SIMS III SIMS v. UNITED OIL COMPANY (1992)

This dissenting opinion is published in this unusual form because my colleagues in the majority refuse to publish their opinion.   If their holding is legally sound, they are announcing “a new rule of law” in one section of their opinion and applying “an existing rule to a set of facts significantly different from those stated in published opinions” in another section.   (Rule 976(b)(1), Cal.Rules of Court.)   As will appear, I believe the majority is announcing new law on the subject of special verdicts and, in addition, applying the law of damages in wrongful death cases in a novel fashion.   The trial courts and the bar are entitled to know this court's views on these subjects.¹

To place my dissent in context, I quote verbatim the majority opinion.   It is followed by my dissent.

THE MAJORITY OPINION

INTRODUCTION

Defendant United Oil Company, Inc. appeals from an order granting a partial judgment notwithstanding the verdict and a partial new trial to plaintiff Raymond Sims III.   The jury rendered a special verdict finding the defendant was negligent in the management of its premises but that negligence was not the proximate cause of the injury plaintiff suffered.   The trial court granted a partial judgment notwithstanding the verdict on the issue of proximate causation and ordered a new trial on the issue of damages only.

STATEMENT OF FACTS

At approximately midnight on August 24, 1986, Gilbert Pires (Pires) and Raymond B. Sims, Jr. (the decedent) stopped at an ARCO station operated by defendant to purchase gasoline for the 1966 white Chevrolet Impala convertible the decedent was driving.   Pires walked to the station kiosk to pay for the gasoline, while the decedent knelt and attempted to reattach a loose stereo speaker wire.   Two young men on a bicycle approached and asked the decedent whether he wanted to sell the Impala;  he said he did not.   The young men departed.

As Pires was pumping gasoline, the two young men on the bicycle returned with a group of several pedestrian youths.   One informed Pires that this was Bloods gang territory;  he stated this was a robbery, after which one of the individuals on the bicycle attempted to strike Pires.   Pires warded off the blow with the gasoline nozzle and a fight ensued.   As Pires and his assailant struggled, the decedent stood up.   Three or four shots were fired, after which Pires saw the decedent lying on the ground.   He called to the cashier to telephone the police, placed the decedent in the Impala and left.   Pires drove to his home, where he telephoned for an ambulance.   The decedent then was beyond help;  he died of a gunshot wound which penetrated the chest and abdomen.

The ARCO station was extremely well lighted.   The cashier worked in a locked kiosk with bullet-proof glass and a security slot for the receipt of money.   There was a telephone in the kiosk, as well as a panic button the cashier could push to summon immediate law enforcement assistance.

Annie Murry (Murry) was the cashier on duty at the time of the shooting on August 24.   After she accepted payment from Pires, she returned to some paperwork on a desk that faced away from the pump islands. When she heard gunshots, she walked to the window facing the pump islands, where she saw approximately 10 individuals running across the street toward Nickerson Gardens.   These individuals all had watch caps or ski masks pulled low over their faces;  Murry thus was unable to identify any of them.   She saw the decedent attempt to rise, after which Pires placed him in the automobile and drove away.   By that time, Murry had pushed the panic button.   Murry had not received any form of security training.   Specifically, she was untrained in observation;  she had not been instructed to keep the pump islands under constant observation.   Additionally, Murry received no instruction in when she should call 911 and/or use the panic button.

Two Los Angeles County sheriff's deputies were in the process of writing a traffic citation approximately two blocks from the ARCO station when they heard the shots.   They immediately made a U-turn and drove to the station, arriving soon enough to see a number of individuals fleeing into Nickerson Gardens.   They arrived at the station no later than three to four minutes after they heard the shots.   They observed blood stains on the station pavement near one of the pump islands.

The area around the ARCO station, particularly Nickerson Gardens, has a high crime rate.   Earlier on the evening of August 24, 1986, there had been gang activity in the area.   This involved a shooting war between the Bounty Hunters sect of the Bloods and the Crips.   In the first eight months of 1986, there had been five robberies, one assault with a deadly weapon, one incident of carrying a concealed weapon, one narcotics offense and one homicide in the immediate vicinity of the station.   Not all of these offenses involved the use of a weapon.   Deputy Patrick Morgan was of the opinion that the body found at the station one month earlier had not been dumped there, but had been killed where it was found.   He offered no evidence as to the manner of death or the circumstances surrounding the incident.

Prior to 1978, the station had employed a security guard.   At that time, the station was a full service operation and the guard accompanied the lone attendant to the pump island during the late night hours.   Additionally, the security guard made trips to the bank to fund the station's then-existing courtesy check cashing service.   With the coming of a gasoline shortage in 1978, the station operated with severely reduced hours and discontinued the check cashing service.   Consequently, the station no longer employed a security guard.   Instead, station attendants worked in twos or threes.   When the station became an ARCO station in the early 1980s, it was mandatory that it remain open 24 hours per day.   It went to a self-service operation, at which time the kiosk was constructed with its attendant security measures.   Defendant's president, Ronald B. Appel, considered these to be superior measures to the employment of a security guard.   He had not seen any increase in the station's security when it was employing a guard.

