LaBerge v. City of Visalia CA5 ( 2014 )

Filed 7/9/14 LaBerge v. City of Visalia CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
DENNIS LABERGE,
F066593
Plaintiff and Respondent,
(Super. Ct. No. VCU227856)
v.
CITY OF VISALIA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L.
Hicks, Judge.
Dooley, Herr, Pedersen & Berglund Bailey, Leonard C. Herr, and Ron Statler for
Defendant and Appellant.
Law Offices of Richard M. Lester and Michael K. Dekruif for Plaintiff and
Respondent.
-ooOoo-
Plaintiff Dennis LaBerge injured his larynx and esophagus when he drove his
motorcycle into a nylon rope that had been strung across Mary Avenue at its intersection
with Pinkham Road in Visalia, California. The rope’s purpose was to close off Mary
Avenue for a Fourth of July block party. LaBerge sued the City of Visalia (City) for
allowing a dangerous condition to exist at the intersection. The jury found City 35
percent at fault and the trial court entered a judgment in the amount of $106,952.50
against City.
City appealed, contending that (1) the rope was a dangerous condition only after
the flags originally attached to it had been removed and (2) there was no evidence the
rope had been without flags long enough for City to have been put on constructive notice
of the dangerous condition. City also contends a new trial is necessary due to attorney
misconduct during closing argument.
The trial court rejected these contentions when it denied City’s posttrial motions.
The court stated that the jury could have found (1) the rope was a dangerous condition
even with two American flags and a sign attached to it and (2) City had constructive
notice of the flagged-rope danger because a police officer saw a similar rope barrier at the
other entrance to Mary Avenue nearly an hour before LaBerge’s accident. As for
attorney misconduct, the court stated a new trial was unnecessary because City had
objected and the court had sustained the objections and admonished the jury. The trial
court relied on the principle that juries are presumed to have followed the court’s
instructions and admonitions. The court also determined City had not been prejudiced by
the misconduct.
We agree with the trial court’s reasoning. The judgment is affirmed.
FACTS
Jesse and Angela Gutierrez, a married couple who lived on Mary Avenue,
obtained a temporary street closure permit from City to close East Mary Avenue between
Pinkham Road and Cain Street between 5:00 p.m. and 10:00 p.m. on July 4, 2007, for a
Fourth of July block party.
Instead of using a type of barricade approved by the City for street closures, the
Gutierrezes used ropes. The rope at the Mary Avenue and Pinkham Road intersection
was stretched between a street sign and a telephone pole. Attached to each rope was sign
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that said: “road closed 5:00 pm to 10 pm.” American flags were attached to the rope, one
on each side of the “street closure” sign.
George Weaver, a City police officer assigned to patrol in the area was asked to
visit the block party for public relations purposes. Officer Weaver did not consider it part
of his assignment to conduct a safety inspection. He approached the block party in his
patrol car by driving up South Cain Street to its intersection with Mary Avenue. When
Officer Weaver arrived at the intersection, he saw the sign and other things hanging from
a line across the street. He testified he could see the barrier clearly and that it was
obvious. He parked his patrol car on Cain Street at its intersection with Mary Avenue.
To approach a group of people at the block party, Officer Weaver ducked under the rope.
Officer Weaver stayed at the party for approximately 15 minutes. Because of a bend in
Mary Avenue, the intersection of Pinkham and Mary, where LaBerge’s accident
occurred, was not visible from the intersection of Cain and Mary where the officer
visited. Consequently, the officer did not see the rope at the intersection of Pinkham and
Mary.
Mrs. Gutierrez took photographs of Officer Weaver with her father and some kids.
The camera automatically recorded the time the pictures were taken as 5:51 p.m.
At about 6:45 p.m. on July 4, 2007, LaBerge drove his motorcycle south on
Pinkham Road and turned right onto Mary Avenue. While still in his turn, LaBerge hit
the rope barrier at a 45-degree angle, which caused his head to be yanked diagonally.
The impact did not knock LaBerge off the bike; he was able to bring the bike to a stop.
Before turning, LaBerge had not seen any obstructions of the roadway. After he
stopped, LaBerge looked back and saw the rope in the street and the sign on the ground,
near the “O” in the word “STOP” that was painted in the south lane of Mary Avenue at
the intersection. He did not see any American flags on the rope or in the immediate area.
The impact caused injuries to LaBerge’s larynx and esophagus. The full-face Bell
helmet LaBerge was wearing provided him some protection.
3.
PROCEEDINGS
In April 2008, LaBerge filed a complaint against City and the Gutierrezes.
LaBerge alleged that the use of the nylon rope to block traffic turning onto to Mary
Avenue constituted a dangerous condition and City knew or should have known that the
dangerous condition existed. The Gutierrezes were dismissed before trial.
In 2010, the case was tried to a jury. The jury found the City 65 percent at fault,
LaBerge zero percent at fault, and all others 35 percent at fault. In addition, the jury
found LaBerge’s total damages were $310,983.22, including $205,568 for future
noneconomic losses such as physical pain and suffering. The court apportioned fault in
accordance with the jury’s findings and entered a judgment of $206,431.92 against City
and in favor of LaBerge.
City moved for judgment notwithstanding the verdict (JNOV) and for a new trial.
The trial court denied City’s motion for JNOV, but granted a new trial because of
insufficient evidence on the issues of liability and apportionment of fault. The trial court
allowed the jury’s findings regarding the amount of damages suffered by LaBerge to
stand.
In December 2011, this court issued a nonpublished decision affirming the trial
court’s posttrial orders requiring a limited retrial. (LaBerge v. City of Visalia (Dec. 29,
2011, F060301) [nonpub. opn.].)
In August 2012, a second jury trial was held. The jury’s answers to questions in
the special verdict form indicate that the jury found (1) the intersection of Pinkham Road
and Mary Avenue was in a dangerous condition at the time of the accident; (2) City had
notice of the dangerous condition for a long enough period of time to have protected
against it; and (3) City’s failure to take sufficient steps to protect against the risk of injury
created by the dangerous condition was not reasonable under the circumstances. !(CT
538)! The jury allocated 35 percent of the fault to the City, zero percent to LaBerge, and
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65 percent to all others,1 which would have included the Gutierrezes and any unknown
individuals who might have removed the American flags from the rope.
