Annocki v. Turner

EILEEN ANNOCKI et al., Plaintiffs and Respondents, v. TERRY ALLEN TURNER, Defendant and Appellant.

B290233

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

March 2, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. SC112366)

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

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

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

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

Annocki Jr.'s parents, Eileen Annocki and Joseph Annocki (the Annockis), brought an action for wrongful death and dangerous condition of public property against Turner, Geoffrey's, and Caltrans. A jury awarded the Annockis $5 million in noneconomic damages, apportioned 50 percent to Turner, 35 percent to Geoffrey's, and 15 percent to Caltrans.¹

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

FACTUAL BACKGROUND

A. The Accident

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

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

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

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

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

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

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

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

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

B. Expert Testimony

1. Plaintiffs' Experts

(a) Brad Avrit

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

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

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

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

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

(b) Edward Ruzak

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

2. Turner's Expert Mark Rieser

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

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

DISCUSSION

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

A. Apportionment of Fault to Caltrans and Instruction Pursuant to CACI No. 1120

1. Jury Instruction and Closing Arguments

Both Turner and Geoffrey's claimed that Caltrans's negligence contributed to the Annockis' harm. Caltrans settled with the Annockis prior to trial, and thus was not present at trial. The jury was instructed that Geoffrey's and Turner bore the burden of proving Caltrans was negligent, and that its negligence was a substantial factor in causing the Annockis' harm. The jury was further instructed that if it found multiple defendants liable, it...