Moss v. Hartman

NECO MOSS, Plaintiff and Appellant, v. ROBERT HENRY HARTMAN et al., Defendants and Respondents.

E073253

California Court of Appeals, Fourth District, Second Division

April 6, 2022

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County. No CIVDS1411177 Bryan Foster, Judge.

Neco Moss, in pro. per., for Plaintiff and Appellant.

Ford Walker, Haggerty & Behar and Ashley S. Loeb for Defendant and Respondent, Robert Henry Hartman.

Farmer Case & Fedor, Anthony T. Case and Maxine D. Harvey for Defendant and Respondent, Juan Manuel Orozco.

OPINION

SLOUGH J.

This appeal arises from an automobile accident involving plaintiff Neco Moss, defendants Juan Manuel Orozco and Robert Henry Hartman, and two other motorists who aren't involved in the litigation.

The accident occurred on May 15, 2013, on the eastbound 210 freeway in Fontana. According to Orozco and Hartman, Orozco crossed a double yellow line to enter the carpool lane at a relatively low speed in the path of Hartman's truck. Hartman struck Orozco's vehicle, which started a chain reaction-Orozco hitting Moss, Moss hitting a fourth vehicle and the fourth vehicle hitting a fifth.

Moss sued Hartman and Orozco for, among other things, negligence and represented himself at trial, as he does on appeal. A jury found Hartman was not negligent and found Orozco had been negligent but awarded no damages.

Moss appeals, arguing the trial judge committed several errors. He focuses much of his argument on the assertion that default judgments entered early in the case mean Hartman and Orozco never should have been permitted to appear at trial. These arguments lack merit. The court did enter a default against Hartman and Orozco on June 10, 2016, when they didn't answer Moss's second amended complaint, but three days later Moss filed a third amended complaint and the trial court set aside the defaults. Hartman filed an answer three days later. The third amended complaint did not specifically name Orozco, though he had been identified as a Doe defendant previously, but Moss later filed a fourth and then a fifth amended complaint which did name Orozco as a defendant and alleged new causes of action against him. Orozco answered those complaints. When Moss tried to get the trial judge to hold defendants to the default, the trial judge refused and clarified that any defaults were set aside. We conclude the trial court was correct to set aside the earlier defaults, allowing both Hartman and Orozco to defend themselves.

Moss also challenges what happened during the trial. He argues the jury should have returned a verdict that Hartman was negligent because the evidence supported the verdict and because the finding that he was not negligent was inconsistent with the finding that Orozco was negligent. However, there was significant evidence both that Hartman wasn't negligent and that Orozco was negligent, starting with Hartman's testimony that Orozco drifted across the double yellow lines of the carpool lane shortly after he slowed to 60 miles per hour when he saw a police car enter the lane in front of him. The jury was entitled to reach its verdict on the negligence of the two drivers based on that evidence alone.

Moss argues the jury should have concluded he established damages and made an award based on the finding that Orozco was negligent. However, Moss didn't present substantial evidence of damages. Before trial, the judge warned him he would need expert medical testimony to be able to introduce and rely on medical records and medical bills, and that absent such testimony the records and bills would be excluded, leaving him to establish damages by describing his physical sensations. As a result, the jury was left to decide whether Moss suffered damages based on his descriptions of his pain, which evidence was undercut by his own testimony that he had complained of suffering similar, ongoing pain after two prior accidents. Again, it was reasonable for the jury to reject Moss's complaint, and we aren't permitted to overturn their finding on appeal.

Moss raises a laundry list of other issues, arguing (i) the doctrine of res ipsa loquitor should have been applied to establish a presumption of negligence on the part of Hartman and Orozco, (ii) Moss was entitled to punitive damages, (iii) the judge allowed the jury to be tainted by a question about his prior felony conviction, (iv) the judge erred by excluding evidence of Moss's medical bills and records, (v) Orozco and Hartman improperly split their defenses in successive actions, (vi) the judge erred by refusing to instruct the jury that exceeding the speed limit can establish negligence, and (vii) it was improper to allow respondents to use his deposition testimony on cross-examination.

We conclude all these arguments lack merit, and therefore affirm the judgment.