On December 6, 2012, the trial court entered judgment in favor of LaBerge and
against City for $106,952.50, based on the second jury’s allocation of fault and the first
jury’s finding on damages.2
On December 10, 2012, the trial court filed a written ruling on City’s posttrial
motions. The court denied the motion for JNOV on the ground that (1) City’s argument
incorrectly assumed that there would be a dangerous condition only if the rope did not
have flags attached to it and (2) the jury could have found that the rope with flags
constituted a dangerous condition. The court denied the motion for new trial, concluding
that (1) there was constructive notice of the use of a flagged rope; (2) the alleged
misconduct was not prejudicial because City made objections that the trial court sustained
and the jury was admonished that the law was what the court said, not what the attorneys
said; and (3) the apportionment of some fault to LaBerge was not necessary because the
jury could have found that the flags were not on the rope when LaBerge turned into it
(which was what plaintiff’s counsel argued to the jury).
1 The special verdict form’s reference to “all others” must be interpreted to mean
the Gutierrezes because the jury was instructed: “If you determine that the City of
Visalia is liable to Dennis LaBerge, you will be asked to find the comparative fault of
Dennis LaBerge, the City of Visalia, and Angela and Jesse Gutierrez. To find the
comparative fault, you must decide the percentage of responsibility for the harm that you
attribute to each of them.”
2 The damages found by the first jury totaled $310,983.22 and 35 percent of this
amount equals $108,844.13, which is slightly more than the final judgment. The
difference is the result of reductions made by the trial court under Hanif v. Housing
Authority (1988) 200 Cal. App. 3d 635, to account for the fact that certain medical bills
were written off by the medical care provider after an insurance company paid less than
the full amount billed.
5.
In January 2013, City filed a notice of appeal that referenced the order on the
posttrial motions rather than the judgment.
DISCUSSION
I. SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE VERDICT
A. Standard of Review
A party challenging the sufficiency of the evidence to support a jury’s verdict
faces a difficult task on appeal. (Horn v. Oh (1983) 147 Cal. App. 3d 1094, 1098.) The
party “must show that there is no substantial evidence whatsoever to support the findings
of the trier of fact.” (Ibid.) The substantial evidence test has been described by our
Supreme Court as follows:
“Where findings of fact are challenged on a civil appeal, we are bound by
the ‘elementary, but often overlooked principle of law, that … the power of
an appellate court begins and ends with a determination as to whether there
is any substantial evidence, contradicted or uncontradicted,’ to support the
findings below. (Crawford v. Southern Pacific Co. (1935) 3 Cal. 2d 427,
429.) We must therefore view the evidence in the light most favorable to
the prevailing party, giving it the benefit of every reasonable inference and
resolving all conflicts in its favor in accordance with the standard of review
so long adhered to by this court.” (Jessup Farms v. Baldwin (1983) 33
Cal. 3d 639, 660.)
Evidence is “substantial” for purposes of this standard of review if it is reasonable,
credible and of solid value. (Brewer v. Murphy (2008) 161 Cal. App. 4th 928.)
B. Notice and the Length of Time the Dangerous Condition Existed
1. Contentions of the Parties
City contends there is insufficient evidence to support the jury’s verdict because
there was no evidence that the dangerous condition existed for any amount of time before
LaBerge drove into the rope. City relies on subdivision (b) of Government Code section
835.2, which provides that a public entity has constructive notice of a dangerous
condition “only if the plaintiff establishes that the condition had existed for such a period
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of time and was of such an obvious nature that the public entity, in the exercise of due
care, should have discovered the condition and its dangerous character.”
City argues that “the rope was not dangerous when it had the flags and sign on it”
and, therefore, evidence was needed to show how long the flags had been off the rope
before LaBerge’s accident. City’s theory that the rope with flags did not create a
dangerous condition is based on its interpretation of LaBerge’s testimony at trial. City’s
opening brief asserts, “Mr. LaBerge testified that the lack of the flags was what made the
rope dangerous.” Elsewhere, it asserts that LaBerge “conceded that the condition of the
rope was not dangerous until the flags came off of it.” Similarly, City’s reply brief
stated: “Mr. LaBerge argues the rope became dangerous when the signs fell off, and that
the rope would have been obvious if the signs were on it. That was an admission by Mr.
LaBerge.”3
LaBerge argues that City’s interpretation of his testimony “is simply incorrect.”
2. Trial Court’s View of the Purported Concession
The trial court considered City’s argument when it decided City’s posttrial
motions. The trial court disagreed with City’s version of LaBerge’s testimony, stating
that LaBerge “did not so testify.” The court stated: “He testified that, if seen head on,
the ‘barrier’ was obvious. He also testified that he did not approach it head on .…” As
3 One telling aspect about City’s interpretation of the testimony is that none of the
assertions quoted here are supported by a citation to the reporter’s transcript where the
purported concession occurred. City’s omission of a citation violates California Rules of
Court, rule 8.204(a)(1)(C), which states that any reference to a matter in the record must
be supported “by a citation to the volume and page number of the record where the matter
appears.” (See Sky River LLC v. Kern County (2013) 214 Cal. App. 4th 720, 741 [rule
applies to matters referenced at any point in brief, not just the brief’s statement of facts];
Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal. App. 3d 1203, 1205 [citations to a block
of pages does not comply with rule].) An important purpose of this rule is to assure that
the assertions made by appellate practitioners accurately reflect the proceedings below.
Had City followed the rule in this appeal, its version of what happened at trial might have
been more accurate.
7.
an alternate ground for rejecting City’s argument, the court stated that the question of
whether a dangerous condition existed was a finding for the jury based on all the
evidence and the jury was not bound to credit only LaBerge’s testimony.
3. LaBerge’s Testimony Was Not a Concession
On cross-examination by City’s lawyer, LaBerge testified that (1) he saw no
obvious obstruction and (2) if there had been an American flag and sign on the rope
across Mary Avenue he would have seen it. The cross-examination then proceeded as
follows:
“Q. And you would agree with me that this sign and this flag,
especially if there were two flags, this is a fairly obvious obstruction,
correct?
“A. Yes.
“Q. Okay. So if this was on a rope strung across the road, you
would agree with me that it should be fairly obvious, correct?
“A. I don’t think so.
