Filed 7/24/23 Mohammadi v. City of Fresno CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

REZA MOHAMMADI,

Plaintiff and Respondent,

v.

CITY OF FRESNO et al.,

Defendants and Appellants.

F083633

(Super. Ct. No. 16CECG01808 )

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler 

Tharpe, Judge.

Manning & Kass, Ellrod, Ramirez, Trester, Scott Wm. Davenport and Steven J. 

Renick for Defendants and Appellants.

Jeremy M. Dobbins for Plaintiffs and Respondents.

-ooOooAppellants/defendants City of Fresno (City) and Steven Wallace, a City employee, 

(collectively, defendants) appeal from a judgment on special verdict (judgment) entered 

against them and in favor of plaintiff/respondent Reza Mohammadi, and from the trial 
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court’s ruling on defendants’ motion for new trial and judgment notwithstanding the 

verdict (posttrial ruling) which the court denied.

We affirm the judgment and the trial court’s posttrial ruling.

FACTUAL AND PROCEDURAL BACKGROUND

On June 6, 2016, Mohammadi filed his original complaint against defendants for

negligence in connection with a November 9, 2015, accident involving a City bus 

operated by Wallace in the course of his City employment and a vehicle operated by 

Mohammadi (the subject incident). 

The original complaint was amended several times culminating in the operative

third amended complaint, which alleged two negligence causes of action in connection to 

two separate accidents, the subject incident and an earlier, August 2015, accident 

involving a Porsche driven by defendant Larry Matson and the car in which Mohammadi

and his son were travelling (the 2015 Porsche incident). The 2015 Porsche incident was 

resolved before trial and this action proceeded to trial on Mohammadi’s claims against 

defendants.

Trial commenced in September 2021. Defendants admitted fault in connection 

with the subject incident. Thus, the issues to be determined at trial included (1) the total 

amount of Mohammadi’s damages; (2) the percentage of fault to be attributed to 

defendants, if any, after taking into account the fault of others, if any; and (3) the amount 

of damages awarded, if any, against defendants.

Mohammadi had been involved in two additional motor vehicle accidents before

the subject incident and 2015 Porsche incident—a January 2010 accident that occurred in 

Texas when Mohammadi and his spouse were driving on a congested highway and were 

struck from behind by a pickup truck (2010 Texas incident), and a January 2014 accident 

in which Mohammadi was in the waiting room of a medical office when a tow truck 

crashed through the office wall and caused him to be pushed into another office wall 

(2014 tow truck incident).
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In a special verdict, the jury found (1) defendants’ negligence was a substantial 

factor in causing Mohammadi’s harm; (2) total damages after the subject incident 

(without a reduction, if any, for damages resulting from prior incidents) were $175,000 

for past noneconomic loss, and $900,000 for future noneconomic loss, for a total of 

$1,075,000; (3) the driver of the other vehicle in the 2010 Texas incident was not 

negligent; (4) the driver of the tow truck in the 2014 tow truck incident was not negligent; 

(5) the driver of the Porsche in the 2015 Porsche incident was not negligent; and (6) 

defendants were 100 percent responsible for Mohammadi’s harm. 

On October 5, 2021, the trial court entered judgment against defendants and in 

favor of Mohammadi in the amount of $1,075,000 with interest thereon at 10 percent 

until paid. 

On November 5, 2021, defendants filed their notice of the motion for a new trial 

and for judgment notwithstanding the verdict (JNOV), and supporting papers for both. 

The grounds for the two posttrial motions were largely the same as those presented in this

appeal. 

In December 2021, the trial court issued its posttrial ruling denying both the 

motion for new trial and the JNOV motion. Defendants timely appealed the judgment 

and the posttrial ruling. 

DISCUSSION

I. THE TRIAL COURT DID NOT ERR WITH REGARD TO DR. PAZOKI’S 

TESTIMONY

Defendants contend it was error for the court to allow Mohammadi’s treating 

chiropractor, Nicole Pazoki, “to provide expert biomechanical testimony and opine 

regarding crash test videos which she obtained from the internet, even though she had not 

been designated as an expert in this area nor had any training in this area.” Aside from 

making this contention, defendants provide no legal authority or further discussion in 
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their opening brief to support these contentions. In their reply brief, defendants devote a 

single paragraph to these contentions, as follows:

“Turning first to Nicole Pazoki, while it is beyond dispute that [Dr. Pazoki] 

was a treating chiropractor, this background does not give rise to the ability 

to provide expert biomechanical testimony, a wholly unrelated specialty 

which exceeds the scope of her training and experience. As the party 

proffering this testimony, this was Mohammadi’s burden. See Evidence 

Code [section] 720.” 

The implied contention that Mohammadi was required to designate Dr. Pazoki as 

an expert in the field of biomechanics is unsupported by defendants. “If an argument in 

an appellate brief is supported by only an opinion or argument of appellant’s counsel 

without ‘citation to any recognized legal authority,’ that argument may be deemed 

waived for failure to present supporting substantive legal analysis.” (In re A.C. (2017) 13 

Cal.App.5th 661, 672.) “It is not our place to comb the record seeking support for 

assertions parties fail to substantiate.” (Howard v. American National Fire Ins. Co.

(2010) 187 Cal.App.4th 498, 534.) 

Nicole Pazoki, DC was disclosed by Mohammadi as a nonretained expert. Under 

Code of Civil Procedure section 2034.260, subdivision (b)(1), Mohammadi was required 

to provide “[a] list setting forth the name and address of a person whose expert opinion 

that party expects to offer in evidence at the trial.” This was done. Subdivision (c) of 

said statute provides that, in the case of retained experts, additional disclosures are 

required including, without limitation, a “brief narrative statement of the qualifications of 

each expert” and a “brief narrative statement of the general substance of the testimony 

that the expert is expected to give.” (Code Civ. Proc., §§ 2034.260, subd. (c)(1), (2), 

2034.210, subd. (b).) Defendants do not provide legal authority to support their implied 

contention that Dr. Pazoki, as a nonretained expert, was subject to heightened disclosure 

requirements in addition to those imposed by Code of Civil Procedure section 2034.260, 

subdivision (b)(1). As a result, we deem the contention waived.
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Similarly, defendants do not present on appeal any legal authority or cogent 

argument as to why Dr. Pazoki should not have been allowed to opine regarding “crash 

test videos which she obtained from the internet.” “ ‘In order to demonstrate error, an 

appellant must supply the reviewing court with some cogent argument supported by legal 

analysis and citation to the record.’ ” (United Grand Corp. v. Malibu Hillbillies, LLC

(2019) 36 Cal.App.5th 142, 146.) We conclude defendants have forfeited any claim of 

error as to Dr. Pazoki’s testimony concerning the crash test videos.

