Filed 3/2/20 Annocki v. Turner CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

EILEEN ANNOCKI et al.,

Plaintiffs and Respondents,

v.

TERRY ALLEN TURNER,

Defendant and Appellant.

B290233

(Los Angeles County

Super. Ct. No. SC112366)

APPEAL from a judgment of the Superior Court of Los Angeles County, Nancy Newman, Judge. Affirmed.

Tharpe & Howell, Charles D. May and Eric B. Kunkel for Defendant and Appellant.

Johnston & Hutchinson, Thomas J. Johnston; The Kneafsey Firm, Sean M. Kneafsey; The Liddy Law Firm and Donald G. Liddy for Plaintiffs and Respondents.

____________________

On March 16, 2011, Joseph Annocki, Jr. (Annocki Jr.) was killed in a traffic accident while riding his motorcycle southbound on Pacific Coast Highway (PCH) in Malibu. The accident occurred as defendant Terry Allen Turner was leaving the parking lot for Geoffrey’s Restaurant (Geoffrey’s). Turner made a wrong turn on to PCH when exiting one of Geoffrey’s driveways, straight in to oncoming traffic and Annocki Jr.’s path.

Annocki Jr.’s parents, Eileen Annocki and Joseph Annocki (the Annockis), brought an action for wrongful death and dangerous condition of public property against Turner, Geoffrey’s, and Caltrans. A jury awarded the Annockis $5 million in noneconomic damages, apportioned 50 percent to Turner, 35 percent to Geoffrey’s, and 15 percent to Caltrans.

On appeal, Turner contends instructional, evidentiary, and procedural errors prejudicially led the jury to apportion him greater than justified fault as compared to his co-defendants. We find no error, and affirm the judgment.

FACTUAL BACKGROUND

A. The Accident

On the day before the accident, Turner and a companion flew to San Francisco from Oklahoma for a vacation. The following day, they drove south, down the coast, in a rental car. They made a dinner reservation for Geoffrey’s after reading about it in a travel guide.

Geoffrey’s is located on the west, or beach, side of PCH. Where Geoffrey’s is located, PCH has two lanes in each direction. The highway is divided with large reflective paddles between the north- and southbound lanes; the reflective surfaces face north- and southbound traffic.

Geoffrey’s parking lot has two driveways connecting to the southbound lanes of PCH. The north driveway serves as the entrance, and the south driveway serves as the exit. There is a sign by the south driveway warning: “STOP, RIGHT TURN ONLY.”

Turner arrived at Geoffrey’s at about 6:00 p.m. and entered its parking lot from the north driveway. It was still light when he arrived. There was no valet parking attendant present, so he parked the car himself. He and his companion had dinner, leaving the restaurant at about 8:30 p.m. By that time, it was dark outside.

Turner and his companion returned to their car. Although there was a valet parking attendant on duty when Turner left the restaurant, the attendant did not interact with Turner since he had not parked Turner’s car.

After getting in his car, Turner drove back to the north driveway. He intended to turn left, thinking he had to go back the way he came to continue southbound on PCH. There were no signs or arrows, either in the parking lot or on PCH, indicating that the north driveway was not an exit, that PCH was at that point one way, or that drivers could make a right turn only out of the north driveway. Had he seen a sign, Turner would not have attempted to turn left. Turner admitted, however, that he was not paying attention to signage, and the significance of the reflective paddles in the roadway “wasn’t registering.”

Turner pulled out onto PCH. He had difficulty seeing if the road was clear due to cars parked on the shoulder of PCH on both sides of the driveway. Turner looked left and right; he did not see any headlights. He pulled out further and saw headlights in the distance to his left. Seeing no headlights to his right, he began turning left.

Turner then saw two sets of headlights to his left, in the two southbound lanes. At that point, he realized he was driving the wrong way. Based on the location of the headlights, Turner thought he had time to get out of the way by backing up into the driveway. He put the car in reverse and began accelerating, but backed into another car.

Annocki Jr. was riding his motorcycle southbound on PCH as he approached Turner’s car. Annocki Jr. put on his brakes, leaving skid marks on the pavement as he tried to avoid Turner. He was unable to stop in time and hit the front of Turner’s car. Annocki Jr. was thrown from the motorcycle, and died from his injuries.