“Q. Okay. I must have misunderstood what you just told us. This
sign and this American flag, especially if there are two flags, if they were
across a road, do you believe it would be a fairly obvious obstruction?
“[Plaintiff’s Counsel]: Incomplete hypothetical.
“THE COURT: Overruled.
“[LaBerge]: If they’re directly in front of me, yes.
“[Defense Counsel]: What if they’re on the side of you. What if –
let’s say they’re over on the side. Can you see them on the side?
“A. I can see them on the side, but this wouldn’t be the angle they
were to my approach.”
The foregoing questions and answers are reviewed by this court under the
substantial evidence rule, which means that we view the testimony in the light most
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favorable to LaBerge and draw all reasonable inferences and resolve all conflicts in favor
of him. (Jessup Farms v. Baldwin, supra, 33 Cal.3d at p. 660.)
Under this standard, we agree with the trial court and conclude that LaBerge did
not concede (1) that the rope strung across Mary Avenue constituted a dangerous
condition only if it did not have flags and a sign attached or (2) that a rope with flags and
a sign attached would have been obvious to someone who approached it from the north
on Pinkham Road.4 LaBerge’s answers, which included “I don’t think so” and “but this
wouldn’t be the angle they were to my approach,” cannot reasonably be construed as the
concession or admission claimed by City.
The purported concession by LaBerge is the basis for City’s argument that there
was no evidence showing how long the dangerous condition existed and, therefore,
LaBerge failed to establish a fact essential to his constructive notice theory. Because
City has failed to establish LaBerge conceded the rope strung across Mary Avenue
constituted a dangerous condition only if the flags were removed, City’s argument that
the evidence was insufficient to prove constructive notice of the dangerous condition
must fail.
Stated from another perspective, the evidence supports a finding by the jury that
the nylon rope, even with flags and a road-closed sign attached, constituted a dangerous
condition when strung across Mary Avenue at its intersection with Pinkham Road. That
evidence includes (1) the photographic exhibits of the intersection, (2) the rope and flags
used in the courtroom during the cross-examination of LaBerge, and (3) the conditions
imposed by City when it issued a temporary street closure permit. Paragraph (D) of the
conditions stated:
4 LaBerge approached the rope barrier from the north on Pinkham Road before he
turned right onto Mary Avenue.
9.
“Standard barricade with ‘Street Closed to Thru Traffic’ signs must be
placed across the streets at each intersection of the designated closure. The
permittee will be held responsible for meeting this requirement. The
required barricades and signs will not be furnished by the City, but can be
rented from the following companies.”
The evidence also supports the jury’s “yes” answer to the following question in
the special verdict form: “Did the city of Visalia have notice of the dangerous condition
for a long enough period of time to have protected against it?” A sufficient time for
constructive notice existed in this case because, nearly an hour before LaBerge’s
accident, a police officer saw the rope barrier being used at the intersection of Mary
Avenue and Cain Street. The officer, who knew Mary Avenue had an intersection with
Pinkham Road and saw people milling about in the street without any vehicular traffic,
should have realized that the Mary and Pinkham intersection was blocked and that a
similar, noncompliant barrier had been used.
C. Reasonable Inspection
City also contends that there was no evidence from which a jury could have
determined that a reasonable inspection would have discovered the dangerous condition.
This argument fails for the same reason the argument that there was insufficient time for
constructive notice failed—both arguments are predicated on a dangerous condition
existing only if the rope did not have flags attached. Because we must infer the jury
found the nylon rope with the American flags and sign attached constituted a dangerous
condition, we reject this argument.
II. ATTORNEY MISCONDUCT
As an alternative to City’s argument for entry of judgment in its favor based on the
insufficiency of the evidence, City argues it is entitled to a new trial because of
misconduct by LaBerge’s attorney.
10.
A. Rules of Law Concerning Appellate Review of Attorney Misconduct
1. Procedural Context
City included its claims of misconduct by LaBerge’s attorney in a motion for a
new trial. The trial court denied the motion in a written ruling filed on December 10,
2012. City’s notice of appeal stated that City appealed from an order entered on
December 10, 2012, which was an “order after judgment under Code of Civil Procedure
section 904.1(a)(2).”
“An order denying a motion for new trial is nonappealable. [Citation.] Such an
order, however, may be reviewed on appeal from the underlying judgment. [Citations.]”
(Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal. 4th
15, 18.) Consequently, we interpret City’s notice of appeal as referring to the judgment
entered on December 6, 2012.
In the procedural context of an appeal from a judgment, appellate courts analyze
attorney misconduct claims at three levels. First, is the claim reviewable on appeal—that
is, has the issue been preserved for appellate review and, if not, does an exception apply?
Second, was there attorney misconduct? If the appellant clears these two hurdles, then
the court reaches the third level and considers whether the misconduct was prejudicial.
2. Reviewability of Attorney Misconduct Claims
As a general rule, “a claim of misconduct is entitled to no consideration on appeal
unless the record shows a timely and proper objection and a request that the jury be
admonished. [Citations.]” (Horn v. Atchison, T. & S. F. Ry. Co. (1964) 61 Cal. 2d 602,
610 (Horn).) The purpose of this two-pronged requirement is to give the trial court the
opportunity to admonish the jury, instruct counsel and forestall the accumulation of
prejudice by repeated improprieties, thus avoiding the need for a retrial. (Ibid.)
The general rule is subject to exceptions. For example, a challenge to alleged
misconduct is not forfeited for purposes of appeal by the lack of an objection and request
for an admonition when the misconduct is of so aggravated a character that it could not
11.
be cured by any instruction. (Whitfield v. Roth (1974) 10 Cal. 3d 874, 892.)5 Also, as to
the request-for-admonition prong, the absence of such a request will be excused if the
trial court immediately overrules the objection to the alleged attorney misconduct and, as
a result, the objecting attorney had no opportunity to make such a request. (Cassim v.
Allstate Ins. Co. (2004) 33 Cal. 4th 780, 795 (Cassim).)
City’s appellate brief does not acknowledge the existence of the general rule that
establishes the prerequisites for reviewability and, similarly does not mention any
exceptions to the general rule. Consequently, as will be discussed in more detail below,
City has made no attempt to demonstrate that the instances of alleged misconduct to
which City did not object fall within an exception.
