Filed 10/16/14 Johnson v. Oakhurst Industries CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



AARON JOHNSON, a MINOR, etc.,

         Plaintiff and Respondent,                                       E056044

v.                                                                       (Super.Ct.No. RCVRS084985)

OAKHURST INDUSTRIES, INC.,                                               OPINION

      Defendant, Cross-complainant and
Appellant;

DEBRA JOHNSON,

      Plaintiff, Cross-defendant and
Respondent.



         APPEAL from the Superior Court of San Bernardino County. Ben T. Kayashima,

Judge. (Retired judge of the San Bernardino Super Ct. assigned by the Chief Justice

pursuant to art. VI, § 6 of the Cal. Const.) Reversed.

         Mardirossian & Associates, Inc., Garo Mardirossian, and Lawrence D. Marks, for

Plaintiffs and Respondents.




                                                             1
       Hayes, Scott, Bonino, Ellingson & McLay, Mark G. Bonino, Miya R. Peard,

Donald Ross Franson III; Osman & Associates and Richard Scott; Koeller, Nebeker,

Carlson & Haluck and Gary Hoffman for Defendant and Appellant.

       This is the second trial regarding an accident occurring on January 8, 2003 at the

transition road from the southbound Interstate 15 to the westbound Highway 210. In the

scope of his employment with defendant Oakhurst Industries, Inc. (Oakhurst), David

Avalos was driving an Oakhurst tractor-trailer on the transition road when he collided

with a Ford Explorer driven by Plaintiff Debra Johnson (Debra). Debra’s son, Plaintiff

Aaron Johnson, was in the passenger’s seat. The Ford rolled over several times and she

and Aaron sustained severe injuries. The sole issue of liability turned on whether Avalos

drifted into Debra’s lane or Debra veered into Avalos’s lane.

       In the first appeal, the jury found against the Johnsons. We upheld the grant of the

Johnsons’ motion for new trial based on juror and attorney misconduct. (Aaron Johnson

v. Oakhurst Industries, Inc. [September 21, 2010, E047807], nonpub. opinion (Op.).)

Thus, a second trial was conducted and the jury found Oakhurst liable under a theory of

negligence and Debra and Aaron were entitled to damages in a bifurcated proceeding.

       Oakhurst claims on appeal as follows:

       1.     Instruction to the jury on willful suppression of evidence (CACI 204) was

prejudicial and requires reversal of liability.

       2.     The trial court erred by making inconsistent rulings on the admission of the

responding officers’ opinions as to the cause of the accident.




                                                  2
       3.     The trial court erred by admitting a denial of a Request for Admissions

made by Avalos before the first trial.

       4.     Oakhurst is entitled to an offset of the award of damages to Debra based on

the settlement between her and Ford Motor Company.

       We conclude that instruction to the jury with CACI No. 204 was prejudicial. As

such, we reverse the liability finding.1

                                             I

                            PROCEDURAL BACKGROUND

       On January 6, 2005, the Johnsons filed their complaint for personal injury

damages against Avalos, Penske Truck Leasing Corp., Ryder Truck Rental, Inc., Ford

Motor Company, and Bridgestone/Firestone North American Tire, LLC. According to

the complaint, the accident occurred when Debra’s Ford collided with a tractor and

connected trailer (tractor-trailer) driven by Avalos. The complaint alleged negligence on

behalf of Avalos. The complaint also alleged product negligence, products liability, and

breach of warranty against Ford Motor Company. It additionally alleged product

negligence, strict products liability, and breach of warranty against Bridgestone/Firestone

North American Tire, LLC.

       The Johnsons settled with Ford Motor Company prior to trial for $250,000 and

Ford Motor Company was dismissed from the action. Penske Truck Leasing Corp.,



       1     Since we reverse liability, the damages award is also reversed. As such, we
need not address the issue of offset of damages.


                                             3
Ryder Truck Rental, Inc. and Bridgestone/Firestone were dismissed. Avalos was also

dismissed.

       The first trial was conducted and resulted in a defense verdict. The trial court

granted a motion for new trial on the grounds of juror misconduct and misconduct of

counsel. This court affirmed the trial court’s order granting a new trial. (Op.)

       Prior to the second trial, the Johnsons brought several motions in limine (MIL).

We will discuss the relevant motions in more detail, post.

       On September 30, 2011, the jury reached its verdict. The jury responded yes to

the question: “Was David Avalos, the employee of defendant, Oakhurst Industries, Inc.,

negligent?” As to Debra and Aaron, they also responded yes to the questions that

Avalos’s negligence was a “substantial factor in causing harm to Debra Johnson and

Aaron Johnson.” They found that Debra was not negligent.

       After a damages trial, Debra was awarded $554,248 and Aaron was awarded

$2,100,728. Oakhurst filed a timely appeal. Oakhurst filed its notice of appeal on April

2, 2012.

                                             II

                                 FACTUAL BACKGROUND

       A.     Plaintiff’s Case

              1.     The accident

       In 2003, Debra Johnson worked as a supervisor at a federal detention center in Los

Angeles. On the day of the accident, she picked up her son Aaron from school and was

driving to her father’s house in Los Angeles. Aaron stayed with Debra’s father while she


                                             4
worked. Debra recalled driving on the connecting transition to the 210 freeway when she

was hit by a tractor-trailer. She did not recall anything that happened after that. The

accident occurred around 3:00 p.m.

       Lloyd Vogel was transitioning from the southbound 15 onto the westbound 210.

He was in Lane 1. Vogel observed Debra’s Ford veer to the left off the road and roll over

in front of him. He did not see the Ford and tractor-trailer impact. He did not recall

seeing the tractor-trailer in the other lane. Lane 1 did not require a switch in lanes to

transition onto the 210 freeway.

       Avalos was hired by Oakhurst in 1994. His regular route in 2003 was from

Commerce, California (where Oakhurst was headquartered) to Las Vegas, Nevada, and

back. In 2008, Avalos denied a request for admission that he was using his cellular

telephone at the time of the accident. At trial, Avalos admitted that he was on his cellular

telephone at the time of the accident. He believed it was in violation of company policy.

He was using a wireless headset.

       CHP Officer Christopher Steven Forbes estimated that he investigated between 10

and 20 traffic collisions each month. He had investigated over 100 accidents involving

trucks and passenger vehicles. He responded to the scene of the accident. He wrote the

Traffic Collision Report (TCR).

       Avalos told Officer Forbes that there were no passengers in his truck.2 Avalos

denied to Officer Forbes that he was using a cellular telephone at the time of the accident.


       2      Avalos admitted at trial that Jose Magallenes was in the sleeping berth.


                                              5
Avalos told Officer Forbes the accident occurred while he was driving southbound on the

I-15 freeway transitioning to the 210 freeway west. He was in Lane 2. Debra was in

Lane 1 and suddenly drifted into Lane 2. Her car hit the side of the trailer. Debra went

back into Lane 1 but was out of control. Officer Forbes recalled that Avalos told him that

Debra went in front of him into Lane 2 and then back into Lane 1. Debra’s car then

started to overturn off the side of the roadway. Avalos immediately pulled over. A video

simulation of the accident was shown to the jury.

