Ghezavat v. Harris ( 2019 )

Filed 9/27/19
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
MO GHEZAVAT et al.,
Plaintiffs and Respondents,
A154405
v.
DAVID RICHARD HARRIS, (Contra Costa County
Defendant and Appellant. Super. Ct. No. CIVMSC13-00167)
In this wrongful death action arising from a motor vehicle collision, the decedents’
survivors sued John Harris, 1 and John’s father, David Richard Harris, who co-owned the
truck John was driving. David appeals from the judgment entered against him, after the
jury found him liable on a negligent entrustment theory. We affirm.
BACKGROUND
On November 7, 2011, John suffered a seizure while driving a Toyota Tacoma
truck and struck a car occupied by Ellie Pirdavari and Mahin Dowlati. Pirdavari and
Dowlati were killed. It was stipulated that, as a result of his seizure, John was unable to
brake or steer; that he was negligent; and that his operation of the truck was the sole
cause of the collision.
The truck John drove was jointly owned by John and David. When they
purchased the truck, in 2005, John was 26 years old. He paid the down payment, and
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts A.4., B., and C. of the Discussion.
1 We use first names for clarity when referring to individual members of the
Harris family.
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David co-signed the loan. Before the loan was paid off, in 2009, David made some of the
payments. The truck was registered in both John’s and David’s names. David paid for
its insurance and registration. However, John had sole possession of the keys and was
the only driver.
David was aware, by no later than June 2011, that John suffered from a seizure
disorder. In particular, David knew that John suffered a grand mal seizure, in June 2011
on a Bay Area Rapid Transit (BART) train, and that John lost consciousness and control
of his body and was taken to the hospital. Within days thereafter, David researched
grand mal seizures and learned such seizures could involve lost control and an epileptic
fit for a period of time. On July 30, 2011, John suffered a second grand mal seizure on a
BART train.
David testified he did not know if John continued to drive after the June 2011
seizure but believed it was possible. David took no action to dissuade John from driving,
such as canceling the Tacoma’s insurance. David considered removing himself from the
registration in 2009 to avoid being accountable for John’s use of the truck, but he did not
follow through.
The decedents’ survivors, Mo Ghezavat, Shadeh Ghezavat, Ali Ghezavat, Haleh
Pirdavari, and Leila Pirdavari (collectively, Plaintiffs) sued John and David for
negligence. As to David, the Plaintiffs’ theory of liability was negligent entrustment of
the jointly owned Tacoma. Returning special verdicts, the jury found David knew or
should have known that John was “incompetent or unfit to drive”; that David permitted
John to drive the Tacoma; and that David’s permitting John to drive the Tacoma was a
substantial factor in causing Pirdavari’s and Dowlati’s deaths. The jury allocated 90
percent of fault to John and 10 percent to David. The trial court entered a judgment in
Plaintiffs’ favor against David for $388,400.
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DISCUSSION
A.
David challenges the trial court’s jury instruction regarding negligent entrustment,
contending the trial court erred by denying his requests to supplement Judicial Council of
California Civil Jury Instructions (CACI) No. 724. We disagree.
1.
We review jury instructions de novo. (Mize-Kurzman v. Marin Cmty. College
Dist. (2012) 202 Cal.App.4th 832, 845.) “A party is entitled upon request to correct,
nonargumentative instructions on every theory of the case advanced by him which is
supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th
548, 572.) However, “ ‘[i]nstructions should state rules of law in general terms and
should not be calculated to amount to an argument to the jury in the guise of a statement
of law. [Citations.] Moreover, it is error to give, and proper to refuse, instructions that
unduly overemphasize issues, theories or defenses either by repetition or singling them
out or making them unduly prominent although the instruction may be a legal proposition
[citations.]’ ” (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217.) A
trial court may refuse to give a requested instruction if the subject matter is adequately
covered by the other instructions. (Arato v. Avedon (1993) 5 Cal.4th 1172, 1189, fn. 11.)