3. Misconduct
Once it is shown that a misconduct claim is reviewable, the appellate court
proceeds to the question whether attorney misconduct actually occurred.
Neither City nor LaBerge contend that an appellate court should defer to a trial
court’s determination regarding the existence of misconduct. In the present case, the trial
court’s written ruling stated: “There was attorney misconduct.” The court did not
specify which of the challenged actions constituted misconduct and which, if any, did
not. Because there are no specific determinations, we will independently decide, where
necessary, whether a particular challenged action constitutes attorney misconduct. Our
independent review is straightforward—we will examine the reporter’s transcript to
determine what LaBerge’s attorney said in front of the jury and will consider those
5 In other words, the general rule does not apply “where there are flagrant and
repeated instances of misconduct,” and it is clear from the record that objecting and
asking for admonitions would have overemphasized the objectionable material and would
have alienated the jury. (Simmons v. Southern Pac. Transportation Co. (1976) 62
Cal. App. 3d 341, 355.)
12.
statements in the context created by the testimony, the jury instructions, and the questions
in the special verdict form.
A general definition of attorney misconduct was set forth by the California
Supreme Court in People v. Chojnacky (1973) 8 Cal. 3d 759. Attorney misconduct is “‘a
dishonest act or attempt [by an attorney] to persuade the court or jury, by use of deceptive
or reprehensible methods.’” (Id. at p. 766.)
This general definition of misconduct rarely gets directly applied because many
published opinions have identified specific types of misconduct. For example, it is
misconduct (1) to suggest facts not in evidence, (2) to suggest the jurors should measure
damages by what they would take to endure plaintiff’s suffering, (3) to accuse defense
counsel of suborning perjury or withholding evidence, and (4) to compare the wealth of
the defendant and plaintiff. (See Sabella v. Southern Pac. Co. (1969) 70 Cal. 2d 311,
325-326 [dis. opn. of Traynor, J.].) Guide books have summarized the appellate
decisions and generated lists of matters that have been recognized as attorney misconduct
in the context of closing argument. (E.g. Wegner et al., Cal. Practice Guide: Civil Trials
and Evidence (The Rutter Group 2013) ¶¶ 13:59 to 13:214, pp. 13-13 to 13-50.1; Cal.
Judges Benchbook: Civil Proceedings Trial (CJER 1997) Conduct and Control of Trial
§§ 5.74-5.81, pp. 243-245 [types of misconduct during closing argument].) Our
independent inquiry into whether attorney misconduct occurred in this case will be
guided by the precedent that has identified specific types of misconduct.
4. Prejudice
The third and last level of inquiry into a claim of attorney misconduct concerns
whether the appellant has demonstrated that the misconduct was prejudicial. (Cal.
Const., art. VI, § 13 [reversal only if error resulted in a miscarriage of justice]; Cassim,
supra, 33 Cal.4th at p. 800; Garcia v. ConMed Corp. (2012) 204 Cal. App. 4th 144, 149.)
13.
City’s appellate briefing does not address the standard of review applicable to the
question of prejudice. LaBerge contends that the reviewing court makes an independent
determination as to whether the attorney misconduct was prejudicial, which requires the
court to examine the entire case, including the evidence adduced, the instructions
delivered to the jury, and the entirety of the attorney’s arguments to the jury.
In City of Los Angeles v. Decker (1977) 18 Cal. 3d 860 (Decker), the California
Supreme Court stated that appellate courts are required to review the entire record,
including the evidence, and “make an independent determination as to whether [the
attorney misconduct] was prejudicial.” (Id. at p. 872.) The test for prejudice is whether it
was reasonably probable that the jury would have arrived at a verdict more favorable to
the moving party in the absence of the attorney misconduct. (Ibid.; see Soule v. General
Motors Corp. (1994) 8 Cal. 4th 548, 574 [standard for reversible error in civil case].)
Although appellate courts bear the responsibility of making an independent
determination on the question of prejudice, they do not ignore the trial court’s
determination of that issue. In Cope v. Davison (1947) 30 Cal. 2d 193 (Cope), the
California Supreme Court considered the question of prejudice resulting from attorney
misconduct in a case where the trial court had denied a motion for new trial and stated:
“A trial judge is in a better position than an appellate court to determine
whether a verdict resulted wholly, or in part, from the asserted misconduct
of counsel and his conclusion in the matter will not be disturbed unless,
under all the circumstances, it is plainly wrong.” (Id. at p. 203.)
Despite our Supreme Court’s adoption of the independent review standard for the
question of whether prejudice resulted from the attorney misconduct, it appears the
principle adopted in Cope remains good law. (See Sabella v. Southern Pac. Co., supra,
70 Cal.2d at p. 318, fn. 5; Joyce v. Simi Valley Unified School Dist. (2003) 110
Cal. App. 4th 292, 306; West v. Johnson & Johnson Products, Inc. (1985) 174 Cal. App. 3d
831, 863.) Therefore, we will treat the trial court’s determination that there was no
14.
prejudice as one of the factors our independent review must consider. (Dominguez v.
Pantalone (1989) 212 Cal. App. 3d 201, 211, fn. 2.)
B. References to a Nonexistent Duty to Inspect
City contends that LaBerge’s attorney made 16 references during his closing
argument to a nonexistent duty to inspect, which included a statement telling the jury
they got to decide if City had a duty or not.
1. Background Regarding an Inspection System
The topic of inspections arose in this case because of the statutory definition of
constructive notice in subdivision (b) of Government Code section 835.2, which
mentions an inspection system in connection with its description of due care:
“A public entity had constructive notice of a dangerous condition
within the meaning of subdivision (b) of Section 835 only if the plaintiff
establishes that the condition had existed for such a period of time and was
of such an obvious nature that the public entity, in the exercise of due care,
should have discovered the condition and its dangerous character. On the
issue of due care, admissible evidence includes but is not limited to
evidence as to:
“(1) Whether the existence of the condition and its dangerous
character would have been discovered by an inspection system that was
reasonably adequate (considering the practicability and cost of inspection
weighed against the likelihood and magnitude of the potential danger to
which failure to inspect would give rise) to inform the public entity whether
the property was safe for the use or uses for which the public entity used or
intended others to use the public property and for uses that the public entity
actually knew others were making of the public property or adjacent
property.
