Filed 6/12/13 (unmodified opinion attached)

                                CERTIFIED FOR PUBLICATION
             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                 SECOND APPELLATE DISTRICT
                                              DIVISION ONE


ANTHONY PEDEFERRI et al.,                                     2d Civil No. B233542
     Plaintiffs and Respondents,                      (Super. Ct. No. 56-2009-00357429-CU-
                                                                     PO-VTA)
v.                                                               (Ventura County)
SEIDNER ENTERPRISES et al.,
     Defendants and Appellants,                         ORDER MODIFYING OPIINION
                                                         AND DENYING REHEARING
JEREMY WHITE,                                            [NO CHANGE IN JUDGMENT]
     Defendant and Respondent.


THE COURT:
                 IT IS ORDERED that the opinion filed herein on May 15, 2013, be
modified as follows:
                 1. On page 2, last line of first full paragraph, add the words "on liability
and damages" to the end of the sentence.
                 2. On page 3, last line (sentence carries over to page 4), replace "At the
close of plaintiffs' case, Bert’s asked" to read: "After the Pedeferri plaintiffs rested,
Bert’s moved . . . ."
                 3. On page 4, carry-over paragraph from page 3, substitute for the last
sentence the following: "The court and the parties treated the motion as timely, and the
court denied the request."
                 4. On page 5, second full paragraph, first sentence, replace "White settled
with all plaintiffs" to read: "White settled with the Pedeferri plaintiffs . . . ."
              5. On page 5, second full paragraph, substitute for the last sentence the
following: "White has submitted a brief aligned with the Pedeferri plaintiffs in resisting
Bert's request for a new trial."
              6. On page 13, first full paragraph, fifth line, add "(Raven H.)" after
"1025."
              7. On page 16, second full paragraph, add footnote (which will be footnote
2) after the first sentence, which will read:
       For the first time in their petition for rehearing, the Pedeferri plaintiffs
       argue that Bert's forfeited this issue by not moving to strike this testimony
       until they had rested their case. We disagree. The trial court allowed the
       toxicologist to offer his opinion based on assumptions to be proven up by
       other evidence. (Evid. Code, § 403, subd. (b), (c).) In these circumstances,
       Bert’s motion to strike was "timely made" (id., § 353, subd. (a)), because it
       was made as soon as Bert's knew the Pedeferri plaintiffs had not established
       a factual foundation for the toxicologist's assumptions—that is, when the
       Pedeferri plaintiffs rested their case-in-chief. The Pedeferris plaintiffs
       contend that motions to strike made after a party rests cannot be timely
       because, if granted, they deprive the party of the ability to cure the
       evidentiary deficiency. However, this argument overlooks a court's power
       (and, in some instances, duty) to reopen a party's case. (In re Marriage of
       Olson (1980) 27 Cal.3d 414, 422; Austin B. v. Escondido Union School
       Dist. (2007) 149 Cal.App.4th 860, 886 [plaintiffs have a right to reopen to
       respond to nonsuit motion].)
              8. On page 17, delete the second full paragraph (beginning "This error was
prejudicial") and replace with the following:
              There is a "reasonable probability" that the admission of the
       toxicologist’s unsupported opinion that White was a "chronic" marijuana
       user affected the jury's apportionment of liability between Bert's and White.
       (People v. Watson (1956) 46 Cal.2d 818, 836.) The degree to which


                                                2
       White’s marijuana binge contributed to the accident was hotly contested at
       trial. The toxicologist’s opinion prejudiced Bert's because the plaintiffs
       used it to prove White was unimpaired, thereby reducing White's respective
       share of responsibility for the accident and increasing Bert's.
              9. On page 18, first line in carry-over paragraph from page 17, add "the
jury was instructed" before "that his opinion."
              10. On page 18, add the following sentence at the end of the carry-over
paragraph from page 17: "The jury's power to disregard answers to hypothetical
questions unsupported by the facts did not obviously apply to the totality of the
toxicologist's opinion, and did not cure its prejudicial effect."
              11. On page 18, delete last paragraph (which carries over to page 19),
beginning with "We therefore," and replace with the following:
              We conclude that the erroneous admission of the toxicologist's
       opinion necessitates retrial of the entire liability portion of the trial. The
       Pedeferri plaintiffs argue that we need only remand on the issue of
       apportionment of liability because the toxicologist's opinion does not affect
       either our conclusion that Bert's owed a duty or the jury's finding that Bert's
       breached that duty. Although the toxicologist's opinion does not affect the
       issue of duty, there is nevertheless a "reasonable probability" that the jury's
       findings of breach and of causation were affected by that opinion. White
       provided the only eyewitness account of how the bikes were negligently
       secured while the truck was moving, and the toxicologist's opinion that
       White was unimpaired (and thus able to accurately perceive what was
       happening) ostensibly lent credence to White's account. Without the
       opinion minimizing White's culpability and inflating Bert's, the jury might
       have concluded that Bert's contribution to the accident was so "remote or
       trivial" as not to be a "substantial factor in causing harm." (Raven H.,
       supra, 157 Cal.App.4th at p. 1025.) The Pedeferri plaintiffs note our
       conclusion that White's negligence was not a superseding cause as a matter


                                               3
       of law, but this conclusion also does not preclude a jury from finding as a
       factual matter that Bert's negligence was not a “substantial factor” in
       causing the accident.
               We conclude that a retrial is appropriate on the issue of damages as
       well. We are mindful of the burden that retrying damages entails, as the
       damages trial was bifurcated and focused on different evidence than the
       liability trial. However, the same jury that found Bert's liable based in part
       upon the toxicologist's opinion also fixed damages, and the trial court in
       remitting the damages award found that this damages verdict was already
       tainted by an emotional response to the evidence presented. We
       accordingly conclude that retrial on liability alone would "deny [Bert's] a
       fair trial." (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655,
       696.)
               12. On page 19, first sentence under DISPOSITION, add the words "on all
issues" to the end of the sentence.
               There is no change in the judgment.
               Plaintiff and Respondent Pedeferris' petition for rehearing is denied.