Jeffrey Appel, an officer of defendant, had considered installing closed circuit television as a deterrent to crime at the station.   However, an outside camera would be readily susceptible to vandalism, while an inside camera would not provide sufficient clarity.   The station did not employ any system for reporting or tracking criminal activity in the immediate vicinity.   Until the incident in question occurred, defendant had not sought any extraordinary assistance, such as stepped-up patrolling, from law enforcement.

According to criminology consultant John Jansen, Jr. (Jansen), criminal activity is foreseeable at the ARCO station.   In his opinion, the station's security is inadequate.   The station should employ more than one attendant in the kiosk.   Additionally, the station should adopt a crimes reporting procedure and train employees in observation and the circumstances in which they should dial 911 and/or push the panic button.   If further security proves necessary, the station should deploy a closed circuit television system and armed security guards.   Finally, the kiosk should be located closer to the street.   One adds these elements in increments, if and when they appear necessary.   Each of these measures has some deterrent effect in itself.   In Jansen's opinion, these measures would have prevented the shooting of the decedent through their deterrence value.

Jansen also expressed the opinion that Murry should have been observing the pump islands rather than working at the desk, and should have pushed the panic button as soon as she first observed suspicious activity.   Once she saw suspicious activity, she also should have invited Pires and the decedent into the kiosk.

In contrast, Marshall Anderson (Anderson), a specialist in law enforcement and security matters, expressed the opinion that a security guard would have had no real deterrent value.   Instead, the presence of a guard in this gang-infested area could increase the likelihood of violence.   Gang members have no respect for security guards and often consider their presence to be a challenge, provoking them to violent acts.   For the sake of his own safety, a guard would have to spend most of his time in the kiosk, thereby substantially reducing the effectiveness of his presence.   Additionally, closed circuit television has little value in an outdoor area such as the pump islands.   Given the gang activity in the area, a closed circuit camera would be susceptible to being shot out.   Thus, it would have to be placed in a bullet-proof casing.   Moreover, it would have to be placed high enough that the lens could not be spray painted.   Finally, closed circuit television has little value unless it is monitored constantly.   Employing all of these measures would be very expensive.   Based on Anderson's experience, it would cost approximately $100,000 to mount closed circuit television surveillance with any degree of effectiveness.

Anderson found no discernible pattern to the crimes committed in the vicinity of the ARCO station.   Hence, there was no means to structure an effective prevention program.   In Anderson's opinion, moving the kiosk closer to the street would imperil rather than improve security, as would requiring the cashier to admit persons to the kiosk when he or she perceived danger to them.   If the cashier were instructed to admit others to the kiosk when there appeared to be a threat to them, the manufactured appearance of danger could be used as a ploy by thieves to gain entrance to the kiosk and access to the station's receipts.   Anderson concurred in Jansen's assessment that the station should have sought closer cooperation with law enforcement, should have a criminal activity reporting system and should train its employees in observation and the use of the panic button.   However, none of the suggested measures would have saved the decedent's life.

According to the decedent's father, Raymond B. Sims, Sr., the decedent had lived at the family residence most of the time until he was 18 or 19 years old.   He did not see plaintiff at his residence during the first three months of plaintiff's life.   Thereafter, the decedent and plaintiff visited two to four times per week, frequently going to church with other family members.   The Sims family was very close.   The decedent spent ample time with plaintiff;  he was a sensitive and caring father, but he was not present at plaintiff's birth.   Since leaving school, the decedent always had some form of employment.   As Mr. Sims recalled, the decedent had given plaintiff's mother an automobile.

According to the decedent's mother, Mildred Sims, the decedent visited his family frequently, bringing plaintiff with him whenever he had an opportunity to do so.   She confirmed that the family was very close.   The decedent saw plaintiff during the first three months of plaintiff's life, but Mrs. Sims did not know how frequently they visited.   She implied the decedent might not have visited plaintiff at the child's mother's home during that period because of personal problems the decedent was having with the mother.   Mrs. Sims could not recall whether the decedent was present at plaintiff's birth.   She knew the decedent had visited with plaintiff at least once during that initial three-month period because she was with him when the visit took place.   They drove some distance to visit the decedent;  “he had to do a little time.”   That is, the decedent was incarcerated in a state prison for approximately 11 months, until June 2, 1986.

CONTENTIONS

I

Defendant contends the trial court erred in granting a judgment notwithstanding the verdict on the issue of proximate causation.

II

Defendant asserts the trial court abused its discretion in partially granting plaintiff's motion for a new trial.

DISCUSSION

I

Defendant contends the trial court erred in granting a judgment notwithstanding the verdict on the issue of proximate causation.   We agree.

Preliminarily, plaintiff argues that portion of the court's order granting a judgment notwithstanding the verdict on the issue of proximate causation is not appealable.   The argument is meritless.   Where, as here, the trial court grants a partial judgment notwithstanding the verdict as to one issue and a partial new trial as to the remaining issues or as to the question of damages only, the partial judgment notwithstanding the verdict properly may be reviewed on the appeal from the order granting a partial new trial.  (Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 330.)

