Filed 8/23/18 Bertoli v. City of Sebastopol CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

JULIA ANNA BERTOLI,

Plaintiff and Appellant,

v.

CITY OF SEBASTOPOL et al.,

Defendants and Respondents.

A145660

(Sonoma County

Super. Ct. No. SCV247619)

INTRODUCTION

Appellant Julia Anna Bertoli suffered severe injuries when she was hit by an automobile while walking in a crosswalk that was shaded by overhanging trees. Bertoli sued the City of Sebastopol (City) and the California Department of Transportation (Caltrans), claiming they were responsible for a dangerous condition on public property.

The trial court granted a nonsuit as to the City on the ground there was insufficient evidence the City owned or controlled the property in question. The jury then found by special verdict that, while Caltrans owned or controlled the property, it was not in a dangerous condition.

Bertoli’s principal claim on appeal is that the trial court deprived her of the opportunity to fully present her case. The court imposed a 75-hour time limit (later expanded to 78.5 hours) on Bertoli’s presentation of her case. It imposed a time limit of 35 hours each as to the City and Caltrans. Bertoli asserts she was denied due process because her trial time was unfairly consumed with sidebars and chambers conferences and because the trial court refused to give her an additional 4.98 hours of time. She additionally claims the court erred in granting nonsuit as to the City and in denying her subsequent request to reopen her case against the City to present additional evidence as to the City’s asserted ownership or control of the property.

We conclude Bertoli was not unfairly charged with sidebar and conference time and the trial court did not abuse its discretion in denying her an additional 4.98 hours to put on her case. We further conclude that, regardless of whether the court erred in granting nonsuit as to the City, any error was harmless in light of the jury’s subsequent finding that no dangerous condition of public property existed. We likewise conclude the court did not err in denying Bertoli’s request to reopen her case as to the City to present additional evidence on its supposed control of the property in question.

BACKGROUND

Bertoli suffered severe, permanent injuries when she was hit by an automobile while walking in a crosswalk on State Highway 116 in the City of Sebastopol. She sued numerous defendants, including the City and Caltrans, which were the only two defendants remaining at trial. As to these two defendants, she alleged “Healdsburg Avenue/Highway 116 between North Main Street and Covert Lane, including the intersection of Healdsburg Avenue/Highway 116 and Florence Avenue” was under their “jurisdiction, ownership, and possession,” and that the roadway and intersection constituted a dangerous condition of public property in violation of Government Code section 835. She further alleged the driver “was unable to see the Plaintiff in time to avoid hitting her because of the extreme reduction in visibility and contrast levels caused by the overgrown overhanging trees’ extreme shadows.”

Following the close of evidence, the court granted the City’s motion for nonsuit on the ground the City “had no responsibility to assess or remedy visibility issues for motorists and pedestrians using State Highway 116, including at the intersection where the accident occurred.” The jury found, by special verdict, that while Caltrans owned or controlled the roadway and intersection at issue, the property was not in a dangerous condition at the time of the accident.

DISCUSSION

The Time Limit on Bertoli’s Presentation of Her Case

Bertoli does not dispute that a trial court has the authority to set reasonable time limits on the parties’ presentation of their cases. Indeed, the “Evidence Code expressly empowers trial judges to limit the presentation of evidence, even evidence that is relevant and probative. Evidence Code section 352 authorizes the court to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time. Evidence Code section 765, subdivision (a) provides that the court shall exercise control over the mode of interrogation of witnesses ‘so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of truth.’ Both statutes describe powers that the court may exercise on its own initiative.” (California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 19–20 (California Crane School), italics omitted.)

“It is incumbent upon trial judges to manage trials efficiently. Efficiency is not necessarily measured by comparing the actual length of a trial with the parties’ original time estimate because parties often overestimate or underestimate a trial’s length. Judges need to be proactive from the start in both assessing what a reasonable trial time estimate is and in monitoring the trial’s progress so that the case proceeds smoothly without delay. . . . Trial time management is an ongoing responsibility of the trial judge, regardless of the case’s complexity, the number of witnesses called or whether specific time limits have been imposed.” (California Crane School, supra, 226 Cal.App.4th at p. 20.)

