Less.
       As noted, at trial plaintiffs asserted only the theory of a nondelegable duty on the
part of Food 4 Less to provide adequate lighting as a basis for instruction No. 10. In their
opening brief, plaintiffs asserted that Food 4 Less negligently undertook to assume
Eastland’s nondelegable duty to prevent unsafe conditions with respect to the lighting of
the parking lot, and thus instruction No. 10 applied. They invoke Restatement Second of
Torts, section 324A, comment d, pages 143 to 144 (the comment giving the example of
an agent who takes charge of a landowner’s building and whose negligent maintenance
causes injury to a third party) and Williams v. State of California (1983) 34 Cal.3d 18, 23
(discussing nature of rule of liability for negligently rendered aid that either increases the
risk of harm or induces reliance that results in harm (citing Rest.2d Torts, §§ 323, 324)).4
In their reply brief, plaintiffs change tacks yet again and discuss how the general duty of
due care (Civ. Code, § 1714) supports application of instruction No. 10.


4 Our state Supreme Court’s Delgado distinguished Restatement Second of Torts,
section 323 as involving negligent undertakings directly involving another person, while
section 324A involves negligent undertakings that injure third parties. (Delgado, supra,
36 Cal.4th at p. 249, fn. 28.)

                                              11
       Regarding plaintiffs’ original theory in the trial court, to the extent we assume
Food 4 Less could have its own duty to provide adequate lighting for the safety of others
on land outside of their leasehold because they had control of the lighting (Johnston v.
De La Guerra Properties, Inc. (1946) 28 Cal.2d 394, 401 [though tenant not ordinarily
liable for injuries incurred in areas outside leasehold, control of the lighting of unleased
areas demonstrates evidence of at least limited right of control and thus liability for
dangerous condition resulting from lack of adequate lighting]; cf. Low v. City of
Sacramento (1970) 7 Cal.App.3d 826, 832, 834 [control over maintenance of parking
strip in city street easement sufficient to impose liability for injury on county]), which
might be nondelegable because it is less onerous than the provision of security services,
instruction No. 10 has the same shortcomings with respect to Food 4 Less as we have
described above in connection with Eastland: Instruction No. 10 fails to include all of the
elements a jury must find to impose vicarious liability for a nondelegable duty. (See
p. 10, ante.) On this basis, the trial court’s ruling refusing the instruction was correct.

       Regarding negligent undertaking, plaintiffs cannot adopt a new legal theory on
appeal. (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872-873.) Even if we
were to entertain the argument, once again instruction No. 10 is inadequate. The scope of
the undertaking that a defendant assumes is a question of fact that a jury must resolve.
(Delgado, supra, 36 Cal.4th 224, 249-250 [noting that mere hiring of guard does not of
itself establish that there was an undertaking to protect third parties, nor does hiring guard
to protect interior of itself establish duty to protect those who are outside]; Artiglio v.
Corning Inc. (1998) 18 Cal.4th 604, 615 [while existence of duty a question of law,
nature and extent of undertaking out of which duty arises is question of fact]). Instruction
No. 10 does not require the jury to consider this issue (and plaintiffs do not identify any
other instructions that would embrace it). Nor does instruction No. 10 include any of the
other elements a jury must find to impose liability for a negligent undertaking. (Artiglio,



                                              12
at pp. 613-614 [services rendered are of a kind actor should recognize as for protection of
third parties; actions breached duty assumed; breach resulted in damages; and either act
of negligence increased risk of harm, or resulted in detrimental reliance causing harm, or
breached the assumed duty to the third person].) Accordingly, the decision to refuse the
instruction was proper even under this theory.5
                                   C. Instruction No. 11
       Plaintiffs concede that instruction No. 11 does not have any application to
Food 4 Less. As for Eastland, it points out in its brief that instruction No. 11 on its face
applies only in the context of liability for its negligent exercise of control over a
contractor, and does not address in any fashion the concept of vicarious liability for the
negligence of the contractor. Plaintiffs do not offer any rebuttal to this argument.
Because instruction No. 11 does not give any guidance on Eastland’s vicarious liability
for a nondelegable duty, the trial court correctly refused it.