B. Expert Testimony

1. Plaintiffs’ Experts

(a) Brad Avrit

The Annockis presented expert testimony from two witnesses. We summarize their testimony only as it is relevant to the issues before us. The first, Brad Avrit, is a civil engineer with 25 years’ experience investigating traffic accidents. Avrit testified that the north driveway of Geoffrey’s parking lot was dangerous because there was no signage warning drivers they could not turn left. Additionally, the lighting at the driveway was poor; at night, the divider between the north- and southbound lanes was difficult to see. This made it possible for a driver to turn left under the mistaken belief that one of the two lanes was for northbound traffic.

Avrit’s conclusion was supported by the deposition testimony of Geoffrey’s valet parking attendant, Kenneth Cargill, which Avrit reviewed. Cargill had witnessed two other drivers turn left from the north driveway.

Avrit testified that there was no law preventing Geoffrey’s from putting a sign at the north driveway similar to the one at the south driveway, indicating that PCH was one way and no left turns were permitted. There was no reason not to do so, given the danger of a wrong turn, especially at night. Additionally, Geoffrey’s could have painted directional arrows in its parking lot, so that drivers would know to exit from the south driveway.

Avrit also faulted Geoffrey’s for having only one valet parking attendant on duty. If the attendant was busy parking or retrieving cars, there was no one on duty to explain to patrons how to leave the parking lot safely. This was especially important given that Geoffrey’s attracted tourists unfamiliar with the area; the restaurant served alcohol; the area was dark at night and traffic visibility was poor, and at Geoffrey’s location PCH had high speed one way traffic.

Avrit additionally assigned fault to Caltrans. First, Caltrans should have prohibited parking on the shoulder of PCH, because the parked cars prevented drivers leaving the parking lot from seeing approaching traffic. Second, Caltrans should have posted signs at the location indicating that PCH was one way and drivers could make a right turn only out of the Geoffrey’s parking lot. Avrit noted that the reflective paddles aided north- and southbound traffic, but they did not reflect light from cross-traffic. Finally, Avrit faulted Caltrans for not evaluating the risk of creating a one way roadway when it installed the divider between the north- and southbound lanes.

(b) Edward Ruzak

The Annockis’ second safety expert, Edward Ruzak, agreed that Caltrans was at fault for the accident by permitting parking on the shoulder of PCH and failing to post a “one way” sign on the divider. Ruzak noted that Caltrans had placed “one way” signs at similar locations on PCH. Ruzak concluded the accident would not have happened if Caltrans had placed such signs opposite Geoffrey’s north driveway.

2. Turner’s Expert Mark Rieser

Turner’s traffic safety expert witness, engineer Mark Rieser, testified that Geoffrey’s was at fault for the accident. This was due to its failure to have directional marking and signs to guide drivers out of the parking lot.

Rieser testified that Caltrans was also at fault for the accident for a number of reasons. These included the failure to place a “one way” directional arrow sign on the divider, a right turn only sign by the driveway, and other directional markings to direct drivers exiting the north driveway. Additionally, the paddles in the center divider did not reflect light toward the driveway. There were no reflective markers on the divider visible to drivers leaving the north driveway to alert them to the presence of a divider, and there were no raised red markers in the southbound lanes to warn drivers they were going the wrong direction.

DISCUSSION

Turner asserts four categories of prejudicial error distorted the jury’s apportionment of fault. First, he argues the jury was improperly instructed that it could not find property controlled by Caltrans was in a dangerous condition solely because Caltrans did not provide signage. Second, he argues the trial court erred in sustaining hearsay objections based on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez) during his cross-examination of certain experts. Third, he claims prejudice from purportedly tardy notice that the Annockis were not pursuing claims for economic damages. Lastly, Turner asserts the trial court erroneously cut short portions of his closing argument as cumulative.