CHANEY, Acting P. J.               JOHNSON, J.           HOFFSTADT, J.*


* (Judge of the Superior Court of Los Angeles County, assigned by the Chief Justice
  pursuant to art. 6, § 6 of the Cal. Const.)




                                              4
Filed 5/15/13 (unmodified version)
                                              CERTIFIED FOR PUBLICATION


         IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             SECOND APPELLATE DISTRICT

                                     DIVISION ONE


ANTHONY PEDEFERRI et al.,                                 2d Civil No. B233542
                                                         (Super. Ct. No. 56-2009-
     Plaintiffs and Respondents,                         00357429-CU-PO-VTA)
                                                            (Ventura County)
v.

SEIDNER ENTERPRISES et al.,

     Defendants and Appellants,

JEREMY WHITE,

     Defendant and Respondent.



                 APPEAL from an order of the Superior Court of Ventura County.
Vincent J. O'Neill, Jr. JUDGMENT VACATED AND REMANDED.
                 Duane Morris LLP, Paul J. Killion, Max H. Stern and Colleen A.
Cassidy for Defendants and Appellants Seidner Enterprises, LLC, RJS Financial
and Bert's Mega Mall.
                 C. Michael Alder, Myers, Widders, Gibson, Jones & Schneider,
Ferguson Case Orr Paterson LLP and Wendy C. Lascher for Plaintiffs and
Respondents Anthony Pedeferri and Carrie Pedeferri.
                 Horvitz & Levy LLP, Mitchell C. Tilner, Peder K. Batalden and
Kurt Boyd for Defendant and Respondent Jeremy J. White.




                                          1
               Does a commercial vendor owe a duty of care to persons on or near the
roadway who are injured as a result of the vendor's negligence in loading and securing
cargo in a vehicle in a way that distracts the vehicle's driver? Applying the controlling
principles of California law, we conclude that such a duty exists and that a categorical
"no duty" exception for vendors should not be created. We also hold that the driver's
negligence in driving under the influence of marijuana does not constitute a superseding
cause as a matter of law; instead, the issue of superseding cause is one for the jury. We
nevertheless determine that the trial court abused its discretion in not striking, for lack of
foundation, expert testimony that the driver in this case was a "chronic" marijuana user
and thus unlikely to be impaired. Because the driver's impairment was crucial to the
allocation of fault between the driver and vendor, we vacate the judgment and remand for
a new trial.
                          FACTS AND PROCEDURAL HISTORY
                                       I. The Accident
               This case arises from a tragic accident that partially paralyzed plaintiff
Anthony Pedeferri, a California Highway Patrol (CHP) officer, and took the life of
Andres Parra (Parra), the young man on the side of the highway with him.
               On December 19, 2007, defendant Jeremy White (White) careened off the
northbound 101 Freeway and slammed into an Xterra parked on the right shoulder. The
Xterra exploded in a fireball, killing its sole occupant, Parra. The impact threw Officer
Pedeferri 78 feet from where he was standing, and paralyzed him from the armpits down.
               At the time of the accident, White had "quite high" levels of marijuana in
his blood. In the 24 hours leading up to the accident, White consumed half a marijuana
cake, smoked three "bowls" of marijuana, ate a "pretty big marijuana cookie," and drank
an eight-ounce marijuana tea. He was transporting two pounds of marijuana in his truck's
toolbox.
               Just 90 minutes before the accident, White left Bert's Mega Mall, a
motorsports dealership operated by defendants Seidner Enterprises LLC and RJS
Financial (collectively, Bert's). Bert's employees had loaded and strapped down two dirt


                                               2
bikes in the bed of White's truck—a new dirt bike White just purchased and a bike
already owned by White's friend and passenger Brian Kinsler (Kinsler).
              As White drove at 74 miles-per-hour on a bumpy portion of the northbound
101 Freeway, just north of Ventura, he felt and saw the bikes "hopping around a little bit
in the bed of the truck." The bikes moved from side to side, as well as back and forth.
White then heard a popping sound. He asked Kinsler to look behind him at the truck's
bed. Then, without braking, White took his eyes off the road to glance back over his left
shoulder, and then his right. As he did, White steered his truck slightly to the right, and
into Parra's Xterra on the side of the freeway.
              White subsequently pled guilty to vehicular manslaughter while
intoxicated. He was sentenced to 15 years in state prison.
                                     II. The Litigation
A. The complaint and trial
              Officer Pedeferri, his wife, and Parra's mother and father (collectively,
plaintiffs) sued White for negligence and wrongful death. They later added Bert's as a
defendant.
              The case proceeded to a bifurcated jury trial. During the liability phase,
plaintiffs' accident reconstruction expert testified that Bert's employees contributed to the
accident by negligently loading and securing the bikes in the back of White's truck.
Bert's expert offered a contrary opinion.
              Plaintiffs also called two witnesses who addressed the contribution of
White's marijuana use to the accident. A human factors expert testified that White's
reaction to the movement of the dirt bikes and the popping sound was reasonable, and no
different than a sober person's. A toxicologist also testified that White was "most likely"
not impaired by his marijuana use because White was a "chronic user." The toxicologist
defined a "chronic user" as a person who has used marijuana for "a long period of time"
and who has "driven before with marijuana" in his system "over and over and over." The
toxicologist assumed White had used marijuana for a while and that White had
previously driven while under the influence of marijuana. At the close of plaintiffs' case,