      After the accident, Avalos went to the Johnsons’ car. Debra was badly hurt. She

had a gouge in her head. She was making gurgling sounds. Officer Forbes

acknowledged there was no physical evidence at the scene of an impact in Lane 2. Some

of the wheels on Debra’s Ford were knocked off during the rollover. The area where the

accident occurred and where the tire marks were located was a straight highway.

      Officer Forbes did not recall Debra saying that she was running late.

      CHP Officer Jeff Briggs took measurements of the skid marks. All of the tire

marks were in Lane 1. Debra had been partially scalped and there was a large amount of

blood coming from her wound when he arrived. A helicopter came to the scene to

transport Aaron. All the tire skid marks came from the Ford. Lane 1 of the transition

road merged into Lane 2.

      Debra’s Ford was red. Officer Forbes did not recall any red paint transferred to

the trailer. Officer Forbes never saw Magallenes. There was no physical evidence that

was contrary to how Avalos stated the accident occurred.




                                            6
       Officer Briggs recalled that Debra mentioned she was now going to be late for

work. Officer Briggs found no evidence on the roadway that he was able to rely upon to

determine the area of impact.

       CHP Officer Chad Kaplan had extensive experience in accident investigation. He

inspected the Ford Explorer after the accident. He completed a full inspection of the

mechanical workings on the Ford. The wheels on the passenger side of the vehicle had

come off during the rollover. The brakes did not fail. There were no mechanical issues

that would have caused an accident. 3

       Kaplan determined that the Ford was out of alignment. However, Debra should

have been able to keep the Ford straight. If a person took their hands off of the steering

wheel while it was out of alignment, the vehicle could veer to the right or left, not

necessarily to the right. Three of the tires were worn enough that they should be

replaced.

       Mark Rafferty had been employed by Oakhurst for 10 years as a distribution

transportation manager. In 2003, Avalos was subject to certain rules and regulations

provided by the company. Rafferty had provided the fleet safety manual in response to a

request by the Johnsons that it give all company manuals preceding the accident. In

2007, Oakhurst provided the current safety manual to the Johnsons that was promulgated



       3     Oakhurst objected to this question and answer but the objection was
overruled. The trial court explained it was different from the other opinions and
conclusions because it dealt with the components of the vehicle. It did not amount to
testimony that Debra was at fault which was the other opinions.


                                              7
on September 11, 2006. (Exhibit 100.) Rafferty agreed it was not a good idea to talk on

a cellular telephone while driving a tractor-trailer.

       Rafferty indicated that a truck driver was required to report to his or her supervisor

any accident causing property damage or personal injury. Rafferty provided that an

accident report kit must be prepared and the drivers are subject to drug testing. Exhibit

100, rule 26 of the 2006 manual, also stated that a driver was not to use a cellular

telephone while driving the tractor or any company vehicle.

       Rafferty stated an accident report kit included a form, disposable camera and

pencil. Avalos did not complete a kit for this accident. Avalos was required to submit to

alcohol and drug tests within 32 hours of an accident; he did not. Preserving the details

of an accident was important for Oakhurst.

       The tractor-trailer in the accident was a diesel truck. Rafferty was not aware if the

engine had a data recording device or “black box.” The tractor-trailer did have a Teletrac

system which was used to keep track of the location of trucks. Teletrac data was kept by

another company which would have purged the data after six months. Rafferty never

thought to preserve the Teletrac data. Teletrac would not provide which lane the truck

was in. The data was not purged by Oakhurst. Rafferty indicated that Oakhurst leased all

of its trucks from Ryder and Penske.

       Avalos did not put the accident on his driver’s log which he must complete for

each trip. Avalos signed a fleet safety manual in 2000. Avalos was not an employee of

Oakhurst in 2006. No new safety manual was in place between 2000 and 2006. The




                                               8
2000 rules provided nothing about cellular telephone use. The 2000 rules also did not

require an accident report kit be completed or drug and alcohol testing.

              2.     Accident reconstruction expert testimony

       Steven Bellino was an expert in traffic accident reconstruction. He had

reconstructed over 4,000 accidents. He had qualified as an expert in court over 200

times. Bellino was hired by the Johnsons to reconstruct the accident. Bellino reviewed

the TCR including all of the tire marks and skid marks.

       He created a layout of the marks and lanes based on the TCR. He also reviewed

Avalos’s deposition testimony, Avalos’s driving log, Avalos’s cellular telephone records,

and the 2006 fleet safety manual which provided for drug and alcohol testing, accident

reports and prohibited cellular telephone use. Bellino looked at the photographs from the

scene taken by CHP officers. He also looked at Magallenes’s testimony and the defense

experts’ testimony from the first trial. He looked at the weight of each vehicle.

       Bellino concluded that it was more probable that the accident occurred when

Avalos made an unsafe lane change from Lane 2 to Lane 1 and struck the Ford Explorer.

The Ford Explorer was forced out of control and Debra tried to regain control. She was

unable to gain control and the vehicle rolled off the roadway. Bellino relied on the

contact damage. Based on the damage, the tractor-trailer was traveling faster (60 miles

per hour) than the Ford (50 miles per hour) and was passing the Ford when the collision

occurred. The Ford was struck at the right side mirror.

       It was clear that the Ford lifted off to the side which would have only been caused

by the heavy weight of the tractor-trailer pushing into the Ford. Bellino concluded that


                                             9
Avalos’s use of a cellular telephone would have caused him to have divided attention and

was a contributing factor to the accident.

       Computer animation of the accident was presented to the jury and was based on

Bellino’s opinion as to how the accident occurred. It showed the tractor-trailer drift into

the Ford’s lane. Debra’s car was moved to the left then she corrected to the right, and

then she tried to correct to the left to avoid the tractor-trailer and the rollover began.

       There was no physical evidence on the roadway that Avalos had applied his brakes

forcefully. Avalos’s phone records show he was on his cellular telephone during times

that he put on his log that he was in the sleeping berth.

       The factors Bellino considered in determining that Avalos hit Debra was that there

was only physical evidence in Lane 1, Lane 2 ended, Avalos was on his cellular phone

which distracted him, Avalos was late, Avalos had little room in his lane to negotiate,

Avalos did not complete an accident report kit, Avalos may have been alone in the

tractor-trailer, the electronic data from the truck had been erased, and Avalos refused a

drug test.

       Bellino discounted Avalos’s version of the events. Debra’s car would have left

marks in Lane 2 if it occurred the way he stated. There was no physical evidence

supporting Avalos’s statement. Also Bellino said the defense experts only relied upon

Avalos’s statements and improper calculations. The maneuvers that Debra would have

had to make in their simulations were impossible.