A. Apportionment of Fault to Caltrans and Instruction

Pursuant to CACI No. 1120

1. Jury Instruction and Closing Arguments

Both Turner and Geoffrey’s claimed that Caltrans’s negligence contributed to the Annockis’ harm. Caltrans settled with the Annockis prior to trial, and thus was not present at trial. The jury was instructed that Geoffrey’s and Turner bore the burden of proving Caltrans was negligent, and that its negligence was a substantial factor in causing the Annockis’ harm. The jury was further instructed that if it found multiple defendants liable, it needed to apportion responsibility. Over objections by Turner, the trial court also instructed the jury pursuant to CACI No. 1120: “You may not find that the State of California’s property was in a dangerous condition just because it did not provide a sign. However, you may consider the lack of a sign, along with other circumstances shown by the evidence in determining whether the State of California’s property was dangerous.”

In closing argument, plaintiffs’ counsel quoted CACI No. 1120 and contended Geoffrey’s and Turner did not show Caltrans was liable. Counsel went on to argue that Turner was negligent for turning the wrong way on PCH, and Geoffrey’s was negligent for failing to place a warning at the north driveway that it was right turn only onto PCH. Counsel requested that the jury find Geoffrey’s 60 percent liable and Turner 40 percent liable for the accident.

In his argument, counsel for Geoffrey’s highlighted the Annockis’ argument that Turner’s negligence caused the accident. With regard to Geoffrey’s, he argued that what the Annockis “want to say is, ‘Well, let’s also try to blame someone else. Even though Mr. Turner did what he did, let’s try to get somebody else on that verdict form because we’re going to ask for millions of dollars.’ ” Counsel for Geoffrey’s then stated that the Annockis had to prove Geoffrey’s was 60 percent liable for the millions of dollars in damages they were seeking. Counsel noted that her opponent “spent very, very little time discussing Caltrans . . . because that does not help his case. The plaintiffs do not want you to think about Caltrans because it takes your eyes off the prize—which is the two defendants—and it takes your eyes off of my client, which is what they don’t want you to do.” Later, discussing CACI No. 1120, Geoffrey’s counsel quoted the instruction and discussed the evidence as to Caltrans’ negligence, apart from the mere failure to post a sign.

Turner’s counsel argued that Caltrans bore “the most responsibility for this accident,” because the accident happened on PCH, over which Caltrans had control. Then, noting CACI No. 1120, counsel discussed the factors which justified a finding of liability as to Caltrans beyond the mere failure to post signage.

In rebuttal argument, counsel for the Annockis mentioned CACI No. 1120 and stated that what Geoffrey’s and Turner “told you about Caltrans is ‘sign, sign, sign.’ Paragraph 2 talks about other circumstances, and . . . there are no other circumstances.” Counsel told the jury: “This is too important to wait for Caltrans to put up a sign. It’s too important to wait for Caltrans to put up some concrete median in the middle of PCH, which is never going to happen. [Geoffrey’s] had to put in a sign to keep it safe.” Plaintiffs’ counsel then continued: “Why are they making a Caltrans excuse, and why is this such a big deal to them—both of them? Because they know that every percentage you put on Caltrans takes responsibility away from them and takes a verdict away from the Annockis. That’s why they do it. [Their] Caltrans excuse fails too.”

After the jury retired for deliberations, Geoffrey’s counsel objected to the above closing argument and requested a limiting instruction. Turner’s counsel joined in the objection and request. The trial court denied the request for a limiting instruction, explaining: “I think that all of you had problems with your closings and crossed the line in one respect or another, but . . . I’m not going to offer any further instructions. They’ve been instructed on the law. They can refer to the jury instructions, and I’m not going to provide anything else.”

During deliberations, the jury requested an “explanation why Cal Trans [sic] is not a named defendant? How can we give a verdict for a party not named? How can [we] judge Cal Trans [sic] if no witnesses were called to testify?” The trial court responded: “You are not to consider or speculate as to Cal Trans [sic] not being a party. You are to follow the instructions on the law and the verdict form.”

