Filed 10/31/19 Gonzalez v. Fernquist CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

BENJAMIN GONZALEZ,

Plaintiff and Appellant,

v.

MARGE FERNQUIST,

Defendant and Respondent.

A155024

(Contra Costa County

Super. Ct. No. MSC15-02251)

This appeal is from a defense judgment in a negligence case arising out of the crash of a car and a motorcycle near the intersection of Buchanan and Somersville Roads in Antioch. Benjamin Gonzalez was riding the motorcycle and 86-year-old Marge Fernquist was driving the car. Fernquist prevailed in a bench trial. Gonzalez now appeals, arguing that the court erred by (1) “fail[ing] to interpret and apply” Vehicle Code sections 21803, subdivision (a) (failure to yield) and 22107 (unsafe lane change) and (2) improperly relying on the testimony of an accident reconstruction expert whose opinions he claims were based on assumptions that have no evidentiary foundation. We affirm.

I. BACKGROUND
II.
As pertinent to the issues raised on appeal, the evidence at trial was as follows.

Gonzalez testified that, while riding a Honda CVR 600 motorcycle one morning headed northbound on Somersville, he stopped at a red light at the intersection of Buchanan and Somersville. While he waited for the light to turn green, there were no other vehicles at the intersection. There were no cars in front of him, or to the side of him, or behind him. He was at the light for approximately 30 seconds, then he accelerated through the intersection when the light changed, staying in the No. 1 lane and proceeding at a speed of 30–35 miles per hour in a 45-miles-per-hour zone. He never changed lanes before the accident. His focus was straight ahead. He saw no vehicles exiting from Buchanan, and simply saw that his lane was clear ahead of him.

Gonzalez further testified that Fernquist’s car came into view at a point past the intersection, when she crossed into his lane as he was continuing on Somersville. He tried to take evasive action, braking as much as he could before colliding with the left rear panel of Fernquist’s car. The force of the collision caused him to swerve to the left until he crashed into the median. At some point he came to a complete stop, with his front tire jammed up against the median at an angle towards the concrete. He was propelled sideways rather than forward. The force of the collision caused Fernquist to go off course as well, but she managed to straighten her car out and continue on. After Gonzalez yelled out and had to flag Fernquist down, the two drivers then pulled over a short distance away and exchanged identification.

In her testimony, Fernquist presented a different perspective. She testified that she approached the intersection from a different direction, heading west. She was returning from Antioch Methodist Church that morning in her 2000 Oldsmobile Intrigue, along the same route she always took every Sunday for the past 25–30 years. As part of that return route, Fernquist turned right from westbound Buchanan onto northbound Somersville, and then left onto westbound Fairview from northbound Somersville. She was “[v]ery familiar” with those intersections. While executing her usual series of turns as she moved past the intersection, when she began preparing to execute the turn from westbound Buchanan to northbound Somersville, she looked over her left shoulder to check that traffic was clear. She was going slowly. At that point, she saw the light for the stopped traffic on northbound Somersville had just turned green and that stopped traffic had not yet entered the intersection. She then “eased” through two lanes on northbound Somersville to the left-hand turning lane to westbound Fairview at “[p]robably . . . 30 miles an hour.”

Fernquist did not recall her exact speed as she “[was not] looking at [her] speedometer.” But she did hear a “bang, bang noise on [her] left side.” She had no idea what caused the noise until she looked to her left and saw Gonzalez on his motorcycle “close to [her] on the left-hand side.” She did not hear or see Gonzalez’s motorcycle before the collision. She does not recall whether she looked in the side mirror or behind her more than once before the collision. Her Oldsmobile was somewhere in the left-hand turning lane to westbound Fairview when she became aware of the collision. Fernquist then brought her vehicle to a stop. She got out and looked at her vehicle, said words to the effect that “we [cannot] stop here,” and drove to Fairview, where she felt it was safe for the parties to pull over.

Both parties presented expert testimony from accident reconstructionists: Elaine Serina for Fernquist, and Scott Buske for Gonzalez.

Serina opined that to reach the point of impact Gonzalez must have reached a speed of 60 miles per hour after he proceeded from the light, traveling a distance of 337 feet. According to Serina’s time-distance analysis, it took Gonzalez’s motorcycle five and a half seconds to travel from a standing start from the No. 1 lane limit line on northbound Somersville at its intersection with Buchanan, past the intersection, to the entrance of the left-turn lane on northbound Somersville to Fairview, which indicates he started from zero miles per hour and reached a maximum speed of 60 miles per hour. By contrast, she testified, it took Fernquist’s Oldsmobile approximately five and a half seconds to travel 124 feet from the westbound Buchanan turn lane to the left-turn lane on northbound Somersville to Fairview, which indicates that she reached a maximum speed of 25 miles per hour. This analysis was based on the acceleration rate of the vehicles, measurements of the intersection, testimony of the parties and a simulation with a computer program called PC Crash which uses kinematics analysis and physics equations. Buske, for his part, disagreed with Serina’s assessment. He opined that both vehicles were going “roughly the same speed and they both brake[d]” at the point of impact, which. He further testified there was no way Gonzalez could be going 60 miles per hour based on the point of impact and photographs of the damage to the vehicles.