Negligent entrustment is a common law liability doctrine, which arises in
numerous factual contexts. (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th
853, 862-863.) In cases involving negligent entrustment of a vehicle, liability “ ‘is
imposed on [a] vehicle owner or permitter because of his own independent negligence
and not the negligence of the driver.’ ” (Syah v. Johnson (1966) 247 Cal.App.2d 534,
539 (italics omitted), disapproved on another ground by Diaz v. Carcamo (2011) 51
Cal.4th 1148, 1159, fn. 1; accord, Mettelka v. Superior Court (1985) 173 Cal.App.3d
1245, 1248 (Mettelka).) “ ‘Liability for the negligence of the incompetent driver to
whom an automobile is entrusted does not arise out of the relationship of the parties, but
from the act of entrustment of the motor vehicle, with permission to operate the same, to
one whose incompetency, inexperience, or recklessness is known or should have been
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known by the owner.’ ” (Syah, at p. 539; accord, Rest. 2nd Torts, § 308 [“It is negligence
to permit a third person to use a thing or to engage in an activity which is under the
control of the actor, if the actor knows or should know that such person intends or is
likely to use the thing or to conduct himself in the activity in such a manner as to create
an unreasonable risk of harm to others”].)
2.
The jury was given CACI No. 724 (omitting the element of the driver’s negligence
because the parties stipulated that John was negligent): “Plaintiffs . . . claim that
[Pirdavari] and [Dowlati] were harmed because [David] negligently permitted [John] to
use [David]’s vehicle. To establish this claim, plaintiffs must prove all of the following:
That [David] was an owner of the vehicle operated by [John]; that [David] knew or
should have known, that [John] was incompetent or unfit to drive the vehicle; that
[David] permitted [John] to drive the vehicle; and, that [John] was incompetent or unfit to
drive was [sic] a substantial factor in causing harm to [Pirdavari] and [Dowlati].” (Italics
added.) David requested four supplemental special instructions, which the trial court
rejected, concluding CACI No. 724 was sufficient.
3.
David argues that CACI No. 724 does not adequately define “permitted” and
necessitated supplemental instruction making clear that, in order to be liable, David must
have had the power to deny John the use of the Tacoma. We conclude CACI No. 724
adequately covered the point.
David’s first proposed special instruction reads: “In order for you to find that
[David] permitted [John] to drive the Toyota Tacoma at the time of the accident, you
must find that [David] had power over the use of the Toyota Tacoma by [John] and that
[John] drove the Toyota Tacoma at the time of the accident with the express or implied
consent of [David.]” David also requested a second proposed special instruction: “When
determining whether [David] controlled [John’s] use of the vehicle involved in the
accident, you must determine whether [John] was entitled to possess the vehicle at the
time of the accident only by the consent of [David] and that [David] had a reason to
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believe that by withholding consent, he could prevent [John] from using the vehicle.”
After the jury began deliberating and requested a definition of “permit” as used in the
special verdict’s second question, David renewed his request for his first proposed special
instruction. However, the trial court again determined further definition was not
required.
David contends his first proposed instruction follows the law as described in
Mettelka, supra, 173 Cal.App.3d 1245. The Mettelka court allowed amendment of a
complaint to allege negligent entrustment against a car’s co-owner. (Id. at pp. 1246-
1247, 1250.) The plaintiff alleged a father jointly owned a car with his driving son, lived
with his son, and facilitated the son’s use of the car “ ‘by providing funds to purchase and
maintain the vehicle and the insurance.’ ” (Id. at p. 1247.) The plaintiff also alleged the
father “ ‘ had actual power over the use of the vehicle by [his son],” that the son operated
it with his father’s express or implied permission, and that the father knew his son was an
unsafe driver. (Ibid.)
The Mettelka court rejected the father’s argument that a negligent entrustment
cause of action is barred in the co-ownership situation “because both co-owners had the
right to use the vehicle” and “neither needed permission from the other to use it.”
(Mettelka, supra, 173 Cal.App.3d at pp. 1248-1250.) The court explained: “[T]he mere
fact of co-ownership does not prevent one co-owner from controlling use of the vehicle
by the other co-owner. Thus, where . . . plaintiff alleges that one co-owner had power
over the use of the vehicle by the other and that the negligent co-owner drove with the
express or implied consent of such controlling co-owner, who knew of the driver’s
incompetence, the basis for a cause of action for negligent entrustment has been stated.”
(Id. at p. 1250.)
Mettelka, supra, 173 Cal.App.3d at pages 1249 and 1250, relied on Krum v.