2. Turner’s Contentions on Appeal

Turner contends the trial court erred in instructing the jury pursuant to CACI No. 1120 when Caltrans was not a party at trial. Government Code section 830.4 (section 830.4) provides that public property is not in a dangerous condition merely because of the failure to provide certain types of roadway warning signs, and is the basis for CACI No. 1120. Turner argues section 830.4 is an affirmative defense, and could only be raised by Caltrans. Because Caltrans was not present at trial, Turner concludes CACI No. 1120 could not be given. Turner also asserts the contested instruction was error because the fault of immune parties must still be apportioned, and the instruction “effectively told the jury Caltrans could not be found at fault.”

Turner further suggests the rebuttal closing argument by the Annockis’ counsel compounded the error. By arguing that finding Caltrans at fault “takes a verdict away from the Annockis,” Turner claims the jury was encouraged not to apportion any fault to Caltrans regardless of its liability.

3. Standard of Review

We review the propriety of the jury instructions de novo. (Conservatorship of K.P. (2019) 39 Cal.App.5th 254, 265; Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82.) As to instructions given, we evaluate the propriety of the instructions in the context of the instructions as a whole. (Conservatorship of K.P., supra, at p. 265; Cristler, supra, at p. 82.) We will not reverse the judgment for instructional error unless the error results in a miscarriage of justice (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574), i.e., where it is reasonably probable the error actually misled the jury (Harry v. Ring the Alarm, LLC (2019) 34 Cal.App.5th 749, 762).

4. Section 830.4

Provided certain other factors are met, a public entity may be held liable for a dangerous condition of its property. (Gov. Code, § 835.) Section 830.4 provides that an alleged “condition is not a dangerous condition [for purposes of governmental liability] merely because of the failure to provide regulatory traffic control signals, stop signs, yield right-of-way signs, or speed restriction signs, as described by the Vehicle Code, or distinctive roadway markings as described in . . . the Vehicle Code.” Section 830.4 “extends immunity only for the ‘mere’ failure to provide [signage], i.e., where that is the only basis for fixing liability.” (City of South Lake Tahoe v. Superior Court (1998) 62 Cal.App.4th 971, 976.) However, “where there are additional factors giving rise to a dangerous condition, absence of [signage] may be considered” in determining whether to impose liability on a public entity. (Ibid.; see also Washington v. City and County of San Francisco (1990) 219 Cal.App.3d 1531, 1538-1539.)

Both Turner and the Annockis acknowledge the apportionment of fault for noneconomic damages is generally determined irrespective of immunity from liability. (Civ. Code, § 1431.2, subd. (a).) As explained in Taylor v. John Crane, Inc. (2003) 113 Cal.App.4th 1063, Civil Code “[s]ection 1431.2, subdivision (a) provides that, in actions for wrongful death, personal injury, or property damage based on comparative fault, ‘the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.’ [Citation.]” (Taylor, supra, at p. 1068.) The purpose of this provision is “ ‘ “to limit the potential liability of an individual defendant for noneconomic damages to a proportion commensurate with that defendant’s personal share of fault.” ’ [Citation.]” (Ibid.)

Civil Code section 1431.2 contains “no exception for damages ‘attributable to the fault of persons who are immune from liability and have no mutual joint obligation to pay missing shares.’ ” (Taylor v. John Crane, Inc., supra, 113 Cal.App.4th at p. 1069.) The existence of statutory immunity “ ‘does not imply any absence of legal “fault,” ’ ” and thus the immune entity’s “share of responsibility for a plaintiff’s injury is included in ascertaining comparative fault.” (Id. at p. 1070, italics omitted, quoting Richards v. Owens-Illinois, Inc. (1997) 14 Cal.4th 985, 998.) Therefore, a defendant does not have to pay an injured plaintiff’s damages caused by the fault of an entity that is immune from paying for its tortious acts. (Taylor, supra, at p. 1071.) The jury is permitted to allocate fault to that entity for purposes of determining the defendant’s proportionate share of liability for the plaintiff’s noneconomic damages. (Ibid.; accord, Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 72.)

However, the jury is not permitted to allocate fault to a person or entity that is immune from suit because of a legislative determination that the person or entity did not engage in tortious conduct. (Taylor v. John Crane, Inc., supra, 13 Cal.App.4th at p. 1071.) Because in such circumstances the person or entity has breached no legal duty, it bears no fault for any resulting injury and fault cannot be apportioned to it.