       Bellino explained that a black box from a diesel engine would record the distance,

speed and time stopped. Bellino admitted that there was no physical evidence in any lane


                                              10
at the time of impact. His opinion that Avalos was going faster was based on the scrapes

on the tractor-trailer which he could evaluate based on his training and experience. The

rise of the Ford was evidenced by the scrapes on the tractor-trailer. It was the first time at

trial that he made this statement. Prior to trial he stated there was no direct or

circumstantial evidence supporting the impact.

       Avalos would have approached behind the Ford and then drifted into the lane.

Bellino did not believe the alignment or tires on the Ford contributed to the accident.

       B.     Defense Case Regarding Liability

       Debra did not recall any problems with her brakes prior to the accident. Debra

previously testified that she was having trouble with the brakes on the Ford. Since Debra

bought the Ford in 2000, she had replaced the tires three times leading up to the accident.

Debra admitted that she first said the truck that hit her was yellow but the Oakhurst

tractor-trailer was white.

       Debra did not recall telling officers at the scene that she remembered nothing

about the accident. She recalled that she felt a jolt when the tractor-trailer hit her Ford.

Debra had a recent inspection of the Ford prior to the accident and everything was

working normally.

       Tim Long, an expert in accident reconstruction, was hired by Oakhurst to create a

3-D model of the scene with the vehicles and the physical evidence. In creating his

model and animation, he looked at the photographs, the TCR and other animations that

had been created by both parties. Long had recently visited the scene and took 3-D

pictures. He was able to recreate where the tire marks were located. Long put the Ford


                                              11
Explorer in the model of the scene to match how it would move through the tire marks.

Long believed that the model created by the Johnsons had the first tire mark in the wrong

place.

         Edward Phillips testified as the reconstruction expert for Oakhurst. He was hired

in 2005 to look at the case. Phillips had reviewed the work performed by the Johnsons’

experts and had inspected the tractor-trailer and the Ford.

         The impact occurred somewhere west of the first tire mark. There was no physical

evidence of impact. The merge sign for Lane 2 into Lane 1 was about 470 feet from the

point of impact. The first tire mark was made by the left rear tire of the Ford Explorer. It

was placed while Debra was trying to correct the Ford back to the right. The tire mark

allowed Phillips to determine the speed of the Ford and where it came from. Phillips

concluded that the impact occurred in Lane 2. The first tire mark was inconsistent with

the theory that the tractor-trailer moved into Lane 1 and hit the Ford. The marks would

have been left further to the side of Lane 1 if she was impacted while still in Lane 1. The

impact occurred between one and five feet into Lane 2.

         As the Ford moved back from the first tire mark, it would be heading back toward

the tractor-trailer. The second and third tire marks were made by the right tires of the

Ford. The animation of the reconstruction (prepared by Long) was played for the jury.

All of the tire marks were left by the Ford. At the time of impact, there was not enough

force on the tires to leave any mark.

         The point of impact on the Ford was the passenger side view mirror. Phillips

discounted Bellino’s theory that the Ford lifted up upon impact by the tractor-trailer as


                                             12
the 3,900 pound Ford could not be lifted up by the mirror. The contact was brief.

Phillips opined that if the tractor-trailer had moved into the Ford’s lane, there would have

been more contact between the vehicles on the sides because the tractor-trailer could not

change its location on the roadway as quickly as the Ford.

       The Teletrac system on the tractor-trailer could not provide the point of impact.

The black box would not have shown positions of the vehicles at the time of the collision.

       Phillips believed Avalos’s description of the accident because it was consistent

with the ground evidence. Phillips had not seen any driving log books prepared by

Magallenes. When Phillips reached his opinion in 2008, he did not know Avalos was on

his phone at the time of the accident. Phillips had asked about any data recording system

on the tractor-trailer when he was hired, but there was no information available on the

subject. It was Phillips’s opinion that the information from the data recording would not

contradict the ground evidence. Phillips said the physical evidence did not support that

the Ford went into Lane 2 in front of the tractor-trailer.

       Stephen Werner was a mechanical engineer. He worked exclusively analyzing

various types of accidents. Werner was hired by Oakhurst to review Officer Kaplan’s

evaluation of the Ford and the alignment. Werner was asked to determine whether the

measurements of tire tread and determination that the vehicle was out of alignment would

have caused the Ford to drift in a particular direction. The tire wear showed that the Ford

was not properly aligned on the front end. Werner concluded that the Ford would drift to

the right if the steering wheel was not held to make the vehicle go straight. He could not

conclude it caused the accident.


                                              13
       Avalos was recalled. He started driving for Oakhurst in 1994. The tractor-trailer

he was driving was leased. He had been driving the route from Commerce to Las Vegas

for seven years.

       Avalos left Commerce at 6:00 p.m. on January 7. He and Magallenes switched off

driving all night. Avalos used a headset with his phone while driving. Magallenes used

his cellular telephone during the trip. Avalos called Oakhurst twice after the accident.

       Avalos was driving in Lane 2. Avalos called his wife prior to entering the

transition road and was on a headset. He first saw the Ford Explorer in his left side

mirror. It drifted into his lane. The Ford then hit the trailer. The Ford hit the trailer on

the right front side and the front mirror. Avalos slowed down. He lost sight of the Ford

but then saw it again coming toward him in the driver’s side mirror. Avalos applied the

brakes. He then observed the Ford roll over twice. Avalos pulled over to the shoulder

and stopped. Avalos never told Officer Forbes that the Ford came into his lane in front of

him.

       Avalos had no drugs or alcohol in his system. Avalos never refused to take a drug

or alcohol test of any type after the accident. Avalos tried to call Oakhurst several times

while at the accident scene but was unable to get through. Avalos reported the accident

to his supervisor.

       Avalos signed the fleet safety rules on July 14, 2000. These rules said nothing

about cellular telephone use. He had not signed any other safety rules.




                                              14
       Jose Magallenes was still employed by Oakhurst. Magallenes oftentimes

borrowed Avalos’s cellular telephone during the trips.4 They switched off driving and

sleeping. Magallenes was sleeping when the accident happened. Magallenes felt the

truck stop. He asked Avalos why they had stopped and he told him there had been an

accident. Magallenes kept copies of his driving logs for one month and then threw them

away in the normal course of habit. He gave originals to Oakhurst. Magallenes stated at

one point he had not talked to any officers but later stated he showed the log book to

Officer Forbes. Avalos told Magallenes that the Ford came into his lane. Prior to trial,

Magallenes had stated, “He said the SUV cut in front of him and that he hit it and then

the SUV lost control and he hit it a second time.” However, another time at a deposition,

Magallenes said Avalos told him the Ford came into his lane but he was not sure if it was

in front or the middle.

                                            III

              WILLFUL SUPPRESSION INSTRUCTION (CACI No. 204)

       Oakhurst first contends that the jury was improperly instructed with CACI 204

involving willful suppression of evidence as to four items: the black box device on the

tractor-trailer; an accident report prepared by Avalos; driving logs prepared by the co-

driver Magallenes; and a drug and alcohol test taken by Avalos after the accident.




