1 Filed 1/7/15 Williams v. Sidhu CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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 a nd premises liability. A jury awarded Williams $225 and the
court denied his new trial motion. Williams a ppeals. He contends the court erred by: (1) excluding evidence of subseque nt remedial measures take n by defendants; (2) limiting testimony about his lack of insurance coverage ; and (3) denying his new trial motion.
We affirm.
FACTUAL AND PROCEDUR AL BACKGROUND In July 2011, Williams was a 35-year-old big rig tr uck 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 sta tion’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, le g and back injuries.” He sued defendants for negligence and premises liability, seeking over $25,000 in damages. Before trial, defendants m oved 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” a nd the court granted the motion. Defendants also moved to “prohibit any evidence or refe rence to the parties’ wealth or financial status” and the court granted the motion. Williams sought to introd uce photographs sh owing defendants filled the storm drain with concrete shortly after the incide nt, claiming the evidence was relevant to establish the depth of the hole. Defense co unsel objected and admitted the hole was two feet deep. After noting “subsequent, remedial [measures] aren’t admi ssible[,]” 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 negligen t.” The court excluded the photographs as evidence of subsequent reme dial measures and reject ed Williams’s argument the
evidence was relevant under th e 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 convenienc e 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 tr uck was preparing to leave the gas station, so he stepped up onto a curb to get out of th e 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 si gn until he stepped on it, nor an orange

1 Unless noted, all further statutory re ferences 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 botto m; then Williams “couldn’t feel [his] legs” and “started to panic.” He hoisted himself out of the hol e but could not get up because he “couldn’t move [his] legs.” The oil truck driver approa ched Williams and to ld 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 be tter take a few photos of this.’” Williams took pictures of himself while he waited for he lp. As paramedics arrived, the feeling in Williams’s legs returned. He ha d “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 wa s told he was “banged up” and “was going to be sore” but “all right.” Hospital staff gave Williams pain medication and antibiotics, and discharged hi m. He did not complain about back pain at the hospital.
Williams’s wife took Williams b ack to the gas station so he could “get [his] truck” and “finish [his] route.” Williams finished his three-hour shif t; he felt the injury “wasn’t really that serious” and he was “kind of more interested in getting ba ck there on the road” even though he was “banged up[.]” Williams went to work the next morning. A week after the inci dent — on July 18, 2011 — Williams made an August 1, 2011 doctor’s appointmen t. He continued to work over the next several weeks, only missing a fe w days, even though his low back and left leg were “hurting[.]” On August 1, 2011, Williams went to the em ergency room because his neck was hurting. He did not visit a doc tor before then becau se he did not have
medical insurance and did not “have th e money to pay to go to a doctor[.]” 3 At a follow