We now turn to defendants’ contention that Dr. Pazoki had insufficient expertise 

to testify as to biomechanical issues. Evidence Code section 720 provides:

“(a) A person is qualified to testify as an expert if he has special 

knowledge, skill, experience, training, or education sufficient to qualify 

him as an expert on the subject to which his testimony relates. Against the 

objection of a party, such special knowledge, skill, experience, training, or 

education must be shown before the witness may testify as an expert.

“(b) A witness’ special knowledge, skill, experience, training, or education 

may be shown by any otherwise admissible evidence, including his own 

testimony.” (Evid. Code, § 720.)

“ ‘Whether a person qualifies as an expert in a particular case ... depends upon the 

facts of the case and the witness’s qualifications.’ [Citation.] ‘[T]he determinative issue 

in each case is whether the witness has sufficient skill or experience in the field so his 

testimony would be likely to assist the jury in the search for truth.’ ” (Howard 

Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1115.) 

“The trial court is given considerable latitude in determining the qualifications of 

an expert and its ruling will not be disturbed on appeal unless a manifest abuse of 

discretion [is] shown.” (People v. Singh (1995) 37 Cal.App.4th 1343, 1377.) “The 

sufficiency of the showing of qualifications of a witness to testify as an expert is a matter 

resting largely in the discretion of the trial court, and its ruling will not be disturbed if 

there is any substantial evidence to support it.” (Humiston v. Hook (1948) 86 Cal.App.2d 

101, 105.)
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Here, the trial court conducted a hearing pursuant to Evidence Code section 402 

(402 hearing) to determine whether Dr. Pazoki had the requisite qualifications of an 

expert on biomechanics. Dr. Pazoki testified she took an in-person course consisting of 

four modules in “Whiplash Injury: Biomechanics and Brain Traumatology.” She 

continued, “[e]ach module is like a -- you would say 20 -- almost 24 hours.” She further 

testified, “the whole principal of chiropractic is based on biomechanics. The forces apply 

to the body. What is the cervical region is [sic] going to do when a force is being 

applied, what is going -- the thoracic is going to do or the motion, whatever external 

motion or a blow to the spinal cord. These are all biomechanics.” Dr. Pazoki also stated 

that, to a lesser extent, “we study biomechanics from the get-go when we go through 

chiropractic school” and explained how biomechanics relate to, and are used in, 

chiropractic treatments. 

Defendants’ categorical statements that biomechanics is a specialty “wholly 

unrelated” to chiropractic therapy, that Dr. Pazoki had no training in biomechanics, and 

that the field of biomechanics “exceeds the scope of [Dr. Pazoki’s] training and 

experience” are not supported by the record on appeal. The evidence developed during 

the 402 hearing shows that Dr. Pazoki had nearly 96 hours of training in the subject (i.e., 

four modules at almost 24 hours each) and that the field is related to the chiropractic care 

Dr. Pazoki provides. Defendants provide no argument or authority to demonstrate that 

Dr. Pazoki’s educational training is insufficient to qualify her as an expert in 

biomechanics based on the facts in this case. Consequently, we conclude the trial court 

did not abuse its discretion in denying defendants’ motion in limine to preclude such 

testimony. Substantial evidence supports a determination Dr. Pazoki had sufficient 

qualifications to provide such testimony.

We also reject defendants’ additional claim of error that Dr. Pazoki’s trial 

testimony was prejudicial. However, defendants do not cite to any testimony of Dr. 

Pazoki before the jury which they contend should not have been admitted or was 
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prejudicial. The mere fact that the trial court denied defendants’ motion in limine to 

preclude portions of Pazoki’s testimony does not demonstrate that her jury testimony was 

objectionable and prejudicial. It was defendants’ burden to “affirmatively show 

prejudicial error.” (Scheenstra v. California Dairies, Inc. (2013) 213 Cal.App.4th 370,

403, italics omitted.) Defendants have not carried their burden with respect to Dr. 

Pazoki’s testimony.

II. THE TRIAL COURT DID NOT ERR WITH REGARD TO JON SHIN’S 

TESTIMONY OR THE DEMONSTRATIVE EVIDENCE HE PREPARED

Defendants next contend the trial court erred with respect to the introduction of 

expert testimony over their objection by allowing Mohammadi’s witness, Jon Shin,

retained as an accident reconstruction expert, to testify concerning a computer generated 

animation he prepared to reconstruct the subject incident. Defendants argue the 

animation was without foundation and not tethered to the facts. 

Defendants point to Mr. Shin’s testimony during a 402 hearing that his animation 

did not take into account “the real world weight of the vehicles”; “was not to scale”; “did 

not take into account what biomechanics did”1; and “depicted a direct force animation 

despite the fact that the accident in question was not a bumper-to-bumper accident and, 

instead, caused a spinning rotation.” They argue prejudice is demonstrated because “a 

video-graphic reconstruction is compelling evidence which is hard for a lay jury to 

disregard” and the prejudicial impact of the evidence outweighed its probative value. We 

disagree. 

“A trial court’s decision to admit ... demonstrative evidence is reviewed for abuse 

of discretion.” (People v. Duenas (2012) 55 Cal.4th 1, 21 (Duenas).) Moreover, “A trial 

court’s decision to admit demonstrative evidence under section 352 will be upheld on 

1 We presume Defendants’ contention that Mr. Shin’s testimony “did not take into 

account what biomechanics did” is a reference to Mr. Shin’s testimony that he did not 

work with a biomechanical engineer in developing the animation. 
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appeal unless the prejudicial effect of the evidence clearly outweighs its probative value.” 

(People v. Rivera (2011) 201 Cal.App.4th 353, 362–363.) Such evidence “ ‘is admissible 

only where (1) the demonstration is relevant, (2) its conditions and those existing at the 

time of the alleged occurrence are shown to be substantially similar and (3) the evidence 

will not consume undue time or confuse or mislead the jury.’ ” (Id. at p. 363.)

“Courts and commentators draw a distinction between computer animations and 

computer simulations. [Citation.] ‘Animation is merely used to illustrate ... testimony 

while simulations contain scientific or physical principles requiring validation. 

[Citation.] Animations do not draw conclusions; they attempt to recreate a scene or 

process, thus they are treated like demonstrative aids. [Citation.] Computer simulations 

are created by entering data into computer models which analyze the data and reach a 

conclusion.’ [Citations.] In other words, a computer animation is demonstrative 

evidence offered to help a jury understand ... testimony or other substantive evidence 

[citation]; a computer simulation, by contrast, is itself substantive evidence.” (Duenas, 

supra, 55 Cal.4th at p. 20.) “Courts have compared computer animations to classic forms 

of demonstrative evidence such as charts or diagrams that illustrate ... testimony. 

[Citations.] A computer animation is admissible if ‘ “it is a fair and accurate 

representation of the evidence to which it relates....” ’ ” (Ibid.)