       4      Magallenes had testified previously he did not use Avalos’s phone that day.


                                            15
       A.     Additional Factual Background

       Here, after the trial in this matter, the jury was instructed with CACI No. 203 as

follows: “You may consider the ability of each party to provide evidence. If a party

provided weaker evidence when it could have provided stronger evidence, you may

distrust the weaker evidence.” It also was instructed, without limitation, with CACI 204

as follows: “You may consider whether one party intentionally concealed or destroyed

evidence. If you decide that a party did so, you may decide that the evidence would have

been unfavorable to that party.” The relevant facts pertaining to these instructions are as

follows:

              1.     MIL – black box

       Oakhurst filed its MIL 6 which addressed the exclusion of any reference to a data

recorder or “black box” on the tractor-trailer. Oakhurst contended that there was

conflicting evidence as to whether or not a black box recording device was on the tractor-

trailer at the time of the accident. Moreover, whether the device was present or absent,

neither party knew what data it recorded. Further, none of the parties alleged that it

recorded what lane the impact occurred, which was the source of liability in the instant

case. Oakhurst contended that at the time of the accident, the CHP officers, the Johnsons

and Oakhurst did not know if the black box existed.

       The Johnsons filed a reply. They claimed that Oakhurst had failed to preserve the

black boxes. As evidence, they presented discovery conducted in 2007. In 2007, an

interrogatory was sent by the Johnsons to Oakhurst asking for, “Any and all records

generated through the use of the QUALCOMM OMNITRAX system with which the


                                            16
truck may or may not have been equipped at the time of the INCIDENT . . .” In

response, Oakhurst stated, “Responding party is not aware [i]f such a system was

equipped on the subject vehicle, therefore, is unable to comply with this request.” The

Johnsons also provided the deposition testimony of Phillips. In his deposition, he was

asked, “Describe the onboard data collection system this vehicle had, first of all again. Is

this the Qualcomm that you are talking about?” Phillips responded, “No. Well, yes and

no.” Phillips recounted that, based on his research, that this type of vehicle had a Detroit

diesel engine with a recording device, e.g. the black box. It would record hard braking.

When asked if he reviewed the data from the tractor-trailer, he stated, “Well, the short

answer is no. But I wasn’t involved until two years later, and nobody apparently

understood that it had this capability, at least to my knowledge.” Phillips had asked prior

counsel about a black box and no one was aware of what Phillips was talking about.

Further, the “trucking” company stated that the tractor-trailer also had a Teletrac system.

In response to discovery, Oakhurst stated, “Responding party believes that at the time of

the incident the recording system that was in use and still in use is Teletrac and the

requested information had been purged from the system six (6) months after the

incident.” In addition, there was a request for, “Any all records generated by on-board

recording devices with which the truck was equipped at the time of the INCIDENT . . . “

       Oakhurst filed a reply. Oakhurst responded it did not have the black box data in

its control or custody. Further, the new expert hired by the Johnsons, Bellino, did not

have any information that the tractor-trailer in question had the black box. Further, they

argued that instruction pursuant to CACI No. 204 was improper because there was no


                                             17
evidence that Oakhurst intentionally withheld evidence as there was no definitive

evidence a black box existed on the tractor-trailer or was destroyed.

       On September 12, 2011, the trial court heard argument on Oakhurst’s MIL 6. The

trial court inquired of the black box that was not part of the first trial. Oakhurst

represented that it rented the truck from Penske and Ryder. The trial court understood

from other cases that the black boxes could tell speed and braking. The Johnsons advised

the trial court that Oakhurst admitted through its expert (Phillips) that there were two

recording devices on the tractor-trailer. Oakhurst denied the expert ever saw the tractor-

trailer or knew about the devices. The trial court held off ruling on the black box until

Phillips testified. The Johnsons also offered that they would present testimony through

their expert Bellino that the black box was purged by Oakhurst.

       Later, the Johnsons mentioned that based on the response to an interrogatory,

Oakhurst agreed that there was a black box and it had been purged. Oakhurst argued it

was Teletrac that was not a black box; Teletrac only was a tracking device for drivers.

The discovery responses only referred to the Teletrac and had nothing to do with a black

box or any other onboard device. Phillips did not inspect the tractor-trailer involved to

see if there was a black box that tracked speed or anything else; he could not know. The

Johnsons argued that Oakhurst lied to the expert; the black box existed and was purged.

The trial court stated it was going to conduct an Evidence Code section 402 hearing on

the matter of the black boxes and decide if it should be admitted. No such hearing was

conducted.




                                              18
       Rafferty testified he was not aware of a black box on the involved tractor-trailer.

He also testified that Teletrac, which was located in Orange County, destroyed any data

that would have been on their system after six months. Rafferty explained that the

Teletrac system only recorded where the vehicle was parked and its location. Phillips

testified as provided, ante, that a black box would have recorded speed and braking.

Bellino testified he was unaware of any black box on the tractor-trailer and it would not

provide the point of impact.

       At the time the parties discussed the instructions, Oakhurst argued that there had

been no willful suppression of the black boxes or anything else in the case. The trial

court responded, “Listen to me very carefully. I just read that instruction entirely so that

you can listen to it. If you decide that a party did so. In other words, it’s a jury question

then you treat it in a certain way. If they decide no, then they don’t apply anything to it.”

Oakhurst’s counsel responded that he was concerned about the part of the instruction that

if they did find there was willful suppression, “you may decide that the evidence would

have been unfavorable to that party.”

       Oakhurst complained that the issue was where the collision occurred. The black

box would not have given that information. The trial court interrupted and stated it

would have given the speed. Oakhurst’s counsel stated that there was only a five mile

per hour disparity on the vehicles. The trial court responded, “That’s what they say. I

don’t know the answer to it. The thing would have said much more than that, I don’t

know that. I’m going [to] give it over your objections.”




                                             19
         During opening argument, the Johnsons argued that the tractor-trailer had two data

recording devices that were purged. They argued that one of the devices recorded speed

and braking. The Johnsons argued, “All that information was captured by the electronic

device, the one in the engine and the one in the cab. Both those were purged by

Oakhurst. They were erased. Both of the computer brains were erased.”

         During closing argument, the Johnsons raised that Oakhurst failed to preserve the

data recorders. Oakhurst should have known based on the severity of the accident that

they should have saved the evidence. The Johnsons argued, “If it helps you, you would

preserve it. If it doesn’t, you would purge it is what I suggest occurred here. And they

did exactly that. They didn’t keep the accident report on the investigation. They didn’t

keep the data from the computer . . . .”

         Oakhurst responded by asking the jury to focus on the accident itself and ignore

any of the arguments about anything else that the Johnsons were trying to make to

distract them from the real issues in the case.

         The Johnson’s rebuttal included an argument that Oakhurst did not save their

driving logs or data recorders because the evidence would not help them. The Johnsons

argued, “[t]hey don’t have it because the evidence would have been unfavorable to

them.”