“Some litigants are of the mistaken opinion that when they are assigned to a court for trial they have camping rights. This view presumes that the trial judge must defer to the lawyers’ time estimates for the conduct of the trial such that, for example, when examining witnesses, unless a valid objection is made by one’s opponent, a party is entitled to take whatever time it believes necessary to question each witness. This view is not only contrary to law but undermines a trial judge’s obligation to be protective of the court’s time and resources as well as the time and interests of trial witnesses, jurors and other litigants waiting in line to have their cases assigned to a courtroom.” (California Crane School, supra, 226 Cal.App.4th at p. 19, italics omitted.)

“Denying a party the right to testify or offer evidence deprives him [or her] of a fair trial and constitutes reversible error.” (California Crane School, supra, 226 Cal.App.4th at pp. 22–23; see In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 293, fn. 5 (Marriage of Carlsson) [deprivation of “a party’s substantive due process right to a fair trial . . . defies harmless error analysis,” italics omitted.].) However, an order that merely imposes time limits on a party’s presentation of evidence is reviewed for abuse of discretion. (California Crane School, at pp. 22–23.)

Bertoli does not claim the trial court’s initial imposition of time limits was either error per se or an abuse of discretion. Rather, she specifically takes issue with the court’s refusal to allow her an additional 4.98 hours of trial time, which refusal was, according to Bertoli, “based retroactively on violations allegedly occurring before time limits were imposed, without prior notice.” (Italics omitted.) She contends that “[b]ut for the court’s denial of [her] request for [an additional] 4.98 hours, [she] would have had sufficient time to complete her case, cross-examine the defense witnesses and deliver a closing argument proportionate to the case,” (underscoring omitted) and asserts this denial of additional time denied her due process, constituting reversible error per se.

The trial court’s denial of Bertoli’s request for an additional 4.98 hours of trial time must be considered in light of the procedural background of the case, the initial time limits the court imposed, and Bertoli’s multiple motions for additional time made throughout trial.

Prior to the July 2014 scheduled trial date, the court ordered the parties to meet and confer about exhibits. Local rules also required that “prior to the day that motions in limine are heard, ‘each party must show all other parties all . . . exhibits, charts, diagrams, photographs . . . that the party intends to use . . . during the trial.”

When the hearing on in limine motions commenced and it was apparent the parties had not fully complied with their meet and confer obligations, the trial court again ordered them to do so. Jury selection was continued until September.

By late August, Bertoli’s counsel still had not provided all trial exhibits to opposing counsel. Accordingly, the court again continued jury selection, this time to January.

In November, the parties notified the court they still had been unable to reach a stipulation on exhibits.

In December, after reviewing all the documentation the parties filed discussing their efforts in connection with exhibits, the court generally found a “lack of preparedness, lack of organization, and repeating of the same arguments, all of which consumed an inordinate and unreasonable amount of time.” The court again ordered the parties to provide numbered exhibits, exchange demonstrative exhibits, and file a joint stipulation as to the exhibits to which the parties agreed.

On December 4, the court notified the parties it was considering imposing trial time limits. It ordered the parties to provide time estimates and the option to comment on the estimates provided by other parties. The court also provided guidance on calculating the estimates, which were to take into account the number of witnesses, anticipated cross-examination, and time limits already set for opening statements and other matters. It additionally gave notice that while it had discretion to adjust time limits as trial unfolded, it would “strictly construe” any time order.

In an “amended” response to the court’s notice, Bertoli identified 100 witnesses and another 14 defense witnesses, and estimated she needed 146 hours of trial time. The City estimated 62.7 hours of trial time, and Caltrans, 65 hours. However, Caltrans proposed allotting Bertoli 65 hours, and the City and itself 48 hours each. In response to the defense estimates, Bertoli claimed no time limits were necessary and further claimed objections and sidebars would unfairly consume her time.

On December 19, the trial court issued an “Order on Time Limits Allotted to the Parties,” allocating 85 hours to Bertoli, 35 hours to Caltrans, and 34 hours to the City. After hearing additional motions in limine, the court issued a modified order, allocating 75 hours to Bertoli, and 35 hours each to Caltrans and the City. The court specified these time limits did not include “jury selection, or the sum of proceedings pre-jury selection.” But, they did “ ‘include direct examination, cross-examination, opening statement, and closing argument.’ ”

Jury selection commenced on January 23, 2015, and opening statements began on February 4.