                                              3
Bert's asked the trial court to strike the toxicologist's testimony on the ground that
plaintiffs had failed to adduce any evidence to support their expert's assumptions. The
court denied the request.
              Bert's was also not permitted to question the expert about the other drugs in
White's bloodstream at the time of the accident—namely, Paxil, Soma, Vicodin, Ecstasy
and cocaine. The trial court had previously ruled that this evidence had marginal
probative value and should be excluded under Evidence Code section 352 because Bert's
elected not to call a toxicologist to establish that the levels of those drugs in White's
blood were sufficient to potentially impair his driving.
              The jury unanimously found White to be negligent and, by a nine-to-three
vote, also found Bert's to be negligent. The jury unanimously assigned 67 percent of the
fault to White, and the remaining 33 percent to Bert's. Following a separate trial on
damages, the jury awarded a total of $49.6 million to plaintiffs.
B. Post-trial motions
              Bert's moved for judgment notwithstanding the verdict (JNOV) in part on
the ground that Bert's sole duty was to load and secure cargo so it would not fall out—not
to load and secure cargo so it would not distract a driver. The trial court found Bert's
articulation of its duty too narrow. The court ruled that "there's a duty on a commercial
vendor that loads the goods in the back of [a] truck to use care so that those on or near the
roadways are not harmed."
              Bert's also sought a new trial on two grounds pertinent to this appeal.1
First, Bert's argued that the toxicologist's assumptions were never established. The trial
court ruled that the factual basis for the expert's assumption that White had engaged in
long-term marijuana use was "thin," but sufficient. The court did not expressly decide
whether there was a factual basis for the expert's further assumption that White had
previously driven while using marijuana.

              1
               Bert's sought a new trial for jury misconduct as well. In light of our
disposition, we need not reach Bert's challenges to the trial court's denial of a new trial on
that basis.


                                               4
              Second, Bert's contended that the damages were excessive. The court
found the jury's $49.6 million award to be excessive and likely the product of "sympathy
for the plaintiffs and outrage at the conduct of defendant White," and granted a new trial
on damages. Plaintiffs accepted remittiturs, and the court entered judgment against
White for $14.84 million; against Bert's for $7.3 million; and against both defendants
jointly and severally for $13.01 million.
              White settled with all plaintiffs, and Bert's settled with the Parra plaintiffs.
Thus, the sole remaining parties are the Pedeferri plaintiffs and Bert's. White has
nevertheless submitted a brief aligned with the plaintiffs.
                                        DISCUSSION
                     I. Bert's Owed Plaintiffs a Duty to Carefully Load
               and Secure Cargo in a Way that Will Not Distract the Driver
              It is not enough that Bert's may have been negligent in loading and securing
the dirt bikes in the back of White's truck. "'Proof of negligence in the air, so to speak,
will not do.' [Citations.]" (Palsgraf v. Long Island R.R. Co. (1928) 248 N.Y. 339, 341.)
To be liable to a particular plaintiff, Bert's must owe that plaintiff a duty to act carefully.
(Id., at p. 342.) Whether a duty is owed is ultimately a question of policy. (Ballard v.
Uribe (1986) 41 Cal.3d 564, 573, fn. 6. (Ballard)) As such, "[d]uty is a question of law
for the court, to be reviewed de novo on appeal. [Citations.]" (Cabral v. Ralph's
Grocery Co. (2011) 51 Cal.4th 764, 770 (Cabral).)
              Our first step is to articulate the duty at issue. Because Bert's concedes
that vendors owe a duty to load and secure cargo so it will not fall out of a vehicle,
Bert's contends that the only duty at issue in this case is a vendor's duty to load and
secure cargo so it will not distract the driver with noise or movement where that cargo
remains in the vehicle. This is too fine a hair to split. A driver can be distracted by
negligently loaded or secured cargo when it remains in the vehicle as well as when it falls
out. Consequently, we will frame the issue as whether a commercial vendor owes a duty
of care to persons on or near the roadways who are injured as a result of the vendor's



