1 

Filed 1/7/15 Williams v. Sidhu CA1/5 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

FIRST APPELLATE DISTRICT 

DIVISION FIVE 

KENDALL WILLIAMS, 

 Plaintiff and Appellant, A138614 

 v. (Solano County 

 Super. Ct. No. FCS039356) 

PRITAM SIDHU et al., 

 Defendants and Respondents. 

____________________________________/ 

 Appellant Kendall Williams sued a gas station and its owner (collectively, 

defendants) for negligence and premises liability. A jury awarded Williams $225 and the 

court denied his new trial motion. Williams appeals. He contends the court erred by: (1) 

excluding evidence of subsequent remedial measures taken by defendants; (2) limiting 

testimony about his lack of insurance coverage; and (3) denying his new trial motion. 

 We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

 In July 2011, Williams was a 35-year-old big rig truck driver. He often stopped at 

Gill Sidhu Chevron (gas station). On July 11, 2011, Williams parked his truck at the gas 

station. He purchased coffee at the gas station’s convenience store and was returning to 

his truck when he claimed he fell into a “two-foot deep cement hole” (hole or storm 

drain) “obscured” by a “Plexiglas sign” and suffered “injuries including bruises, 
2 

contusions, shock, leg and back injuries.” He sued defendants for negligence and 

premises liability, seeking over $25,000 in damages. 

 Before trial, defendants moved to “prohibit any evidence or reference to insurance 

coverage[ ]” pursuant to Evidence Code section 1155.1

 Williams’s counsel said “I’m not 

going to bring up insurance” and the court granted the motion. Defendants also moved to 

“prohibit any evidence or reference to the parties’ wealth or financial status” and the 

court granted the motion. 

 Williams sought to introduce photographs showing defendants filled the storm 

drain with concrete shortly after the incident, claiming the evidence was relevant to 

establish the depth of the hole. Defense counsel objected and admitted the hole was two 

feet deep. After noting “subsequent, remedial [measures] aren’t admissible[,]” the court 

reviewed the photographs of the cement-filled hole and determined they were 

inadmissible because they were “clearly designed to show to the jury, Look, [defendants] 

fixed it. They must have been negligent.” The court excluded the photographs as 

evidence of subsequent remedial measures and rejected Williams’s argument the 

evidence was relevant under the feasibility exception to the subsequent remedial measure 

rule. (§ 1151.) 

Trial 

Williams testified he parked his truck at defendants’ gas station and purchased a 

cup of coffee in the gas station’s convenience store. As he walked from the convenience 

store to his truck, he noticed an oil truck had pulled into the gas station and blocked his 

path to his truck. Williams thought the oil truck was preparing to leave the gas station, so 

he stepped up onto a curb to get out of the way. Williams was focused more on the oil 

truck than on where he was walking. 

 After signaling to the driver he was out of the way, Williams turned back toward 

his truck, took a few steps “at full stride” on the curb, and stepped onto a Plexiglas sign 

on the ground. Williams did not see the sign until he stepped on it, nor an orange 

 

1

 Unless noted, all further statutory references are to Evidence Code. 
3 

construction cone near the Plexiglas sign.2

 Beneath the sign was a two-foot-deep storm 

drain. Williams’s foot went through the sign, to the bottom of the storm drain. He felt a 

“shock” when he “hit” the bottom; then Williams “couldn’t feel [his] legs” and “started to 

panic.” He hoisted himself out of the hole but could not get up because he “couldn’t 

move [his] legs.” 

 The oil truck driver approached Williams and told him to stay on the ground. The 

driver called 911. Using a disposable camera, the driver took a picture of Williams. He 

gave the camera to Williams and said, “‘you better take a few photos of this.’” Williams 

took pictures of himself while he waited for help. As paramedics arrived, the feeling in 

Williams’s legs returned. He had “intense pain” in his left thigh and told the paramedics 

his left leg was “‘hurting pretty bad.’” 

 Paramedics took Williams to the hospital, where he was told he was “banged up” 

and “was going to be sore” but “all right.” Hospital staff gave Williams pain medication 

and antibiotics, and discharged him. He did not complain about back pain at the hospital. 

Williams’s wife took Williams back to the gas station so he could “get [his] truck” and 

“finish [his] route.” Williams finished his three-hour shift; he felt the injury “wasn’t 

really that serious” and he was “kind of more interested in getting back there on the road” 

even though he was “banged up[.]” 