After trial had been proceeding for about two months, and with 10.4 hours of her allotted time remaining, Bertoli sought an additional 15 hours of trial time. Her attorney, David Rouda, claimed he needed the additional time because of the “complexity of [Bertoli’s] case, and the contentiousness of the proceedings involving an above average number of sidebars and defense objections.” He further asserted he had “encountered delays with 81 year old human factors expert Dr. Kenneth Ziedman who, brilliant as ever, was nevertheless slow in his delivery, and [the] 71 year old [driver of the car] whose memory was not as fresh as it was at her deposition, requiring substantial time refreshing recollection. . . .” Counsel additionally claimed the “enormous number of objections, mostly overruled as to [the] 3D Laser Scan Expert[’s] . . . exhibits and testimony,” caused further delays.

The trial court issued a 15-page order in which it set forth the history of the litigation and the reasons it had imposed the initial time limits. The court found that Rouda was responsible for much of the delay and set forth examples, including his “inefficient and unfocused use of time” in examining witnesses and failure to comply with a court order requiring that exhibits be pre-marked and exchanged. The court also addressed Rouda’s assertions about the testimony of Ziedman and the driver, specifically finding Ziedman “performed as would be expected of any expert,” and the driver’s memory was not poor. The court further observed Rouda had provided “no guidance as to how additional time may be used, and why a modified time limit may prove successful now where it has not previously.” (Italics omitted.) Nevertheless, the court partially granted Bertoli’s motion, allowing her an additional three hours to present her case

One week later, on March 30, when Bertoli had 6.5 hours of trial time remaining, she renewed her request for additional time, this time on the ground of Rouda’s professed “inadvertence and mistake in allocating his time allotment for Plaintiff’s case.” Specifically, Bertoli sought an additional 4.98 hours, which Rouda claimed “would make the difference in the ascertainment of truth.” Noting the trial court’s prior order granting an additional three hours indicated he had failed to state how the additional time would be used, Rouda listed the witnesses he planned to examine in the additional 4.98 hours sought.

A few days later, when Bertoli had four hours of trial time remaining, and apparently before the court had ruled on her renewed motion, she filed another motion for additional time, this time claiming she needed an additional 23.5 hours to call “critical witnesses.” Rouda again asserted the case involved “extremely technical issues” and claimed the “crushing number of objections” and sidebars were being unfairly charged against Bertoli’s allotted time.

The court issued a six-page order denying the additional requests for more time. The court reiterated its prior findings, including Rouda’s failure to comply with court orders, exchange exhibits prior to trial, or to meet and confer regarding objections to exhibits. The court further stated: “As of the date of filing of this motion, there have been in excess of thirty court days post jury selection, the vast majority of which have been consumed with Plaintiff’s evidence. The court has attempted, in response to the same motions filed on multiple occasions, to describe the conduct which has led to this concern by Plaintiff. Despite the decades of experience of this court with trial matters, it has never experienced nor seen such a complete lack of response to court orders. Despite numerous orders, pretrial and otherwise, intended to manage the trial, Plaintiff’s counsel continuously fails to manage time and evidence, blaming everyone but himself.”

On April 13, with only 45 minutes of trial time left, Bertoli filed yet another motion seeking additional time, this time seeking one more hour “solely for closing argument.” Rouda claimed the additional hour was necessary to “avoid the appearance to the jury of imbalance in the trial process.” (Italics omitted.) Because the defendants had more time left for their closing arguments, Rouda asserted “30 minutes of closing argument time for Plaintiff versus hours for the defendants risks the jury considering the process to be inequitable and could affect their decision[-]making in Plaintiff’s favor. That the jury perceives the process to be equal among all parties is in the interests of all parties. . . .”

Two days later, after the trial court granted the City’s motion for nonsuit, Bertoli again sought more time, an additional eight hours, claiming the nonsuit was a “dramatic change of case posture.” Rouda claimed the nonsuit necessitated reconsideration of earlier rulings on motions in limine regarding communications between the City and Caltrans regarding safety problems at the intersection, which he maintained demonstrated Caltrans had constructive notice.

The trial court granted an additional 30 minutes to be used for “closing and/or rebuttal argument.” The court again found Rouda “did not manage [plaintiff’s] case-in-chief in a manner that permitted time for . . . additional evidence. . . . Rather than considering the dwindling time allowed, [Rouda] was unprepared, and persisted on calling adverse witnesses to present [plaintiff’s] case, often keeping adverse witnesses on the stand even though the testimony provided was not what counsel had hoped for. The questions were argumentative, and most often, objectionable.”