2 On cross-examination, defense coun sel 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 insuranc e after the incident. Williams’s attorney explained the testimony was relevant to show Williams “couldn’t call a Blue Cross4 up appointment on August 4, 2 011, Williams mentioned back pain for the first time. Williams stopped working as a truck driver, suffered from cons tant 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 pinc hed a nerve in his leg when he fell. Dr. Bradshaw explained back in juries sometimes take up to 24 hours to manifest and it is common for patients to wait several weeks befo re 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 pr eviously sought disability st atus, claiming he could not perform a sedentary job because of knee pain.
Defendants conceded the storm drain wa s a dangerous condition but argued it was
unreasonable for Williams to walk on the curb, ignore an or ange 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 Wi lliams 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 testif ied as a defense expert. After reviewing Williams’s medical records and examining Williams, Dr . Eichbaum testifie d 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 th at’s all the further yo u need to go. That explains it.”5 was experiencing “no symptoms of pain.” Dr. Eichbaum would not have expected
Williams to “have had a neck in jury 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. Ei chbaum, 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’ negligen ce was a substantial factor in causing Williams’s injuries and awarded him $1,500 in past noneconomic lo ss. The jury also determined, however, Williams was 85 percent at fault, reducing his damages award to $225. The court entered an d served the judgment. Williams moved for a new trial on the gr ounds of jury misconduct, inadequate damages, and insufficiency of th e evidence to justify the verdic t (Code Civ. Proc., § 657). First, Williams argued the jurors committed misconduct during deliber ations by “openly discuss[ing] and speculat[ing]” whether he fell into the storm drain hole. He offered two juror declarations to “demonstr ate that the jury openly discussed a matter that was not contested — i.e., whether [he] fell into the ho le — and came to an agreement that he had not, a determination contrary to a fact agreed u pon by the parties[.]” In their declarations, both jurors stated: “In reachi ng a verdict, the ju ry turned to detailed discussions of
whether Mr. Williams fell into the storm drai n hole. [¶] Based upon those discussions, the jury came to an agreem ent that Mr. Williams had not falle n into the storm drain hole. [¶] The agreement that Mr. Williams did not fall into the stor m drain hole was based upon the pictorial evidence that was presented to th e 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 wa s no jury misconduct because: (1) the parties did not stipulate Williams fell into th e hole and the jury was free to disbelieve
Williams’s claim and conclude he did not fall into the hole; and (2) Williams was6 attacking the jury’s mental process, which wa s specifically prohibit ed. Defendants also contended evidence supported th e jury’s conclusion that W illiams 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 fr om 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 wh ether . . . Williams fell in the storm drain hole, as [Williams] contend[s]. In ad dition, the juror de clarations submitted in support of [Williams’s] claim of jury misconduct, . . . do no t relate to overt facts that are objectively ascertainable. They relate to the subjective reasoning processes of the jurors that can be neither co rroborated nor disproved. Ther efore, they are inadmissible
under . . . Section 1150.” The court also c oncluded the evidence supporting the verdict “was not insufficient, and that the da mages awarded were not inadequate.”
DISCUSSION
I. The Appeal is Timely
Defendants urge us to di smiss the appeal because W illiams 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, ru le 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 pa rty serves an order denying the motion or a notice of entry of that order; [¶] (B) 30 days after denial of the motion by operation of7 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 mo tion 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 tr ial order in the permanent minutes of the court.” ( Miller v. United Services Automobile Assn. (1989) 213 Cal.App.3d 222, 226, fn. omitted; see al so Code Civ. Proc., § 660.) Here, the 60-day period fo r 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 th e judgment did not affirma tively 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. Customiz ed Worldwide Weathe r 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 moti on 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 Ru tter Group 2014) ¶ 3:67.1, p. 3-34.) Williams’s new trial was not denied by op eration of law. It was denied by written order on April 2, 2013 and the court clerk serv ed the order that same day. Pursuant to California Rules of Court, ru le 8.108(b)(1)(A), Williams had until May 2, 2013 — “30 days after the superior court clerk or a part y 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 ex cluding evidence defendants filled the storm drain with concrete shortly after the in cident. We review the court’s evidentiary8 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 ta ken previously, would ha ve tended to make the event less likely to occur, ev idence 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 Ca l.3d 113, 119- 120.) Section 1151, however, ‘“does not requir e the exclusion of evidence of subsequent measures when offered for another purpose [besides negligence], such as proving ownership, control, or feas ibility of precautionary meas ures, if controverted, or impeachment.”’ [Citations.]” ( McIntyre, supra, 228 Cal.App.4th at p. 673.)
Williams claims evidence defendants fille d 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 f easibility 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 [d efendants] had acted in failing to remedy the dangerous condition on their propert y until after the acc ident.” 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 fe asible to fill it with cement. (See McIntyre, supra, 228 Cal.App.4th at p. 673 [“ feasibility of precautionary me asures, if controverted”]; People v. Lockheed Shipb uilding & Constr. Co. (1975) 50 Cal.App.3d Supp. 15, 36 [feasibility exception applies only when “a defendant declares that nothi ng could have
been done to avoid the accident”].) Finally, the exclusion of defendants’ subs equent remedial measures did not — as Williams contends — precl ude him from offering eviden ce of feasibility because Williams’s engineering expert te stified a grate is typically placed over a storm drain to9 “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 pr ecautionary measures].)
III. The Court Did Not Err by Limiting Testimony About Williams’s Lack of Medical Insurance and An y Assumed Erro r Was Harmless Williams argues the court erred by excl uding evidence of his “gap in insurance coverage[.]” He claims the court preclude d 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 ab out his lack of medical insu rance and the reason for his delay in seeking treatment. De tails about what Williams did af ter the incident to obtain medical insurance were not relevant, nor wa s 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 co urt allowed him to testify about how his
financial condition and lack of medical insu rance 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 add itional reason he cann ot establish any assumed error was prejudicial. ( Twenty-Nine Palms Enterp rises 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 no t have altered the outcome because: (1) after he left the hospital, Williams felt his injury “wasn’t real ly 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 testifie d falling into the storm drain was unlikely to produce a neck injury, sy mptoms of any back injury would have manifested “sooner [rather] than later[,]” and Williams could have ex aggerated his injuries.
IV. The Court Properly Denied Williams’s New Trial Motion Williams claims the court erred by denyin g his new trial motion. As stated above, the court concluded the juror declarations offe red 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 proc esses of the jurors that can be neither corroborated nor disproved.” The court determ ined 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 dete rmined “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 gr ounds 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 mu st first determine whether the affidavits supporting the motion are ad missible. [Citation.]’” 5 ( Barboni v. Tuomi (2012) 210