“(2) Whether the public entity maintained and operated such an
inspection system with due care and did not discover the condition.”
(Italics added.)
In view of this statutory provision, the trial court used CACI Nos. 1104 and 1112
to instruct the jury on an inspection system and the reasonableness of City’s action. As
read to the jury, those instructions provided:
15.
“In deciding whether City of Visalia should have discovered the
dangerous condition, you may consider whether it had a reasonable
inspection system and whether a reasonable inspection system would have
revealed the dangerous condition.
“In determining whether an inspection system was reasonable, you
may consider the practicality and cost of the system and balance those
factors against the likelihood and seriousness of the potential danger if no
such system existed.
“A public entity is not responsible for harm caused by a dangerous
condition if its failure to take sufficient steps to protect against the risk of
injury was reasonable.
“If the City of Visalia proves that its conduct was reasonable, then
your verdict must be for the City. In determining whether the City of
Visalia’s conduct was reasonable, you must consider how much time and
opportunity it had to take action. You must also weigh the likelihood and
the seriousness of the potential injury against the practicality and cost of
protecting against the risk of injury.”
These instructions were followed by an instruction about jury deliberation and
then there was a break, before the parties presented closing arguments to the jury.
After closing arguments, the jurors were presented with a special verdict form that
required them to decide whether City acted reasonably under the circumstances. The jury
answered “No” to the sixth question, which asked:
“When you consider the likelihood and seriousness of potential injury,
compared with (a) how much time and opportunity the City of Visalia had
to take action, and (b) the practicality and cost of protecting against the risk
of injury, was the City of Visalia’s failure to take sufficient steps to protect
against the risk of injury created by the dangerous condition reasonable
under the circumstances?”
The foregoing instructions and question in the special verdict form provide the
basis for LaBerge’s attorney discussion of (1) inspection and (2) the weighing of cost and
risk.
16.
2. Record of Argument and City’s Objections
City contends LaBerge’s attorney encouraged the jury to find that City was under
a duty to inspect by stating: “[Officer Weaver] should have realized that there is
probably another road closure.”
The next statements by LaBerge’s attorney that City contends involve a duty to
inspect are as follows:
“[LaBerge’s counsel:] It is the City’s job to maintain the traffic in a
safe manner. That’s traffic and safety. And they can’t just say, oh, we
want the community to have fun, let’s not worry about the risk. You folks
on this issue are the ones who decide the policy for the City of Visalia.
You need to tell them if it is appropriate to just say don’t worry about the
risks, let’s party, or basically, by your verdict, let them know that you need
to impose a minor fee on a permit to make sure.
“[Defense counsel]: Your Honor, I object. That’s not the function
of the jury in this case.
“THE COURT: That’s sustained.
“[LaBerge’s counsel]: You are the decision makers.
“THE COURT: But they’re not to impose a fine or a fee. That’s
improper.
“[LaBerge’s counsel]: No. You decide whether or not the City
should have an inspection system. And you know ---
“[Defense counsel]: Your Honor, I object. They’re not going to
decide if we should have an inspection system.
“THE COURT: That is correct. Sustained. You follow the
instruction, which is 1104, which you’ll hear and can look at. You’re not
deciding whether the City should now have an inspection system.
“[LaBerge’s counsel]: Folks, we know we’re talking about July
2007. The question is whether or not in July 2007 the City should have had
an inspection system in place. [¶] I submit to you that they absolutely
should have. And the evidence shows you that it could have been done at
very minimal cost to the people who wanted to have block parties.…
[¶] … [¶] … If [City] had done what was right, we wouldn’t be here, and
Mr. LaBerge would be whole. The inspection system is designed to protect
17.
the entire community. Not just motorcyclists. Not just middle-aged men.
Children, infants, kids, the entire age spectrum. Everybody you know who
lives, works, or visits Visalia. That is their failure. [¶] You need to
confirm that the City needs to be more careful.”
Counsel for City made no further objections before LaBerge’s counsel ended the
opening portion of his closing argument and the proceedings broke for lunch. After the
lunch break, outside the presence of the jury, counsel for City made another objection and
requested the jury be admonished. Counsel for City asserted:
“[LaBerge’s counsel’s] last five minutes of closing argument was all
about duty. City of Visalia had a duty to have an inspection system and
they should have charged and they could have gotten money and they could
have had an inspection system and avoided all of this or words to that
effect.
“He did not tie that at all to what the law is. And the inspection
system only goes to whether we would have reasonably had notice of this
dangerous condition. So I very much object. I had to get up and object
more than I ever have in any closing argument. And I think it was very
prejudicial to the City that I had to keep doing that.
“And when [LaBerge’s counsel] is telling them to rely on what you
know to be appropriate barricades and then starts talking about duty again, I
think it’s inappropriate, and I’d ask that the jury be admonished.”
The trial court responded to the objection and request for the jury to be
admonished by stating:
“I think there was plenty of admonishment going on. And I’ve made
some notes. He was very, very close to the duty question, but with 1104,
which requires – it says they can consider whether there was a reasonable
inspection system and whether a reasonable system would have revealed it.
“Then they say you can consider the practicality and cost of the
system, balanced against the factors and the likelihood and seriousness of
the danger.
“So he is able to argue here’s what the factors are, and here’s the
things you’re looking at, as to whether they should have an inspection
system. He can’t argue and he didn’t actually explicitly say they have a
18.
duty to inspect. The argument was in the context of 1104 that they should
find that they should have had an inspection system under 1104. [¶] … [¶]
“… That’s – yeah. It was real, real close. But I think it was enough
to fit under that, and you can clarify it under that. Anything else?” !(RT
439:4-25)!
City’s opening brief also lists nine statements made by LaBerge’s counsel in his
rebuttal argument that City contends were inappropriate because they encouraged the jury
to conclude that City had a duty to inspect. City made no objection to any of those
statements at the time. Furthermore, City’s appellate briefing has not addressed, much
less demonstrated, that the failure to object and request a curative admonition was
justified. Consequently, we conclude that City’s misconduct claims regarding the
statements during the rebuttal argument6 are not subject to review on appeal. (Horn,
supra, 61 Cal.2d at p. 610.)
