D075558 Opn..pdf

Filed 10/22/19

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

AMADOR L. CORONA, JR.,

Plaintiff and Appellant,

CITY OF RIVERSIDE,

Defendant and Respondent.

D075558

(Super. Ct. No. RIC1514353)

APPEAL from a judgment of the Superior Court of Riverside County, Gloria

Connor Trask, Judge. Affirmed.

Law Offices of Scott E. Schutzman, Scott E. Schutzman; and Amador L. Corona,

for Plaintiff and Appellant.

Gary G. Geuss, City Attorney, Robert Hansen, Assistant City Attorney, Richard S.

Hall, Sr. and Rebecca L. McKee, Deputy City Attorneys; Skane Wilcox, Wendy L.

Wilcox and John G. Wilcoxson; Greines, Martin, Stein & Richland, Timothy T. Coates

and Carolyn Oill, for Defendant and Respondent.

After Amador L. Corona was seriously injured in a traffic accident, he sued the

City of Riverside (City) for negligence based on the dangerous condition of public

property. Prior to trial, the court granted several motions in limine, which substantially

impaired Corona's case against the City. After Corona presented his opening statement,

the court granted the City's motion for nonsuit.

Corona appeals the resulting judgment. He contends the court erred by granting

the motions in limine. But, as we explain further below, he fails in many cases to address

the bases for the court's orders or offer any cogent legal analysis to support his claims of

error. These deficiencies are fatal to his appeal. " 'A judgment or order of the lower

court is presumed correct. All intendments and presumptions are indulged to support it

on matters as to which the record is silent, and error must be affirmatively shown. This is

not only a general principle of appellate practice but an ingredient of the constitutional

doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

"This burden requires more than a mere assertion that the judgment is wrong. 'Issues do

not have a life of their own: If they are not raised or supported by argument or citation to

authority, [they are] . . . waived.' [Citation.] It is not our place to construct theories or

arguments to undermine the judgment and defeat the presumption of correctness. When

an appellant fails to raise a point, or asserts it but fails to support it with reasoned

argument and citations to authority, we treat the point as waived." (Benach v. County of

Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).)

We conclude Corona has not shown reversible error. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In his operative complaint, Corona alleged the following: In late December 2014,

at approximately 7:00 p.m., Corona was riding his bicycle when he was hit by a car at the

intersection of Central Avenue and Phoenix Avenue in the City of Riverside. Corona

approached on Phoenix and entered the intersection with Central on a green light. The

car was travelling on Central and struck Corona. The City owned and maintained the

intersection. The intersection was dangerous for bicyclists because of the nature and

timing of the traffic signal equipment at Central and Phoenix. Corona was seriously

injured in the accident and expected to incur millions of dollars in medical expenses.

By the time of trial, Corona had focused his contentions on the adequacy of the

traffic signal equipment at Central and Phoenix. It was undisputed that the traffic signal

incorporated a "loop line detection system," which utilized wires in the pavement to

detect the presence of a car waiting at the intersection. When a car was detected, the

traffic light would change to red on Central and green on Phoenix, allowing the car to

proceed through the intersection. Otherwise, because Central was a major street, the

traffic light would remain green on Central and red on Phoenix. The loop line detection

system was not capable of detecting a bicyclist waiting at the intersection.

As a result of his injuries, Corona could not remember the circumstances of the

accident. The other driver maintained that the light on Central was green as he

approached and proceeded through the intersection. Police officers who responded to the

accident noted the locations of various personal items, debris, and markings in the

intersection and surrounding streets. In a police report, one officer expressed her opinion

that the accident occurred in the intersection itself. (The City disputed this conclusion; it

believed that the accident occurred prior to the intersection as Corona turned around

illegally across lanes of traffic.)

Corona retained a civil engineering expert to examine the circumstances of the

accident and render an opinion on the adequacy of the traffic signal equipment at the

intersection. The expert opined that under California law the City was required to

upgrade the loop line detection system at the intersection to register the presence of

bicyclists. He believed the City's obligation to upgrade the system was triggered either in

2009, when the California Department of Transportation released standards for bicycle

detection, or in 2012, when the City replaced the electronics cabinet that controlled the

system and potentially one loop wire in the pavement.