 Williams went to work the next morning. A week after the incident — on July 18, 

2011 — Williams made an August 1, 2011 doctor’s appointment. He continued to work 

over the next several weeks, only missing a few days, even though his low back and left 

leg were “hurting[.]” On August 1, 2011, Williams went to the emergency room because 

his neck was hurting. He did not visit a doctor before then because he did not have 

medical insurance and did not “have the money to pay to go to a doctor[.]”3

 At a follow 

 

2

 On cross-examination, defense counsel impeached Williams with deposition 

testimony where Williams admitted he saw the Plexiglas sign before he stepped on it. 

3

 Defense counsel objected when Williams’s attorney tried to elicit testimony about 

how Williams tried to obtain medical insurance after the incident. Williams’s attorney 

explained the testimony was relevant to show Williams “couldn’t call a Blue Cross 
4 

up appointment on August 4, 2011, Williams mentioned back pain for the first time. 

Williams stopped working as a truck driver, suffered from constant back pain, and used a 

cane to walk. 

 Dr. David C. Bradshaw testified as an expert for Williams. Dr. Bradshaw did not 

treat Williams after the incident and did not examine him until shortly before trial. He 

opined Williams herniated a disk in his back and pinched a nerve in his leg when he fell. 

Dr. Bradshaw explained back injuries sometimes take up to 24 hours to manifest and it is 

common for patients to wait several weeks before seeking treatment for a back injury. 

Dr. Bradshaw conceded, however, “[t]ruck driving is actually hazardous to your back. 

Truck drivers have a lot of back pain[.] . . . Truck driving is hard on your back[.]” He 

also admitted Williams had previously sought disability status, claiming he could not 

perform a sedentary job because of knee pain. 

 Defendants conceded the storm drain was a dangerous condition but argued it was 

unreasonable for Williams to walk on the curb, ignore an orange cone, and step on an 

unfamiliar Plexiglas object. They also argued the only injury Williams suffered was a leg 

bruise and emphasized the length of time Williams waited to see a doctor. Defendants 

argued Williams was “reasonably entitled to . . . the emergency room bill, the ambulance 

bill, some pain and suffering for the period of time it took for his leg bruise to [ ] heal, 

and that is it.” 

 Dr. Eldan Eichbaum testified as a defense expert. After reviewing Williams’s 

medical records and examining Williams, Dr. Eichbaum testified Williams: (1) had a 

previous neck injury; (2) suffered from chronic knee pain; (3) may have “slightly 

exaggerated” his symptoms from the incident; and (4) told his doctor in February 2012 he 

 

doctor [after the incident], because he didn’t have one. He was trying to act in a 

reasonable manner to [limit] his damages . . . he’s explaining what he was doing to try to 

get enrolled in the [health coverage] program . . . at the clinic to get medical care[.]” The 

court concluded, “the detail is not relevant. What’s relevant is why didn’t you go to the 

doctor? I [didn’t] have the money. [¶] And that’s all the further you need to go. That 

explains it.” 
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was experiencing “no symptoms of pain.” Dr. Eichbaum would not have expected 

Williams to “have had a neck injury from the fall” and explained that if a fall had caused 

a back injury, he would have expected to have seen the symptoms manifest “sooner 

[rather] than later.” According to Dr. Eichbaum, Williams might need treatment for 

“flareups” in the future, but he did not need future physical therapy, MRI scans, back xrays, or epidurals. 

Verdict and New Trial Motion 

 A jury determined defendants’ negligence was a substantial factor in causing 

Williams’s injuries and awarded him $1,500 in past noneconomic loss. The jury also 

determined, however, Williams was 85 percent at fault, reducing his damages award to 

$225. The court entered and served the judgment. 

 Williams moved for a new trial on the grounds of jury misconduct, inadequate 

damages, and insufficiency of the evidence to justify the verdict (Code Civ. Proc., § 657). 

First, Williams argued the jurors committed misconduct during deliberations by “openly 

discuss[ing] and speculat[ing]” whether he fell into the storm drain hole. He offered two 

juror declarations to “demonstrate that the jury openly discussed a matter that was not 

contested — i.e., whether [he] fell into the hole — and came to an agreement that he had 

not, a determination contrary to a fact agreed upon by the parties[.]” In their declarations, 

both jurors stated: “In reaching a verdict, the jury turned to detailed discussions of 

whether Mr. Williams fell into the storm drain hole. [¶] Based upon those discussions, the 

jury came to an agreement that Mr. Williams had not fallen into the storm drain hole. [¶] 

The agreement that Mr. Williams did not fall into the storm drain hole was based upon 

the pictorial evidence that was presented to the jury.” Williams also claimed insufficient 

evidence supported the jury’s finding that he did not fall into the hole and the damages 

were inadequate because the evidence did “not support a de minimis award.” 