5 Section 1150, subdivision (a) states: “U pon an inquiry as to the validity of a verdict, any otherwise admissibl e evidence may be received as to statements made, or conduct, conditions, or events oc curring, either within or with out the jury room, of such a character as is likely to have influenced the verdict improperl y. No evidence is admissible to show the effect of such statement, conduct, c ondition, or event upon a juror either in influencing him to assent to or di ssent from the verdict or concerning the mental processes by which it was determined.”11 Cal.App.4th 340, 345.) “Second, ‘If the eviden ce 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, a nd its rulings will not be disturbed absent a clear abuse of discretion.” ( People v. Dorsey (1995) 34 Cal.Ap p.4th 694, 704.)
The court determined th e juror declarations suppo rting Williams’s new trial
motion were inadmissible. This conclusion was not an abuse of discre tion. “Evidence of jurors’ internal thought processe s is inadmissible to impeach a verdict. [Citations.] Only evidence as to objectively ascertainable stat ements, conduct, conditions, or events is admissible to impeach a verdict. [Citations.] Juror declar ations are admissible to the extent that they describe overt acts constituting jury misco nduct, 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 ar e inadmissible to the extent that they purpo rt to describe the jurors’ unders tanding of the instructions or how they arrived at their verdict. [Citations.]” ( Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 11 08, 1124-1125, fn. omitted.)
As he did in the lowe r court, Williams relies on Krouse v. Graham (1977) 19 Cal.3d 59 ( Krouse ). There, the California Supreme Co urt determined juror declarations supporting a new trial motion were admissible b ecause they suggested the jurors made an “express agreement” to include nonrecoverabl e 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 referre d to what the jurors discusse d and agreed, the essence of the declarations described the jury’s “subjec tive 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 th e verdict rested solely on an attack on the jury’s subj ective mental processes in reaching the verdict, the court12 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 sh all recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

6 We reject Williams’s claim that the cour t should have granted his new trial motion “based on insufficiency of evidence to justify the inhe rently inconsistent verdict.” Substantial evidence supports the verdict. ( Holguin v. DISH Network LLC (2014) 229 Cal.App.4th 1310, 1326.) W illiams’s disagreement with the damages award does not demonstrate insufficiency of the evidence.
We note the California Suprem e 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 ju rors’ misconduct was prejudicial.13 _ ____________ ____________ Jones, P.J.

We concur:

_____________ ____________ Simons, J.

_____________ ____________ Bruiniers, J.