Based on his analysis, the expert concluded that the loop line detection system on

Phoenix had been previously triggered by a car, and Corona entered the intersection with

a green or yellow light, but Corona could not make it across the intersection before the

light changed and the other driver hit him. To support this conclusion, the expert relied

on (among other things) Corona's custom and practice when riding his bicycle. Through

his attorneys, Corona stated that he normally stops and waits at an intersection if the

traffic light is red. If the light does not change to green, he would use the pedestrian

crosswalk button. If there were no pedestrian button, he would look both ways to make

sure it was safe to cross and then proceed through the intersection against the red light.

Corona engaged a graphics consultant to create a computer animation of his theory

of the accident. The consultant said the animation was consistent with the "Time Space

Calculations" produced by Corona's expert. The expert testified at deposition that he did

not know how the animations were created but that they used data "similar" to his own

calculations. In a later hearing, the expert testified that the animation accurately reflected

his opinion regarding the circumstances of the accident.

In advance of trial, the court granted several motions in limine filed by the City.

The substance of the relevant motions will be discussed in the next section. As a result of

the court's rulings, Corona gave a short opening statement, and the court granted nonsuit.

DISCUSSION

Motions in Limine Generally

" ' "The usual purpose of motions in limine is to preclude the presentation of

evidence deemed inadmissible and prejudicial by the moving party. A typical order in

limine excludes the challenged evidence and directs counsel, parties, and witnesses not to

refer to the excluded matters during trial. [Citation.] 'The advantage of such motions is

to avoid the obviously futile attempt to "unring the bell" in the event a motion to strike is

granted in the proceedings before the jury.' " ' " (Amtower v. Photon Dynamics, Inc.

(2008) 158 Cal.App.4th 1582, 1593 (Amtower), italics omitted.) "A trial court's ruling on

an in limine motion is generally reviewed for abuse of discretion. However, review is de

novo when the issue is one of law." (Children's Hospital Central Cal. v. Blue Cross of

Cal. (2014) 226 Cal.App.4th 1260, 1277.)

Motions in limine may also be used, in limited cases, to challenge the sufficiency

of the evidence supporting an opposing party's claim or defense. (Amtower, supra,

158 Cal.App.4th at p. 1595.) "[W]hen the trial court utilizes the in limine process to

dispose of a case or cause of action for evidentiary reasons, we review the result as we

would the grant of a motion for nonsuit after opening statement, keeping in mind that the

grant of such a motion is not favored, that a key consideration is that the nonmoving

party has had a full and fair opportunity to state all the facts in its favor, and that all

inferences and conflicts in the evidence must be viewed most favorably to the nonmoving

party." (Ibid.)

Loop Line Detection Systems and Requirements

Three of the City's motions in limine challenged aspects of Corona's theory that

the City was required to upgrade the loop line detection system at the intersection of

Central and Phoenix to detect bicyclists. As noted, the loop line detection system was not

capable of detecting bicyclists at the time of the accident.

In 2007, the Legislature amended the Vehicle Code to require the installation of

loop line detection systems capable of detecting bicyclists: "Upon the first placement of

a traffic-actuated signal or replacement of the loop detector of a traffic-actuated signal,

the traffic-actuated signal shall, to the extent feasible and in conformance with

professional traffic engineering practice, be installed and maintained so as to detect

lawful bicycle or motorcycle traffic on the roadway." (Veh. Code, § 21450.5, subd. (b),

as amended by Stats. 2007, ch. 337, § 2.) Public agencies were not required to comply

with the statute until the Department of Transportation established uniform standards,

specifications, and guidelines. (Veh. Code, § 21450.5, subd. (c).)