In determining the admissibility of the animation, the trial court stated, “there are 

certainly some deficiencies in its preparation. It’s not the best evidence. I’m going to 

allow that to be shown to the jury, admitted into evidence, and the deficiencies can be 

argued to the jury as to the weight of the evidence.” Defendants were advised by the 

court they could “augment and bring in [a] reconstructionist to point out the deficiencies 

in the video.” However, the record on appeal does not include testimony from an 

animator or reconstructionist called by defendants.

The record on appeal does not contain trial testimony from Mr. Shin—only 

testimony from the 402 hearing. Thus, it appears defendants’ argument goes to the 
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admission of the animation itself rather than the testimony of Mr. Shin. Notably, the 

animation itself was not designated as part of the record on appeal. 

When Mr. Shin was asked at the 402 hearing how he made his calculations 

concerning “the speed or any angle of rotation or any rate of movement”, he responded, 

“this is keyframe animation.[2] So, similar to traditional animation, a key point, the 

positions and rotations of the vehicles involved are placed, and the initial things that are 

fed into the computer are, of course, the speed of both the vehicles, and effort was made 

to try to match that as closely as possible to the known facts based on that video 

primarily, as well as the police report and the eyewitness accounts of what happened. 

And as far as individual angles, those were keyframed by hand. So, as in, you know, just 

placed there in an effort to make things look physically realistic, based on the principals 

of animation, action, reaction, and those kind of dynamic motions. So, not every single 

angle would be precisely what it actually was, of course, because there’s limited data 

involved. But where possible, effort was made to match it to the known facts.” When 

asked how he obtained “the scale for the individual vehicles,” he responded “So, the 

vehicles were the purchased off the online marketplace. I also personally happen to drive 

a Corolla similar to the one involved in the case. So, I was able to check the 

measurements of [sic] lining up to real world measurements.” 

Mr. Shin testified that the City bus had “some cameras, as well as a record of the 

speed it was going at the time of the accident” and that he “gathered [information] from 

the video taken and produced” by defendants. He also considered photos and police 

2 Oxford Reference defines “keyframe,” as follows: “1. In animation, the drawings 

that define the start and end of an action: for example, if a figure raises their hand, the 

first keyframe would be the hand by the figure’s side and the next would be the hand 

fully extended. Inbetween frames are frames that fill in all the points between. [¶] 2. In 

computer special effects, a set of programmable markers that define a point in a transition 

between two states so that the computer can generate inbetween frames: see 

also interpolation.” (<https://www.oxfordreference.com/display/10.1093/oi/authority.

20110803100035299? rskey=cAjV0b&result=3> [as of Jun. 28, 2023])
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reports in developing the animation. He was asked, “Do you know if the actual video of 

the accident is consistent with the animation—or what the animation depicts?” He 

responded, “Yes, to the extent that it can be. I mean the bus video shows the bus, you 

know, approaching and getting closer to the car. And so, after it was made to make it 

match as closely as possible, given that it’s a different angle, and there are things seen in 

the animation that are not seen in the -- from the bus.” Mr. Shin’s 402 hearing testimony 

established the animation was not a computer simulation as described in Duenas and was 

intended to be demonstrative evidence that adhered to the known facts in the case. 

Witness Andrey Grinko testified he was traveling southbound on freeway 41 in the 

middle lane at the time of the subject incident. The City bus was in the right hand lane 

some six or seven car lengths ahead of him. The driver of the City bus was drifting in 

and out of his lane, into the middle lane, and then toward the shoulder of the freeway. 

Mr. Grinko saw Mohammadi’s car change lanes as if to exit on Shaw Avenue in Fresno 

and saw it “spinning out in front of the bus.” He pulled over and noticed Mohammadi’s 

car “was pretty beat up,” that there was damage to the “driver’s side quarter panel, rear 

quarter panel,” that “the wheel was torn off,” and that the side and front airbags had 

deployed. 

Mr. Grinko was asked, “[n]ow, understanding that this is obviously not the actual 

bus and the actual car, it’s a re[-]creation, it’s an animation, is it still -- is it representative 

of the collision that you saw that night?” Mr. Grinko replied in the affirmative. He was 

asked, “[i]n what way?” to which he responded, “I remember seeing the -- the car get 

rear-ended similar in that fashion, and I specifically remember the car spinning out on the 

freeway.” He was then asked, “would you say it’s an accurate depiction of the accident 

from your perspective?” to which he replied, “Yes. Yeah.” 

Defendants do not cite any case law or other authority that requires demonstrative 

evidence be drawn to scale. “Even if not drawn to scale, [demonstrative evidence] may 

still be admissible as a graphic aid to testimony (e.g., a witness’ drawing of an 
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intersection). But the judge will need to caution the jury regarding this fact. It is 

opposing counsel’s responsibility to ask (or remind) the judge to so inform the jury.” 

(Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2022) 

¶ 4:66.) Defense counsel has not directed this court to any attempt on their part to request 

a cautionary instruction concerning the scale of the animation. No compelling argument 

has been made to suggest that differences between the animation’s scale and the actual 

scale rendered the evidence misleading. Similarly, defendants do not cite any case law or 

other authority, and make no compelling argument, to suggest that the “real world weight 

of the vehicles” needed to be used, or that a biomechanical engineer needed to be 

consulted, in the preparation of the animation. 

Most notably, Mr. Grinko indicated the animation was an accurate depiction of the 

subject incident from his perspective and stated Mohammadi’s car was “rear-ended in a 

similar fashion” to that depicted in the animation. 

The trial court did not abuse its discretion in admitting the animation. The 

animation was relevant and depicted the salient details of the accident from Mr. Grinko’s 

perspective. Although defendants contend the animation was misleading and unduly 

prejudicial, they have not shown it to be either.

III. NO PREJUDICIAL ERROR HAS BEEN DEMONSTRATED WITH REGARD 

TO DR. BRICE’S TESTIMONY

Defendants contend the trial court erred by allowing Dr. Brian Brice, M.D., a 

physiatrist or physical medical rehabilitation specialist, to “improperly expand[] on his 

prior deposition testimony at trial” and by allowing Dr. Brice to provide “testimony 

which was not only hearsay and in violation of People v. Sanchez (2016) 63 Cal.4th 665 

[(Sanchez)], but also contrary to a defense motion in limine.” We disagree.
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A. Defendants Failed to Demonstrate Dr. Brice Improperly Expanded on His 

Prior Deposition Testimony

Defendants contend “Dr. Brice gave deposition testimony in which he specifically 

testified that he had formed the professional opinion that Mohammadi’s injuries were 

cumulative in nature; however, at ... trial, Dr. Brice recanted this testimony and testified 

that Mohammadi had fully recovered from any prior injuries in violation of the motion in 

limine.” (Italics omitted.) 