A judgment notwithstanding the verdict is governed by the same standards as a judgment of nonsuit.  (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110;  Shapiro v. Hu (1986) 188 Cal.App.3d 324, 334.)   Hence, the motion concedes the truth of the facts proved by the opposing party but denies their sufficiency, as a matter of law, to sustain a judgment in the opposing party's favor.  (Gray v. Kircher (1987) 193 Cal.App.3d 1069, 1071-1072.)   In determining the propriety of the judgment notwithstanding the verdict, we must view the evidence and all reasonable inferences drawn therefrom in the light most favorable to the jury's verdict, disregarding any conflicting evidence or inferences.  (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-839.)

When the theory of negligence is the landowner's failure to prevent a third party's criminal conduct, liability cannot be premised solely on a failure to provide an adequate deterrent to criminal conduct in general;  mere abstract negligence unconnected to the injury will not suffice.  (Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 918, review den. Aug. 22, 1985.)   Proximate cause exists where the defendant's nonfeasance is a substantial factor in causing the injury;  that is, there is reason to believe taking specific actions would have prevented or lessened the likelihood of injury.  (City of Los Angeles v. Shpegel-Dimsey, Inc. (1988) 198 Cal.App.3d 1009, 1021.)

Ordinarily, the question of proximate causation is one of fact;  it becomes one of law only upon uncontradicted facts which do not support conflicting reasonable inferences.  (City of Los Angeles v. Shpegel-Dimsey, Inc., supra, 198 Cal.App.3d at pp. 1021-1022;  Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d 709, 719.)   In a case such as the instant matter, the question to be determined by the jury is what, if any, reasonable steps the defendant could have taken to prevent the type of injury incurred.  “The purpose of a trial in this type of case is not simply to critique defendant's security measures and to compare them to some abstract standards espoused by a so-called ‘security expert.’   The objective is to determine whether a particular defendant should, under the circumstances, be held liable for a plaintiff's injury because of a failure to prevent the criminal actions of a third party․  [C]ausation is a critical question.”  (Noble v. Los Angeles Dodgers, Inc., supra, 168 Cal.App.3d at p. 917;  accord, Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495, 513-514.)   If the jury rationally could conclude the only reasonable steps the defendant could have taken would not have prevented or significantly reduced the likelihood of injury, then the evidence supports a conclusion there is no causal nexus between the failure to take those steps and the resulting injury.  (Id. at pp. 515-516.)

The trial court granted a judgment notwithstanding the verdict on the issue of proximate causation on the ground that, having found negligence, the jury could not have found from the evidence that the negligence was not the proximate cause of the decedent's injury.   This is not the case.

To find negligence, the jury need not have accepted the premise that defendant should have employed closed circuit television and/or armed security guards.   There is ample substantial evidence from which the jury could have concluded neither of these measures would have been reasonable in the circumstances.   Defendant's expert, Anderson, provided credible testimony that closed circuit television is not very efficacious in an outdoor area like the gasoline pump islands.   Additionally, to have any utility at all in such an area of high gang activity, the camera would have to be mounted in a bullet-proof case at a height that would preclude spray painting the lens.   Further, to be useful, the recording would have to be under constant observation.   Giving utility to closed circuit television in these circumstances would be very expensive.   Based on his past experience, Anderson estimated it would cost $100,000 altogether-this at a station making a profit only of $1,500 to $1,800 per month.¹  In his opinion, trained observation by station employees would be equally efficacious.

Anderson also provided credible evidence an armed security guard could have increased the likelihood of violence.   Gang members have no respect for guards;  often, they consider the presence of a guard to be a challenge to them, provoking them to violence.   In this gang-infested area, a security guard would not last long.   Moreover, for his own protection, he would have to spend a substantial portion of his time inside the station kiosk.   So placed, he would be of little use in deterring outdoor violence.

Instead, the jury could have found negligence solely from defendant's failure to train its employees in security measures and proper observation of activities on the service station premises and to seek a closer cooperative relationship with law enforcement.   The jury also could have found negligence on the basis of Murry's failure to telephone 911 or push the panic button as soon as the activities of the young male pedestrians in the vicinity of the automobile the decedent was driving became suspicious.

There is a wealth of evidence that neither security training, summoning law enforcement earlier nor requesting and receiving more frequent patrolling of the area would have prevented or lessened the likelihood of the decedent's injury.   A sheriff's patrol vehicle was approximately two blocks from the service station at the time of the shooting, as deputies wrote a traffic citation.   Immediately upon hearing the shots, the deputies made a U-turn and drove to the service station.   They arrived no more than three to four minutes after the shots were fired.

The entire incident leading to the decedent's death, from the time two young men on a bicycle first engaged the decedent in conversation while Pires was paying for gasoline through the shooting of the decedent, consumed no more than three to four minutes.   It was not unusual for bicyclists or pedestrians to come into the station from Nickerson Gardens.   The station was the sole nighttime source in the immediate area of snacks and cigarettes.   Thus, there were no suspicious circumstances to observe until the bicyclists returned as Pires was pumping gasoline, followed by a sizeable group of young male pedestrians, and made menacing movements toward Pires.   At most, another one or two minutes passed before the decedent was shot.   Had Murry pushed the panic button when suspicion reasonably would have been first aroused, the sheriff's vehicle could not have arrived at the station more than one to two minutes earlier than it did-if at all.   This would not have prevented the shooting of the decedent.