Two years later, the Department of Transportation adopted an amendment to

section 4D.105(CA) of the California Manual on Uniform Traffic Control Devices

(MUTCD), which governed bicycle and motorcycle loop detectors. The amended section

confirms that "[a]ll new limit line detector installations and modifications to the existing

limit line detection on a public or private road or driveway intersecting a public

road . . . shall either provide a Limit Line Detection Zone in which the Reference

Bicycle-Rider is detected or placed on permanent recall or fixed time operation." Under

the heading of "Guidance," the amended section provides, "If more than 50% of the limit

line detectors need to be replaced at a signalized intersection, then the entire intersection

should be upgraded so that every lane has a Limit Line Detection Zone."

In one motion in limine (Motion in Limine No. 3), the City requested that the trial

court interpret the phrases "loop detector" and "limit line detector" as used in the statute

and MUTCD. The City contended that interpretation of these phrases was a question of

law for the court. Relying on the Federal Highway Administration's Traffic Detector

Handbook, the City argued that these phrases referred to the actual loop wire in the

pavement itself. The City noted that Corona's expert had a different interpretation. The

expert testified that a loop detector was "the electronic box that's in the controller cabinet

that is able to pick up a signal and relay that signal to the controller to show that there

was an actuation." The trial court agreed with the City that interpretation of the phrases

was a question of law and found that the phrases referred to the actual wire in the

pavement.

In this appeal, Corona notes that his expert gave a different definition. He asserts,

"Since there is no case on what a loop detector is, [Corona] contends that this was a

question of fact for the jury." Corona is incorrect. Whether an issue is a question of fact

or a question of law does not turn on the existence of case law defining a term. Instead, it

turns on the nature of the issue itself. The issue here is interpretation of a statute and

related regulatory guidance. This issue presents a pure question of law. (People ex. rel.

Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432 ["To determine the meaning

of such a provision entails the resolution of a pure question of law."]; California

Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699 ["The

interpretation of a statute . . . is a question of law[.]"]; Daugherty v. City & County of San

Francisco (2018) 24 Cal.App.5th 928, 944.) The authority cited by Corona, DiRosa v.

Showa Denko K.K. (1996) 44 Cal.App.4th 799, is not to the contrary. In DiRosa, the trial

court instructed the jury on the meaning of various statutory terms as a matter of law.

(Id. at p. 806.) It left to the jury the factual determination whether the defendant's

product fell within the scope of those terms. (Ibid.) Similarly, here, the trial court

resolved a dispute over the meaning of loop detector and limit line detector. This

threshold issue, the meaning of these phrases, was a question of law for the court.

Corona has not shown the court erred by deciding this issue, rather than leaving it to the

jury to decide. We note that Corona does not address the merits of the trial court's

decision. To the extent he intends to raise the merits, he has forfeited this claim of

error on appeal. " 'We are not bound to develop appellants' arguments for them.

[Citation.] The absence of cogent legal argument or citation to authority allows this court

to treat the contention as waived.' " (Cahill v. San Diego Gas & Electric Co. (2011)

194 Cal.App.4th 939, 956 (Cahill); accord, Benach, supra, 149 Cal.App.4th at p. 852.)

In another motion in limine (Motion in Limine No. 1), the City requested that the

trial court determine when and under what circumstances a public agency is required to

install upgraded limit line detectors under the statute and the MUTCD. The City

contended that the upgrade requirement in Vehicle Code section 21450.5 applied only to

new and replacement limit line detectors, to the extent feasible, rather than existing limit

line detectors. And, under MUTCD section 4D.105(CA), existing limit line detectors

only needed to be upgraded if more than 50 percent of the limit line detectors at a given

intersection needed to be replaced. The trial court agreed and granted the motion.

Corona's briefing on appeal does not directly address the substance of the City's

motion. He does not mention the Vehicle Code or the MUTCD, let alone attempt to

interpret their requirements. Instead, Corona recites his expert's definition of limit line

detectors. We address this definitional issue above. Citing Korsak v. Atlas Hotels, Inc.