                                             20
              2. Drug and alcohol tests and accident report kit

       Oakhurst’s MIL 5 sought to exclude evidence that they failed to conduct their own

investigation of the accident. In response, the Johnsons alleged that Avalos had failed to

prepare an accident report kit in violation of its own policies regarding safety and

accident investigation. The Johnsons attached Avalos’s testimony from the first trial. In

that testimony, Avalos was shown the fleet safety manual that was promulgated in 2006.

Avalos read from the manual that he was to submit an accident report kit. Avalos did not

remember if he completed one. An objection was made that the manual was from 2006,

when Avalos was no longer employed at Oakhurst, but it was overruled. The Johnsons

also presented discovery responses that they asked Oakhurst for all safety manuals and

they were given the 2006 version. Avalos’s personnel file was also turned over.

       Oakhurst responded that whether Avalos completed an accident report kit or not

was irrelevant to causation. Further, the best evidence was the CHP investigation.

Oakhurst later argued that the 2006 policies and procedures were not relevant to

causation.

       In Oakhurst’s MIL 9, they sought to exclude any mention of a lack of drug and

alcohol testing of Avalos. Avalos was not suspected at the accident scene to be under the

influence of drugs or alcohol. Any mention that he did not take a drug or alcohol test

would be prejudicial. The Johnsons did not file a written reply.

       Prior to trial, the parties discussed the fleet safety manuals. The trial court noted

that part of the handbook was that employees were not to use their cellular telephones

while they were driving. Avalos lied and said he was not on his phone.


                                             21
       Oakhurst argued the handbook was written in 2006 and the accident was in 2003.

The Johnsons responded it was the only manual they had been given in discovery. The

trial court felt the 2006 manual was admissible because Avalos had previously testified

he broke rules in the manual and no other manual had been produced.

       The trial court later revisited the issue. Oakhurst’s counsel represented that in

2007, during discovery, they produced the two-page safety manual that was effective in

2000 that would have been in place when the accident occurred in 2003. In the 2000

manual, there was no mention of cellular telephone use. Avalos signed the 2000 version.

       The Johnsons argued that Oakhurst had represented that the manual from 2006

was the one in effect during the first trial. Avalos agreed he violated the manual. The

trial court allowed the 2000 manual to be admitted into evidence and Oakhurst could

argue it was applicable at the time of the accident.

       The 2000 manual was admitted during Rafferty’s testimony. According to the

two-page safety manual in effect in 2000, there was no requirement of a drug or alcohol

test after an accident or to complete an accident report kit.

       The Johnsons argued during opening argument that Avalos had refused to take a

drug and alcohol test and Avalos did not complete an accident report kit.

       During argument, the Johnsons argued that Avalos was fatigued and on a long trip.

They argued that driving while talking on a cellular telephone was a careless act and

Avalos had lied about using the phone. He was on the phone while he was supposed to

be sleeping. They also argued he violated the fleet safety manual by using his phone, by

failing to take a drug and alcohol test and by failing to prepare an accident report kit.


                                             22
They later again argued that Oakhurst suppressed the accident report and failed to

preserve the black boxes.

       The Johnsons argued, “Preserve your record. If it helps you, you would preserve

it. If it doesn’t, you would purge it is what I suggest occurred here. And they did exactly

that. They didn’t keep the accident report on the investigation. They didn’t keep the data

from the computer and the drug and alcohol test. Maybe they did do exactly what their

company rules say, 32 hours later do a drug test. And maybe those drug tests weren’t so

helpful to them and that’s why they are not here for us to see. That’s something for you

to consider.” The Johnsons also argued, “So when you think about this willful

suppression, please consider those facts that they had the ability to give us the drug tests,

the accident report kit, Magallenes’s logs, but they refused. They didn’t. They just

didn’t. An important thing is you may very-well conclude that they didn’t because it was

unfavorable to them, and I think that’s how the evidence is pointing at this juncture.”

              3.     Magallenes’s log

       The evidence regarding driving logs prepared by Magallenes was scarce. Rafferty

testified that Avalos kept a driving log and that it was kept in the employment records.

Avalos testified that Magallenes would have kept his own driving log. Magallenes

testified he kept a logbook of his driving, that he kept it for a month and then threw it

away in accordance with his normal practice. He showed them to a CHP officer at the

scene. Magallenes stated he gave a copy of the driving logs to Oakhurst and he had no

idea how long they kept them.




                                             23
       The Johnsons argued during closing that Oakhurst should have produced the

Magallenes’s logs. Further, as stated above, they argued that the failure to do so was

unfavorable to them.

              4.       Jury deliberations

       During deliberations, the jury sent out a note that they wanted to know the time

limit for deliberations if they were “stuck.” The jury was called into the courtroom and

the foreperson indicated the split of the vote was 8 to 4. They were advised they should

keep deliberating. They retired for deliberations and then reached a verdict. The final

verdict was a 10 to 2 vote.

              5.       Motion for new trial

       Oakhurst filed a motion for new trial as to the liability phase of the trial. Oakhurst

first raised that the trial court erroneously instructed the jury with CACI 204 on willful

suppression of evidence. First, it raised the issue of the “black boxes” and that there was

no evidence they even existed on the tractor-trailer or what they recorded. The only

evidence was of Teletrac on the vehicle which would not have provided a specific

location in the lane. Second, the accident report kit would not have been helpful as there

was no evidence that Avalos would have provided more than what the numerous CHP

officers at the scene provided. Third, the lack of an alcohol or drug test issue was raised.

There was no suspicion that Avalos was under the influence. Moreover, no test was

suppressed. Finally, there was no evidence in the case about the driving logs of

Magallenes. There was no evidence they existed and no evidence how they would help




                                              24
in deciding liability. There was no evidence that Oakhurst willfully suppressed these

items.

          Oakhurst argued it was prejudicial because the Johnsons argued to the jury that the

items had been kept from the jury because they were harmful to Oakhurst. Oakhurst

provided juror declarations that the instruction caused a “shift” in support for four jurors.

The declarations only showed observable facts and not the thought processes of the

jurors.

          According to the declarations, the initial vote was eight jurors favored Oakhurst

and four jurors favored the Johnsons. One juror, Huerta, had the presiding juror read

CACI 204 to the jury. After this instruction was given, another poll was taken and three

jurors favored Oakhurst and nine found in favor of the Johnsons.

          The Johnsons filed opposition to Oakhurst’s motion for new trial. The Johnsons

argued that Oakhurst had not shown a miscarriage of justice had occurred. They argued

that Avalos was aware he had been in a serious accident. Written policies of Oakhurst

mandated that he prepare an accident report and take a drug and alcohol test. There were

no driving records for Magellenes and no black boxes. Since they were mandated by

Oakhurst’s own policies, they would have produced evidence relevant to the liability of

Oakhurst.

          Oakhurst filed a reply. The Johnsons could not provide juror declarations to

contradict Oakhurst’s declarations. Further, there was no evidence of willful suppression

of evidence. No evidence the items would have an impact on the case.