Moreover, even if the jury did premise its finding of negligence on defendant's failure to employ closed circuit television and/or an armed security guard or possibly to hire an additional nighttime kiosk employee, there is substantial evidence from which the jury also could have concluded none of these acts would have prevented or lessened the likelihood of the decedent's injury.   It is uncontroverted that the assailants wore watch caps and ski masks pulled low on their faces, increasing the difficulty of identifying them-either by personal observation or by closed circuit television.   As Anderson testified, gang members have no respect for security guards.   They are not deterred from criminal activity by the presence of guards.   To the contrary, the presence of guards may prod them into criminal activity.   If gang members perceive no deterrent in the presence of armed security guards, it would be reasonable to conclude they also would find no deterrent in the presence of closed circuit television.

In contrast, the opinion of plaintiff's security expert, Jansen, that added personnel, closed circuit television and armed security guards, either separately or in combination, would have prevented the decedent's injury by deterring violent crime is entirely unsupported by the type of factual analysis Anderson employed.   Where there is no factual support for an expert's opinion, the jury may reject any causal connection between the nonfeasance and the injury.  (See Lopez v. McDonald's Corp., supra, 193 Cal.App.3d at pp. 515-516.)   Considering the evidence in its entirety, the jury reasonably could have concluded defendant's negligence in failing to employ added personnel, closed circuit television and/or armed security guards would not have lessened the likelihood of the decedent's injury.

In sum, there is ample credible, substantial evidence from which the jury could have found negligence in the abstract and also have found there was no causal nexus between the negligence and the decedent's injury.   Accordingly, the trial court erred in granting plaintiff a judgment notwithstanding the verdict on the question of proximate cause.

II

Defendant asserts the trial court abused its discretion in partially granting plaintiff's motion for a new trial.   While we agree that the order granting a partial new trial must be modified to include the retrial of all issues, we perceive no other merit to the assertion.

Initially, defendant argues that portion of the court's order which grants a new trial on the issue of damages is jurisdictionally defective, in that the order was prepared by plaintiff's counsel rather than by the court.   Defendant is correct.   By statute, an order granting a motion for a new trial must be prepared by the court rather than by counsel.  (Code Civ.Proc., § 657.)   If it is prepared by counsel, the order is jurisdictionally defective and must be disregarded.  (In re Marriage of Beilock (1978) 81 Cal.App.3d 713, 728;  Estate of Sheldon (1977) 75 Cal.App.3d 364, 370;  see also Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 900.)   Nevertheless, the grant of a new trial must be affirmed if the motion should have been granted on any ground specified in the motion other than sufficiency of the evidence.  (In re Marriage of Beilock, supra, at p. 728;  Estate of Sheldon, supra, at p. 371;  see also Sanchez-Corea, supra, at pp. 900-901.)   Accordingly, we may not examine the sufficiency of the evidence, but must determine whether any other ground specified in the motion justifies a new trial.

A motion for a new trial is confided to the sound discretion of the trial court, and an order granting a new trial will not be disturbed unless the court's discretion manifestly and unmistakably has been abused.  (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.)  “So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside.  [Citations.]”  (Ibid.)

During defense counsel's cross-examination of Mrs. Sims pursuant to Evidence Code section 776, Mrs. Sims testified the decedent had visited with plaintiff during the first three and one-half months of plaintiff's life.   She knew this because she had been present.   At this point, the trial court held an in camera conference to consider the merits of plaintiff's objection to any further pursuit of this line of questioning on the ground it would be more prejudicial than probative.   It was clear there was a substantial risk the questioning could lead to the revelation of the decedent's history of felony convictions and incarceration.   Not only would this violate the court's pretrial order excluding such evidence, it would be highly inflammatory and prejudicial.   On the other hand, the degree of society and companionship the decedent had provided to plaintiff during the few brief months between plaintiff's birth and the decedent's death was highly relevant to the question of damages.

Plaintiff's counsel suggested a route around the dilemma, stating, “He can certainly inquire ․ where this [visit] took place as far as an address․  [W]as it out of the area?   Was it in Northern California?   Who was present?   How much time did they spend together?   What did they do together?”   The court adopted this view and so directed defense counsel.   When counsel resumed his questioning, Mrs. Sims failed to state where the visit took place, instead stating the decedent “had to do a little time.”   Defense counsel pursued this line, eventually establishing the decedent was incarcerated in a state prison for approximately 11 months prior to June 2, 1986.   Counsel then asked, “Do you know what felony he was convicted of?”   The court sustained an objection and required defense counsel to abandon this line of questioning.

The trial court granted a new trial on the issue of damages on the ground that it was an error of law to permit defense counsel to ask any further questions concerning the circumstances attending plaintiff's visit with the decedent during the first three and one-half months of plaintiff's life.   It was not.