(1992) 2 Cal.App.4th 1516, 1524-1525 (Korsak), Corona also asserts that his expert was

allowed to base his opinion on hearsay, even if the hearsay was ultimately inadmissible.

This assertion, while generally correct, has no bearing on this motion in limine. This

motion concerned whether the court could determine when and under what circumstances

a public agency is required to install upgraded limit line detectors. Corona has not shown

the court erred by making such a determination as a matter of law. Again, Corona does

not address the merits of the trial court's determination under the Vehicle Code and the

MUTCD. To the extent he intends to raise the merits, he has forfeited this claim of

error on appeal as well. (See Cahill, supra, 194 Cal.App.4th at p. 956; Benach, supra,

149 Cal.App.4th at p. 852.)

In a third motion in limine (Motion in Limine No. 2), the City relied on the court's

interpretations of the statute and the MUTCD to argue that Corona had no evidence the

City was required to upgrade the loop line detection system at Central and Phoenix to

detect bicycles. The City contended that the limit line detectors were last replaced in

2003, before the statute requiring bicycle detection was enacted. Corona opposed the

motion. He argued that the City was required to upgrade the limit line detectors either in

2009, when the MUTCD was amended, or in 2012, when the City replaced the

electronics cabinet that controlled the system and potentially one loop wire in the

pavement. The City responded that it was not required to immediately upgrade the

system in 2009 because the statute applied only to new or replacement systems. The City

disputed that one loop wire was replaced in 2012. But, even if it had been, the City

argued that the replacement did not trigger the requirement to upgrade the loop line

detection system because it did not meet the MUTCD's 50 percent threshold. And, in the

City's view, the controller cabinet was not a "loop detector" or "limit line detector" under

the statute and MUTCD, so its replacement did not trigger the requirement to upgrade

either.

The trial court agreed with the City. It found that the City was not required to

immediately upgrade the limit line detectors in 2009 and neither the electronic cabinet

replacement in 2012 nor the single loop line replacement (if it occurred) was sufficient to

trigger the upgrade obligation.

In his appellate briefing, Corona recounts this procedural history but he does not

present a cogent argument to support any claim of error. He notes that the court's order

prevented his expert from testifying that the City was required to upgrade the loop line

detection system to accommodate bicyclists either in 2009 or in 2012. But this

observation does not show why the court's order was wrong. He seems to focus his

argument on a dispute about the evidence used to prove whether a limit line detector was

replaced in 2012, i.e., whether his expert could use a photo taken in 2015 by Corona's

counsel to support that assertion. However, even if the court erred by not accepting the

2015 photo as evidence, Corona still has not shown error. The court found that even if

the limit line detector had been replaced in 2012, it still would not have triggered the

City's obligation to upgrade the limit line detection system at the intersection based on

the 50 percent threshold in the MUTCD. Corona does not address this threshold or

explain why the court erred by relying on it. Because the court would still have reached

the same result on this motion regardless of the 2015 photo, Corona has not shown

prejudicial error.

III

Traffic Signal Timing

In Motion in Limine No. 5, the City requested that the trial court prevent Corona

from presenting evidence that the timing of the traffic signal on Phoenix was inadequate.

The City argued that the traffic signal timing was irrelevant because Corona could not

show (1) he was travelling on Phoenix before the accident and (2) he entered the

intersection on anything other than a red traffic signal. The City also argued that traffic

signal timing was irrelevant because Corona could not establish that the City had a duty

to implement elongated bicycle timing for the same reasons it had no duty to upgrade the

limit line detectors at the intersection. In his opposition, Corona pointed to the physical

evidence at the scene and his expert's analysis, which relied in part on Corona's custom

and habit as a bicycle rider. He contended that this evidence supported the inference that

Corona entered the intersection from Phoenix on a green light.

The trial court found, based on the assumed testimony of Corona and his expert,

that Corona could prove he was travelling on Phoenix before the accident and had entered

the intersection on a green light. But the court found that the City had no duty to

implement elongated bicycle timing, as a matter of law, based on the MUTCD.