           II. No Prejudice from Limitation on Evidence of Prior Incidents

       Given our disposition of this issue, we do not need to belabor the underlying
procedural background. At his deposition, plaintiffs’ expert had supplied an exhibit
containing dozens of purported previous criminal incidents in the mall parking lot,
identified only by date under the headings of different penal provisions. Before trial,
Eastland moved in limine for the trial court to decide which of these incidents could
properly be included in the expert’s testimony as a basis for his opinion that Eastland and
Food 4 Less had breached their duty to provide security and lighting. The court stated
this would be the subject of a foundational hearing (Evid. Code, § 402) before the expert



5 Already having been lenient with plaintiffs in connection with the new theory of
negligent undertaking, we will not further indulge them by considering their arguments
raised for the first time in their reply brief. (Sourcecorp, Inc. v. Shill (2012)
206 Cal.App.4th 1054, 1061, fn. 7.)


                                              13
testified. As its criterion, the court intended to screen the incidents for those reflecting
violence: “[I]t doesn’t have to be murder. It’s got to be violent”; “it may be such that
there is a duty because of the number of them, the severity of them because they are
violent”; “if we get significant enough of them . . . there is basically a duty . . . to be
reasonable in the way they secure and protect . . . .”

       At the ensuing foundational hearing, the expert brought a new exhibit of 30
incidents that included the underlying circumstances from police incident reports. He
admitted he took the incident reports on face value without further investigation (such as
whether it was a false report, as a police officer apparently testified at a deposition with
respect to one of the included serious incidents). At the conclusion of the hearing, the
court excluded “things . . . like the shoplifting, purse snatching, I don’t think that rises to
the level of what we’re talking about here, but there’s other things there that have
violence with [them].” It concluded that the expert should be allowed to offer his opinion
“but not use everything he put on this list.” After reviewing the police incident reports
for itself, the trial court identified 12 serious incidents that it would allow the expert to
include in his opinion at trial (which we related above).

       Plaintiffs argue at length that the trial court applied the wrong legal standards in
excluding the other 18 prior incidents (and consequently abused its discretion) because
those were relevant not just to establish a duty of care to provide security, but also to the
issue of breach of that duty. Their analysis of prejudice, however, is limited to the
assertion in a single sentence that “[h]ad the jurors heard evidence of the full extent to
which Eastland was plagued with crimes against tenants and patrons . . . , there is a
reasonable probability that they would have found Eastland negligent” (and a second
sentence reiterating this statement in different words).

       As defendant Eastland correctly responds, “Plaintiffs fail to explain how reference
to an additional 18 less violent and less relevant incidents . . . would have caused the jury


                                               14
to reach a different verdict. Because the expert was able to offer his opinion without
limitation based on the dozen incidents allowed by the court, there is no prejudice . . . .”
We agree. A dozen incidents are more than sufficient to support the expert’s opinion that
Eastland breached its duty of care to provide adequate security. Plaintiffs fail to explain
how their expert’s opinion, based on the most relevant and serious incidents, becomes
more persuasive with cumulative evidence of more minor incidents. Their generalized
claim of prejudice is insufficient to satisfy their burden on appeal. (See Paterno v. State
of California (1999) 74 Cal.App.4th 68, 106.) We thus find they have failed to establish
prejudice, and as a result we do not need to address the merits of their argument.