                                               5
negligence in loading and securing cargo in a vehicle in a way that distracts the vehicle's
driver irrespective of whether the cargo remains in the vehicle.
              We start with the basic tenet of California law that "everyone is required to
use ordinary care to prevent causing injury to others. [Citations.]" (Bloomberg v.
Interinsurance Exchange (1984) 162 Cal.App.3d 571, 575 (Bloomberg); Merrill v.
Navegar, Inc. (2001) 26 Cal.4th 465, 477.) This principle is codified in Civil Code
section 1714, subdivision (a) ["Everyone is responsible . . . for an injury occasioned to
another by his or her want of ordinary care or skill"].) Bert's offers one reason why it
should be excused from this general duty and two reasons why it must be excused. We
consider and reject each.
A. Policy-based categorical exemption from liability
              Bert's argues that policy considerations "justify a categorical 'no-duty' rule"
that would absolve vendors of any duty to load and secure cargo in a vehicle so as not to
distract the vehicle's driver. We certainly possess the authority to exempt entire
categories of negligent conduct from Civil Code section 1714's duty of care when such an
exemption is "clearly supported" by public policy. (Cabral, supra, 51 Cal.4th at p. 771;
Ballard, supra, 41 Cal.3d at p. 573, fn. 6.) Before exercising this authority, however, we
must ascertain whether the harm flowing from the potentially exempted conduct is
foreseeable, and if so, whether other public policy interests nevertheless counsel against
imposing a duty. (Cabral, supra, at pp. 774, 781; Bryant v. Glastetter (1995) 32
Cal.App.4th 770, 778 (Bryant).)
              1. Forseeability
              Foreseeability is the "'. . . chief factor in [the] duty analysis.' [Citation.]"
(Laabs v. So. Cal. Edison Co. (2009) 175 Cal.App.4th 1260, 1272 (Laabs).) For these
purposes, our task is "not to decide whether a particular plaintiff's injury was reasonably
foreseeable in light of a particular defendant's conduct . . . ." (Ballard, supra, 41 Cal.3d
at p. 573, fn. 6.) Instead, we must "evaluate more generally whether the category of
negligent conduct at issue is sufficiently likely to result in the kind of harm experienced
that liability may appropriately be imposed on the negligent party." (Ibid.; Bigbee v.


                                               6
Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57 (Bigbee).) The inquiry into foreseeability
entails three considerations: "'[1] the [general] foreseeability of harm to the plaintiff,
[2] the degree of certainty that the plaintiff suffered injury, [and] [3] the closeness of the
connection between the defendant's conduct and the injury suffered. . . .' [Citation.]"
(Cabral, supra, 51 Cal.4th at p. 775, quoting Rowland v. Christian (1968) 69 Cal.2d 108,
112-113 (Rowland), superseded on other grounds as stated in Calvillo-Silva v. Home
Grocery (1998) 19 Cal.4th 714, 722.)
              Applying this analytical framework, we can generally foresee that a
vendor's negligence in loading or securing cargo could harm others on the roadway. It is
foreseeable that cargo negligently loaded or secured in a vehicle could distract the
vehicle's driver in a variety of ways—by making noise, blocking the driver's view,
interfering with his or her control of the vehicle, or falling out. It is further foreseeable
that a driver so distracted could injure others on or near the roadway. (Cabral, supra, 51
Cal.4th at p. 781 [noting "general foreseeability of a collision between a vehicle leaving
the freeway and one stopped alongside the road"]; e.g., Arthur v. Santa Monica Dairy Co.
(1960) 183 Cal.App.2d 483 (Arthur) [distracted driver collides with parked vehicle].)
This chain of foreseeability is both short and direct. Accordingly, the "connection
between [the vendor's] conduct and the injury suffered" by those alongside the road is not
"too attenuated." (Cabral, supra, at p. 779.) There is also little uncertainty regarding
whether and how a roadside victim suffers injury in this scenario.
              Bert's contends that intervening negligence by the vehicle's driver is not
foreseeable. However, California law is to the contrary. In Lugtu v. California
Highway Patrol (2001) 26 Cal.4th 703, our Supreme Court ruled that a CHP officer
owed to persons he stops a duty to pull them over in safe locations, even if the stopped
party is subsequently injured by a third party's negligent driving. (Id., at pp. 716-717.)
Courts reached similar conclusions in Jackson v. Ryder Truck Rental, Inc. (1993) 16
Cal.App.4th 1830 (Jackson) and Bloomberg, ruling that a truck rental company and an
auto club, respectively, owed a duty not to strand their customers on the side of the road
where those customers were later hit by negligent third parties. (Jackson, supra, at pp.


                                               7
1837-1845; Bloomberg, supra, 162 Cal.App.3d at pp. 575-576; see also Weirum v. RKO
General, Inc. (1975) 15 Cal.3d 40, 47 [radio station has a duty not to encourage listeners
to drive recklessly to win a contest].) To be sure, the court in Bryant refused to allow a
tow truck driver injured by a negligent third party's driving to sue the drunk driver whose
arrest prompted the need for a tow. (Bryant, supra, 32 Cal.App.4th at pp. 778-782.) But
that ruling turned on policy concerns, and not on an inability to foresee the tow driver's
injury. (Ibid.) We therefore conclude that the harm to persons on the roadside is a
foreseeable result of a vendor's negligence in loading or securing cargo into a vehicle,
even if the vehicle's driver is also negligent.
              2. Countervailing public policy considerations
              Because on a "clear judicial day[], . . . a court can foresee forever" (Thing v.
La Chusa (1989) 48 Cal.3d 644, 668), foreseeability is just the first step in deciding
whether to recognize or exempt a duty. The next step is to assess whether other public
policies militate against a duty notwithstanding the general foreseeability of the harm.
(Bryant, supra, 32 Cal.App.4th at p. 778.) The pertinent public policy considerations are:
"'[1] the moral blame attached to the defendant's conduct, [2] the policy of preventing
future harm, [3] the extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting liability for breach, and
[4] the availability, cost, and prevalence of insurance for the risk involved.'" (Cabral,
supra, 51 Cal.4th at p. 781, quoting Rowland, supra, 69 Cal.2d at p. 113.)
              Three of these policy considerations do not support the creation of a
"categorical no duty rule." Although a vendor in this context is not engaged in
intentional misconduct, "moral blame" still attaches to any negligence on its part.
(Jackson, supra, 16 Cal.App.4th at p. 1844.) Bert's argues that White's marijuana use
was more morally blameworthy, but we are dealing with the vendor's duty, which focuses
on the vendor's culpability; White's relative blameworthiness is pertinent to the separate
issue of causation. Imposing a duty to carefully load and secure cargo, with resulting
liability for the negligent discharge of that duty, would be effective in discouraging
negligence and thereby preventing future harm. Moreover, Bert's has not presented any