 In opposition, defendants argued there was no jury misconduct because: (1) the 

parties did not stipulate Williams fell into the hole and the jury was free to disbelieve 

Williams’s claim and conclude he did not fall into the hole; and (2) Williams was 
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attacking the jury’s mental process, which was specifically prohibited. Defendants also 

contended evidence supported the jury’s conclusion that Williams did not fall into the 

hole and the damages were not inadequate because “medical expert testimony” 

demonstrated “the only injury sustained by [Williams] was a bruise to the thigh, which 

resolved. Whether that bruise was caused from falling to the ground or from falling into 

the hole, if, the jury believed the bruise was the only injury then a verdict of $1500 for 

pain and suffering is completely adequate.” 

 The court denied the motion in a written order. It determined Williams did not 

establish “there was jury misconduct. . . . There is no evidence that [Williams] and 

defendant[s] agreed not to put before the jury the issue of whether . . . Williams fell in the 

storm drain hole, as [Williams] contend[s]. In addition, the juror declarations submitted 

in support of [Williams’s] claim of jury misconduct, . . . do not relate to overt facts that 

are objectively ascertainable. They relate to the subjective reasoning processes of the 

jurors that can be neither corroborated nor disproved. Therefore, they are inadmissible 

under . . . Section 1150.” The court also concluded the evidence supporting the verdict 

“was not insufficient, and that the damages awarded were not inadequate.” 

DISCUSSION 

I. 

The Appeal is Timely 

 Defendants urge us to dismiss the appeal because Williams filed his notice of 

appeal more than 30 days after his new trial motion was denied by operation of law. (See 

Code Civ. Proc., § 660; ECC Construction, Inc. v. Oak Park Calabasas Homeowners 

Assn. (2004) 118 Cal.App.4th 1031, 1036; Cal. Rules of Court, rules 8.104(a)(1)(A), 

8.108(b)(1)(A)-(C).) We conclude the appeal was timely filed. 

 Pursuant to California Rules of Court, rule 8.108, the trial court’s denial of a 

timely motion for new trial extends the time to appeal “until the earliest of: [¶] (A) 30 

days after the superior court clerk or a party serves an order denying the motion or a 

notice of entry of that order; [¶] (B) 30 days after denial of the motion by operation of 
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law; or [¶] (C) 180 days after entry of judgment.” (Cal. Rules of Court, rule 

8.108(b)(1)(A)-(C).) “Denial of a new trial motion by operation of law occurs in one of 

two ways: (1) By expiration of 60 days from the date of the notice of entry of judgment (a 

jurisdictional limitation) or (2) by the entry of the new trial order in the permanent 

minutes of the court.” (Miller v. United Services Automobile Assn. (1989) 213 

Cal.App.3d 222, 226, fn. omitted; see also Code Civ. Proc., § 660.) 

 Here, the 60-day period for the trial court to rule on Williams’s new trial motion 

did not begin to run when the clerk served a file-stamped copy of the judgment on 

January 28, 2013, because the judgment did not affirmatively state notice was given 

“‘upon order by the court’” or “under Code of Civil Proecedure section 664.5.” (See Van 

Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 

Cal.4th 51, 64 (Van Beurden).) “Service of notice of entry of judgment by the clerk will 

commence the 60-day period for ruling on the new trial motion only if the clerk’s notice 

of entry (or a served copy of the judgment) affirmatively states that notice was given 

‘upon order by the court’ or ‘under CCP § 664.5.” (1 Eisenberg et al., Cal. Practice 

Guide: Civil Appeals & Writs (The Rutter Group 2014) ¶ 3:67.1, p. 3-34.) 

 Williams’s new trial was not denied by operation of law. It was denied by written 

order on April 2, 2013 and the court clerk served the order that same day. Pursuant to 

California Rules of Court, rule 8.108(b)(1)(A), Williams had until May 2, 2013 — “30 

days after the superior court clerk or a party serves an order denying the motion [for new 

trial] or a notice of entry of that order” — to file a notice of appeal. Williams filed his 

notice of appeal on May 2, 2013. As a result, his appeal is timely. (Van Beurden, supra,

15 Cal.4th at pp. 66-67.) 

II. 

The Court Did Not Err by Excluding Evidence of 

Subsequent Remedial Measures 

 Williams contends the court erred by excluding evidence defendants filled the 

storm drain with concrete shortly after the incident. We review the court’s evidentiary 
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ruling for abuse of discretion. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 

Cal.App.4th 664, 670 (McIntyre) (S221005, review den. 11/12/14).) 