In trial testimony cited by defendants, Dr. Brice stated that, with respect to the 

2014 tow truck incident, Mohammadi was “in a lot of pain afterwards”; “had multiple 

complaints that need[ed] to be checked out”; and those complaints “were thoroughly 

evaluated in the emergency room.” With regard to the 2015 Porsche incident, Dr. Brice 

testified “there was a lot of stuff going on with regard[] to [Mohammadi’s] complaints. 

And he -- I feel that he never really got better. I mean I feel like, you know he was in the 

process of rehabilitating his spine, and the last event [presumably a reference to the 

subject incident] actually made things a lot worse.” Defendants objected on grounds this 

testimony violated their motion in limine No. 1 to prohibit “designated experts from 

offering opinions not disclosed at the time of their respective depositions.” 

The deposition testimony defendants contend demonstrates the trial testimony 

violated motion in limine No. 1 reads:

Q. “What are the opinions and conclusions you intend to opine in this 

matter?”

A. “Okay. Well, I intend to express that, you know, from the information 

that I was able to obtain and based on the evaluation of -- direct evaluation 

of the claimant that he sustained a serious injury that affected his spine, and 

that it was due to the motor vehicle crashes.”

Q. “What motor vehicle accident?”

A. “My position is that it was cumulative. So, there were multiple motor 

vehicle accidents according to the records, and I feel as I read the records 

and the treatments that were provided to him, you know, his, once again, 
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his medical trajectory was a synergistic[] effect whereby he was in one 

accident, and he had certain baseline of issues that were treated, and they 

sort of stabilized. And then he was in another accident, and seems thing to 

light up a bit, and he required an extensive amount of treatment which, you 

know, at some point stabilized and waxed and waned, and then he went into 

another accident which kind of lit things up again. And then he went 

through an extensive course of additional treatment that proved to not really 

get him back to a pre[-]accident condition.” 

We do not see any inconsistency between the cited deposition and trial testimony of Dr. 

Brice. The testimony does not support defendants’ contention that Dr. Brice recanted his 

deposition testimony or that Dr. Brice testified Mohammadi had fully recovered from his 

prior injuries. 

Defendants also cite to trial testimony in which Dr. Brice was asked to comment 

on a report provided by defense expert, Dr. Thomas E. Hoyt, M.D., a neurological 

surgeon. Defendants objected again based on their motion in limine number one and the 

objection was overruled. Dr. Brice then testified he felt Dr. Hoyt had difficulty obtaining 

“information ... needed to construct ... the basis of the injury” and Dr. Brice “didn’t 

really see a—what [he] would consider a thorough spinal exam.” He said Dr. Hoyt did a 

thorough medical records review and recounted some of Dr. Hoyt’s medical findings. 

Dr. Brice testified that Dr. Hoyt “basically stated that the [subject incident] did not cause 

or affect in any way the patient’s problems” which Dr. Brice felt was a hard 

determination to arrive at; that Dr. Hoyt was of the opinion that Mohammadi would have 

had to have undergone “all of the surgeries and all of the procedures that he underwent” 

even if the subject incident had not occurred; and that it was “impossible to really know 

that, because it did occur, and it was a serious accident.” Dr. Brice said that Mohammadi

“had serious complaints that required him to go to the emergency room following that 

accident”; that he might be able to accept Dr. Hoyt’s opinion that the subject incident was 

not responsible for any of Mohammadi’s complaints if it had been an “innocuous 

accident”; and that “on par with all the other accidents, you know, [the subject incident] 

was more serious because of the high speed velocity.” 
14.

Defendants also cite to testimony where Dr. Brice was asked to express an opinion 

on a report written by another of defendants’ experts, Dr. Michael Robert Klein, Jr., an 

orthopedic surgeon. This drew another objection by defense counsel based again on 

defendants’ motion in limine No. 1, which the trial court overruled. Dr. Brice then 

testified Dr. Klein did a “really good job of summarizing some of the conflicts that were 

occurring during the course of making surgical decisions” for Mohammadi. Dr. Brice 

said he “took exception to [Dr. Klein’s] comment that ... Mohammadi was embellishing 

his symptoms, ... and was a malingerer.” He was skeptical how a doctor could come to

that conclusion based solely on a medical records review. 

The above referenced testimony does not support the contention that Dr. Brice 

recanted his deposition testimony that Mohammadi’s “injuries were cumulative in 

nature.” Nor does it support the contention that Dr. Brice testified Mohammadi had fully 

recovered from prior injuries. Although defendants have contended, generally, that Dr. 

Brice was allowed to expand on his deposition testimony, they do not provide argument 

in support of the contention (aside from that already discussed).3 Assuming defendants

contend the above testimony constituted such an expansion, they have not provided this 

court with an adequate record upon which to make such a determination. No deposition 

testimony has been provided to the court (beyond that discussed above). Absent an 

adequate record, any such contention by defendants must be resolved against them. 

(Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)

3 At trial, and out of the presence of the jury, defense counsel told the court that in 

Dr. Brice’s deposition “he was asked if he was going to do any additional work or 

express any additional opinions, and the only answer was he may opine on future 

treatment.” However, defendants’ briefing on appeal does not discuss this contention. 

Moreover, the deposition testimony defense counsel purportedly relied upon was not 

recited on the record before the trial court or included in the record on appeal, nor were 

deposition transcripts provided to the trial court or this court to assess the referenced 

question posed to Dr. Brice and his answer thereto.
15.

We conclude the trial court did not err in overruling defendants’ objections based 

on motion in limine No. 1.

B. Testimony in Violation of Sanchez, If Any, Was Not Prejudicial

Defendants contend that certain testimony of Dr. Brice violated the holding in 

Sanchez, supra, 63 Cal.4th 665. “In Sanchez, our Supreme Court clarified the limits on 

the extent to which an expert witness can relate and rely upon hearsay in support of an 

opinion, based upon the distinction between ‘ “case-specific hearsay” ’ and hearsay 

which is ‘part of the “general background information” acquired by the expert through 

out-of-court statements as part of the development of his or her expertise.’ ” (People v. 

McVey (2018) 24 Cal.App.5th 405, 416.) “Sanchez defined case-specific facts as ‘those 

relating to the particular events and participants alleged to have been involved in the case 

being tried,’ and held that an expert is prohibited from testifying to such facts if they are 

outside the expert’s personal knowledge and do not fall under an exception to the hearsay 

rule or have not been independently established by competent evidence.” (Ibid., citing 

Sanchez, supra, 63 Cal.4th at pp. 676–677.)

Defendants contend the following testimony of Dr. Brice in response to the 

following question by plaintiff’s counsel violated the holding in Sanchez:

“Q. Dr. Brice, you’re familiar -- or in your record review, there’s 

the two surgeries that we referenced, and then there’s the October June -- or 

June 24th of 2020 surgery where a guide wire or a -- I’m sorry, a nerve 

stimulator was put into his spine. And then it was removed a year later. 

So, of those four surgeries, do you feel that ... Mohammadi had any benefit 

from those? 