In this appeal, Corona does not mention the basis for the court's order or address

whether the City had a duty to implement elongated bicycle timing. Instead, he

references his expert's ability to rely on Corona's custom and practice, which was the

subject of a separate motion in limine that we address in the next part. He also asserts

that "[w]here [Corona] was situated was a question of fact for the jury." These

statements do not address the basis for the court's order or explain why the court erred.

They are insufficient to show prejudicial error on appeal. "Mere suggestions of error

without supporting argument or authority other than general abstract principles do not

properly present grounds for appellate review. The court is not required to make an

independent, unassisted study of the record in search of error. The point is treated as

waived and we pass it without further consideration." (Dept. of Alcoholic Beverage

Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078;

accord, Benach, supra, 149 Cal.App.4th at p. 852.)

Custom and Habit

In Motion in Limine No. 10, the City sought an order precluding Corona's expert

from relying on Corona's custom and habit as a bicycle rider in rendering his opinions. It

argued that any conclusions based on the custom and habit would be unduly speculative.

(See Evid. Code, § 801, subd. (b); Sargon Enterprises, Inc. v. University of Southern Cal.

(2012) 55 Cal.4th 747, 770-772 (Sargon).) Corona opposed the motion. He argued that

evidence of his custom and habit was relevant and reliable, especially given his inability

to remember the circumstances of the accident.

The trial court concluded that Corona could testify to his custom and habit but that

his expert could not rely on that custom and habit in rendering his opinions. The court

reasoned that Corona's alleged custom and habit of only proceeding through an

intersection when the light was green was inconsistent with his other custom and habit

that he would cross against a red light when he believed it was safe to do so. The court

explained, "I will exclude it from [the expert's] opinions or reliance on his habit of not

entering on a red [light] because it is not reliable because he's taking inconsistent

statements and that is not the type of information that experts are or do rely on. So

inconsistent statements are not sufficiently reliable to [support an opinion]." We review

the trial court's ruling for abuse of discretion. (Sargon, supra, 55 Cal.4th at p. 773.)

In his opening brief, Corona does not address the basis of the trial court's order.

He does not discuss whether the custom and habit evidence is sufficiently reliable under

the Evidence Code and Sargon to support his expert's opinions. He notes that custom and

habit evidence is admissible (citing Snibbe v. Superior Court (2014) 224 Cal.App.4th

184, 191) and that an expert may rely on hearsay (citing Korsak, supra, 2 Cal.App.4th at

pp. 1524-1525). These general principles are unmoored from the court's reasoning and

the circumstances of this appeal. They are insufficient to show the court erred, let alone

that any such error was prejudicial. (Cahill, supra, 194 Cal.App.4th at p. 956; Benach,

supra, 149 Cal.App.4th at p. 852.)

On reply, for the first time, Corona asserts, "The testimony was reliable because it

was consistent with all the other testimony and physical evidence much of which the

court excluded based upon the police report." He has waived this argument by failing

to raise it in his opening brief. (See Tilton v. Reclamation Dist. No. 800 (2006)

142 Cal.App.4th 848, 864, fn. 12 (Tilton).) And, even considering this assertion, it

appears without any legal analysis, citation to authority, or supporting references to the

record. Corona also does not explain how the court's order on this motion was prejudicial

in light of the court's other rulings. Corona's assertion is insufficient to show error. (See

Cahill, supra, 194 Cal.App.4th at p. 956 [" 'We are not bound to develop appellants'

arguments for them.' "]; Benach, supra, 149 Cal.App.4th at p. 852 ["It is not our place to

construct theories or arguments to undermine the judgment and defeat the presumption of

correctness."]; see also ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993,

1011 ["It is not the duty of a reviewing court to search the record for evidence on a point

raised by a party whose brief makes no reference to the pages where the evidence can be

found."].) In any event, based on our review of the record, the trial court did not abuse its

discretion by granting the motion in limine. The court could reasonably find that the

portion of Corona's custom and habit evidence Corona's expert chose to credit was too

inconsistent and disconnected from the circumstances of the accident to be reliable for

the purposes of his opinion.