Section 830.4 does not provide immunity from payment for a wrong, such that fault could be apportioned to Caltrans based on the mere failure to provide signage. Instead, section 830.4 is a legislative determination that there is “no affirmative duty to install traffic control signals.” (Paz v. State of California (2000) 22 Cal.4th 550, 561.) Caltrans was immune from suit for the mere failure to install traffic signs or signals based on a legislative determination, set forth in section 830.4, that it had no duty to install signage absent other, additional factors giving rise to a dangerous condition. It therefore could not be assigned fault for the mere failure to install traffic signs or signals. (Taylor v. John Crane, Inc., supra, 113 Cal.App.4th at p. 1071.)

Turner does not dispute he had the burden to prove Caltrans was negligent. “Apportionment of noneconomic damages is a form of equitable indemnity in which a defendant may reduce his or her damages by establishing others are also at fault for the plaintiff’s injuries,” and for which “[a] defendant bears the burden of [proof].” (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369.) Given Turner’s burden of proof, it is irrelevant Caltrans was not present at trial. The court appropriately instructed the jury using CACI No. 1120 to ensure that Caltrans was not apportioned fault for actions for which it was immune in the sense of having “no affirmative duty to install traffic control signals.” (Paz v. State of California, supra, 22 Cal.4th at p. 561.) Contrary to Turner’s claim, the instruction did not effectively tell the jury that it could not apportion fault to Caltrans. Clearly, the jury understood this, because it apportioned 15 percent of the fault to Caltrans.

Turner also claims the purported prejudicial effect of CACI No. 1120 was compounded by the Annockis’ improper closing argument. Putting aside that no objection was raised until after closing arguments concluded, and was therefore waived, we see no prejudice. The jury was correctly instructed before deliberations. While the jury initially expressed confusion as to why Caltrans was not a party, this type of jury note is not uncommon when an alleged tortfeasor is not present at trial. Indeed, CACI contains a pattern instruction (No. 5007) to address this likely question, which mirrors the trial court’s response to the jury’s questions about Caltrans—namely, that the jury should not speculate as to why Caltrans was no longer in the case. After the trial court’s response to the jurors’ note, the jury expressed no further confusion. We presume the jury understood and followed the instructions as whole, and those instructions cured any potential prejudice from counsel’s argument. (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1229; People v. Forrest (2017) 7 Cal.App.5th 1074, 1086.)

B. Preclusion of Cross-examination Regarding Prior

Accidents in Front of Geoffrey’s

We turn next to Turner’s contention the trial court erred in sustaining hearsay objections during his cross-examination of plaintiffs’ experts.

1. Proceedings Below

In his opening statement, counsel for Geoffrey’s told the jury that before the accident at issue, “the total number of prior accidents involving these driveways was zero.” She also stated that experts would testify that they were unaware of any similar prior accidents.

Avrit, the Annockis’ expert, testified on cross-examination by Geoffrey’s counsel that Avrit knew of no prior accidents where someone drove out of the north driveway and turned left onto PCH. He added that he could not “confirm that, . . . because the accident data isn’t specific enough. The historical accident date doesn’t have that level of detail to be able to tell that.” Avrit also testified Geoffrey’s valet parking attendant had testified that “he knew of two other incidents where someone had turned left out of the Geoffrey’s driveway.”

Turner’s counsel then sought to question Avrit about the contents of a traffic safety evaluation report by the Los Angeles County Sheriff’s Department. Geoffrey’s counsel raised a hearsay objection, based on Sanchez, which was sustained.

The Annockis’ accident reconstruction expert, Jon Landerville, testified on cross-examination that he examined clusters of reported accidents on PCH. He obtained his data from SWITRS, the Statewide Investigative Traffic Reporting System, comprised of information on traffic accidents reported to the California Highway Patrol. From SWITRS, “you just kind of get a general description, so you don’t know the details. You know the basic location, but even that can vary tremendously” depending on the reporting officer. SWITRS showed “[t]here was definitely a cluster in front of the restaurant.” When Turner’s counsel asked Landerville how many reported accidents were in the SWITRS data, Geoffrey’s counsel again raised a hearsay objection based on Sanchez. The trial court sustained the objection.