“A. Based on reading the records, there was a period of time that 

was reported by Dr. Paquette that indicated that he was doing better for a 

while, which, you know, preceded -- just make sure I’m speaking correctly 

here. Okay. So, that was conservative -- we call conservative 

management, we try to do the least amount of invasive procedures. The 

surgeries follow that when it was considered he failed those conservative 

measures, and he was still having a lot of pain and disability. 
16.

“The first surgery, once again, was minimally invasive. It was felt 

that that surgery didn't do its job. And the thought was that he had a 

condition called spinal stenosis,[4] which I mentioned earlier. And they 

were trying to open up the area to decrease the pressure. And it was 

apparent from the records that following that surgery, there was mild 

improvement over a period of time. And then things got worse again. 

“And then they re-explored the next minimally invasive procedure, 

which was the implantation of a neurostimulator around the spinal cord to 

disrupt the pain signal going to the brain.

“And it usually happens in two steps. Generally, it happens first 

with a temporary implant where the nerve stimulator is placed in, and the 

actual machine is left outside the body, and we turn the stimulation to a 

certain level in order to decrease pain at the area of the spine. That’s going 

to signal going to the brain that is sort of scrambled. And after a trial 

period, it’s determined that if it worked or didn’t work, a conclusion is 

made. And if it works, then a permanent implant is placed, and that --

that’s a surgical procedure. And so, they have to put the machine under the 

skin in order to keep it safe and contained.

“That process apparently didn’t work. There were lots of follow-up 

visits trying to adjust the machine. The wires that are on the spinal cord 

apparently moved. And he was not getting the relief ... that he was 

expecting. And then based on the records, the patient made the decision 

that he wanted it removed.

“So, that was another surgical procedure where it had to be removed 

from beneath the skin, and the wires had to be extracted.” 

Following the above response, defense counsel objected on grounds of hearsay 

and that the testimony is not admissible under Sanchez, and moved to strike Dr. Brice’s 

testimony “to the extent that he’s relying on and reading the medical record.” The trial 

court overruled the objection. 

“[I]t is a fundamental principle of appellate procedure that a trial court judgment 

[or order] is ordinarily presumed to be correct and the burden is on an appellant to 

4 “Spinal stenosis, a narrowing of the spaces in your spine, can compress your 

spinal cord and nerve roots exiting each vertebrae.” (<https://my.clevelandclinic.org/

health/diseases/17499-spinal-stenosis> [as of June 16, 2023].)
17.

demonstrate, on the basis of the record presented to the appellate court, that the trial court 

committed an error that justifies [its] reversal ....” (Jameson v. Desta (2018) 5 Cal.5th

594, 608–609; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) To meet this 

burden, an appellant must provide the reviewing court with an adequate record (Jameson, 

at p. 609) and support each claim of error with argument and citations to the record 

(Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 276–277). In addition to 

demonstrating error, an appellant must also demonstrate that prejudice resulted from the 

error. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) A judgment 

may not be overturned “unless, after an examination of the entire cause, including the 

evidence, the court shall be of the opinion that the error complained of has resulted in a 

miscarriage of justice.” (Cal. Const., art. VI, § 13.)

The record on appeal does not include the medical record Dr. Brice is alleged to 

have read from. Nor have defendants indicated which portion of the above referenced 

testimony purportedly relied upon, or was read from, the medical record. Without this 

information, the objection, which was expressly limited “to the extent [Dr. Brice was] 

relying on and reading the medical record,” is ambiguous. Notwithstanding, we note the 

information contained in the testimony was largely testified to, without objection, by 

other witnesses (including Drs. Hoyt and Klein) or in other testimony by Dr. Brice.

Specifically, numerous witnesses (including, without limitation, Drs. Hoyt and 

Klein) testified to the number of surgeries Mohammadi underwent. Both defense experts 

testified regarding the implantation of a neurostimulator and its subsequent removal. Dr. 

Klein testified regarding Mohammadi’s treatment with epidural steroid injection(s), the 

narrowing of Mohammadi’s spinal disks, the discectomy Mohammadi underwent, and the 

return of Mohammadi’s pain as documented in medical records. Dr. Pazoki discussed the 

transition from conservative care (e.g., physical therapy, pain management, epidural and 

similar injections) to surgical intervention in Mohammadi’s treatment, and the narrowing 
18.

of Mohammadi’s foramen.5 In other testimony, Dr. Brice said Mohammadi “had a 

degree of fairly moderate spinal stenosis.” In addition, Mohammadi, Mohammadi’s son, 

and Mohammadi’s spouse also testified regarding the number and type of surgical and 

nonsurgical treatments Mohammadi underwent and their ineffectiveness in resolving 

Mohammadi’s pain. Similarly, Mohammadi testified, without objection, he was told the 

reason his neurostimulator had ceased to eliminate or reduce his pain was that the wires 

had shifted. Thus, the information disclosed in the challenged testimony of Dr. Brice was 

independently established and verified by other testimony. 

Defendants contend the aforementioned testimony of Dr. Brice “impacted the 

jury’s determination that Mohammadi’s injuries [were] 100% attributable to the City of 

Fresno.” Yet, the record on appeal demonstrates the jury’s determination in this regard 

was premised on the express findings that the drivers of the other vehicles in the 2010 

Texas incident, 2014 tow truck incident, and 2015 Porsche incident, were not negligent

and therefore, impliedly, not responsible for any harm to Mohammadi following the 

subject incident. The jury was not asked to apportion liability on any other basis. 

Assuming, without deciding, that the trial court erred in overruling defense 

counsel’s Sanchez objection to Dr. Brice’s testimony, the error was harmless.

IV. THE TRIAL COURT DID NOT ERR IN ALLOWING MOHAMMADI’S 

ATTORNEY TO DISCUSS MOHAMMADI’S NATIONALITY AND 

RELATED EXPERIENCES DURING CLOSING ARGUMENTS

Defendants contend the trial court erred by allowing plaintiff’s counsel to mention 

Mohammadi’s nationality and related experiences during closing argument over 

defendants’ objection. They contend the following argument was “improper in its own 

right” and violated orders in limine sought by Mohammadi. 

5 “Foraminal stenosis is narrowing that happens in certain places around the nerves 

that come out of [the] spinal cord. It’s a type of spinal stenosis ....” 

(<https://my.clevelandclinic.org/health/diseases/24856-foraminal-stenosis> [as of July 6, 

2023].)
19.

“But I’d like to tell you a little bit about [Mohammadi’s] life, and 

you can judge what kind of character he is.

“So, the testimony reflected that he and his wife and son came to the 

United States in 2007. They talked about that he came from Iran, and he 

was a mechanic there. So, is his family there is well-known. They are 

known as very radical, liberal family. Radical liberal in Iran means direct --

let me direct you to some of the things he testified about; that you split all 

the duties with your wife in the house. You should wash dishes together. 

