Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 03AS07128
NICHOLSON, Acting P.J.
Plaintiff Aubrey LaBrie sued defendant Gessica Louise Eaton for injuries he suffered when defendant’s car hit his pickup from behind while both were traveling on Interstate 80. Plaintiff testified he had been driving in lane number one when the accident occurred. Defendant claimed plaintiff changed lanes from lane number two to lane number one, then quickly stopped, leaving her insufficient time to avoid the accident.
The jury determined defendant was not negligent. The trial court entered judgment against plaintiff, and it subsequently denied plaintiff’s motions for judgment notwithstanding the verdict and for a new trial.
Plaintiff appeals, claiming the trial court erred in not granting a new trial because (1) there was juror misconduct; (2) the court erroneously excluded evidence of a prior automobile accident of defendant’s that involved similar facts; and (3) insufficient evidence supported the verdict. After reviewing the entire record, we conclude the trial court did not abuse its discretion in denying plaintiff’s motion for new trial, and we affirm the judgment.
FACTS
Plaintiff’s evidence
Plaintiff was working as a contract carrier for the United States Postal Service. On the afternoon of the accident, plaintiff left the West Sacramento postal facility in his small pickup and drove onto Interstate 80 eastbound. He got into the number one (far left) lane when he first got onto the freeway and he stayed in that lane throughout his drive.
Between Madison Avenue and Greenback Lane, traffic slowed down. Plaintiff looked in his rearview mirror and saw that the red sport utility vehicle behind him was not slowing down. He perceived the car was coming at a “pretty fast rate” of speed. Frightened, he thought about how he could evade the collision, but before he could maneuver, the car hit his truck from behind. His truck veered diagonally to the right, collided with two other cars, went onto the right shoulder, and rolled onto its side against a tree. Plaintiff suffered a fractured left hip socket.
California Highway Patrol Officer Mark Duval investigated the accident. He concluded that both plaintiff’s truck and the car that hit his truck, defendant’s car, were in lane number one at the time of the accident. He also concluded that defendant was driving too fast at the time for existing conditions.
James Kirk Barry testified on behalf of plaintiff as an expert in traffic accident reconstruction. Reasoning from his review of the physical evidence, the parties’ statements, and the movement made by plaintiff’s truck after the collision, Barry concluded that plaintiff was completely stationed in lane number one when the collision occurred. The damage to the truck and the path it traveled did not support defendant’s claim that plaintiff had been changing lanes from lane number two to lane number one when the accident happened. Otherwise, plaintiff’s car likely would have veered to the left, not the right.
Chris Mitchell was an eyewitness whose identity was not discovered until trial. Mitchell was driving eastbound on Interstate 80 in lane number two when the accident occurred. He stated that traffic was becoming congested and he was pacing traffic, keeping room in front of him. He said a red vehicle came up from behind “real fast and slammed into the back of this truck which sent him flying across all lanes of the traffic and flipped over on its side.” Mitchell stayed with plaintiff to reassure and comfort him until medical help arrived.
On cross-examination, Mitchell stated he saw plaintiff’s truck before the accident because he was pacing him. “I saw him in front of me. It was not congested at the time. It was starting to bottleneck. . . . And so I was just pacing the cars in front of me. I remember his vehicle very distinctly.
“Q Okay. And he was in front of you?
“A Yes.”
Neither plaintiff’s counsel nor defense counsel asked Mitchell to specify which lane plaintiff’s truck occupied when he was pacing plaintiff.
Defendant’s evidence
Defendant testified that she saw traffic slowing down near Madison Avenue. She had slowed down to about 50 miles per hour and she remained at that speed until just before the accident happened. Plaintiff was driving in lane number two to the right and slightly ahead of defendant when he sped up and cut in front of defendant into lane number one and slammed on his brakes. Defendant was unable to stop in time and rammed into the rear of plaintiff’s truck. Defendant had braked hard when she saw plaintiff come into her lane, but she did not slam on the brakes or quickly turn her car because she feared losing control of the vehicle.