Damages for wrongful death include the present value of the decedent's future contributions to the support of his heir and the value to the heir of the decedent's society and companionship.  (Carr v. Pacific Tel. Co. (1972) 26 Cal.App.3d 537, 544-545.)   Both nonsupport and nonprovision of society and companionship thus are relevant to the issue of damages, as is the quality of the decedent's relationship with his heir (id. at p. 545) and his habits of economy or profligacy (McDonald v. Price (1947) 80 Cal.App.2d 150, 153).   The details of the decedent's moral character have very slight probative value and great prejudicial effect, but it is only the exploration of those details that Evidence Code section 352 consequently forecloses;  a defendant is not foreclosed from demonstrating in general terms that the decedent failed to support and/or to provide society and companionship to his heir for a specific period of time.  (Carr, supra, at p. 545.)   Hence, the trial court committed no error of law in permitting defense counsel to explore in a general sense, avoiding specific details, the degree to which the decedent provided plaintiff with society and companionship for this specific period of time.

The dissent suggests the door had been opened to a complete exploration of the decedent's felony history, relying on a passage in Carr v. Pacific Tel. Co., supra, 26 Cal.App.3d 537 to the effect that details of the decedent's activities will be admissible “[i]n the event any witness falsely or incorrectly maintained that the deceased contributed to his family's support” during the relevant time period.  (At p. 545.)   Contrary to the dissent's characterization, that did not happen in this matter.   Neither Mr. nor Mrs. Sims ever asserted the decedent contributed to plaintiff's support, although one of them testified the decedent gave plaintiff's mother an automobile.   The revelation of the decedent's felony history and incarceration would not have had any tendency in reason to impeach that testimony.   The testimony of Mr. and Mrs. Sims also had revealed the decedent was a high school dropout who never continued his education, he had a record of spotty and irregular earnings and the only documentation of his earnings showed he earned approximately $300 per month for a 3-month period.

To be sure, Mr. and Mrs. Sims did paint a picture of a close family in which the decedent functioned as a devoted father to plaintiff.   However, their testimony also established the decedent's devotion to his son did not manifest itself until more than three months after plaintiff's birth and decedent had no real relationship with plaintiff prior to that time.   Taken as a whole, Mr. and Mrs. Sims' testimony did not warrant the revelation of the details of the decedent's criminal past.   Moreover, without delving into these highly prejudicial details, the defense also could have established the existence of a past pattern of absences from the home and the community during which the decedent had little or no ability to contribute to anyone's support or to provide companionship.

In short, the details of the decedent's nonsupport and nonprovision of society, comfort and companionship were not necessary tools of impeachment.   Additionally, given the means of proof available to the defense, the practical relevance of the decedent's history of criminal conviction and confinement was slight and was outweighed heavily by the prejudicial effect of such evidence.

While it was not an error of law to permit further questioning along the suggested lines, this did lead to other improprieties also raised in the motion for a new trial.   The latitude afforded counsel in cross-examination does not extend to assuming facts not in evidence and stating as positive assertions facts which, if true and admissible, would be inflammatory and prejudicial to the opponent's case.  (Fortner v. Bruhn (1963) 217 Cal.App.2d 184, 188-189;  Dastagir v. Dastagir (1952) 109 Cal.App.2d 809, 818-819.)

Defense counsel knew he was subject to a court order excluding any evidence either of the decedent's felony convictions or of the resulting periods of incarceration.   To be sure, Mrs. Sims gave a nonresponsive answer which “opened the door” to the fact of the decedent's incarceration, but defense counsel did not have to walk through the door in a manner that created a direct defiance of the court's order.   He emphasized Mrs. Sims' response with a series of questions which finally revealed the decedent was incarcerated for approximately 11 months;  he was released on June 2, 1986;  he was confined in a state prison.

Concededly, the length of the decedent's incarceration and the date of his release did have some relevance.   Since the door had been opened, plaintiff would have to live with the consequences had the questioning extended no further.   However, defense counsel persisted.   That the decedent was incarcerated in state prison as opposed to a county jail had no relevance to any issue in the case and served no purpose other than to reveal indirectly that the decedent was a convicted felon-a fact in and of itself irrelevant to the determination of any issue.   Then, to drive home the point with a sledge hammer, defense counsel asked the highly inappropriate, “Do you know what felony he was convicted of?”

Not only did this question assume a fact not in evidence, it assumed a fact which was excluded from admission into evidence and as to which Mrs. Sims' testimony had not opened the door.   Moreover, any response the question might have elicited was wholly irrelevant to any issue in the case;  it lacked even impeachment value.   Rather, the question served a single purpose:  to fix unshakeably in the minds of the jurors the suggestion that defense counsel knew the decedent to be a convicted felon.   In short, it is apparent defense counsel was far more interested in placing the question before the jury than in an answer to it.   This was egregiously improper conduct.  (Fortner v. Bruhn, supra, 217 Cal.App.2d at p. 189;  McDonald v. Price, supra, 80 Cal.App.2d at pp. 152-153.)