3. Reviewability of Claims
City’s claim that the statement that Officer Weaver “should have realized that
there is probably another road closure” constitutes misconduct was not raised during
closing argument. City did not object to this argument at the time. Furthermore, City has
not argued it should be excused from the requirement of an objection and request for
admonition because an exception to the general rule applies. Therefore, we conclude
City’s claim that the statement constitutes attorney misconduct is not subject to appellate
review—that is, it is forfeited or deemed waived. (Horn, supra, 61 Cal.2d at p. 610.)
Moreover, the statement was permissible because it addressed constructive notice, an
important issue in the case.
6 Like the earlier arguments, none of the statements used the phrase “duty to
inspect” or even the word “duty.”
19.
The next six statements challenged by City are set forth above in the quotes from
LaBerge’s attorney’s closing argument. We conclude that City’s two objections during
argument and its objection and request for an admonition outside the presence of the jury
sufficiently preserved for appeal the claim that those statements constituted misconduct.
4. Existence of Attorney Misconduct
LaBerge’s attorney’s statements that (1) the jurors “are the ones who decide the
policy for the City of Visalia”; (2) the jurors should let City know it needs to impose a
minor fee on permits; and (3) the jurors “decide whether or not the City should have an
inspection system” are misstatements of law regarding the jury’s role, and, therefore,
constitute misconduct. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence,
supra, ¶ 13:78, p. 13-17 [misstating the law].)
During the trial, the court concluded these remarks were inappropriate, sustained
City’s objections, and admonished the jury it was not to impose a fee or fine and it was
not deciding whether “City should now have an inspection system.” (Italics added.)
After the trial court’s correction regarding timing, LaBerge’s attorney’s stated:
“The question is whether or not in July 2007 the City should have had an inspection
system in place.” City also contends this was a misstatement of law. We disagree.
Counsel’s argument did not tell the jury that a duty to inspect exists. Instead, it
summarized two questions in the jury instruction about inspections. Specifically, that
instruction stated: “In deciding whether City of Visalia should have discovered the
dangerous condition, you may consider whether it had a reasonable inspection system
and whether a reasonable system would have revealed the dangerous condition.”
LaBerge’s attorney’s statement, when placed in the context of the evidence about City
having no inspection system, suggested to the jury that it would have been reasonable to
have an inspection system in 2007 and such a system would have revealed the dangerous
20.
condition. This is an argument the attorney was justified in making under the instructions
and evidence presented.
Similarly, other arguments and statements challenged on appeal do not explicitly
state that City had a duty to inspect. While it is possible to interpret those statements as
implying such a duty existed, it also is possible to interpret those statements as argument
requesting the jury to find that City, by not having an inspection system, failed to
exercise due care. Rephrased in terms of the sixth question in the special verdict form,
City’s lack of an inspection system was a “failure to take sufficient steps to protect
against the risk of injury created by the dangerous condition [that was not] reasonable
under the circumstances.” From this perspective, the argument that City should have had
an inspection system was not misconduct. Indeed, if LaBerge’s counsel had not
addressed the question in CACI No. 1104 about “whether a reasonable [inspection]
system would have revealed the dangerous condition,” he would have been omitting
argument on an issue explicitly presented to the jury by the instructions and properly
subject to criticism.
5. Demonstration of Prejudice
City argues that the prejudice from LaBerge’s attorney’s repeated
mischaracterizations of the law and the jury’s role was patent and asserts the jury would
have felt compelled to find for LaBerge despite the evidence presented.
First, our determinations regarding which of City’s claims are reviewable has led
to the conclusion that only instances of reviewable misconduct concerning the jury’s role
regarding a duty to inspect are the three instances where City objected and the trial court
sustained the objections. Thus, the reviewable misconduct before us is significantly
narrower than that claimed by City.
21.
Second, City’s argument does not address (1) the curative effect of the trial court’s
admonitions to the jury; (2) the questions posed in the jury instructions about inspections;
and (3) the six sequential questions in the special verdict form that take the jury step by
step through the issues that they were to decide, which would have kept the jury on
course and prevented them from wandering far afield into irrelevancies. Similarly, City’s
argument does not address the trial court’s determination that there was no prejudice
from the misconduct.7 (See Cope, supra, 30 Cal.2d at p. 203.) When the few instances
of misconduct are considered in this context, we (like the trial court) conclude that City
has not shown prejudice.
C. Encouraging Jurors to Impose a Duty to Tax
City contends that LaBerge’s attorney encouraged jurors to impose a duty to tax.
City’s opening brief includes the following argument:
“The imagined duty to tax was openly argued despite the apparent non-
existence of any such duty: ‘[w]e deserve better. And we’re not talking
about charging people a thousand dollars to have a party, 500 dollars.
We’re saying just throw in 10, 15, 20 bucks to pay someone who knows
what to look for to ensure that you’ve done it right,’ (RT 469) and he
continues on with ‘[e]specially when the risk of substantial injury or death
can be avoided by just telling the folks who want to have a block party,
okay, but you’re going to have to pay 10, 15, 20 bucks for the cost of an
inspection,’ (RT 473).”
First, City’s citations to the record do not show that City objected to the purported
misconduct or requested the jury be admonished.
7 In its written ruling on the posttrial motions, the trial court stated: “There was
attorney misconduct. However, it was objected to, the objections were sustained, and the
jury was admonished that the law was what the Court said, and not what counsel said. It
is presumed that the jurors followed their instructions. [¶] Furthermore, the Court cannot
find that the misconduct contributed to the verdict. The jury’s verdict was more
favorable to the City than the previous jury.”
22.
Second, City has not demonstrated attorney misconduct. In characterizing
LaBerge’s attorney’s arguments about how charging a small fee could cover the cost of
inspection as encouraging the jurors to impose a duty to tax, City has not addressed how
the arguments related to the jury instruction based on CACI No. 1104, which provides in
part: “In determining whether an inspection system is reasonable, you may consider the
practicality and cost of the system .…” In addition, the jury was instructed that it “must
also weigh the likelihood and the seriousness of the potential injury against the
practicality and cost of protecting against the risk of injury.”
It appears that LaBerge’s attorney’s reference to a fee of $10 to $20 was his view
as to the conclusion the jury should draw from the evidence about the cost of protecting
against the risk of injury created by improper barricades. Such an argument was within
the wide latitude given to attorneys in closing argument and, thus, we conclude that there
was no misconduct shown. (Cassim, supra, 33 Cal.4th at p. 795 [during closing
argument, attorneys have wide latitude to discuss the case].)