2. Standard of Review

We review the trial court’s evidentiary rulings under the abuse of discretion standard. (Morgan v. Davidson (2018) 29 Cal.App.5th 540, 558.) A ruling constitutes an abuse of discretion if it “ ‘is “so irrational or arbitrary that no reasonable person could agree with it” ’ ” or it falls outside “ ‘the confines of the applicable legal principles.’ ” (Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 570.) Even if the exclusion of certain evidence was erroneous, reversal results only if the substance of the excluded evidence is made known to the trial court, and the “errors complained of resulted in a miscarriage of justice.” (Evid. Code, § 354, subd. (a).)

3. Analysis

Sanchez, which applies in civil as well as criminal cases, holds that “ ‘[w]hen any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay.’ (Sanchez, supra, 63 Cal.4th at p. 686.) Accordingly, the statements must either be independently proven or fall under a hearsay exception in order to be admissible. (Ibid.) ‘Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.’ (Id. at p. 676.)” (People v. Bona (2017) 15 Cal.App.5th 511, 520.)

Thus, an expert may “testify about more generalized information to help jurors understand the significance of those case-specific facts. An expert is also allowed to give an opinion about what those facts may mean. The expert is generally not permitted, however, to supply case-specific facts about which he has no personal knowledge.” (Sanchez, supra, 63 Cal.4th at p. 676.) As opposed to case-specific hearsay, an expert may relate hearsay information “which is ‘part of the “general background information” acquired by the expert through out-of-court statements as part of the development of his or her expertise.’ [Citations.]” (People v. McVey (2018) 24 Cal.App.5th 405, 416.)

Unlike the hearsay at issue in Sanchez, the hearsay statements here were not part of an expert direct examination. Instead, Turner’s counsel sought to relay the case-specific hearsay through cross-examination to impeach the experts’ testimony. But “the reasoning of Sanchez applies equally in these circumstances.” (People v. Malik (2017) 16 Cal.App.5th 587, 598.) The breadth of permissible cross-examination does not extend to the admission of case-specific testimonial hearsay. (Id. at p. 597.) Turner intended to rely on the reports at issue for their truth, and intended to ask the experts being cross-examined to treat the statements in those reports as true. “Indeed, if they were not true, the statements would have no impeaching value.” (Ibid.)

Turner argues that Sanchez did not apply because the traffic safety evaluation and SWITRS report were not “case-specific.” That is, they “concerned prior accidents involving other parties, not the accident involving Mr. Turner and [Annocki Jr.].” Turner interprets the term “case specific” too narrowly. “Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Sanchez, supra, 63 Cal.4th at p. 676.) Examples include gang membership of individuals other than the defendant for purposes of proving a gang allegation to be true (People v. Ochoa (2017) 7 Cal.App.5th 575, 582-583), or a prior sexual assault to prove the likelihood an individual will reoffend (Bennett v. Superior Court (2019) 39 Cal.App.5th 862, 880). Evidence of prior traffic accidents near Geoffrey’s to show Geoffrey’s liability for the accident involving Turner and Annocki, Jr. was therefore case-specific.

Thus, Avrit and Landerville could not testify as to prior accidents documented in accident reports, and about which they had no personal knowledge, unless those prior accidents were independently proven by competent evidence or subject to a hearsay exception. (Sanchez, supra, 63 Cal.4th at p. 686.) When the hearsay objection was initially sustained, Turner did not offer independent competent evidence, or seek to admit the SWITRS report. Although Turner argues on appeal that the reports were admissible under the official records exception to the hearsay rule (Evid. Code, § 1280), and that exception would in fact appear to apply, he never raised that argument before the trial court or proffered to it the required foundational facts (id. at subds. (a)-(c)). Accordingly, he has forfeited the claim that hearsay exception applied. (People v. Marks (2003) 31 Cal.4th 197, 228 [“A general objection to the . . . exclusion of evidence, or one based on a different ground from that advanced at trial, does not preserve the claim for appeal”].)