While the evidence in favor of defendant on the proximate causation issue is far stronger than that in favor of plaintiff, it is not overwhelming in its strength.   There is evidence from which the jury could have reached a rational verdict in favor of plaintiff.   Consequently, given the inflammatory and prejudicial nature of defense counsel's line of questioning, the trial court reasonably could have concluded a new trial was necessary to avoid a miscarriage of justice.  (Fortner v. Bruhn, supra, 217 Cal.App.2d at p. 189;  McDonald v. Price, supra, 80 Cal.App.2d at pp. 152-153.)

In the view of the dissent, we need never reach the foregoing issue since the jury returned special verdicts finding no causation and the error complained of is unrelated to that issue.   Were it wholly unrelated in the sense that it could not have had an effect on the determination of the question of causation, we would agree.

An injured claimant's felonious past is one of the most prejudicial forms of evidence.   Jurors are human, and it is human nature to be loath to “reward” those perceived to be bad persons.   This common sense acknowledgement suggests in itself that the prejudicial effect of the improprieties would extend beyond the question of damages.   There is more, however.   In closing argument, defense counsel explicitly and implicitly urged the jury to adopt the view that the character and conduct of the decedent and Pires played a role in bringing about the decedent's death.   In other words, if anyone was to blame in addition to the actual perpetrator, it was these young men and not the defendant.   Given the revelation of information meant to convince the jurors the decedent had a felonious past, this argument would have added resonance.   It was meant to prejudice the jury against the decedent generally rather than on the subject of damages specifically, and there can be little doubt it did indeed have that effect.

Defense counsel compounded the prejudice with additional improprieties.   Evidence that Pires had suffered a prior felony conviction was adduced solely for the purpose of impeaching his credibility as a witness.   The jury was given a limiting instruction to that effect.   Nonetheless, defense counsel utilized this evidence to ask Mr. Sims whether he was aware his son, the decedent, was spending time with a convicted drug dealer.   Additionally, in his closing argument defense counsel referred to Pires' criminal record both as evidence of bad character and as evidence he and the decedent should have known better than to use the service station at that hour of the night.   Both uses of Pires' prior felony conviction were improper, as defense counsel should have realized.   The cumulative effect of these improprieties with the inappropriate questioning of Mrs. Sims strengthens the conclusion the trial court did not abuse its discretion in granting a new trial.

The problem lies with the form of the grant.   Relying on the partial judgment notwithstanding the verdict on the issue of proximate causation, the trial court correctly perceived that a new trial was necessary only on the issue of damages.   However, inasmuch as the partial judgment notwithstanding the verdict must be reversed, the order granting a new trial now must be modified to order a new trial on all issues.

That portion of the order granting a partial judgment notwithstanding the verdict on the issue of proximate causation is reversed.   That portion of the order granting a new trial on the issue of damages only is modified to grant a new trial on all issues;  as modified, it is affirmed.   Each party is to bear his/its own costs on appeal.

THE DISSENT

I agree with the majority's conclusion that the trial court should not have granted judgment notwithstanding the verdict on the issue of proximate cause.   (Maj. opn., Part I.)   I disagree with the conclusion that the motion for new trial was properly granted.  (Maj. opn., Part II.)

I.

First, I do not believe that damages can be an issue where, as here, special verdicts were used and the jury returned a verdict finding no causation.   The majority's conclusion that, “given the inflammatory and prejudicial nature of defense counsel's line of questioning, the trial court reasonably could have concluded a new trial was necessary to avoid a miscarriage of justice” (maj. opn., p. 23), is unsupported by the cases cited, Fortner v. Bruhn (1963) 217 Cal.App.2d 184, and McDonald v. Price (1947) 80 Cal.App.2d 150.   Fortner and McDonald both involved general verdicts rendered in favor of defendants following improper cross-examination by defense counsel.   Without special verdicts or special interrogatories, no part of either verdict could survive the courts' finding of prejudicial error.

But in the case before us, there were special verdicts and that makes all the difference.  (All-West Design, Inc. v. Boozer (1986) 183 Cal.App.3d 1212, 1223 [where a “special verdict form made the jurors' intent clear,” the verdict should be interpreted so as to uphold it and to give it the effect intended by the jury];  McCloud v. Roy Riegels Chemicals (1971) 20 Cal.App.3d 928, 935-937.)   I have searched in vain for any case in which (1) special verdicts were used, (2) a finding of “no causation” or “no negligence” was rendered, and (3) an error unrelated to either nevertheless resulted in reversal.   I am unable (through old-fashioned or computer-assisted research) to find a case that even comes close.   To the contrary, I find case after case recommending the use of special verdicts to avoid the result imposed by the majority in this case.   (See, e.g., (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 824;  Murrell v. State of California ex rel. Dept. Pub. Wks. (1975) 47 Cal.App.3d 264, 271;  McCloud v. Roy Riegels Chemicals, supra, 20 Cal.App.3d 928, 935-937.)

If it is the majority's intent to announce a new rule-that some kinds of error are fatal notwithstanding the use of special verdicts-they ought to say so and publish their opinion to so inform the trial courts and the bar.   Although I would agree with such a rule in the abstract, I do not agree that it could apply in this case because, in my view, there was no error at all.