Donald Basham testified on defendant’s behalf as an expert on automotive accident reconstruction. His review of the physical evidence indicated to him that defendant’s right front bumper struck plaintiff’s left rear bumper while plaintiff’s truck was angled between three to five degrees off of the straight line followed by defendant’s car. The area of contact between the two vehicles was less than one foot. These points led Basham to conclude that plaintiff was making a lane change and had not fully crossed into lane number one when defendant’s car struck him. Basham opined that the movement of plaintiff’s truck to the right after being struck indicated it had been hit on its rear left, not from directly behind. On cross-examination, Basham admitted that plaintiff’s truck would also have veered to the right if defendant had hit plaintiff while swerving to the left to avoid the collision.
We will provide additional facts as necessary.
DISCUSSION
I
Standard of Review
“We will not disturb the trial court’s determination of a motion for a new trial unless the court has abused its discretion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859.) When the court has denied a motion for a new trial, however, we must determine whether the court abused its discretion by examining the entire record and making an independent assessment of whether there were grounds for granting the motion. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160–1161.)” (ABF Capital Corp. v Berglass (2005) 130 Cal.App.4th 825, 832.)
II
Exclusion of Evidence of Prior Accident
Plaintiff’s counsel sought to cross-examine defendant with testimony from her pretrial deposition concerning a prior accident where she rear-ended another vehicle. As to that accident, defendant claimed the driver of the vehicle in front of her slammed on his brakes and she could not stop fast enough before hitting him. She stated the accident was her fault.
Counsel argued this evidence was admissible under Evidence Code section 1101 to show a plan and scheme. Specifically, he claimed the evidence showed defendant had an excuse in this case that was based on the same excuse defendant gave in another, similar accident.
The trial court denied counsel’s request under Evidence Code sections 1101 and 352. The court stated that section 1101 prohibited this type of evidence to prove a disposition to commit certain acts. The court barred the evidence under section 352 because the evidence was not relevant and would confuse the issues before the jury.
Plaintiff claims the court’s ruling was in error. He argues the evidence was admissible for purposes of impeachment and also to establish defendant’s knowledge of the consequences of driving too fast and not applying brakes hard enough. We disagree.
The trial court did not abuse its discretion in refusing to admit the evidence. First, plaintiff’s claim of using the evidence to impeach defendant was actually a screened attempt to prove defendant’s propensity to act based on how she acted before in similar circumstances. In effect, plaintiff was attempting to establish that because defendant on a prior occasion rear-ended a car that she said stopped quickly, defendant engaged in the same behavior here and should be responsible because of it. This is propensity evidence which Evidence Code section 1101, subdivision (a), flatly prohibits. “It has long been the rule, of course, that evidence of uncharged misconduct is inadmissible to establish a defendant’s propensity to commit the offense charged.” (People v. Ortiz (2003) 109 Cal.App.4th 104, 111, italics in original.)
Contrary to plaintiff’s claim, evidence of the prior accident could not be used to impeach defendant or establish a plan or scheme. A key fact distinguishes the two accidents -- defendant admitted the first accident was her fault. Her denial of liability in the second accident is not inconsistent with her admission of liability in the first, nor does it in any way show a plan by defendant to rear-end cars and claim innocence.
Second, defendant’s knowledge of the consequences of driving too fast and not hitting the brakes hard enough was irrelevant to this action. Plaintiff accused defendant of negligence, an objectively determined standard of behavior not concerned with the defendant’s subjective state of mind. In People v. Ortiz, supra, 109 Cal.App.4th 104, a case on which plaintiff relies, the court admitted evidence of the defendant’s prior reckless driving conduct to establish knowledge and intent. However, in that case, the defendant was charged with implied malice murder, and the defendant’s knowledge was relevant to establishing an element of that crime. (Id. at pp. 111-112.) Defendant’s subjective knowledge is not relevant here to establishing negligence liability, and it was properly excluded under Evidence Code section 352 as irrelevant.
III
Jury Misconduct
Plaintiff claims he established prejudicial jury misconduct, and the court erred in denying his motion for new trial on that basis. We disagree.