                                               25
       The matter was heard on March 1, 2012. The trial court first went over the issues

that were being raised. As for the juror declarations, it noted that it was going to exclude

them pursuant to Evidence Code section 1150.5 The trial court stated, “[w]hether I did or

did not, even if I should consider it, I come up with the same result because it’s based

upon the idea that I made a legal decision that was incorrect, i.e., to give CACI

instruction 204, i.e. willful suppression of the evidence. Since I don’t believe that that

was a wrong legal type of maneuver on this Court’s part, I just don’t see why I should,

even if I should not exclude it, this Court consider it. It doesn’t make any difference as

far as I’m concerned. But legally speaking, I made a ruling that 1150 does apply.” The

trial court tentatively stated it was going to deny the motion for new trial.

       Oakhurst’s counsel disagreed that the declarations went to the thought processes

of the jurors. Oakhurst argued there was no evidence that three of the items said to be

willfully suppressed — the black boxes, accident report kit, and drug and alcohol test —

even existed. The instruction, according to Oakhurst, allowed the Johnsons to “substitute

scandalous speculation that was connected to nothing in the place of evidence.” Oakhurst

argued CACI 203 was the correct instruction. Oakhurst argued that it was a very close

case on liability and this had an impact on the verdict.


       5       Evidence Code section 1150 provides as follows: “(a) Upon an inquiry as
to the validity of the verdict, any otherwise admissible evidence may be received as to
statements made, or conduct, conditions, or events occurring, either within or without the
jury room, of such a character as is likely to have influenced the verdict improperly. No
evidence is admissible to show the effect of such statement, conduct, condition, or event
upon a juror either in influencing him to assent to or dissent from the verdict or
concerning the mental processes by which it was determined.”


                                             26
       On March 6, 2012, the notice of ruling denying the motion for new trial was

entered.

       B.     Standard of Review

       We apply the de novo standard of review to this claim. (See Sander/Moses

Productions, Inc. v. NBC Studios, Inc. (2006) 142 Cal.App.4th 1086, 1094-1095

[“Challenges to jury instructions are subject to a de novo standard of review”].)

       C.     Evidence of Actual Suppression

       “‘[A] party is entitled to have the jury instructed on his theory of the case, if it is

reasonable and finds support in the pleadings and evidence or any inference which may

properly be drawn from the evidence.’ [Citation.]” (Moore v. Preventive Medicine

Medical Group, Inc. (1986) 178 Cal.App.3d 728, 744.)

       Evidence Code section 413 provides that, “[i]n determining what inferences to

draw from the evidence or facts in the case against a party, the trier of fact may consider,

among other things, the party’s . . . wilful [sic] suppression of evidence relating thereto. .

.” (Shapiro v. Equitable Life Assurance Soc. (1946) 76 Cal.App.2d 75, 94, italics

omitted.) The rule expressed in Evidence Code section 413 “‘is predicated on common

sense, and public policy. The purpose of a trial is to arrive at the true facts. A trial is not

a game where one counsel safely may sit back and refuse to produce evidence where in

the nature of things his client is the only source from which that evidence may be

secured. A defendant is not under a duty to produce testimony adverse to himself, but if

he fails to produce evidence that would naturally have been produced he must take the

risk that the trier of fact will infer, and properly so, that the evidence, had it been


                                               27
produced, would have been adverse.’ [Citation.]” (Williamson v. Superior Court (1978)

21 Cal.3d 829, 835, fn. 2, italics omitted.) CACI No. 204 is derived from Evidence Code

section 413.

       “The substantial evidence test applies to jury instructions as well as judgment

[citation], and it is prejudicial error to instruct the jury on wilful [sic] suppression of

evidence when there is no evidence to support the instruction.” [Citation.]” (Bihun v.

AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 992 (Bihun), disapproved of

on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644.)

       In Bihun, an employee sued her former employer for damages arising from sexual

harassment, after she was subjected to unwelcome sexual advances by one of the

employer’s senior officials. (Id. at pp. 985-986.) On appeal, the employer claimed that

the trial court erred by instructing the jury on willful suppression of evidence after the

employer’s attorney failed to admit in a request for production of documents that the

senior official’s personnel file could not be located. (Id. at pp. 991-992.) The court first

noted that “a wilful [sic] suppression instruction does not require direct evidence of

fraud.” (Id. at p. 992.) It also noted, “[i]n our case the defendant not only was unable to

produce records it clearly could anticipate would be requested after it was sued, when

those records were requested it covered up the fact the records had been lost or destroyed

and did not reveal this fact until forced to do so in the middle of trial.” (Id. at pp. 993-

994.) The court found evidence supported the willful suppression of evidence including

that although the senior official’s employment file could not be found, the employee’s

file could be found; the defendant covered up the loss of the file; defendant’s own rules


                                               28
required that the personnel file be maintained if a matter is in litigation; and “it was

reasonably probable” performance evaluations and other documents or the employee’s

complaints of sexual harassment would have been in the file. (Id. at p. 994.)

       In Cedars–Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, the court

held that there is no tort remedy for the intentional destruction of evidence by a litigating

party. (Id. at p. 17.) Cedars–Sinai expressed a preference for remedying litigation-

related misconduct by imposing sanctions in the underlying lawsuit rather than by

creating a tort remedy. (Id. at pp. 8-9.)

       Cedars–Sinai also stated that other, nontort remedies available for intentional

spoliation, including particularly the evidentiary inference provided by Evidence Code

section 413 and discovery sanctions under former section 2023, were sufficient to deter

intentional spoliation and protect the spoliation victim. (Cedars–Sinai, supra, at pp. 11-

13.) Cedars–Sinai also stated that uncertainty as to what the spoliated evidence would

have shown created a risk that the spoliator could be found liable for damages even if the

spoliated evidence would not have changed the outcome of the underlying litigation. (Id.

at p. 15.) Cedars–Sinai also expressed concern about the cost of litigating meritless

spoliation claims where evidence was destroyed, not for the purpose of making it

unavailable in litigation, but innocently in the ordinary course of business. (Id. at pp. 15-

16.)

       A later case addressing Cedars-Sinai stated, “Moreover, we believe that the

concern expressed in Cedars–Sinai, supra, 18 Cal.4th at pages 15-16, [], about meritless

spoliation claims where the evidence was destroyed innocently in the ordinary course of


                                              29
business is an appropriate concern in this context as well. A party moving for discovery

sanctions based on the intentional destruction of evidence could argue that the mere fact

that the evidence no longer exists supports an inference of intentional spoliation. Rather

than decide the facts with respect to the intentional destruction of evidence and impose a

nonmonetary sanction on a pretrial motion in circumstances not contemplated by the

discovery statutes, we believe that in most cases of purported spoliation the facts should

be decided and any appropriate inference should be made by the trier of fact after a full

hearing at trial.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403,

1431, footnote omitted.)