II.

Second, I would reverse the order granting a partial new trial and reinstate the verdict in favor of defendant.   I do not think there was error, let alone prejudicial error.

Decedent was 24 years old at the time of his death.   It was undisputed that he had been arrested on numerous occasions, he had either two or three felony convictions, he had been incarcerated several times at County Jail and he was serving a state prison sentence at the time of plaintiff's birth.   His trouble with the law started when he was 14 and didn't end until his death.   Plaintiff conceded decedent's “significant criminal history” but nevertheless moved in limine to exclude all references to decedent's criminal record.   That motion was granted and the trial court instructed defendant's counsel to limit his inquiry to a determination whether the decedent was present with plaintiff for the first few months of the child's life.

During trial, plaintiff presented evidence suggesting that decedent was a hard-working, loving and ever-present parent.   Decedent's father (plaintiff's grandfather) testified that he saw decedent and plaintiff two to four times a week, that decedent spent time with the child and was very “enthused” about helping with his care, that decedent was a very sensitive father who took his son to church and to visit his grandparents.   As decedent's father explained to the jury, “ever since [my son has] been out of school, he has always had some kind of employment.   Sometimes he helped me in my towing and auto work.   He done something.   He was-he had capabilities.”

On cross-examination, decedent's father could not remember his grandson's date of birth, could not remember the name of his grandson's mother, admitted he did not know how old the child was when decedent first saw him, and conceded that decedent did not bring the child to visit his grandparents during the first three months of the child's life.   There was some evidence that the grandfather did not even know of the child's birth until after decedent died.

Decedent's mother (plaintiff's grandmother) confirmed her husband's testimony about decedent's frequent visits with the baby.   According to the grandmother, “just about every Sunday we would have all the family over, and [decedent] was there, plus he did make his visits through the week off and on when he had a chance with the baby.   And so it was a regular routine for us.   We were a very close family.”  (Emphasis added.)

On cross-examination, decedent's mother was asked whether decedent ever visited his son at the child's mother's house during the first three months of the child's life.   She answered, “I don't know what all their problems were, but nevertheless, he did see his son.   I don't know how many times.”   (Emphasis added.)

Decedent's mother was recalled by the defense.  (Evid.Code, § 776.)   When asked to explain how she had known that the child saw his father during the first three months of the child's life, decedent's mother explained, “[b]ecause I was with him ․ I visited my grandson at his home many times. ”   When counsel attempted to clarify that he was interested in visits at which decedent was present, plaintiff's counsel objected.   During a lengthy side-bar conference, the trial court agreed that the grandmother's testimony was misleading and required clarification and authorized defense counsel to inquire about the address of these visits, who was present, how much time they spent together, what they did together, without “opening up the can of worms.”   After consultation between plaintiff's counsel and decedent's mother so she could be informed of the court's ruling, this is what happened:

“Q [By defendant's attorney]:  Mrs. Sims, where did you go to visit your son?  [¶] A We went for a drive and we went to visit him.   He had to do a little time.  [¶] Q So when you said ‘he had to do a little time,’ what did you mean by that?  [¶] A Just that.  [¶] Q So he was incarcerated, correct?  [¶] A For a short while.  [¶] Q Well, for a short while?   How long is a while?  [¶] A I don't remember exactly, but it wasn't that long.  [¶] Q Well, it was almost a year, wasn't it?  [¶] A I don't remember the exact time.  [¶] ․ [¶] Q Well, isn't it true that he was released ․ [a]fter serving about 11 months?  [¶] A Could have been.  [¶] Q And he was serving time in the state prison, wasn't he?  [¶] A I'm not sure what it was, but-[¶] Q Do you know what felony he committed?”

An objection to the last question was sustained.   After the jury returned its verdict in favor of defendant, the trial court granted the plaintiff's motion for a new trial on the issue of damages because the trial court believed it had been error to permit questions about the circumstances of plaintiff's visits to his father during the first three months of plaintiff's life.   According to the majority, the new trial was properly granted.   I strongly disagree.

As the majority concedes, damages for wrongful death include the present value of the decedent's future contributions to the support of his heir and the value to the heir of the decedent's society and companionship.  (Maj. opn., p. 19, citing Carr v. Pacific Tel. Co. (1972) 26 Cal.App.3d 537, 544-545.)   In the words of the majority, “[b]oth nonsupport and nonprovision of society and companionship thus are relevant to the issue of damages, as is the quality of the decedent's relationship with his heir ․ and his habits of economy or profligacy․”  (Maj. opn., p. 19.)   According to my colleagues' reasoning, there was no error in permitting defense counsel to “explore in a general sense, avoiding specific details,” the degree to which decedent provided society and companionship to his son during the first three months of plaintiff's life.  (Maj. opn., p. 20.)

The error, according to the majority, was in permitting defense counsel to assume facts not in evidence and to state as positive assertions facts which, if true and admissible, would be prejudicial to plaintiff's case.   Conveniently ignoring the fact that the trial court precluded proof of the “facts not in evidence” while acknowledging that decedent's mother opened the door, the majority criticizes defense counsel for walking through the door in direct defiance of the trial court's order.  (Maj. opn., p. 22.)   The majority misses the point.