A. Additional background information
Two jurors submitted declarations in support of plaintiff’s motion for new trial. Vivian Brassel declared that during deliberations, juror John Eash stated he did not trust witness Mitchell’s testimony because Mitchell fled the scene and was probably drunk at the time of the accident. Keith Kuzmich heard juror no. 6, Eash, say he did not trust Mitchell’s testimony because the witness was probably drunk and did not want to be interviewed by the police officer.
Brassel also declared that juror no. 9, Eric Weber, stated he believed defendant caused the accident but was not ready “‘to pin it on her’ as negligent. Weber allegedly referred to the defendant as a “‘poor girl’ and stated he would feel sorry for her if she had to pay.” Both Kuzmich and Brassel alleged other instances of jurors changing their votes so they could go home.
Opposing the motion for new trial, defendant submitted declarations by the two jurors mentioned by Brassel and Kuzmich, John Eash and Eric Weber. Eash stated that when the jury was discussing Mitchell’s testimony, “I expressed that we knew very little about Mr. Mitchell. I suggested that it was possible, for example, that he could have been drinking or drunk, that we had no idea. I questioned the fact that Mr. Mitchell was not listed on the CHP report.”
Weber declared he did not refer to defendant as a “‘poor girl’” or say he would feel sorry for her if she had to pay. Both Eash and Weber disputed the claims that some jurors had changed their votes so that the jury could go home.
The trial court did not provide a statement of decision or otherwise explain why it denied the motion for new trial, nor is there any transcript of the hearing on the motion.
B. Analysis
The conflicting affidavits and the lack of an adequate record foreclose our review of this argument.
When reviewing a motion for new trial, we must presume that conflicts among the filed affidavits were resolved by the trial court in favor of the prevailing party. Those implied findings cannot be disturbed on appeal. (De Wit v. Glazier (1957) 149 Cal.App.2d 75, 81-82.)
Thus, plaintiff’s argument on this point becomes one of substantial evidence. Here, however, where the record contains no transcript of the trial court’s hearing on the motion for new trial, and no statement of decision explaining the court’s analysis, we presume the existence of all findings of fact necessary to support the court’s decision. Where an inadequate record is provided, all intendments favor an order denying a new trial. (Dunford v. General Water Heater Corp. (1957) 150 Cal.App.2d 260, 266.)
We will not disturb the trial court’s apparent finding that no juror misconduct occurred.
IV
Sufficiency of Evidence
Plaintiff argues there was insufficient evidence to support the judgment. He acknowledges defendant’s testimony and that of her expert witness, but he asserts that given the alleged paucity of defendant’s evidence, the jury verdict can be explained only due to the court’s refusal to admit the evidence of defendant’s prior accident and the alleged jury misconduct. In effect, plaintiff is asking us to reweigh the evidence and rule in his favor. That is not our role.
“When a trial court rules upon a motion for a new trial made upon the ground of insufficiency of the evidence, the judge is required to weigh the evidence and judge the credibility of witnesses. In so doing, the court may disbelieve witnesses and draw inferences contrary to those supporting the verdict. [Citation.] Nonetheless, a new trial cannot be granted ‘. . . unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.’ (Code Civ. Proc., § 657, italics [in original].) And denial of such motion will not be disturbed on appeal unless it is manifest that said ruling was an abuse of discretion. [Citation.] [¶] . . . [¶]
“In reviewing the trial court’s exercise of its discretion, this court, unlike the trial court, does not weigh the evidence; our power begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the jury’s verdict.” (Locksley v. Ungureanu (1986) 178 Cal.App.3d 457, 463.)
Substantial evidence in the record supports the jury’s verdict here. Defendant testified she was slowing down for traffic when plaintiff abruptly changed lanes in front of her and quickly stopped, leaving her no time to avoid the collision. Defendant’s expert witness corroborated defendant’s testimony, showing plaintiff’s car was at an angle to defendant’s car when the accident occurred. Because there was no error in the preclusion of evidence of defendant’s prior accident and plaintiff suffered no prejudice from alleged jury misconduct, under the facts before the jury, we conclude there was sufficient evidence for the jury to determine that defendant was not negligent.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendant. (Cal. Rules of Court, rule 8.276(a).)
We concur: BUTZ, J., CANTIL-SAKAUYE, J.