       Here, the evidence of willful suppression of the Teletrac or black box was

deficient. Initially, it is clear from the interrogatories and testimony from Rafferty that no

one at Oakhurst was aware of a black box on the tractor-trailer. They were completely

unaware of the system and no evidence was presented that they were lying. It was not

until 2011 that Phillips discovered that this type of truck had a black box system. Phillips

was advised by the prior attorneys that no one knew about it.

       The trial court never made a determination that Oakhurst was aware of the device

and intentionally suppressed it. It never determined if it ever existed. Based on the

statements made by the trial court, it appeared to leave the determination to the jury.

However, there must be some evidence to support the willful suppression instruction.

(Bihun, supra, 13 Cal.App.4th at p. 992.) Based on the record in this case, there simply

was no sufficient evidence that Oakhurst had any control over the black box, if it even

was installed on this tractor-trailer, or that it was intentionally destroyed by Oakhurst.


                                             30
Moreover, it appears, like the Teletrac data, to have been purged in the normal course of

business. Further, as for Teletrac information, which only described the location of the

vehicle, Oakhurst could not be expected to determine it would be relevant and should be

preserved should litigation on an accident occur. Moreover, it was purged in the normal

course of business and would not change the outcome of the litigation. (Cedars-Sinai,

supra, 18 Cal.4th at p. 16.) The willful suppression instruction was not supported by

evidence that a black box may have been destroyed and certainly did not support the

inference that it was favorable evidence for the Johnsons.

       Additionally, it is undisputed that Avalos did not submit to an alcohol and drug

test after the accident, and that he did not complete an accident report kit. Hence, as

argued by Oakhurst, there was no evidence that Oakhurst suppressed any evidence.

Giving the instruction that allowed the Johnsons to argue that there was intentional

suppression of evidence that did not exist was error. The only support for the instruction

would have been if Avalos was required, as argued by the Johnsons, by his company

policy to prepare this documentation and he purposefully refused to comply. (Bihun,

supra, 13 Cal.App.4th at pp. 992-994.)

       The Johnsons have argued that Avalos had an obligation to prepare both the

accident report kit and take a drug and alcohol test based on the fleet safety manual.

They refer to the manual dated September 11, 2006.6 The fleet safety manual to which


       6       We note that Oakhurst has failed to raise the argument in either its opening
brief or reply brief that the 2000 fleet safety manual did not require an alcohol and drug
test or accident report. Rather, Oakhurst states the items supposedly suppressed by it did
                                                                 [footnote continued on next page]


                                             31
the Johnsons rely upon was not enacted until 2006, three years after the accident. The

Johnsons cannot claim that such a requirement existed based on the 2006 manual.7

Rather, the fleet safety manual from 2000, that Avalos signed, and the trial court admitted

into evidence, had no requirement for a drug or alcohol test or for the preparation of an

accident report kit. Rafferty testified that he produced the personnel file of Avalos and it

included the 2000 manual signed by Avalos. It is inconceivable how Oakhurst could

have been found by the trial court to have willfully suppressed evidence on a theory that

Avalos purposefully failed to produce it when Avalos had no requirement to complete it

based on the manual in effect at the time of the accident.

        We have reviewed both safety manuals. It is clear that the 2006 manual was not

promulgated until 2006, well after the accident in this case. The fleet safety manual in

place was created in 2000, and makes no mention of the accident report kit or a drug or




[footnote continued from previous page]
not exist. We consider this issue because the only argument raised by the Johnsons that it
was required is that the 2006 safety manual required it.
        7     At oral argument, the Johnsons raised for the first time that the 2006
manual included language that it superseded rules enacted in 1999 regarding the drug and
alcohol testing requirements at Oakhurst. We have found no such reference in the record.
No such requirement was included in the 2000 rules signed by Avalos and there was no
evidence presented in the trial court, or in this court, regarding rules promulgated in
1999. The Johnsons have also referred to Rafferty’s testimony at oral argument and in
their respondent’s brief as establishing a requirement at Oakhurst that a driver who is
involved in an accident must submit to drug and alcohol testing with 32 hours of the
accident. They contended in the respondent’s brief that such rule was required by the
2006 manual, which we have already concluded was not in place when the accident
occurred. There simply was no credible evidence of a drug and alcohol testing
requirement in 2003 when the accident occurred to warrant the willful suppression
instruction.


                                             32
alcohol test. As such, the willful suppression instruction was not supported by evidence

that Oakhurst suppressed an alcohol and drug test or an accident report kit.

       Finally, as to the driving logs of Magallenes, there simply is not enough evidence

in the record in order to determine what happened to the logs. Magallenes testified he

prepared them but had no idea what Oakhurst did with the logs. There is no evidence if

the logs were destroyed in the normal course of business or if they still existed. This did

not support the instruction.

       None of the four pieces of evidence supported the willful suppression instruction.

       D.     Prejudice

       Oakhurst contends that if the instruction was erroneously given, that prejudice

need not be shown and reversal is mandated without consideration of prejudice. The

Johnsons respond that prejudice must be shown.

       In Bihun, the court stated, without further analysis, that “it is prejudicial error to

instruct the jury on wilful [sic] suppression of evidence when there is no evidence to

support the instruction.” (Bihun, supra, 13 Cal.App.4th at p. 992.) In County of Contra

Costa v. Nulty (1965) 237 Cal.App.2d 593, it held that it is prejudicial error to give an

instruction on fraudulent suppression of evidence when there is no showing of fraudulent

suppression. (Id. at p. 598.) However, after these cases were decided, in Soule v.

General Motors Corp. (1994) 8 Cal.4th 548, the California Supreme Court held, “We . . .

conclude that there is no rule of automatic reversal or ‘inherent’ prejudice applicable to

any category of civil instructional error, whether of commission or omission. A

judgment may not be reversed for instructional error in a civil case ‘unless, after an


                                              33
examination of the entire cause, including the evidence, the court shall be of the opinion

that the error complained of has resulted in a miscarriage of justice.’ [Citation.]” (Id. at

p. 580.) The California Supreme Court has further explained, instructional error requires

reversal only ‘““where it seems probable” that the error “prejudicially affected the

verdict”’ [Citation.] The reviewing court should consider not only the nature of the

error, “including its natural and probable effect on a party’s ability to place his full case

before the jury,” but the likelihood of actual prejudice as reflected in the individual trial

record, taking into account “(1) the state of the evidence, (2) the effect of other

instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury

itself that it was misled.” [Citation.]” (Rutherford v. Owens–Illinois, Inc. (1997) 16

Cal.4th 953, 983 (Rutherford).)

       We conclude the instruction was prejudicial after reviewing the entire cause. The

case for liability in this case was not strong. Avalos, the only witness who saw the

impact, testified that Debra veered into his truck and hit him. There were no skid marks

or any type of evidence in Avalos’s lane. The skid marks did not establish the point of

impact. The Johnsons’ expert relied on the skid marks and reconstruction, but also relied

heavily on Avalos’s failure to take a drug test, his fatigue, and his failure to make an

accident report in concluding that Avalos was at fault. Oakhurst had an equally credible

expert, who surmised based on the same markings on the road, that Debra hit the trailer.