Nonretained Expert Opinion Testimony

In Motion in Limine No. 6, the City sought to preclude any police officers who

responded to the accident from providing expert testimony, including based on their

police reports. The City argued, among other things, that the police officers had not been

designated as experts and therefore could not testify as experts at trial. In opposition,

Corona stated that he intended to designate one officer as a nonretained expert but

through mistake or excusable neglect failed to do so. The trial court granted the motion.

It found that the police officer should have been designated as an expert in pretrial

proceedings, and it would not relieve Corona from the designation requirement absent an

appropriate motion.

On appeal, Corona does not mention the designation issue or explain why the

court should have allowed the police officer to testify as an expert. Instead, he asserts

that his expert should have been allowed to rely on the measurements taken by the police

officer at the scene. But the court in this motion in limine did not preclude Corona's

expert from relying on such measurements. And, the court specifically stated that it

would allow the police officer to testify to the measurements, since they were not the

subject of expert opinion.

In his reply brief, for the first time, Corona argues that his retained expert should

have been allowed to testify based on the police report that liquid found on the ground at

the scene of the accident was radiator fluid. Again, he has waived this argument by

failing to raise it in his opening brief. (See Tilton, supra, 142 Cal.App.4th at p. 864,

fn. 12.) Even considering the merits, the argument appears to be based on a misstatement

of the record. In the portion of the record cited by Corona, the court notes that the police

officer would not be able to testify that the liquid was radiator fluid because that would

require expert knowledge. The court did not address Corona's retained expert. Corona

has not shown error.

Computer Animation

In Motion in Limine No. 9, the City sought an order excluding computer

animations of the accident prepared by a graphics consultant retained by Corona's

counsel. The City argued that the animations lacked foundation because Corona's expert

could not verify what data was used to prepare them and that they were substantially

more prejudicial than probative under Evidence Code section 352. The City contended

that various aspects of the animations were misleading and, in any event, they relied upon

evidence such as Corona's custom and habit that Corona's expert could not properly

consider. In opposition, Corona submitted a declaration from the graphics consultant,

who stated, "All dimensions and times used in the demonstrative exhibits are consistent

with the Time Space Calculations produced by [Corona's expert]." The expert testified in

an Evidence Code section 402 hearing that the animation accurately reflected his opinion

regarding the circumstances of the accident.

The trial court granted the motion based on Evidence Code section 352. The court

found that the animations were too simplistic and confusing, they did not include a

vehicle that Corona's expert assumed would be there to trigger the traffic signal, and they

suffered from foundational issues. We review the court's finding under section 352 for

abuse of discretion. (Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1307.)

In order to be admissible as demonstrative evidence, "[an] animation must

accurately depict an expert opinion, the expert opinion must fairly represent the evidence,

the trial court must provide a proper limiting instruction, and the animation must be

otherwise admissible under Evidence Code section 352." (People v. Caro (2019)

7 Cal.5th 463, 509.) Corona has not shown the court abused its discretion by excluding

the animations under section 352. He points out that the consultant could have

authenticated the animations and that his expert believed they accurately represented his

opinions. But these points do not address the court's concern that the animation would be

confusing to the jury under section 352, especially given the omitted elements.

Moreover, even if the court had erred, Corona has not shown the error was

prejudicial. He argues, "The ruling on the motion in limine regarding the animation was

highly prejudicial because in one fell swoop, the court took as gospel what the City

argued without putting on one witness to dispute [the consultant and the expert], and

struck all of [Corona's] evidence." Corona misstates the import of the court's order on

this motion in limine. It excluded the animation; it did not exclude his expert's opinion or

Corona's substantive evidence. And, since the animation was purely demonstrative, it

could have no effect on Corona's ability to put on a prima facie case. Corona has not

shown prejudicial error.

DISPOSITION

The judgment is affirmed.

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

10/22/2019