After taking the case under submission at the conclusion of trial, the court ruled for Fernquist in a brief statement of decision, finding that: (1) Gonzalez failed to meet his burden of proof that Fernquist, the respondent, was negligent and her negligence was a substantial factor in causing the accident, (2) the weight of the evidence showed that Gonzalez sped away from the intersection, (3) Fernquist complied with Vehicle Code section 21803, subdivision (a), and “was not otherwise negligent,” and (4) the expert testimony of Serina corroborated Fernquist’s recounting of the accident.

III. DISCUSSION
IV.
A. Alleged Vehicle Code Violations
B.
“In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) In this particular circumstance, the substantial evidence test focuses on “whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’ ” (Ibid., citing to Roesch v. De Mota (1944) 24 Cal.2d 563, 571.) The court reverses the lower court’s decision, if and only if, the inquiry as noted above concludes that the “evidence compels a finding in favor of the appellant as a matter of law.” (In re I.W., supra, at p. 1528, citing Roesch v. De Mota, supra, 24 Cal.2d at pp. 570–571.) Here, it does not.

Vehicle Code section 22107 provides that an individual, when changing lanes, shall not do so until it is reasonably safe, and prior to doing so, must give appropriate signaling. (Veh. Code, § 22107.) Gonzalez contends that he proved, by a preponderance of the evidence, that Fernquist failed to comply with the duty required under Vehicle Code section 22107. To support his position, he cites respondent’s expert, Serina, who confirmed that there is a duty to “look before proceeding” and Fernquist’s testimony that she only recalls looking back once, even though she crossed multiple lanes. He further confirms that “[t]here is no evidence that Fernquist signaled before changing lanes.” We see nothing in the evidence that compels a finding for Gonzalez on the basis of an unsafe lane change.

Nor do we see anything in the evidence that compels a finding for Gonzalez on the basis of an illegal failure to yield. Although the trial court does not address this issue in much detail beyond concluding that Fernquist proceeded after “look[ing] to her left and determin[ing] that there was no oncoming traffic in or north of the intersection” (italics omitted), “ ‘[t]he trial court is not required to respond point by point to the issues posed in a request for statement of decision. The court’s statement of decision is sufficient if it fairly discloses the court’s determination as to the ultimate facts and material issues in the case.’ ” (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983.) Here, the court’s resolution of the failure-to-yield issue and the ultimate findings on which it relied are adequately reflected in its statement of decision. These findings are supported by substantial evidence in the record. Serina opined that it was appropriate for Fernquist to transition to the left-turn lane for Fairview after having looked behind her once when she entered northbound Somersville, because at that point the vehicles on Somersville were about 200 feet behind her and, had Gonzalez observed the speed limit, she had enough time to get to the No. 1 lane safely. Gonzalez, in essence, asks us to find facts to the contrary for him on appeal. This we cannot do.

C. The Expert Testimony
D.
We review trial court rulings to admit or exclude expert testimony for abuse of discretion. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) As a general matter, expert testimony is inadmissible if it is “(1) based on a matter of a type on which the expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative.” (Id. at p. 771.) The role of the trial court in deciding the admissibility of expert testimony is limited to review of the methodology implicated by the expert, without reaching any evaluation of the conclusions it produces or its ability to persuade. (Id. at p. 772) Disagreements in conclusions can be “explored in detail through cross-examination and with the [opposing party’s] expert witnesses.” (Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 593.)

While Fernquist has not raised the threshold issue of whether any error in admitting and relying on Serina’s testimony was properly preserved for appeal, we must because Gonzalez bears the burden to show cognizable error on appeal. We see no contemporaneous objection at trial to the admissibility of any of Serina’s opinions and for that reason alone we reject Gonzalez’s argument that the court erred in relying on it. But even had there been an objection, we would affirm the court’s reliance on what she had to say. Serina was eminently qualified to offer expert accident reconstruction opinion and she testified in detail to what she reviewed and relied upon in forming the opinions she offered. Gonzalez now takes issue with some of Serina’s assumptions, but he had ample opportunity to cross-examine and in any event all of the issues he raises go to the weight of the testimony, not its admissibility. This was a classic battle of the experts. The court heard the competing opinions of Serina and Buske and found Serina to be more persuasive. It was within its discretion to do so.

V. DISPOSITION
VI.
The judgment is affirmed. Respondent to collect costs.

 

_________________________

STREETER, Acting P.J.

We concur:

_________________________

TUCHER, J.

_________________________

BROWN, J.

A155024/Gonzalez v.