       Hence, in this case, any advantage for either party could conceivably sway the

jury. The Johnsons argued that Avalos was fatigued because it was clear he drove the

entire route. They were then able to argue that Magallenes’s logs were destroyed to hide


                                              34
this fact. They were able to argue that it was suspicious that Avalos did not complete an

accident report kit despite the fact there were statements by Avalos as to the accident

cause and voluminous police reports. Further, the Johnsons were able to argue that

Oakhurst destroyed the black boxes because it had damaging information. Also, they

were able to argue that Avalos was on drugs at the time of the accident which caused him

to veer into Debra’s lane. It ‘““seems probable” that the error “prejudicially affected the

verdict.”’ [Citation.] (Rutherford, supra,16 Cal.4th at p. 983.)

       Moreover, there is a strong indication from “the jury itself that it was misled.”

[Citation.]” (Rutherford, supra, 16 Cal.4th at p. 983.) The trial court excluded the

declarations provided by Oakhurst.

       The California Supreme Court has “emphasize[d] that, when considering evidence

regarding the jurors’ deliberations, a trial court must take great care not to overstep the

boundaries set forth in Evidence Code section 1150. The statute may be violated not only

by the admission of jurors’ testimony describing their own mental processes, but also by

permitting testimony concerning statements made by jurors in the course of their

deliberations.” (People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.) “‘“[A] verdict

may not be impeached by inquiry into the juror’s mental or subjective reasoning

processes, and evidence of what the juror ‘felt’ or how he understood the trial court’s

instructions is not competent.”’ [Citations.]” (People v. Lindberg (2008) 45 Cal.4th 1,

53.)

       However, “[J]urors may testify to ‘overt acts’ — that is, such statements, conduct,

conditions, or events as are ‘open to sight, hearing, and the other senses and thus subject


                                             35
to corroboration’— but may not testify to ‘the subjective reasoning processes of the

individual juror . . . .’ [Citation.]” (In re Stankewitz (1985) 40 Cal.3d 391, 398.)

Although overt acts may be admitted, statements must be received with caution.

“Statements have a greater tendency than nonverbal acts to implicate the reasoning

processes of jurors — e.g., what the juror making the statement meant and what the juror

hearing it understood. They are therefore more apt to be misused by counsel in an effort

to improperly open such processes to scrutiny.” (Ibid.)

       Here, the trial court properly determined that it could not consider the thought

processes of the jurors under Evidence Code section 1150. However, the trial court could

consider the votes of the jurors (which were stated in open court) and that, between the

time of the first vote and the finding of liability, that the willful suppression instruction

was given in the jury room. It is reasonably inferred that the instruction had some impact

on the jurors. Nonetheless, the prejudice was apparent even without considering the

declarations.

       Based on the foregoing, instruction to the jury with CACI No. 204 was prejudicial.

We reverse liability and damages. We briefly address two of the other issues raised by

Oakhurst as to the liability phase in anticipation of a third trial in this matter.

                                               IV

                                    REMAINING ISSUES

       Oakhurst contends that the trial court should have admitted the opinions of the

CHP officers at the scene as to the point of impact especially in light of allowing Officer

Kaplan to testify regarding the alignment of the Ford. Oakhurst further contends that the


                                               36
trial court erred by admitting a response to a Request for Admission wherein Avalos

denied he was using his cellular telephone during the accident.

       A.     Request for Admission

       Prior to trial, a Request for Admission provided to Avalos stated as follows:

“Admit that YOU were using a cellular phone at the time of the INCIDENT.” Avalos

responded, “Deny.” The Request for Admission and response were admitted during

Avalos’s testimony.

       The trial court found the Request for Admission admissible as it went to Avalos’s

credibility. The denial was admissible under Evidence Code section 780. Evidence Code

section 780 provides that “Except as otherwise provided by statute, the court or jury may

consider in determining the credibility of a witness any matter that has any tendency in

reason to prove or disprove the truthfulness of his testimony at the hearing, including but

not limited to any of the following: [¶] (h) A statement made by him that is inconsistent

with any part of his testimony at the hearing.” Oakhurst provided no persuasive authority

that this was not applicable to the Request for Admission.

       B.     Testimony by CHP Officers

       Prior to trial, the trial court excluded the testimony of CHP Officers Forbes and

Briggs as to the cause of the accident. Initially, the trial court noted that all of the CHP

Officer witnesses could not testify as to causation because it would be cumulative. The

trial court found that the TCR was not admissible. The trial court noted that any

measurements or tire marks were admissible but the report itself was not admissible. The

trial court stated that there was no physical evidence of the point of impact. Oakhurst


                                              37
argued that the officer who looked at the markings would testify that the point of impact

was consistent with Avalos’s statement and the physical evidence. The trial court

responded, “You’re not going to get there, I can tell you that right now.” The trial court

excluded any opinions by the officers on the point of impact. The trial court did note that

if the officers qualified as reconstruction experts they could testify about their opinion as

to the point of impact.

       In Officer Forbes’s testimony, he stated that he had taken several traffic accident

investigation classes but provided nothing about accident reconstruction. Officer Briggs

stated he was not qualified in accident reconstruction; he only was trained to mark

evidence.

       Expert opinion testimony is admissible when it is “[r]elated to a subject that is

sufficiently beyond common experience that the opinion of an expert would assist the

trier of fact.” (Evid.Code, § 801, subd. (a).) “[T]he determinative issue in each case must

be whether the witness has sufficient skill or experience in the field so that his testimony

would be likely to assist the jury in the search for the truth, and ‘no hard and fast rule can

be laid down which would be applicable in every circumstance.’ [Citation.] Where a

witness has disclosed sufficient knowledge, the question of the degree of knowledge goes

more to the weight of the evidence than its admissibility.” (Mann v. Cracchiolo (1985)

38 Cal.3d 18, 38.)

       Here, Officers Briggs and Forbes were never qualified as experts in accident

reconstruction. Presuming Oakhurst could establish in another trial that Officers Briggs

and Forbes did in fact have the necessary expertise in accident reconstruction, their


                                              38
opinions based on Avalos’s statements and the surrounding evidence would be

admissible. (Evidence Code, § 801, subd. (b).)

       Officer Kaplan, who testified he had extensive experience in the mechanical

workings of cars, and was an expert as conceded by Oakhurst, testified as set forth, ante,

that based on his review of the alignment on the Ford, it would not have caused the Ford

necessarily to veer to the right. Officer Kaplan did not testify as to the cause of the

accident. He provided that based on his review of the alignment, it would not have

veered to the right. Such expert opinion, based on his experience as a mechanic, was

properly admitted.

                                              V

                                       DISPOSITION

       We reverse the judgment. Oakhurst is awarded its costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                                 RICHLI
                                                                                          J.

We concur:


RAMIREZ
                        P. J.


McKINSTER
                           J.




                                             39