I

FACTS

On May 15, 2013, Hartman, Orozco, Moss, and the drivers of two other vehicles were involved in a five-vehicle accident. Only Hartman, Orozco, and Moss are parties in this lawsuit. The trial judge bifurcated the case, delaying litigation relating to insurance coverage. The only issues to be tried were those related to the liability of Hartman and Orozco.

Moss testified that Hartman was driving too fast in the carpool lane just before the accident. He said he had just entered the 210 freeway at the Haven Avenue entrance. He said he immediately ran into a traffic jam and was stopped in the fast lane when he saw a police vehicle move into the carpool lane behind him and pass him on the left. While watching the police vehicle, he "noticed in the driver's side through my driver's side mirror, a big white truck speeding uncontrollably" toward him. "I noticed it veered to the right which is in the lane I was in and as soon as I seen it veer to the right and the type of speed it was, I immediately turned forward and got fear into me. I was scared. I thought the worst and I braced myself. I knew something was about to happen. I grabbed the steering wheel and braced myself, clenched down. As soon as I did that all I heard was boom and felt it all, the whole accident." He said the collision threw his vehicle forward and he struggled to keep control. According to Moss, he didn't see Orozco's car and the accident occurred because Hartman's truck veered out of the carpool lane.

Moss then testified about his injuries. He said he injured his arm, "had chest pain in my chest and my face that day, and a couple days, the pain worsened in my face which turned out to be in my teeth, my jaw." He said he later had numbness in his fingers, hips, abdomen, and feet, and also started having spasms. He complained of continuing loss of sleep, anxiety, and headaches, and said he later lost a couple of teeth. Moss didn't present expert medical testimony or any evidence concerning his treatment for these injuries. On cross-examination, he testified about injuries he'd experienced in past accidents, including what he had described as headaches and chronic back pain.

Hartman had a different version of the accident. He said he was driving his Ford F-350 truck in the carpool lane with his wife and daughter as passengers. He said no one was driving within a mile in front of him, and his speed was between 70 and 75 miles per hour. He said he saw a police vehicle cross from the fast lane, over the double yellow lines, and into the carpool lane about half a mile ahead of him. Seeing the police led him to slow down to about 60 miles per hour. About a second later, Hartman said he saw the front end of a vehicle-as it turns out the vehicle driven by Orozco-entering the carpool lane. He estimated he was about 60 to 80 feet away from Orozco's vehicle and he was travelling at approximately 60 mph. Hartman engaged his brakes, but nevertheless collided with Orozco's car. Hartman estimated Orozco was traveling at about 10 to 15 miles per hour when the cars collided. Hartman said he didn't think there was anything he could have done to avoid the collision.

An accident reconstruction expert testified that, assuming Hartman was traveling 60 miles per hour and Orozco was traveling 15 to 20 miles per hour, there was nothing Hartman could have done to avoid the accident. He also said Hartman couldn't have avoided the accident if he'd been traveling 55 miles per hour and probably wouldn't have avoided the accident if he'd been traveling 50 miles per hour.

Orozco testified about the accident too. He said he was driving a 2001 Honda Civic with a coworker as his passenger. He was traveling on the freeway in the fast lane next to the carpool lane when he saw a police car enter the carpool lane ahead of him. Orozco decided to take the carpool lane because he had a passenger, and he crossed over the double yellow lines to enter the lane. Orozco looked in his mirror and saw Hartman's truck approaching in the carpool lane. He said he thought Hartman was about 100 feet or more away, and that he believed he was traveling about 25 to 30 miles per hour as he entered the lane. However, he said in his deposition that he was traveling 15 to 20 miles per hour when he changed lanes. Orozco said Hartman's vehicle hit his car, then his car hit Moss's car, which was in the fast lane next to the carpool lane.

On May 9, 2019, the jury found Hartman was not negligent and Orozco was negligent but awarded zero dollars in damages. Moss filed no posttrial motions. He then filed a timely notice of appeal.

II

ANALYSIS

A. Default Judgments

Moss argues Hartman and Orozco should not have been permitted to defend themselves at trial because they failed to file timely answers to prior versions of his complaint, and the trial court entered default judgments against them.

1. Additional background

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