                                                  8
reason to believe that vendors' insurance policies are unavailable to cover liability for
negligence in any loading and securing of cargo they voluntarily undertake for their
customers.
              Bert's devotes its attention to the third factor, and presents four reasons why
imposing a duty to load and secure cargo in a manner that will not distract a driver will be
unduly burdensome and bad public policy. First and most broadly, Bert's argues that
imposing this duty will discourage vendors from voluntarily agreeing to load and secure
their customers' purchases, leaving the less-experienced customers to do it themselves
and risking more accidents. Although vendors are potentially liable only if they
voluntarily undertake to load and secure cargo (Bloomberg, supra, 162 Cal.App.3d at p.
575), we are not persuaded vendors will refuse to help their customers load and secure
their recent purchases just because the vendors are required to do so carefully. More
broadly, as between customers and vendors, it is more efficient for vendors to be the
repository of expertise in loading and securing cargo and to absorb the cost of insurance
either through special fees for loading or as part of their general customer service.
              Second, Bert's contends that it will be difficult for a vendor to know what is
distracting to a driver and hence impossible to guard against all such distractions. We
agree that jurors will have to confront, on the facts of each case, whether a vendor's
particular conduct was negligent and distracted the driver, but that is a question of breach
for the jury—not the question of duty before us. (Cabral, supra, 51 Cal.4th at p. 772.)
              Third, Bert's asserts that imposing a duty will transform vendors into the
guarantors of all risk related to the cargo. This is incorrect. The existence of a duty is
but the first of many elements of a tort claim. (Bily v. Arthur Young & Co. (1992) 3
Cal.4th 370, 397.) An injured plaintiff must also prove that the vendor breached the duty
of care and proximately caused his or her injury. (Artiglio v. Corning Inc. (1998) 18
Cal.4th 604, 613-614.) Bert's reliance on Delgado v. American Multi-Cinema, Inc.
(1999) 72 Cal.App.4th 1403 and Dekens v. Underwriters Laboratories, Inc. (2003) 107
Cal.App.4th 1177, is also misplaced. Those cases refused to recognize a duty in very
different factual contexts. (Delgado, supra, at pp. 1406-1407 [theater owner did not owe


                                              9
a duty to keep minors from seeing "R" rated movies so they would not be inspired by the
movies to commit a murder]; Dekens, supra, at pp. 1181-1182 [lab that tested products
for electrical safety did not owe a duty to guarantee those products did not cause
asbestos-related harm].)
              Lastly, Bert's argues that two statutes—Vehicle Code sections 22350 and
21701—embody a public policy against holding vendors liable for causing distractions.
However, neither statute suggests or implies immunity for those who, by virtue of their
negligence, distract drivers. (See Veh. Code, § 22350 [requiring drivers to drive no faster
than conditions safely permit]; id., § 21701 [prohibiting willful interference with a
driver's control of a vehicle].)
              Even if we assume that there are some countervailing policy reasons to
immunize vendors, those reasons fall short of what is required to override the general rule
in favor of imposing a duty for foreseeable injuries. California courts have given
controlling weight to considerations of public policy only where the potential for tort
liability directly leads to undesirable incentives or policy outcomes. (See Bryant, supra,
32 Cal.App.4th at pp. 782-783 [persons with disabled vehicles do not owe a duty to tow
truck drivers because it is "unwise to create an incentive for drivers whose cars are
disabled to attempt self-help solutions rather than call for assistance"]; Lompoc Unified
Sch. Dist. v. Super. Ct. (1993) 20 Cal.App.4th 1688, 1697-1698 (Lompoc Unified)
[landowners do not owe a duty to passing motorists not to distract them because it would
obligate many landowners to build anti-distraction walls]; Parsons v. Crown Disposal
Co. (1997) 15 Cal.4th 456, 473-483 (Parsons) [garbage disposal companies do not owe a
duty not to spook horses with their trucks because it would preclude the socially
beneficial use of machinery in rural areas]; Gilmer v. Ellington (2008) 159 Cal.App.4th
190, 198 (Gilmer) [persons yielding the right of way to motorists making a left turn do
not owe a duty to those motorists to check for clear oncoming traffic in all lanes because
it would be unwise to absolve left-turn makers of the duty to check traffic]; see also
Williams v. Cingular Wireless (Ind. Ct. App. 2004) 809 N.E.2d 473, 478-479 (Williams)
[cell phone companies do not owe a duty to guard against the negligence of buyers who