Malloy (1943) 22 Cal.2d 132, in which our Supreme Court stated: “It is true that the
power to permit is the correlative of the power to forbid [citation], and that each owner of
property in common is entitled to possess and use the whole property [citation]. It is also
true that the possession of one co-owner is regarded as possession for all [citation], but
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none is entitled to a possession or usage which excludes for any period of time a like
possession or usage by his co-owners [citations]. . . . A co-owner, therefore, of an
automobile, who desired its exclusive possession and usage for a time, would need the
permission, express or implied, of his co-owners to that end.” (Krum, supra, 22 Cal.2d at
p. 135, italics added.) “In the absence of other evidence upon the issue, an inference
normally would arise, upon proof of co-ownership and use of personal property by one
co-owner, that such usage was lawful and with the consent of the absent co-owner, but
this inference would not be conclusive. . . . It would scarcely be a reasonable inference
(from evidence showing merely the fact of co-ownership and a single, isolated usage) that
one co-owner of an automobile had consented to the operation of the common property
by another co-owner who did not possess an operator’s license, or who was a four-year-
old infant, a known imbecile, a prisoner who had escaped without the knowledge of the
co-owner, or utterly blind. In other words, it is a question of fact in cases of co-
ownership, as it is in cases of single ownership, whether the operation of an automobile
is with or without the consent, express or implied, of an owner who is not personally
participating in such operation.” (Id. at pp. 135-136, italics added.)
Krum and Mettelka make clear that “the power to permit is the correlative of the
power to forbid.” (Krum, supra, 22 Cal.2d at p. 135; Mettelka, supra, 173 Cal.App.3d at
p. 1249.) CACI No. 724 adequately explained to the jury that David was not liable for
negligent entrustment if David did not permit John’s use. No further clarification was
required. The trial court properly refused to give David’s special instructions because
they are argumentative and unduly emphasize his theory of the case. David’s counsel
appropriately argued to the jury that “[t]o permit something you have to have the ability
to say ‘no’ ” and that David had no power to forbid or control John’s use of the Tacoma.
But neither Mettelka nor Krum compelled the trial court to give the special instructions
David proposed.
4.
David also contends the trial court erred by refusing a special instruction on
causation. John testified that, if he had been unable to continue making payments on the
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Tacoma, he would have “needed to sell” it and “needed to get a different vehicle with
that money.” Relying on this testimony, David insists the trial court erred in refusing the
following special instruction: “In order to find that the actions of [David] were a
substantial factor in the causing of harm to Plaintiffs, you must determine that in the
absence of the vehicle involved in the accident, [John] would not have had ready access
to another vehicle.”
In a negligence action, the test for causation is whether a cause is “a substantial
factor in bringing about the injury.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th
953, 968-969.) The substantial factor test “generally produces the same results as does
the ‘but for’ rule of causation which states that a defendant’s conduct is a cause of the
injury if the injury would not have occurred ‘but for’ that conduct.” (Id. at p. 969.) “[A]
force which plays only an ‘infinitesimal’ or ‘theoretical’ part in bringing about injury,
damage, or loss is not a substantial factor.” (Ibid.) “If the actor’s wrongful conduct
operated concurrently with other contemporaneous forces to produce the harm, it is a
substantial factor, and thus a legal cause, if the injury, or its full extent, would not have
occurred but for that conduct.” (In re Ethan C. (2012) 54 Cal.4th 610, 640.)
Here, the trial court adequately conveyed this law to the jury. The jury was told
that it could not find David liable for wrongful death without finding his negligence “was
a substantial factor in causing plaintiffs’ harm.” The trial court also defined “substantial
factor” for the jury, in the language of CACI No. 430: “A substantial factor in causing
harm is a factor that a reasonable person would consider to have contributed to the harm.
It must be more than a remote or trivial factor, it doesn’t have to be the only cause of the
harm. Conduct is not a substantial factor in causing harm, if the same harm would have
occurred . . . without that conduct.” (italics added.)
The trial court did not err in rejecting David’s argumentative and unnecessary
special instruction. Talbott v. Csakany (1988) 199 Cal.App.3d 700 does not compel a
contrary conclusion.
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B.
David also challenges the sufficiency of the evidence to support the jury’s
negligent entrustment verdict. He contends his permission for John to use the Tacoma
cannot be inferred because there was no evidence he retained power to control its use
after learning of John’s 2011 grand mal seizures. He also challenges the sufficiency of
the evidence supporting causation.
We review the jury’s findings for substantial evidence. (Scheff v. Roberts (1950)
35 Cal.2d 10, 12-13.) We resolve all evidentiary conflicts and presume the jury drew all
reasonable inferences in favor of the judgment. (Kuhn v. Department of General Services
(1994) 22 Cal.App.4th 1627, 1632.) “The ultimate determination is whether a reasonable
trier of fact could have found for the respondent based on the whole record. [Citation.]