As we have observed, on appeal Bertoli challenges only the denial of her request for an additional 4.98 hours of trial time, asserting it deprived her of a fair trial. She claims the court denied that request “because it believed that the lengthy ‘sidebars’ to hear argument were caused by Plaintiff counsel’s ‘long history’ of failing to exchange exhibits and meet and confer with opposing counsel pre-trial. . . .” She thus maintains she was penalized “retroactively” for transgressions “occurring before time limits were imposed, without prior notice” (italics omitted) and asserts this violated her right to due process, citing Marriage of Carlsson, supra, 163 Cal.App.4th 281.

Marriage of Carlsson involved an “unusual and perhaps unprecedented fact situation.” (Marriage of Carlsson, supra, 163 Cal.App.4th at p. 284.) “In a routine dissolution case, the family law judge suddenly declared an end to the trial before the husband had finished putting on his case-in-chief. After displaying impatience and reluctance in allowing the parties adequate time to complete their presentations, the judge ended the trial while an expert witness for the husband was on the witness stand and counsel was in the midst of asking him a question.” (Ibid.) In fact, the judge left the courtroom while the witness was on the stand, leaving husband’s attorney to wonder whether the judge was returning—“ ‘Is he coming back? I’m in the middle of my examination.’ ” (Id. at p. 289.) The courtroom clerk “verbally informed counsel that the trial was concluded.” (Ibid.)

In ruling that the trial court’s handling of the case denied the husband due process, the Court of Appeal explained: “ ‘It is a cardinal principle of our jurisprudence that a party should not be bound or concluded by a judgment unless he has had his day in court. This means that a party must be duly cited to appear and afforded an opportunity to be heard and to offer evidence at such hearing in support of his contentions. [¶] His right to a hearing does not depend upon the will, caprice or discretion of the trial judge who is to make a decision upon the issues. [¶] An order or judgment without such an opportunity is lacking in all the attributes of a judicial determination. [Citations.] [¶] Refusal to permit counsel . . . to present evidence and make a reasonable argument in support of his client’s position [i]s not a mere error in procedure. It amount[s] to a deprival of a substantial statutory right. . . .’ ” (Marriage of Carlsson, supra, 163 Cal.App.4th at p. 284, quoting Spector v. Superior Court (1961) 55 Cal.2d 839, 843–844.)

Plainly, the circumstances that occurred here are unlike those that took place in Carlsson. The trial court did not arbitrarily end trial, either without notice or while a witness was on the stand. On the contrary, after there were repeated delays in exchanging exhibits before trial (in violation of both the court’s pre-trial orders and the local rules), the trial court, after full notice and with input by all parties, and well before the commencement of trial, imposed time limits on all parties. By that time, the court was familiar with the case, and even Bertoli does not dispute that these time limits, which excluded jury selection, were eminently reasonable. Trial then unfolded over the course of nearly three months. Each day, the court informed the parties of their remaining time. On two different occasions, the court granted Bertoli additional time to present her case. And all told, Bertoli had 78.5 hours to present her case. She called over 40 witnesses and introduced hundreds of exhibits. Accordingly, this is not close to a situation where a party was denied the opportunity to present his or her case.

Furthermore, and contrary to Bertoli’s assertion, the trial court did not deny her an additional 4.98 hours because it was “retroactively punishing” her for her lawyer’s failure to identify and exchange exhibits before trial. That due to his failure to properly handle exhibits before trial, Rouda may have had to use trial time to sort them out, was an inevitable consequence during trial of his own conduct. In any case, the trial court refused to allow Bertoli the additional 4.98 hours because of her counsel’s failure during trial to present her case with any degree of alacrity.

There also is no merit to Bertoli’s assertion that her allotted time was unfairly consumed by objections and conferences without “prior notice” that these interruptions would be charged against her.

The trial court’s initial time allocation order, issued over a month before trial commenced, stated: “The allotted time will include all proceedings, excluding jury selection and proceedings prior to jury selection.” (Italics added.) It further stated: “[T]he time limits ‘include direct examination, cross-examination, opening statement, and closing argument.” Following jury selection, as Rouda presented opening argument on behalf of Bertoli, the City and CalTrans interposed numerous objections, most of which were sustained, including on grounds Rouda was violating in limine rulings. Many of these objections generated sidebar conferences. During one of them, Rouda specifically stated: “Your honor, I hope you understand that your order was that for purposes of time that sidebars are not counted towards time.” The court replied: “That wasn’t my order. . . . [¶] . . . [¶] So you had a certain number of hours that you were given, as was everyone else. To the extent that you use them, that’s fine. If you use them all, as I said yesterday, in your opening statement, that’s your choice. But then it’s gone. So let’s make sure that you focus on what you need to do. You will be given a statement as to how much time you have left. You were given an amount of time in a court order. That is the time that you will have.” (Italics added.) Thus, even assuming there was any doubt when the court issued its time allocation order as to whether the clock would keep ticking during objections and sidebars, the court made it explicitly clear at the very outset of trial that the clock would, indeed, keep ticking for all parties.