                                             10
make calls while driving because it would discourage sale of cell phones].) Here, the
potential for tort liability does not directly lead to undesirable incentives or policy
outcomes.
                In short, public policy does not provide a justification for a "categorical no
duty rule." (Cabral, supra, 51 Cal.4th at p. 772.)
B. Vendor's inability to control the driver
                Bert's next argues that vendors owe no duty because, under California law,
vendors have no "special relationship" with persons on or near the roadways and thus no
obligation to act carefully in loading or securing cargo in a way that avoids injuring those
persons. For support, Bert's cites Richards v. Stanley (1954) 43 Cal.2d 60, 65; Southland
Corporation v. Superior Court (1988) 203 Cal.App.3d 656, 665-668; Tarasoff v. Regents
of University of California (1976) 17 Cal.3d 425, 435, superseded by statute Civ. Code, §
43.92; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1146.
(Bert's also cites Bryant, supra, 32 Cal.App.4th 770, but Bryant does not support this
proposition.)
                The cases Bert's cites are inapposite. That is because they address tort
liability in cases of "nonfeasance"—that is, where the defendant is accused of negligence
in not preventing the negligent or intentional acts of a third party. Such authority is
irrelevant in cases involving "malfeasance"—that is, where the defendant is accused of
affirmatively doing something in a negligent way. (Jackson, supra, 16 Cal.App.4th at pp.
1841-1842; Cabral, supra, 51 Cal.4th at pp. 778-779.) Because plaintiffs seek to hold
Bert's liable for its misfeasance, the additional "special relationship" element present in
nonfeasance cases does not apply.
C. The immunity of a distraction's source
                Bert's also contends that California law already dictates that the person or
entity responsible for distracting a driver can never be held liable in tort because the duty
to control one's vehicle (including the duty not to be distracted) rests exclusively with the
driver. We disagree.



                                               11
              California law does not support the broad rule of immunity Bert's proffers.
Three of the cases Bert's cites simply declared the distracted driver liable and did not
declare the source of the distraction categorically immune. (See Gray v. Brinkerhoff
(1953) 41 Cal.2d 180, 184 [not addressing source]; Mixon v. Pacific Gas & Electric Co.
(2012) 207 Cal.App.4th 124, 136 [same]; Truman v. Vargas (1969) 275 Cal.App.2d 976,
980 [passenger did not contribute to accident by waving to pedestrian].) Two other cases
Bert's cites addressed liability in unique and distinguishable contexts. Lompoc Unified,
supra, 20 Cal.App.4th, page 1693, applies the longstanding rule that landowners have no
duties beyond the boundaries of their property, and Coffman v. Kennedy (1977) 74
Cal.App.3d 28, 32-33, refused to hold a passenger liable for her nonfeasance in not
stopping her friend from driving while drunk. The remaining cases Bert's cites declined
to hold the source of a distraction liable for public policy reasons, which we have already
concluded are unpersuasive here. (See Lompoc Unified, supra, at pp. 1697-1698;
Parsons, supra, 15 Cal.4th at pp. 469-470; Gilmer, supra, 159 Cal.App.4th at p. 198;
Williams, supra, 809 N.E.2d at pp. 478-479.)
              For these reasons, we hold that vendors owe a duty of care to persons on or
near the roadway who are injured as a result of the vendor's negligence in loading and
securing cargo in a vehicle in a way that distracts the vehicle's driver. Accordingly, the
trial court did not err in denying Bert's JNOV motion on this ground.
                   II. White's Intervening Negligence Did Not Sever the
              Causal Link Between Bert's Negligence and Plaintiffs' Injuries
              In tort actions, the plaintiff must show that the defendant proximately
caused his or her injuries. (United States Liability Ins. Co. v. Haidinger-Hayes, Inc.
(1970) 1 Cal.3d 586, 594.) Proximate causation has two components—one grounded in
facts and the other in normative questions of policy. (PPG Indus., Inc. v. Transamerica
Ins. Co. (1999) 20 Cal.4th 310, 315-316 (PPG); Jackson, supra, 16 Cal.App.4th at p.
1847.) Bert's attacks both.




                                             12
A. Cause-in-fact
              At trial, a plaintiff in a negligence action must establish, as a factual matter,
that the defendant's negligence was a cause-in-fact of his or her injury. (PPG, supra, 20
Cal.4th at p. 315 [defendant's acts must be a "necessary antecedent"].) More than one
cause-in-fact can contribute to an injury. (Raven H. v. Gamette (2007) 157 Cal.App.4th
1017, 1025.) A defendant's negligence is considered a cause-in-fact if it is "'[a]
substantial factor in causing harm,'" which means it is "'more than a remote or trivial
factor.'" (Ibid.) Because this is a factual question, we review the record for substantial
evidence. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)
We accordingly resolve all evidentiary conflicts in favor of the jury's findings
(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 964), and may overturn them
only if "'. . . there is no room for a reasonable difference of opinion.' [Citations.]"
(Bigbee, supra, 34 Cal.3d at p. 56.)
              Bert's argues that White was distracted solely by the popping noise, and
contends that plaintiffs never established that it was more probable than not that the noise
was caused by the negligently loaded or secured dirt bikes. (Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763, 776.) Bert's explains that the bikes could not have distracted
White because plaintiffs' accident reconstruction expert conceded that he did not know
what caused the popping sound and that no physical evidence showed that the bikes had
ever moved; moreover, all three eyewitnesses to White's driving never saw the bikes
move.
              Viewed in the light most favorable to the verdict, the evidence establishes
that Bert's negligence in loading and securing the dirt bikes was a substantial factor in
distracting White. The popping noise was not the only thing that distracted White. To
the contrary, White had seen and felt the bikes hopping around in the bed of the truck
prior to hearing the noise. Moreover, two of the three eyewitnesses admitted that they
could not say whether the bikes moved. Under substantial evidence review, the absence
of physical evidence of the bikes' movement is beside the point because the record
contains White's testimony that he saw and felt the bikes move.