D. Ad Hominem Attacks
City also contends that LaBerge’s attorney “attempted to gain unfair advantage
through ad hominem attacks on City’s legal counsel with leading questions to Mrs.
Gutierrez, accusing City’s attorney of twisting her words, implying that City and its
agents are liars without admissible evidence of any such proclivities.”
This claim of misconduct is not supported by citations to the record. As a result, it
is difficult for this court to determine exactly which statements or questions by LaBerge’s
attorney constituted the personal attack on City’s lawyer. We have reviewed the
exchanges that occurred in connection with the presentation and proper interpretation of
Mrs. Gutierrez’s deposition testimony and do not believe the transcript demonstrates such
an attack.
23.
Moreover, the result of the exchange defined Mrs. Gutierrez’s position for the jury
in a way that was easy to understand. Specifically, Mrs. Gutierrez testified that (1) she
was not positive that she had seen the page concerning barricades that is usually provided
by City when it issues a permit for a street closure; (2) she did not believe that she had
received that page; and (3) she did not believe there was a real chance it was given to her.
Mrs. Gutierrez stated: “I couldn’t tell you positively that I had received it. I couldn’t tell
you positively that I had not received it. It wasn’t a commitment I was willing to make
[either way].”
It does not appear that the jury was confused, misled or impassioned by LaBerge’s
attorney’s examination of Mrs. Gutierrez about her deposition testimony. Indeed, it
appears that the jury decided in favor of City on this point and found that City provided
the Gutierrezes with the page that contained the paragraph about appropriate barricades
because the jury found the Gutierrezes’ fault was nearly twice as great as City’s. This
finding supports the inference that the jury found the Gutierrezes were negligent in not
following the instructions provided with the permit. Therefore, City has not
demonstrated that any ad hominem attack that might have been implied in the questions
and statements of LaBerge’s attorney caused any prejudice.
Finally, the argument from City’s appellate brief, quoted above, could be viewed
as a contention that it is misconduct for an attorney to imply a witness was untruthful
when there has been no admissible evidence that the witness has a proclivity for lying. If
City is asserting such an argument, it has provided no legal authority to support such a
proposition. In view of the fact that the jury instruction listing the factors that a jury
could consider in deciding whether to believe a witness did not mention evidence of a
proclivity for lying, we conclude City has not demonstrated that the challenges to the
credibility of its employee-witness was misconduct.
24.
E. Appeals to Passions and Prejudice—Safety and Saving Lives
City contends the misconduct of LaBerge’s attorney includes attempts to excite
and exploit the passions and prejudices of the jury. City contends the attorney “argued,
of all things, that the City is killing people because there is no inspection system for
block parties.”
1. Record of the Closing Argument
During closing argument, LaBerge’s attorney referred to the granting of permits
for road closures and the risk of harm if a road closure is done improperly. He then
stated:
“And, you know, it is nice to support a sense of community in
communities. But, ladies and gentlemen, I would hope that the lives of
your children, your family, all your loved ones and yourself, I hope that you
would value them.”
Counsel for City objected to this argument as an appeal to the sympathy of the
jury and the court sustained the objection.
LaBerge’s attorney continued by telling the jury that they were the ones who
decide whether City made errors and caused the problem by failing to have an adequate
inspection system, which triggered the following exchange.
“[LaBerge’s Counsel]: And when you determine whether or not
there was an adequate system of inspection, you have to consider the risks
and the – risk benefit analysis. And what I am saying is the lives of you
and your families --
“[City’s Counsel]: Your Honor --
“[LaBerge’s Counsel]: Your neighbors –
“[City’s Counsel]: Could we – I object again.
“THE COURT: Sustained.
“[LaBerge’s Counsel]: The lives of the people in this community --
“THE COURT: There you go.
25.
“[LaBerge’s Counsel]: Are – if they are at risk because of a
recreational, unnecessary road closure, there’s no risk benefit analysis. You
don’t need to make one. Just stating the proposition says that’s wrong. [¶]
But you want to have block parties. You want to have a sense of
community, you impose a 10- or 15-dollar fee on a permit so there’s no
expense on the City. You can have a block party, you can come up with the
15 bucks. So there’s no expense to the City. And we know that everyone
in the community is going to be safe.”
LaBerge’s attorney then stated that the risk of an improper and unsafe road closure
could result in an injury to the person approaching the closure or to the persons behind
the barricade.
“[LaBerge’s Counsel:] [When] the person driving approaches an
inappropriate road closure, he doesn’t have adequate warning, notice. He
doesn’t see it. They go through it, and they hit the people this road closure
is supposed to protect. We’ve had instances where six and seven people
have died at a time because of that.
“[Defense Counsel]: Your Honor. I’d object and ask that Counsel be
admonished.
“THE COURT: You are admonished. I’ve told you repeatedly do
not bring up what you purport to be facts that are not evidence in this case.
The jury should disregard these comments by Counsel.
“[LaBerge’s Counsel]: General knowledge, sir.
“THE COURT: That is not general knowledge, sir. Stick to the
evidence in this case.”
After the trial court’s direction, LaBerge’s attorney moved to another topic and
began discussing the lack of credibility of Detective Scott Nelson, who testified about his
investigation into LaBerge’s collision with the barrier.
2. Reviewability
City objected to the arguments made by LaBerge’s attorney and the trial court
directed the jury to disregard comments by counsel regarding purported facts that were
not in the evidence. Therefore, we conclude that City preserved this claim of misconduct
for appellate review.
26.
3. Existence of Attorney Misconduct
We conclude that the statements made by LaBerge’s attorney about valuing the
lives of loved ones and people dying because of improper road closures were clear
instances of attorney misconduct.
First, the request by LaBerge’s attorney that the jurors value their own lives and
the lives of loved ones is an appeal to the jurors’ self interest. “An attorney’s appeal in
closing argument to the jurors’ self-interest is improper and thus is misconduct because
such arguments tend to undermine the jury’s impartiality.” (Cassim, supra, 33 Cal.4th at
p. 796.) Under this principle, LaBerge’s attorney engaged in misconduct when he
requested that jurors’ value their own lives and the lives of loved ones.