In McDonald v. Price, supra, 80 Cal.App.2d 150, a wrongful death action by the decedent's wife and minor child, the wife was cross-examined about whether she knew her husband had pleaded guilty to charges of burglary and petty theft.  (Id. at pp. 151-152.)   In reversing a general verdict in favor of the defendant, the court found fault with the questioning because it was immaterial whether the wife knew of the prior convictions.  “The questions were not framed so as to discover the existence of any convictions for crimes but merely to indicate the wife's knowledge of the alleged fact of convictions.”   (Id. at p. 153.)

In context, McDonald does not condemn the admission of evidence of prior convictions for impeachment.   To the contrary, the court criticized the questions because they were not framed to elicit admissible evidence of the decedent's criminal record but only to ascertain whether his widow knew about that record.   Indeed, the court expressly held that, in an action for wrongful death, “the moral habits of the deceased” are relevant and admissible to show his earning capacity and monetary value to his family.  (Id. at p. 153;  emphasis added.)

In the case at bench, decedent's criminal history was admissible to show his earning capacity and his ability to provide care, comfort and companionship to his son and the trial court should have permitted proof of these facts.   But even with the trial court's order excluding such proof, the majority is dissatisfied-notwithstanding that defendant did not contravene that order.   Only after the child's mother opened the door by her misleading testimony-as conceded by the trial court-did defendant refer to the uncontroverted evidence to impeach the grandmother.   I do not understand how the majority can say the evidence was inadmissible after the grandmother gave misleading testimony justifying impeachment.

Fortner v. Bruhn, supra, 217 Cal.App.2d 184, a personal injury action by a minor through his father as guardian ad litem, arose out of a collision between a motorcycle (on which the minor was riding with his uncle) and a truck.   On cross-examination of the minor's father, he was asked if he knew that the uncle had previously been convicted of carrying a concealed weapon and of larceny.   The father answered that he did not know about these events prior to the accident and the uncle was not questioned about these things at all.   No records or proof of the convictions were offered and the fact of the prior convictions was disputed.   The jury was nevertheless instructed that a witness could be impeached by proof that he had been convicted of a felony.  (Id. at pp. 186-187.)   The jury returned a general verdict for the defendant.

In Fortner, as in McDonald, the courts were not concerned with the abstract admissibility of the evidence but rather with its form.   The cross-examination was improper only because there was no proof that the uncle had, in fact, ever been convicted as suggested by the questions.  (Fortner v. Bruhn, supra, 217 Cal.App.2d at p. 188.)   In the case at bench, there is no evidence of decedent's convictions because the trial court improperly excluded it.

And even the case relied on by the majority holds that evidence of a criminal history is admissible for impeachment.   In Carr v. Pacific Tel. Co., supra, 26 Cal.App.3d 537, 545, where the court held that although evidence of the decedent's moral indiscretions was remote and irrelevant and therefore inadmissible, the court stated unequivocally that details of the decedent's activities would have been admissible “in the event any witness falsely or incorrectly maintained that the deceased contributed to his family's support during the aforesaid years ․”  (Emphasis added.)

The rationale adopted by the trial court and endorsed by the majority permits the plaintiff to pull the wool over the jurors' eyes.   To determine properly the present value of future contributions decedent would have made to his son, the value of any personal service, advice or training that plaintiff probably would have been given by decedent, and the value of decedent's society and companionship (Carr v. Pacific Tel. Co., supra, 26 Cal.App.3d at p. 545), I believe the jury should have been told, by admissible evidence, that decedent had several felony convictions, that he had been in trouble with the police since he was 14, and that he was serving a prison term at the time of his son's birth.   While it is of course true that such evidence would be “prejudicial” to plaintiff's case, the defendant has a right to have the jury make its decision based upon the truth, not some fictional fantasy fashioned out of sympathy for the plaintiff.   At a minimum, this evidence became relevant when plaintiff's grandmother painted a picture tinted by rose-colored glasses.

As it happened, the jury was told only that decedent was incarcerated for some unstated period of time.¹  To suggest that this evidence was so prejudicial as to require a retrial is to throw reason and fairness out the window.   Both the defendant and the plaintiff were entitled to a fair trial.   They had it and neither is entitled to anything more.

FOOTNOTES

1.   I recognize that rule 976(c), California Rules of Court, grants to the “majority of the court rendering the opinion” the decision whether to certify it for publication.   However meritorious that rule might be in most cases, it is a misuse of the concept to apply it in a case such as this.  (For the record, it is the same rule which gives me the right to publish my dissent, as the “majority” of the court rendering the dissenting opinion.)

1.   Jansen, in contrast, estimated the cost to be approximately $6,000 plus a replacement cost of $500 for damaged cameras.

1.   The evidence about Pires added nothing.   The fact that defense counsel asked decedent's father whether he knew his son was spending time with a convicted drug dealer is so insignificant in the scheme of things that it could not logically have had anything to do with the jury's finding that defendant was not the proximate cause of decedent's death.

VOGEL, Associate Justice.