 Section 1151 provides: “When, after the occurrence of an event, remedial or 

precautionary measures are taken, which, if taken previously, would have tended to make 

the event less likely to occur, evidence of such subsequent measures is inadmissible to 

prove negligence or culpable conduct in connection with the event.” The statute 

“promotes the public policy of encouraging remedial conduct . . .” (McIntyre, supra, 228 

Cal.App.4th at p. 671; Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 119-

120.) Section 1151, however, ‘“does not require the exclusion of evidence of subsequent 

measures when offered for another purpose [besides negligence], such as proving 

ownership, control, or feasibility of precautionary measures, if controverted, or 

impeachment.”’ [Citations.]” (McIntyre, supra, 228 Cal.App.4th at p. 673.) 

 Williams claims evidence defendants filled the storm drain with cement after the 

incident was admissible not to prove liability, but to show “the dangerousness of [the] 

condition” and the “practical feasibility and low cost” to correct it. We are not persuaded 

for several reasons. First, Williams concedes his real purpose in offering the evidence 

was “to demonstrate just how unreasonable [defendants] had acted in failing to remedy 

the dangerous condition on their property until after the accident.” Second, 

dangerousness of the condition and feasibility were not issues in the case. Defendants 

conceded the storm drain was a dangerous condition and there was no dispute about the 

depth of the hole, or whether it was feasible to fill it with cement. (See McIntyre, supra,

228 Cal.App.4th at p. 673 [“feasibility of precautionary measures, if controverted”]; 

People v. Lockheed Shipbuilding & Constr. Co. (1975) 50 Cal.App.3d Supp. 15, 36 

[feasibility exception applies only when “a defendant declares that nothing could have 

been done to avoid the accident”].) 

 Finally, the exclusion of defendants’ subsequent remedial measures did not — as 

Williams contends — preclude him from offering evidence of feasibility because 

Williams’s engineering expert testified a grate is typically placed over a storm drain to 
9 

“keep things from going into the drain that you don’t want, like people[.]” The court 

properly excluded the subsequent remedial measures evidence.4

 (McIntyre, supra, 228 

Cal.App.4th at p. 674 [landlord’s post-robbery hiring of security guards was inadmissible 

evidence of subsequent precautionary measures].) 

III. 

The Court Did Not Err by Limiting Testimony About Williams’s Lack 

of Medical Insurance and Any Assumed Error Was Harmless

 Williams argues the court erred by excluding evidence of his “gap in insurance 

coverage[.]” He claims the court precluded him from “explaining lack of medical 

coverage and his attempts to obtain coverage as the reason for a delay in his treatment.” 

This argument fails for several reasons. First — and as described above — the court 

allowed Williams to testify about his lack of medical insurance and the reason for his 

delay in seeking treatment. Details about what Williams did after the incident to obtain 

medical insurance were not relevant, nor was Williams’s “medical coverage situation” 

over the years. (§§ 350, 352.) What was relevant was why Williams did not seek 

treatment before August 1, 2011 and the court allowed him to testify about how his 

financial condition and lack of medical insurance precluded him from seeking treatment 

before that date. Excluding additional testimony regarding Williams’s efforts to obtain 

medical insurance after the incident was not an abuse of discretion. 

 Williams’s argument fails for the additional reason he cannot establish any 

assumed error was prejudicial. (Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 

210 Cal.App.4th 1435, 1449.) Williams testified he did not seek medical treatment 

before August 1, 2011 because he did not have medical insurance or the “money to pay to 

go to a doctor[.]” Additional testimony about his efforts to obtain insurance coverage 

after he was injured would not have altered the outcome because: (1) after he left the 

hospital, Williams felt his injury “wasn’t really that serious” and he completed his shift; 

 

4

 Williams’s reliance on Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486 is 

misplaced because this is not a products liability case. 
10 

(2) Williams worked for several weeks after the incident; (3) he did not complain of back 

pain until August 4, 2011, almost a month after the incident; (4) Williams’s expert 

conceded driving a truck is “hazardous” for one’s back; (5) Williams had preexisting 

neck and knee injuries; and (6) defendants’ expert testified falling into the storm drain 

was unlikely to produce a neck injury, symptoms of any back injury would have 

manifested “sooner [rather] than later[,]” and Williams could have exaggerated his 

injuries. 

IV. 

The Court Properly Denied Williams’s New Trial Motion 

 Williams claims the court erred by denying his new trial motion. As stated above, 

the court concluded the juror declarations offered in support of the new trial motion were 

inadmissible because they did “not relate to overt facts that are objectively ascertainable. 