                                              13
              In sum, the evidence leaves room for a reasonable difference of opinion on
the issue of cause-in-fact. Consequently, we may not upset the jury's finding on that
issue.
B. Superseding cause
              Even when a defendant's negligence is the factual antecedent to the
plaintiff's injury, courts may for policy reasons deem the chain of causation severed.
(PPG, supra, 20 Cal.4th at pp. 315-316; Ferguson v. Lieff, Cabraser, Heimann &
Bernstein (2003) 30 Cal.4th 1037, 1045.) Bert's asks us to do so here. Bert's argues that
White's negligence in consuming marijuana before driving, and in taking his eyes off the
roadway for too long, constitutes a "superseding cause" of the accident that should
entirely cut off Bert's liability. Because this entails a normative question of policy, it is a
question of law we review de novo. (Jackson, supra, 16 Cal.App.4th at p. 1847.)
              The intervening negligence (or even recklessness) of a third party will not
be considered a superseding cause if it is a "normal response to a situation created by the
defendant's conduct" (Stewart v. Cox (1961) 55 Cal.2d 857, 864) and is therefore
"'. . . within the scope of the reasons [for] imposing the duty upon [the defendant] to
refrain from negligent conduct'" in the first place (Lugtu, supra, 26 Cal.4th at p. 725;
Bigbee, supra, 34 Cal.3d at pp. 58-59.) A cause is superseding only when the third
party's intervening negligence is "highly unusual or extraordinary" (Jackson, supra, 16
Cal.App.4th at p. 1848), and "'. . . far beyond the risk the original tortfeasor should have
foreseen . . . '" (Lugtu, supra, at p. 725). In making this assessment, we are to make a
"'more focused, fact-specific' inquiry that takes into account a particular plaintiff's
injuries and the particular defendant's conduct. [Citations.]" (Laabs, supra, 175
Cal.App.4th at p. 1273.)
              While deplorable, White's intervening negligence was neither "highly
unusual" nor "extraordinary." The reason for holding vendors liable for negligently
loading and securing cargo in a vehicle is precisely because a poorly done job can distract
the vehicle's driver. Moreover, it is not uncommon for drivers to be negligent, even
intoxicated. (E.g., Bloomberg, supra, 162 Cal.App.3d at pp. 576-577.) In similar


                                              14
circumstances, courts have repeatedly refused to deem the third party's intervening
negligence a superseding cause. (See Jackson, supra, 16 Cal.App.4th at pp. 1847-1852
[intervening negligence of driver hitting plaintiff stranded on roadside due to defendant's
negligence not a superseding cause]; Bloomberg, supra, at pp. 576-577 [same].)
              The cases Bert's cites are not to the contrary. Arthur deals with cause-in-
fact, not superseding cause. (Arthur, supra, 183 Cal.App.2d at pp. 487-488.) Whitton v.
State of California (1979) 98 Cal.App.3d 235, upheld a jury's finding that a CHP officer
did not act negligently in selecting where to pull over a motorist who was subsequently
hit by a drunk driver. (Id., at pp. 242-244.) This is a "question of breach" (Cabral,
supra, 51 Cal.4th at p. 776), not causation. Lastly, the court in Schrimscher v. Bryson
(1976) 58 Cal.App.3d 660, refused to hold a drunk motorist liable for injuries a CHP
officer suffered when a second drunk driver hit the officer while on the roadside. (Id., at
pp. 664-665.) The court reasoned that "frequent[]" exposure to such roadside risks was
part of the officer's "primary duties," such that imposing liability on the many motorists
he stops would constitute an "unwarranted extension of liability." (Id., at p. 665.) These
cases cast no doubt on our conclusion that a driver's negligence is well within the
universe of risks that a vendor undertaking to load and secure cargo should foresee. Such
negligence is not a superseding cause as a matter of law.
                III. The Trial Court Erred In Admitting the Toxicologist's
               Opinion that White Was Not Likely Impaired By Marijuana
              Bert's argues that the trial court abused its discretion in (1) ruling, under
Evidence Code section 352, that Bert's could not cross-examine plaintiffs' toxicologist
regarding the other drugs found in White's bloodstream soon after the accident; and
(2) refusing to strike the toxicologist's opinion that White was a "chronic" user of
marijuana and thus likely unimpaired at the time of the accident. (People v. Clark (2011)
52 Cal.4th 856, 893 [Evid. Code, § 352 rulings reviewed for abuse of discretion]; Korsak
v. Atlas Hotels, Inc. (1992) 2 Cal.App.4th 1516, 1523 [foundation for expert testimony
reviewed for abuse of discretion].)