C. The Annockis’ Waiver of Their Claim for Economic

Damages

Turner contends that his ability to defend himself was compromised by plaintiffs waiting until the sixth day of trial to announce the Annockis had waived economic damages. Turner asserts he was prejudiced by this late announcement because had he known of the waiver earlier, he “could have avoided spending time preparing to meet the Annockis’ claim for economic damages” and used his “limited time before the jury” to focus on liability and noneconomic damages.

1. Proceedings Below

The operative complaint asserted the Annockis “incurred pecuniary loss, loss of support, funeral and burial expenses and other loss in an amount to be determined as according to proof.” The prayer for relief included “economic . . . damages in an amount according to proof.”

On the sixth day of trial, the Annockis finished presenting evidence as to liability, and began presenting evidence as to damages. During cross-examination of Eileen Annocki, Turner’s counsel asked for confirmation Mrs. Annocki did not receive and was not expecting financial support from her deceased son. The Annockis’ relevance objection to this question was sustained. At that point, counsel concluded the cross-examination.

At a sidebar conference, the trial court stated, “I just want to make sure I made the right ruling on the financial support question.” Turner’s counsel stated the proposed jury instructions included a claim for economic damages. The Annockis’ counsel stated, “We waived that a long time ago.” Geoffrey’s counsel added, “And we met and conferred last night. They’re not requesting it. There’s no economic damages claim.” Neither of the two lawyers representing Turner disagreed with the statements from opposing counsel that the plaintiffs previously waived economic damages, and counsel previously met and conferred regarding the waiver.

2. Analysis

We first note that it is unclear whether there was any inappropriate delay in the Annockis informing Turner they had dropped their economic damages claims. The court was clearly under the impression that claim had been withdrawn when it sustained the objection, and Turner did not dispute counsel had met and conferred about whether there was still a claim for economic damages.

Nor do we perceive any prejudice. Plaintiffs dropping the economic damages claim eliminated one category of potential liability Turner faced, something beneficial for Turner rather than prejudicial. Nor does Turner point to anything in the record showing wasted time in his opening statement or in questioning witnesses with regard to economic damages, other than the one question to Mrs. Annocki as to which the objection was sustained. Turner indisputably knew the Annockis had dropped the economic damages claim at the beginning of the plaintiffs’ presentation on damages, and before any defense witnesses testified. Nothing in the record suggests that Turner’s defense was in any way compromised by the Annockis’ decision to abandon one of their claims for damages. Accordingly, we reject this claim of error.

D. Restriction of Argument by Turner’s Counsel

Lastly, we address Turner’s argument that the trial court prejudicially cut short portions of his closing argument regarding Geoffrey’s liability.

1. Proceedings Below

Turner was represented by two attorneys at trial, Diana Rivera and Kevin Mitchell. The court permitted the two attorneys to split Turner’s closing argument. Mitchell began, discussing the reasons why Turner turned left out of Geoffrey’s driveway. In the course of the argument, he stated that one of the expert witnesses who testified did not blame Annocki Jr. for the accident. He then stated: “Furthermore, Mr. Turner doesn’t either. I represent to you that when my co-counsel takes over for this closing and she walks you through the special verdict form, just like everyone else has, she’s going to suggest to you that on the line for Mr. Annocki, you put ‘zero.’ ”

When Rivera took over, she began by discussing the Annockis’ loss and stated, “As my co-counsel, Mr. Mitchell, has just told you, we are not blaming [Annocki Jr.] in this case.” Geoffrey’s counsel objected, “They’re splitting it up, not repeating things. That’s what they agreed to.” The court responded, “Noted.”

Shortly after that, Rivera told the jury she wanted them to apportion their verdict with “zero percent liability for” Annocki Jr. Geoffrey’s counsel again objected, “Your honor, this is cumulative. The argument is already made. It’s already been covered.” The trial court sustained the objection.