You should cook together. You should clean together. All the duties of our 

home he believed they should do together. He believed that women should 

be allowed to drive; that she should be able to go to college; that everything 

should be able to worship to the dictate of their own heart.

“For these beliefs, his brother, who was more vocal than him, was 

thrown into an Iranian prison.” 

Defense counsel objected: “Your Honor, objection, motion in limine, and no 

evidence.” The trial court overruled the objection. Mohammadi’s counsel continued 

without further objection:

“His brother was thrown into an Iranian prison; and soon after, 

[Mohammadi] got word that he was going to be next unless he renounced 

the views that his brother held. He said, no, I will not. This is what we 

believe, and that’s it.

“However, he had a young wife and young son, and he wasn’t about 

to allow the things that might happen to them, that would be horrible, 

happen to them if he were to be thrown into prison. So, in the cold of night, 

they escaped Iran. And they fled to Turkey. For two years, they lived in 

the slum -- the worst slums that there are in Turkey. They lived there 

because he didn’t have anything. They left everything in a pretty intense 

situation. 

“After being there for two years of trying to come to the United 

States, and they weren’t able to come, his brother was -- was killed in an 

Iranian prison because he wouldn’t bend, he wouldn’t renounce those 

beliefs.

“At that point, the United Nations be lobbied for [Mohammadi] and 

his family to come to the United States, and he was granted the ability to 

come here as a -- as a refugee. They came here, and they built a life here. 

And it was hard, as you heard.” 
20.

“A verdict or finding shall not be set aside, nor shall the judgment or decision 

based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] 

(a) There appears of record an objection to or a motion to exclude or to strike the 

evidence that was timely made and so stated as to make clear the specific ground of the 

objection or motion; and [¶] (b) The court which passes upon the effect of the error or 

errors is of the opinion that the admitted evidence should have been excluded on the 

ground stated and that the error or errors complained of resulted in a miscarriage of 

justice.” (Evid. Code, § 353.)

Two initial points are worth comment. First, defense counsel’s objection based on 

an unspecified motion in limine arguably does not meet the criteria of making “clear the 

specific ... objection” relied upon.6 (Evid. Code, § 353.) Notwithstanding, below we 

review defendants’ contentions on the merits. Second, plaintiff’s counsel’s subsequent 

argument was not objected to and, to the extent it contained additional information not 

previously objected to, it may not form the basis of an appeal. (Ibid.; Warner Constr. 

Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 303.)

A. Defendants Have Not Demonstrated Reversible Error in Connection With 

Any Alleged Violation of Orders in Limine

On appeal, defendants assert the argument violated the court’s orders granting 

motions in limine Nos. 6 and 7. Motion in limine No. 6 sought to preclude “[m]ention of 

any lawsuits in which plaintiff or plaintiff’s family were named as a party [versus] the 

Islamic Republic of Iran.” Motion in limine No. 7 sought to preclude “mention of the 

plaintiff[’]s or any witness[’] national origin or any questions that [elicit] a response 

where the plaintiff or any witness must respond that they are from Iran or any other 

middle eastern country.” 

6 The record on appeal contains 21 motions in limine. 
21.

Counsel’s statements during closing argument did not reference a lawsuit between 

Mohammadi or his family members against the Islamic Republic of Iran. Thus, there was 

no violation of the order granting motion in limine No. 6. 

With regard to the order granting motion in limine No. 7, the record on appeal 

demonstrates that both defense counsel and plaintiff’s counsel mentioned, or elicited 

testimony concerning Mohammadi’s nationality in front of the jury. For example, 

defense counsel read from Mohammadi’s deposition in which he was questioned about 

complaints he had concerning “things that happened back in Iran”—i.e., “a flood that’s 

taking over Iran.” Defense counsel read from Mohammadi’s deposition testimony 

wherein he stated, “We Iranians, the men works [sic].” Similarly, Mohammadi testified, 

without objection that “in Iran, [he] had a very nice mechanic shop, and [his] dream was 

to do the same here.” In addition, Mohammadi’s spouse testified, without objection, that 

she and Mohammadi “had a tough life as refugee[s].” 

Thus, defense counsel, herself, elicited testimony concerning Mohammadi’s 

nationality and any alleged error in that regard was invited through her own questioning. 

(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [“ ‘Where a party by his conduct 

induces the commission of error, he [or she] is estopped from asserting it as a ground for 

reversal’ on appeal.”]). 

We conclude defendants have not demonstrated reversible error in connection with 

any alleged violation of orders granting motions in limine Nos. 6 and 7.

B. Defendants Have Not Demonstrated Reversible Error in Connection With 

Any Alleged Reference to Matters Outside the Evidence

An appellate court will affirm a judgment unless it concludes “it is reasonably 

probable that a result more favorable to the appealing party would have been reached in 

the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836; Cassim v. 

Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) Our state high court has “ ‘made clear that 
22.

a “probability” in this context does not mean more likely than not, but merely a 

reasonable chance, more than an abstract possibility.’ ” (Cassim, at p. 800.)

As demonstrated above, evidence was introduced showing Mohammadi and his 

family were from Iran and that they were refugees. In addition, Mohammadi’s son

testified his uncle (presumably, Mohammadi’s brother or brother-in-law) was killed by 

the Iranian government. There was also testimony that Mohammadi was committed to 

helping his wife with household chores and duties (e.g., cooking, cleaning, vacuuming, 

washing dishes), that he “was known for how much [he] helped [his] wife” and that he 

“really fe[lt] that [he] should always be helpful to her.” Although plaintiff’s counsel 

embellished these details somewhat by noting that the family had fled to Turkey, that 

Mohammadi’s brother was in prison when, as Mohammadi’s son testified, he was killed 

by the Iranian government, and that Mohammadi’s commitment to helping his wife with 

chores was radically liberal in the eyes of the Iranian government, we cannot say that 

these added details caused prejudice in the eyes of the jury. The salient details—i.e., 

their Iranian nationality, their refugee status, Mohammadi’s brother’s death at the hands 

of the Iranian government, and Mohammadi’s commitment to helping his wife with 

household chores were already before the jury. Moreover, it is common knowledge that 

the government of Iran takes a different view of the rights of women and considers them 

subservient to men. An attorney may reference during closing argument “matters not in 

evidence that are common knowledge, or are illustrations drawn from common 

experience, history, or literature.” (People v. Sandoval (1992) 4 Cal.4th 155, 193.)

We conclude there is no reasonable chance defendants would have obtained a 

more favorable verdict in the absence of that portion of the closing argument defendants

have objected to. The main details were already presented to the jury either by defense 

counsel, or without objection from defense counsel. No prejudicial error has been shown.
23.

V. SUBSTANTIAL EVIDENCE SUPPORTS THE DAMAGES AWARD 

Defendants contend sufficient evidence does not support Mohammadi’s

$1,075,000 noneconomic damage award. We disagree.