                                             15
              The trial court did not abuse its discretion in prohibiting cross-examination
on the potential impairment caused by the other drugs in White's body. The probable
effect of intoxicants other than alcohol is a topic "sufficiently beyond [the] common
experience" of most jurors that expert testimony is required. (Evid. Code, § 801, subd.
(a); People v. Cox (1990) 221 Cal.App.3d 980, 989; People v. Balderas (1985) 41 Cal.3d
144, 191-192, superseded on other grounds by Civ. Proc. Code, § 223.) Bert's elected not
to call a toxicologist of its own to explain whether these other drugs were in sufficient
concentrations to impair White. Further, given plaintiffs' toxicologist's statements during
his pretrial deposition that the "data available" did not permit him to opine on whether the
other drugs impaired White, Bert's also could not rely on plaintiff's toxicologist to render
an opinion. Given this absence of a proper foundation, the trial court was well within its
discretion to conclude that the probative value of any evidence on this topic was
substantially outweighed by the danger of misleading the jury or confusing the issue.
              The trial court abused its discretion in allowing the jury to consider the
toxicologist's opinion that White was a "chronic" marijuana user and hence unlikely to
have been impaired by the prodigious amount of marijuana he consumed in the 24 hours
leading up to the accident. The toxicologist defined a "chronic" user as a person (1) who
used marijuana "for a long period of time"; and (2) who regularly drives while using
marijuana. The toxicologist merely "assumed" that each prerequisite was true. He
acknowledged, however, that his opinion would change if his assumptions were
unfounded and that a non-chronic user would be impaired by the quantity of marijuana
White had consumed. "'". . . Where an expert bases his conclusions upon assumptions
which are not supported by the record, . . . his conclusion has no evidentiary value"'" and
should be excluded. (Geffcken v. D'Andrea (2006) 137 Cal.App.4th 128, 1311; White v.
State of Cal. (1971) 21 Cal.App.3d 738, 760; People v. Gardeley (1996) 14 Cal.4th 605,
618.)
              The evidentiary basis for the toxicologist's first assumption is, as the trial
court found, "thin"; for the second assumption, it is entirely absent. In validating his
assumption that White was a long-term user of marijuana, the toxicologist pointed to two


                                             16
pieces of evidence—namely, White's possession of a medical marijuana card for seven
months prior to the accident, and the "quite high" levels of marijuana by-products in
White's bloodstream. White's marijuana card ostensibly lends some support to the
inference of long-term use (but says nothing about heavy use). The "high levels" of
marijuana do not indicate long-term use because, as the toxicologist acknowledged, they
reflect use in the days immediately prior to the accident. The toxicologist opined that this
recent, heavy use could be equated with longer-term use, reasoning that heavy users are
chronic users because chronic users are heavy users. This reasoning appears to be
circular.
              Even accepting that this first assumption had some evidentiary foundation,
plaintiffs adduced no evidence to support the second assumption underlying the
toxicologist's opinion—namely, that White had repeatedly driven while using marijuana
so as to no longer be impaired while doing so. The trial court's ruling was silent on this
point. No evidence supports this assumption. To be sure, the evidence shows that White
drove with marijuana in his system on the day of the accident in this case. But this is not
evidence of repeated driving while using marijuana. In fact, White stated that he does not
otherwise drive while using marijuana. Although a trial court enjoys broad discretion,
that discretion "must be exercised within the limits the law permits" (Sargon Enterprises,
Inc. v. University of So. Calif. (2012) 55 Cal.4th 747, 773), and the law does not permit
an expert opinion unconnected to the evidence in a case.
              This error was prejudicial because the apportionment of liability between
Bert's and White was a close question. Although there was evidence that White was also
negligent for taking his eyes away from the road for too long, a critical, linchpin issue in
assigning fault was whether White's marijuana binge impaired his driving. This is
undoubtedly why plaintiffs' counsel repeatedly touted in closing argument the
toxicologist's opinion that White was not impaired.
              Plaintiffs (and White) offer four arguments to downplay the significance
and impact of the toxicologist's opinion. First, they note that his opinion was very narrow
and heavily qualified because he admitted that his opinion rested on assumptions, and


                                             17
that his opinion was only as good as those assumptions. But that is precisely the point. It
is because one of those assumptions is invalid that the expert's subsequent opinions that
White was "most likely" a "chronic" user, and there was "no reason to think" otherwise,
were prejudicial.
              Second, plaintiffs reason that the jury's allocation of 67 percent of
the liability to White is proof that it rejected the toxicologist's opinion regarding White's
non-impairment. We disagree. Because the jury was presented with other evidence of
White's negligence such as his failure to keep his eyes on the road, the jury's decision to
assign fault to White cannot be equated with a rejection of toxicologist's opinion. The
jury's assignment of fault to White also means that it did not fully credit the opinion of
plaintiffs' human factors expert that White's reaction was no different than a sober
person's. More to the point, because the opinion was central to the issues and repeatedly
emphasized by plaintiffs, it is reasonably probable that the opinion played a substantial
role in the jury's decision of what percentage of liability to assign to White.
              Third, plaintiffs contend that the jury heard other evidence of White's
impairment because it heard he was convicted of involuntary manslaughter while
intoxicated. The significance of the conviction was undercut by the toxicologist's
testimony that being "under the influence" was different from being "impaired." Thus,
the brief reference to White's conviction without any explanation of its elements or
factual basis did not do much, if anything, to obviate the otherwise significant impact of
the expert's lengthy testimony regarding White's lack of "impairment."
              Lastly, plaintiffs note that Bert's argued in closing that White's level of
impairment did not matter because White could be found negligent for other reasons.
However, Bert's resort to an alternative argument in favor of its position in light of the
trial court's ruling refusing to strike the toxicologist's opinion is a reasonable defensive
tactic—not a concession of the opinion's insignificance.
              We therefore conclude that there is a "reasonable probability" that the jury's
liability verdict was affected by the erroneous admission of the toxicologist's opinion that



                                              18
White was a "chronic" user who was unlikely to be impaired at the time of the accident.
(People v. Watson (1956) 46 Cal.2d 818, 836.)
                                     DISPOSITION
             The judgment is vacated, and the cause remanded for a new trial.
             The parties shall bear their own costs.
             CERTIFIED FOR PUBLICATION.




                                         HOFFSTADT, J.*


We concur:



             CHANEY, A. P. J.



             JOHNSON, J.




             *
               (Judge of the Superior Court of Los Angeles County, assigned by the
Chief Justice pursuant to art. 6, § 6 of the Cal. Const.)


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