At oral argument, Bertoli maintained that, regardless of whether she had notice, she was unfairly charged with the time consumed by sidebars and in-chambers conferences. According to Bertoli, there were 114 “Conference[s]/Sidebar[s]/Break[s]” (which we will refer to as “conferences”), which she maintains were largely triggered by meritless defense objections. In support of this assertion, she submitted a chart prepared by her attorney, Rouda, and appended to her reply brief. This chart identifies the 114 conferences, the minutes consumed by each, and Rouda’s view as to whether the defense objection was “overruled” or “sustained,” or whether the court’s ruling was “[m]ixed,” or whether the conference resulted in “[n]o ruling.” At oral argument, Rouda represented to the court that “76 percent” of the objections leading to these conferences were “not sustained,” implying that 76 percent of the objections were meritless and an obvious attempt by the defense to run out the clock.

We are being restrained in saying Rouda’s representation at oral argument about the conferences was misleading. To begin with, the chart identifies only 29 of the 114 conferences—or only about 25 percent of the conferences—as resulting in “overruled” objections, not the 76 percent Rouda insinuated. The 76 percent figure he featured at oral argument must therefore have included the 22 conferences he characterizes on his chart as resulting in “[m]ixed” rulings, as well as the 39 conferences he characterizes as resulting in “[n]o ruling”—a total of 61 conferences that, even by Rouda’s own characterizations on his chart, cannot fairly be described as arising out of patently meritless defense objections made solely to consume Bertoli’s trial time.

Furthermore, by Rouda’s own calculations, the conferences listed on the chart consumed a total of 695 minutes. However, he identifies only 526 minutes as having been demonstrably charged against Bertoli’s trial time. Thus, there is no indication (and no record support) that Bertoli was, in fact, charged with 169 minutes (or more than two and a half hours worth) of the conferences about which she now complains.

Moreover, of the total 695 minutes of conference time, only 143 minutes are attributable to conferences that Rouda characterizes as resulting in “overruled” defense objections—and only 110 minutes of these conferences were, even according to Rouda, identifiably charged against Bertoli’s time. Thus, according to the descriptors and times Rouda, himself, has provided, “overruled” defense objections consumed only about 21 percent of conference time charged against Bertoli’s trial time (which, in turn, works out to only about 2.3 percent of her total trial time of 4710 minutes). In short, Bertoli’s own chart does not come close to showing that she was the unfair target of meritless defense objections.

In addition, even though Rouda plainly included in the 76 percent number he featured at oral argument, conferences resulting in what he characterizes as “[m]ixed” rulings, that was hardly fair, as his characterization of these conferences is not entirely accurate. For example, these conferences include a 24-minute conference about Rouda’s request to set up a “special screening” of a video for the jury. The conference was not triggered by a defense objection, but rather, occurred because Rouda changed his initial request regarding the logistics of setting up a screen in the courtroom. The court explained on the record that it had “requested that a written request be submitted for setting up the special screening,” and it had been informed “there would be a five-minute period of time where the lights would be blocked off, and that’s all that I was informed about. Now I’m informed that it will take 20 minutes,” and that a different screen would be installed blocking the court’s view. Defense counsel then objected that the video would violate the court’s in limine order regarding subsequent remedial measures, and also noted they had not received a copy of the video. After further discussion of the logistics, the court stated, “the Court was not informed of this. In fact, I actually believe the Court was mis[led] about this video.” Then, after viewing the video, the court stated: “Number one, the Court was supposed to have advance notice of the mechanics of showing this video. That was not provided. [¶] Number two, the Court’s order specifically required that this issue be dealt with outside the presence of the jury. Although the order didn’t say so, there were ample opportunities to bring this up with the Court during the several months of pretrial preceding picking of a jury and now proceedings into evidence. This was not done. [¶] . . . You can go about your questioning, Mr. Rouda, but do not show this video until we’ve had an opportunity to hear objections.” Thus, not only was this conference not triggered by a defense objection, but its length was due to Rouda’s own failure to give adequate notice to the court regarding the logistics of showing the proposed video and failure to give notice to the defense of his intent to use a video showing subsequent remedial measures. Moreover, while the defendants voiced an objection once they were apprised of the video, the court did not rule on the objection at that time, but at a later time. And when the court did rule, it sustained the objection to the unmodified video at another 20-minute conference.