                III. No Prejudice from Exclusion of Evidence of Habit

       Again, given our disposition of this issue we do not need to belabor the underlying
procedural background. At the outset of trial, defendants sought to exclude the testimony
of decedent’s widow that her husband would never voluntarily go back inside the store
after locking up. The court tentatively agreed that unless she could satisfy the foundation
for habit evidence, it would not allow the testimony. More than two weeks later at a
foundational hearing in the midst of trial, plaintiffs presented a series of witnesses (other
family members) who offered anecdotal evidence of occasions on which they had been
with decedent after he had locked up and then refused either their requests or someone
else’s to reopen the store for various purposes.6 The trial court did not believe that this
was sufficient to establish that decedent would never reopen the store for a valid business
reason as opposed to the personal convenience of someone else. (It also noted in denying




6 Two of the proposed witnesses also intended to testify to decedent’s statements that he
would never go back in to the store (once pointing out a fistfight in the parking lot as the
reason for his habit). Counsel represented that the proposed witnesses would testify this
was also his habit at home.


                                             15
a motion for new trial that these few anecdotes were not probative of a habit in light of
the 2,000 times or so that decedent had gone through the process of locking up the store.)

       On the following day, plaintiffs offered three additional witnesses who had arrived
at the store just after closing, two of whom wanted to cash personal checks and one of
whom wanted to cash a check to make a payment on his account; in each instance,
decedent refused to unlock the door. The court excluded this evidence as well, in part
because plaintiffs had never disclosed these witnesses before trial, and in part because
two of the witnesses’ experiences again involved personal convenience.

       Evidence of habit, which is repeated instances of identical responses to a specific
situation, is admissible to prove that conduct on a particular occasion was consistent with
the habit. (Evid. Code, § 1105; 2 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 4th
ed. 2011) Evidence of Character, Habit, and Custom, §§ 35.61, 35.64, pp. 854.3, 854.4.)
There must be an adequate sample of uniform responses, although specific standards for
determining adequacy do not exist. (2 Jefferson, § 35.65, p. 854.5.)

       As illustrated in the 1982 edition, Jefferson noted the distinction between a daily
rider of a bus testifying that the driver “habitually” failed to observe a stop sign (which
establishes habit), as opposed to testimony of observations only on “many occasions”
(which is inadequate to establish a habit, though adequate to rebut a proffered habit).
(2 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 2d ed. 1982) Character, Habit, and
Custom, § 33.8, cf. illus. 1 & 2, pp. 1270-1271.) A trial court’s discretion is thus
exercised somewhere between the boundaries of evidence that establish a
“semiautomatic” response (the possibly extreme standard that appears in McCormick’s
evidence treatise, cited in Webb v. Van Noort (1966) 239 Cal.App.2d 472, 478) and nine
incidents with patients out of a total of 45,000 examinations (Bowen v. Ryan (2008)
163 Cal.App.4th 916, 926), which is far below any reasonable standard. In abbreviated
manner (with equally abbreviated responses from defendants), plaintiffs contend they


                                             16
satisfied these standards and therefore the trial court abused its discretion in excluding the
testimony, which “was directly relevant to causation.” Again, plaintiffs limit their
analysis of prejudice to one sentence: “There is more than a reasonable probability that
admitting the evidence of [decedent’s] steadfast habit would have resulted in a verdict for
the family.”

       In the first place, all parties in their analyses of this issue seem to overlook the
testimony we related above, in which plaintiffs’ expert asserted that those in the jewelry
industry customarily will not reopen a store after locking up, and the employee testified
that she had never seen decedent reopen the store after locking up. Thus, no one explains
why this testimony would not have provided a basis for plaintiffs to argue habit even in
the absence of the excluded witnesses.

       More importantly, as defendants correctly maintain, exclusion of evidence
relevant only to the issue of causation could not possibly be prejudicial, since the jury
never reached the issue after finding neither defendant was negligent. Plaintiffs’ sole
riposte is to request that we reach the merits of the issue for the guidance of the trial court
on retrial. As we are affirming the judgment, we do not need to offer any guidance. We
therefore reject the claim of prejudice without the need to reach the merits of this issue.




                                              17
                                     DISPOSITION

       The judgment is affirmed. Defendants Eastland and PAQ, Inc., are awarded their
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)




                                                        BUTZ             , J.



We concur:



      ROBIE                 , Acting P. J.



      HOCH                  , J.




                                             18