A. Substantial Evidence Supported the Jury’s Determination of Total 

Damages

The jury found that defendants’ negligence was a substantial factor in causing 

harm to Mohammadi. Defendants do not challenge this finding on appeal. On the issue 

of damages, the jury was provided with a special verdict form that requested the jury 

answer the following question: “What are ... Mohammadi’s total damages after 

November 9, 2015? Do not reduce the damages based on the fault, if any, of ... 

Mohammadi or others.” In response, the jury found Mohammadi’s past noneconomic 

loss was $175,000 and future noneconomic loss was $900,000, for a total of $1,075,000. 

Civil Code section 1431.2 defines “non-economic damages” as “subjective, nonmonetary losses including, but not limited to, pain, suffering, inconvenience, mental 

suffering, emotional distress, loss of society and companionship, loss of consortium, 

injury to reputation and humiliation.” (Civ. Code, § 1431.2, subd (b)(2).) The special 

verdict form defined “noneconomic loss” as including “physical pain, mental suffering, 

loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, 

anxiety, humiliation, [and] emotional distress.” 

“ ‘There are no fixed or absolute standards by which an appellate court can 

measure in monetary terms the extent of the damages suffered by a plaintiff as a result of 

the wrongful act of the defendant. The duty of an appellate court is to uphold the jury 

and trial judge whenever possible. [Citation.] The amount to be awarded is “a matter on 

which there legitimately may be a wide difference of opinion” [citation].’ ” (BiglerEngler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 299 (Bigler-Engler).)

“The difficulty inherent in assessing damages is plainly evident when 

noneconomic damages such as pain and suffering are at issue: ‘ “One of the most 
24.

difficult tasks imposed upon a jury in deciding a case involving personal injuries is to 

determine the amount of money the plaintiff is to be awarded as compensation for pain 

and suffering. No method is available to the jury by which it can objectively evaluate 

such damages, and no witness may express his subjective opinion on the matter. 

[Citation.] In a very real sense, the jury is asked to evaluate in terms of money a 

detriment for which monetary compensation cannot be ascertained with any demonstrable 

accuracy.” ’ [Citations.] Moreover, ‘[n]oneconomic damages do not consist of only 

emotional distress and pain and suffering. They also consist of such items as invasion of 

a person's bodily integrity (i.e., the fact of the injury itself), disfigurement, disability, 

impaired enjoyment of life, susceptibility to future harm or injury, and a shortened life 

expectancy.’ ” (Bigler-Engler, supra, 7 Cal.App.5th at p. 300.)

“The measure of damages suffered is a factual question and as such is a subject 

particularly within the province of the trier of fact.... [W]e adhere to the previously 

announced and historically honored standard of reversing as excessive only those 

judgments which the entire record, when viewed most favorably to the judgment, 

indicates were rendered as the result of passion and prejudice on the part of the jurors.” 

(Phipps v. Copeland Corp. LLC (2021) 64 Cal.App.5th 319, 344.)

“ ‘A party who challenges the sufficiency of the evidence to support a particular 

finding must summarize the evidence on that point, favorable and unfavorable, and show 

how and why it is insufficient. [Citation.]’ [Citation.] Where a party presents only facts 

and inferences favorable to his or her position, ‘the contention that the findings are not 

supported by substantial evidence may be deemed waived.’ ” (Schmidlin v. City of Palo 

Alto (2007) 157 Cal.App.4th 728, 738 (Schmidlin).) 

Defendants’ brief provides a summary of evidence favorable to its own argument 

including medical expert testimony regarding injuries and treatment following the 2010 

Texas incident, the 2014 tow truck incident, and the 2015 Porsche incident; and sub rosa

video evidence it contends shows Mohammadi “smiling, laughing, and behaving in a 
25.

manner ... contrary to the testimony at trial.” Omitted from defendants’ brief, however, 

is a discussion of the evidence showing Mohammadi’s injuries and treatment from the 

subject incident. Defendants do not discuss testimony from Mohammadi or others that he 

suffered extreme pain which interferes with his activities of daily living and his frequent 

inability to do the most menial of tasks (e.g., showering, using the facilities, cleaning, 

washing dishes, etc.) without assistance or debilitating pain; that Mohammadi’s injuries 

have had an adverse impact on his social life, have made him irritable, agitated, and 

impatient, and have caused him sadness, distress and depression; that Mohammadi finds 

it difficult to sleep and has frequent nightmares; that Mohammadi suffered from “muscle 

spasm, leg weakness, headache, [and] anxiety”; that Mohammadi’s pain was such that he 

underwent physical therapy, received numerous injections, and underwent a series of 

surgeries to alleviate his pain; or that, as a result of his debilitation, his relationship with 

his wife suffered to the point where they had to sleep in separate beds or the contention 

that his debilitation is a reason his wife filed for divorce. As the trial court noted in its 

ruling on the posttrial motions, testimony from a plaintiff and family members is 

sufficient in this case to support a claim for noneconomic damages. 

On this record, we cannot conclude the jury’s determination of total damages was 

unsupported by substantial evidence or the product of passion or prejudice. Moreover, 

defendants’ failure to summarize evidence favorable to the judgment waived their 

contention that substantial evidence does not support the determination. (Schmidlin, 

supra, 157 Cal.App.4th 728, 738.) Accordingly, we uphold the jury’s determination of 

total damages.

B. The Verdict Form Request for Special Findings on the Comparative Fault 

of Other Non-Parties was Not Error

Defendants argue CACI No. 406 does not require that a defendant bear the burden 

of establishing that a third-party was negligent. Rather, the instruction may be properly 

modified such that a finding is based on either negligence or fault, and it was error for the 
26.

trial court to not have sua sponte included this modification in the verdict form submitted 

to the jury, citing Lysick v. Walcom (1968) 258 Cal.App.2d 136, 157–158. We disagree. 

In response, Mohammadi argues defense counsel “advocated and pushed” for the 

use of CACI No. 406 with specific wording of negligence to be used, and therefore any 

alleged error was invited by defendants. This contention is confirmed by comments of

the trial court during the hearing on defendants’ posttrial motions.7 Notably, defendants

did not make this sua sponte duty argument to the trial court in their posttrial motions. 