Similarly, Rouda’s characterization of other conferences included in his 76 percent number as resulting in “[n]o ruling” is also not entirely accurate. For example, one of these was a 12 minute conference. The record shows that, while questioning Bertoli’s father, Rouda sought to admit some photographs of Bertoli and also a video of her rehabilitation. Defense counsel objected to the photographs, and the court sustained the objections and stated, “We’ll have to discuss it.” Rouda then asked, as to the video, “can we show that to him” and the court responded “No. Let me do this. We need to take a quick recess.” The court then held a conference outside the jury’s presence, at which it stated: “My difficulty is I’m hearing about it for the first time in the middle of an examination. And this is one of those sorts of exhibits that is––controversial probably isn’t the right word, but it will invoke objection.” Rouda withdrew the video, but reserved the right to use it in the future. The court then ruled it would admit one exhibit consisting of a group of photos. Again, this was a conference initiated by the court in response to Rouda’s own failure to identify exhibits. Furthermore, it followed on the heels of a defense objection that was sustained, and the court ultimately denied the request by Rouda to ask that witness about the video.

In sum, the record amply supports the trial court’s assessment that Bertoli’s own attorney was largely responsible for the time consumed by sidebars and conferences, as well as its finding that the defendants did not engage in any trial “tactic[s]” to run out Bertoli’s trial time. Thus, the trial court’s refusal to allow Bertoli the additional 4.98 hours of trial time she now complains about on appeal did not deprive her of her right “ ‘to present evidence and make a reasonable argument. . . .’ ” (Marriage of Carlsson, supra, 163 Cal.App.4th at p. 284.) On the contrary, as the trial court found, Bertoli’s lawyer squandered his trial time and has no one but himself to blame for running out the clock.

The Nonsuit as to the City

Bertoli maintains the trial court also erred in granting the City’s motion for nonsuit. She asserts that “[e]ven assuming the City was not obligated to trim the trees so as to eliminate the shadows [falling on the crosswalk], there was substantial evidence it had the power to do so.” (Italics omitted.)

“A defendant is entitled to nonsuit if the trial court determines as a matter of law that the plaintiff’s evidence, when viewed most favorably to the plaintiff under the substantial evidence test, is insufficient to permit a jury to find in his favor.” (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 713.) In reviewing a judgment of nonsuit, “we must view the facts in the light most favorable to the plaintiff. ‘[C]ourts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendant’s motion for nonsuit if plaintiff’s evidence would support a jury verdict in plaintiff’s favor. [Citations.] [¶] In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. . . .’ The same rule applies on appeal from the grant of a nonsuit.” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214–1215.)

A cause of action for dangerous condition of public property under Government Code section 835 requires the plaintiff to prove “the public entity owned or controlled the property” and that the property “ ‘was in a dangerous condition at the time of the injury.’ ” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 146–147.)

Regardless of whether there was a triable issue that the City owned or controlled the property at issue, the jury subsequently found, by special verdict, that there was no dangerous condition at the site of the accident. Bertoli has not challenged the jury’s special verdict in this regard. Accordingly, as the City points out, she has not, and cannot, demonstrate any prejudicial error in the granting of the nonsuit. We therefore need not, and do not, address any of the issues Bertoli has raised in connection with her claim that she offered or presented sufficient evidence to support a verdict that the City exercised some authority or control over the condition of the roadway.

This same problem besets Bertoli’s claim that the court erred in not allowing her to reopen her case against the City following the nonsuit in order to present “additional evidence of control” by the City. Again, whether or not the court abused its discretion by not allowing Bertoli to reopen her case, any such error was harmless given the jury’s finding, unchallenged on appeal, that there was no dangerous condition of public property.

DISPOSITION

The judgment is affirmed. Respondents to recover costs on appeal.

 

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Banke, J.

We concur:

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Humes, P.J.

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Margulies, J.

A145660, Bertoli v. City of Sebastopol et al.