Second, LaBerge’s attorney’s reference to “where six and seven people have died
at a time” is not supported by any evidence in the record. In conducting closing
argument, counsel “‘may not assume facts not in evidence .…’” (Cassim, supra, 33
Cal.4th at p. 796; see Malkasian v. Irwin (1964) 61 Cal. 2d 738, 747 [no doubt that to
argue facts not justified by the record is misconduct].) Therefore, we conclude that the
reference to people dying from improper road closures constitutes attorney misconduct.
4. Demonstration of Prejudice
City must demonstrate the misconduct caused prejudice to obtain a reversal of the
judgment. (Cassim, supra, 33 Cal.4th at p. 800.)
City argues that various instances of misconduct “add up to specious arguments
designed to confuse.” City also asserts that LaBerge’s attorney “turned our State’s courts
into a bully pulpit to confuse the jury on both the law and their role as jurors.”
City appellate briefs do not address the effect of the trial court’s ruling and its
admonition to the jurors. The trial court sustained the objections to LaBerge’s attorney’s
reference to the jurors’ own lives and the lives of their family. When the attorney
referred to the lives of people in the community, the trial court did not wait for another
objection. Instead, the court corrected the attorney by saying: “There you go.” As to the
27.
reference to “instances where six and seven people have died at a time,” the trial court
sustained City’s objection, admonished LaBerge’s attorney not to bring up purported
facts that are not in evidence, and directed the jury to disregard the comment.
Another factor relevant to the analysis of prejudice is the trial court’s
determination that it could not find the misconduct contributed to the verdict. City has
not addressed this factor and shown the trial court was “plainly wrong.” (Cope, supra, 30
Cal.2d at p. 203.)
On balance, it does not appear to this court that the jurors ignored the trial court’s
admonition during closing argument and the various jury instructions8 and allowed
themselves to be swayed by counsel’s appeal to their self-interest and passions. Rather,
the jury apportioned nearly two-thirds of the fault to the Gutierrezes and found on 35
percent of the fault attributable to City’s failure to exercise due care—a result which does
not suggest passion ruled their deliberations. We conclude that City did not demonstrate
prejudice tainted the verdict from the second trial.
F. Purported Arguments Regarding Actual Notice
City contends that LaBerge’s attorney argued that there was actual notice of the
condition despite the trial court’s prior ruling that there was no actual notice. We reject
this argument because it is not supported by the record.
1. City’s References to the Record
City has supported its position that LaBerge’s attorney repeatedly argued there
was actual notice with two references to the record. To assure City’s position is stated
accurately here, we quote from City’s opening brief:
8 The jury was instructed that statements and argument by the attorneys were not
evidence. In addition, special jury instruction No. 3 stated: “Arguments of the attorneys
are not evidence of how you should apportion liability. [¶] Your award must be based on
your reasoned judgment and the other evidence that has been admitted during the trial.”
28.
“Early in his argument, [LaBerge’s attorney] stated that the City had
actual notice of the rope at Mary and Pinkham because Officer Weaver saw
the rope at Mary and Cain: ‘he is an employee of city. I believe in the
instructions you will be told that a city – that notice to an employee is how
a city achieves notice.’ (RT 419.)”
City’s second reference to the record to support its position that LaBerge’s
attorney argued actual notice is contained in the following sentence from its opening
brief:
“[LaBerge’s attorney] backed that up later when he argued that ‘[i]t defies
reason for anyone to look at one end of the road closure and assume that the
other side of a road closure would be done differently. So they had notice.’
(RT 468.)”
Based on these statements during closing argument, City contends the jury was
inappropriately led to believe that Officer Weaver seeing the rope at Mary Avenue and
Cain Street was notice to City of the rope at Mary Avenue and Pinkham Road.
2. Counsel’s Use of the Term “Notice”
We have reviewed the portions of closing argument quoted by City and the
material surrounding those quotes.
First, nowhere did LaBerge’s attorney use the term “actual notice.” Thus, City
position about repeated references to actual notice is not supported by the words that
appear in the reporter’s transcript.
Second, it appears that City believes each mention of “notice” by LaBerge’s
attorney was interpreted by the jury to mean actual knowledge. City’s argument implies
that LaBerge’s attorney was obligated to use the term “constructive notice” in his
arguments to the jury to avoid misleading them.
City’s argument raises the following question: What did the jury think counsel
meant when he used the term “notice”? Our inquiry is relatively short because the jury
was instructed on this point. Specifically, the trial court used a modified version CACI
No. 1103 to instruct the jury on the notice requirement under Government Code section
29.
835.2.9 While the form instruction covers both actual and constructive notice, the
instruction given to the jury in this case was modified to address only the should-have-
known aspect of notice:
“Dennis LaBerge must prove that City of Visalia had notice of the
dangerous condition before the incident occurred. To prove that there was
notice, Dennis LaBerge must prove: [¶] That the condition had existed for
enough time before the incident and was so obvious that the City of Visalia
reasonably should have discovered the condition and known that it was
dangerous.”
In view of this jury instruction, we cannot conclude that the jury would have
interpreted LaBerge’s attorney use of the term “notice” to mean actual knowledge.
Furthermore, because the jury instructions did not use or define the term “constructive
notice,” it would have been confusing for LaBerge’s counsel to qualify each of his
references to notice with the term “constructive.” Therefore, we conclude that the use of
the word “notice” by LaBerge’s attorney in closing argument does not constitute attorney
misconduct in this case and did not confuse or mislead the jury.
Accordingly, City’s argument about opposing counsel’s repeated references to
actual notice fails because there were no such references.
9 Subdivision (a) of Government Code section 835.2 defines actual notice of a
dangerous condition to mean the public entity “had actual knowledge of the existence of
the condition and knew or should have known of its dangerous character.”
Subdivision (b) of Government Code section 835.2 states a public entity has
constructive notice of a dangerous condition “only if the plaintiff establishes that the
condition had existed for such a period of time and was of such an obvious nature that the
public entity, in the exercise of due care, should have discovered the condition and its
dangerous character.”
30.
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
_____________________
Franson, J.
WE CONCUR:
_____________________
Levy, Acting P.J.
_____________________
Cornell, J.
31.