While substantial evidence may consist of inferences, such inferences must be ‘a product
of logic and reason’ and ‘must rest on the evidence’ [citation]; inferences that are the
result of mere speculation or conjecture cannot support a finding.” (Id. at pp. 1632-1633,
italics & fns. omitted.)
Here, substantial evidence supports a jury finding that David permitted John to
drive the truck they co-owned. David helped John buy the Tacoma for John’s use, paid
for its insurance, registration and repair, and held title jointly with John. Even if the jury
concluded David did not have actual or constructive knowledge John was unfit to drive
until June 2011, the jury could reasonably infer David thereafter implicitly permitted
John’s continued use of the Tacoma because David failed to take any action to dissuade
John from driving, to take the keys, to cancel the Tacoma’s insurance (for which he paid),
or to remove his name from the car’s registration and title. (See Mettelka, supra, 173
Cal.App.3d at p. 1250 [joint owner’s negligent entrustment liability may be based on
implied or express permission].)
Furthermore, John stopped driving for a period of time in 2009 when his driver’s
license lapsed. During this time, John rode his bicycle exclusively instead of purchasing
another vehicle. David helped John renew his license by obtaining the necessary forms.
John stopped driving again in 2010 after the truck was damaged in an unrelated collision.
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John resumed driving only after David paid for the Tacoma’s repair. Between 2009 and
2011, John’s parents paid most of his living expenses. Taking all of these circumstances
together, the jury could reasonably infer that, had David cancelled the insurance on the
Tacoma or taken other measures to keep John from driving the truck, John would have
stopped driving. This inference supports the jury’s findings on both permission and
causation. (Cf. Fremont Comp. Ins. Co. v. Hartnett (1993) 19 Cal.App.4th 669, 673, 675
[substantial evidence supports implied permission finding when mother purchased car
used by adult son and later, after learning car was not running safely, took no affirmative
steps to deny son access to car stored in her yard]; Casey v. Fortune (1947) 78
Cal.App.2d 922, 926 [“From the fact that she took no positive steps to prevent the use of
the car by Robert under the circumstances, it could reasonably be inferred that she
impliedly consented to its use”].)
Had the jury believed David’s testimony regarding his inability to control his adult
son’s use of the Tacoma, it might reasonably have reached a different conclusion. (See
Krum, supra, 22 Cal.2d at p. 135 [“In the absence of other evidence upon the issue, an
inference normally would arise, upon proof of co-ownership and use of personal property
by one co-owner, that such usage was lawful and with the consent of the absent co-
owner”].) But the jury was not compelled to believe David. This is not a case where we
can decide the question of negligence as a matter of law. (See Fremont Comp. Ins. Co.,
supra, 19 Cal.App.4th at p. 674-675 [when trier of fact draws “inference of implied
permission from conflicting evidence, and such inference is reasonable and supported by
substantial evidence, the appellate court may not interfere with the trier’s factual
conclusion of permissive use”].) Substantial evidence supports the verdict.
C.
Finally, David contends the trial court abused its discretion by admitting evidence
that David owned a construction company. He argues the evidence was unduly
prejudicial (Evid. Code, § 352) because it informed the jury “[David] had plenty of
money to pay for whatever verdict they saw fit to award against him.” However, David
did not designate his motions in limine on this issue, or the Plaintiffs’ opposition briefs,
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for inclusion in the clerk’s transcript. David has forfeited this point by failing to
designate an adequate record and by presenting only conclusory argument. (See Paterno
v. State of California (1999) 74 Cal.App.4th 68, 106 [courts are not required “to examine
undeveloped claims, nor to make arguments for parties”]; Maria P. v. Riles (1987) 43
Cal.3d 1281, 1295-1296 [issue resolved against appellant when inadequate record
provided].)
DISPOSITION
The judgment is affirmed. Plaintiffs are entitled to their costs on appeal.
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_________________________
BURNS, J.
WE CONCUR:
_________________________
JONES, P. J.
_________________________
NEEDHAM, J.
A154405
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Superior Court of Contra Costa County, No. CIVMSC1300167, Barry P. Goode, Judge.
The Dolan Law Firm, Christopher B. Dolan and Jeremy M. Jessup; Law Office of J.
Michael Brown, J. Michael Brown, for Plaintiffs and Respondents.
Samuelson, Wilson & Roe, Charles R. Roe, for Defendant and Appellant David Richard
Harris.
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