CACI No. 406, as presented to the jury, was a correct statement of the law on 

determining the comparative fault of other non-parties to a plaintiff’s injuries and 

damages. There is no evidence in the record that defendants objected to CACI No. 406 

as given. The special verdict form, which defendants supported, incorporated this 

instruction. At trial defendants argued that trial evidence supported a finding of 

negligence by the non-parties. Mohammadi’s counsel argued there was no such 

evidence. The trial court’s statements during the posttrial hearing confirmed the lack of 

evidence to support the other drivers’ negligence, and suggested other reasons for the 

prior accidents. If defendants had proven to the jury’s satisfaction that those other 

drivers’ negligence contributed to Mohammadi’s harm, defendants would have been 

7 The trial court stated that CACI No. 406 “was requested by the defense” (italics 

added) and then asked defense counsel whether any evidence of negligence on the part of 

the other drivers was presented to the jury. In response, defense counsel stated, “I think 

that there can be an attribution made by the defendants’ status as to where the damages 

arose from. It’s often the case that an individual is able to point to one of the defendants 

or openly share some other alternative cause. That’s not my understanding of the law, 

that we’re required to present evidence regarding the forces or actions rather than where 

the harm has been caused by.” In response, the court stated, “that’s the verdict form that

the defendants advocated and pushed to be given to the jury, specific findings, I think it 

was questions 3, 5 and 7, that those other drivers were negligent. In [CACI No.] 406, 

advocated by the defense, where the defense undertook ... the obligation on a burden of 

proof had to convince the jury that those other drivers were negligent.” (Italics added.) 
27.

entitled to a reduced share of liability. (See Sagadin v. Ripper (1985) 175 Cal.App.3d 

1141, 1167.)

Moreover, our state high court has stated, “ ‘ “ ‘In a civil case, each of the parties 

must propose complete and comprehensive instructions in accordance with his [or her] 

theory of the litigation; if the parties do not do so, the court has no duty to instruct on its 

own motion.’ ” ’ ” (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130–

1131; Starrh & Starrh Cotton Growers v. Aera Energy (2007) 153 Cal.App.4th 583, 601 

[5th Dist. Ct. App.]; Moreno v. Bassi (2021) 65 Cal.App.5th 244, 263 [5th Dist. Ct. 

App.]; West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 864 [6th

Dist. Ct. App.].)

Based on the record on appeal and in the absence of any evidence to the contrary, 

we conclude defendants requested the special verdict form that was given (see Regalado

v. Callaghan (2016) 3 Cal.App.5th 582, 593) and that, to the extent defendants contend 

this was error, it was invited by them.

In addition, defendants did not object to the special verdict form before the jury 

was discharged. “ ‘ “Failure to object to a verdict before the discharge of a jury and to 

request clarification or further deliberation precludes a party from later questioning the 

validity of that verdict if the alleged defect was apparent at the time the verdict was 

rendered and could have been corrected.” [Citation.]’ [Citation.] ‘The obvious purpose 

for requiring an objection to a defective verdict before a jury is discharged is to provide it 

an opportunity to cure the defect by further deliberation. [Citation.]’ [Citation.] ‘The 

rule is designed to advance efficiency and deter gamesmanship.’ ” (Taylor v. Nabors 

Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1242, italics omitted (Taylor).) 

Once the jury’s findings in the special verdict form were made known to 

defendants and defense counsel, they were on notice that the jury had not found the 

drivers in the pre-subject incidents to be negligent. If defendants believed the special 

verdict form should have also asked the jury to determine the non-negligent fault of 
28.

others as a basis for comparative liability, it was incumbent upon them to seek 

modification of the special verdict form and to do so before the jury was discharged. 

(Taylor, supra, 222 Cal.App.4th at p. 1242.) They did not do so, even in their posttrial 

motion for a new trial. A “trial court has no duty to instruct on its own motion, nor is it

obligated to modify proposed instructions to make them complete or correct.” 

(Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 526.) 

We conclude the trial court did not err in submitting the special verdict form, as 

urged by defendants, to the jury. To the extent defendants contend it was error, it was 

invited by them and they have waived the right to appeal the issue. 

C. Sufficient Evidence Supports the Jury’s Finding of No Apportionment 

Based on Comparative Liability

We now turn to defendant’s contention that insufficient evidence supported the 

jury’s finding of no apportionment based on comparative liability. 

It was defendants’ burden to prove by a preponderance of evidence that “ ‘some 

nonzero percentage of fault is properly attributed to the plaintiff, other defendants, or 

nonparties to the action.’ ” (Phipps v Copeland Corp. LLC, supra, 64 Cal.App.5th at p.

332.) “ ‘[W]here the issue on appeal turns on a failure of proof at trial [to sustain a 

burden of proof], the question for a reviewing court becomes whether the evidence 

compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, 

the question becomes whether the appellant’s evidence was (1) “uncontradicted and 

unimpeached” and (2) “of such a character and weight as to leave no room for a judicial 

determination that it was insufficient to support a finding.” ’ ” (Sonic Manufacturing 

Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466.)

Here, the special verdict form included a number of findings the jury needed to 

make in order to apportion liability to other drivers in connection with the 2010 Texas 

incident, the 2014 tow truck incident, and the 2015 Porsche incident. Those questions 

read, as follows: “3. Was the driver in the 2010 [Texas incident] negligent?”; “5. Was 
29.

the driver in the 2014 [tow truck incident] negligent?”; and “7. Was the driver [in] the 

[2015 Porsche incident] negligent?” The jury answered “no” to each of these questions. 

Upon answering “no” to each of the foregoing questions, the jury was then instructed to 

“insert the number zero” next to the corresponding driver in question 9 of the special 

verdict form. As a result, question 9, as drafted and as completed by the jury read, as 

follows:

“9. What percentage of responsibility for ... Mohammadi’s harm after 

November 9, 2015, do you assign to the following? Insert a percentage for 

City of Fresno and only those who received “yes” answers in questions 3, 5 

or 7:

“City of Fresno 100%

“2010 [Texas incident] [d]river 0%

“2014 [t]ow [t]ruck [incident] [d]river 0%

“The driver [in] the [2015] Porsche [incident] 0%

“TOTAL: 100%”

The question we must therefore answer is whether, as a matter of law, a different 

percentage of apportionment is required for any of the drivers in the 2010 Texas incident, 

2014 tow truck incident, or the 2015 Porsche incident.

On appeal, defendants rely on the following facts to demonstrate negligence on the 

part of the other drivers: (1) the 2010 Texas incident involved a rear-end collision with 

Mohammadi’s vehicle; (2) the 2014 tow truck incident involved a tow truck “ramm[ing] 

through a building and pinn[ing] Mohammadi to a wall”; and (3) the 2015 Porsche 

incident involved a car that “came out of nowhere at a speed of 30 to 35 mph” and sideswiped Mohammadi’s vehicle. 

The evidence defendants point to does not demonstrate negligence, as a matter of 

law, on the part of the other drivers. As the trial court suggested, those accidents may 

have been caused by other factors other than the negligence of the other drivers (e.g., a 
30.

medical emergency, a blown tire, or a non-negligent collision with a third vehicle). As a 

result, we cannot say that any of those drivers were negligent as a matter of law.

DISPOSITION

The judgment and the trial court’s posttrial ruling are affirmed in their entirety. 

Costs on appeal are awarded to plaintiff and respondent Mohammadi.

FRANSON, Acting P. J.

WE CONCUR:

PEÑA, J.

SMITH, J.