At a sidebar conference, the trial court reiterated, “When we allow two attorneys to close for one defendant, you cannot offer cumulative argument.” Rivera agreed to “move on from the verdict sheet.” Geoffrey’s counsel stated that he was “going to object if any argument is made that’s already been made by Mr. Mitchell.” The court interjected that when it agreed to Turner’s counsel splitting the argument, “I assumed that one was going to argue liability, another damages,” and “not both arguing liability. I don’t think that’s right.” Mitchell stated that he only discussed Turner and one of the experts; Rivera stated that she was “covering all of the other [experts].” She agreed not to discuss the expert Mitchell mentioned. Geoffrey’s counsel responded that he would object to further argument about his client’s liability. Rivera responded that she “would like to make a record that [Geoffrey’s counsel] is attempting to control our closing argument here.”

The trial court expressed concern about repeated arguments. Rivera indicated she would be “assigning most of the liability to Caltrans. . . . But that’s not to say I’m not mentioning . . . Geoffrey’s.” Mitchell did not “get into all of that. He sign-posted a few things. It will be fine.” The trial court told Rivera to “[g]o ahead and proceed. Just be mindful.”

Thereafter, Rivera discussed with the jury the dangerous condition of the area around the north driveway, particularly the cars parked on the shoulder of PCH. She noted that Geoffrey’s owner was aware of the dangerous condition because customers had made complaints about it. Because of the conditions on PCH, Rivera told the jury “the entity that I think has the most responsibility for this accident is Caltrans.” The court allowed Rivera to argue, over Geoffrey’s objection that it was cumulative, that the cost to Geoffrey’s to put up signs which might have prevented the accident was “less than $100,” “the equivalent of one dinner at Geoffrey’s Restaurant.” Counsel for Geoffrey’s made no other objections to Rivera’s portion of the closing.

Rivera concluded by pointing out that “as you look at the four possible options of liability, the four entities that are on your verdict form, I would start first and foremost with Caltrans because . . . they were really the only party that had the access to PCH, that had access to that area where the lighting was, access to the center median.” Caltrans was “the one and only entity throughout this case that truly has the duty to [the Annockis] and who could have done something before the accident.”

2. Analysis

Turner asserts that the trial court’s sustaining of objections by Geoffrey’s counsel and “cut[ting] short Ms. Rivera’s argument was error.” By precluding Rivera from arguing Geoffrey’s liability, Turner argues the trial court deprived him of the right to have his counsel fully and vigorously argue that Geoffrey’s and Caltrans were liable for the accident.

However, Turner points to nothing in the record to show that after the sidebar conference, Rivera’s argument was “cut short.” Mitchell’s argument covered Geoffrey’s liability. The court stated that it would allow Rivera to argue Geoffrey’s liability and to discuss the expert testimony Mitchell did not address, as long as she remained mindful of the admonition not to repeat Mitchell’s arguments. To the extent Geoffrey’s counsel objected after the sidebar that argument was cumulative, that one objection was overruled. Nor were any objections made to Rivera’s arguments concerning Caltrans’ liability.

“A trial court ‘is given great latitude in controlling the duration and limiting the scope of closing’ argument. [Citation.] It ‘may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial.’ [Citations.]” (People v. Edwards (2013) 57 Cal.4th 658, 743; see Wilson v. Kopp (1952) 114 Cal.App.2d 198, 208.) Most importantly here, a trial court “ ‘may terminate argument when continuation would be repetitive or redundant.’ ” (People v. Polk (2019) 36 Cal.App.5th 340, 356.) We review court rulings concerning the length and scope of closing argument for abuse of discretion. (People v. Edwards, supra, 57 Cal.4th at p. 743.)

In light of the trial court’s willingness to allow Rivera to argue Geoffrey’s liability as long as she did not repeat the arguments Mitchell made, and the lack of any showing that Turner was precluded from presenting any non-cumulative argument about Geoffrey’s or Caltrans, Turner has failed to demonstrate any abuse of discretion with regard to the trial court’s rulings on the closing argument. We find no abuse of discretion. (People v. Stout (1967) 66 Cal.2d 184, 200.)

DISPOSITION

The judgment is affirmed. The Annockis are to recover their costs on appeal.

NOT TO BE PUBLISHED

WEINGART, J.*

We concur:

ROTHSCHILD, P. J.

CHANEY, J.