They relate to the subjective reasoning processes of the jurors that can be neither 

corroborated nor disproved.” The court determined Williams did not establish “there was 

jury misconduct” and there was no evidence Williams and defendants “agreed not to put 

before the jury the issue of whether . . . Williams fell in the storm drain hole, as 

[Williams] contend[s].” Finally, the court determined “the evidence supporting the jury’s 

verdict was not insufficient, and that the damages awarded were not inadequate.” 

 Williams contends he was entitled to a new trial based on juror misconduct. 

“Juror misconduct is one of the specified grounds for granting a new trial. [Citation.] 

The trial court must undertake a three-step process to evaluate a motion for new trial 

based on juror misconduct. The trial court must first determine whether the affidavits 

supporting the motion are admissible. [Citation.]’”5

 (Barboni v. Tuomi (2012) 210 

 

5

 Section 1150, subdivision (a) states: “Upon an inquiry as to the validity of a 

verdict, any otherwise admissible evidence may be received as to statements made, or 

conduct, conditions, or events occurring, either within or without the jury room, of such a 

character as is likely to have influenced the verdict improperly. No evidence is 

admissible to show the effect of such statement, conduct, condition, or event upon a juror 

either in influencing him to assent to or dissent from the verdict or concerning the mental 

processes by which it was determined.” 
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Cal.App.4th 340, 345.) “Second, ‘If the evidence is admissible, the trial court must 

determine whether the facts establish misconduct. [Citation.]’ [Citation.] ‘The moving 

party bears the burden of establishing juror misconduct. [Citations.]’ [Citation.] . . . 

[¶] ‘“Lastly, assuming misconduct, the trial court must determine whether the misconduct 

was prejudicial.” [Citation.]’ [Citation.]” (Id. at p. 345.) “A trial court has broad 

discretion in ruling on each of these issues, and its rulings will not be disturbed absent a 

clear abuse of discretion.” (People v. Dorsey (1995) 34 Cal.App.4th 694, 704.) 

 The court determined the juror declarations supporting Williams’s new trial 

motion were inadmissible. This conclusion was not an abuse of discretion. “Evidence of 

jurors’ internal thought processes is inadmissible to impeach a verdict. [Citations.] Only 

evidence as to objectively ascertainable statements, conduct, conditions, or events is 

admissible to impeach a verdict. [Citations.] Juror declarations are admissible to the 

extent that they describe overt acts constituting jury misconduct, but they are 

inadmissible to the extent that they describe the effect of any event on a juror’s subjective 

reasoning process. [Citation.] Accordingly, juror declarations are inadmissible to the 

extent that they purport to describe the jurors’ understanding of the instructions or how 

they arrived at their verdict. [Citations.]” (Bell v. Bayerische Motoren Werke 

Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1124-1125, fn. omitted.) 

 As he did in the lower court, Williams relies on Krouse v. Graham (1977) 19 

Cal.3d 59 (Krouse). There, the California Supreme Court determined juror declarations 

supporting a new trial motion were admissible because they suggested the jurors made an 

“express agreement” to include nonrecoverable attorney fees in their verdict. (Id. at pp. 

80, 81.) Krouse is distinguishable. Here, the jurors did not agree to ignore the law. 

Although the declarations referred to what the jurors discussed and agreed, the essence of 

the declarations described the jury’s “subjective collective mental process purporting to 

show how the verdict was reached.” (Ford v. Bennacka (1990) 226 Cal.App.3d 330, 336, 

fn. omitted.) Because Williams’s “attempted impeachment of the verdict rested solely on 

an attack on the jury’s subjective mental processes in reaching the verdict, the court 
12 

properly denied a new trial.” (Ibid.) Having reached this result, we need not address 

Williams’s claim that the jurors committed prejudicial misconduct.6

 

DISPOSITION 

 The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. 

Rules of Court, rule 8.278(a).) 

 

6 We reject Williams’s claim that the court should have granted his new trial motion 

“based on insufficiency of evidence to justify the inherently inconsistent verdict.” 

Substantial evidence supports the verdict. (Holguin v. DISH Network LLC (2014) 229 

Cal.App.4th 1310, 1326.) Williams’s disagreement with the damages award does not 

demonstrate insufficiency of the evidence. 

 We note the California Supreme Court’s recent decision in People v. Lavender

(Dec. 8, 2014, S209975) ___ P.3d ___ [2014 WL 6864243]. Lavender has no application 

here because the parties in that case agreed “the deliberations were imperfect” and the 

sole issue was whether the jurors’ misconduct was prejudicial. 
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 _________________________ 

 Jones, P.J. 

We concur: 

_________________________ 

Simons, J. 

_________________________ 

Bruiniers, J.