What San Diego Car Accident Attorneys Should Know

About Potter and the Pedestrian Right of Way

            San Diego personal injury attorneys should be familiar with California Vehicle Code section 21954 and the cases interpreting that code section when they take on the car accident case involving a pedestrian.  It is a misnomer in car accident cases that the pedestrian must be within a marked crosswalk in order for there to be liability upon the driver.  It is true that section 21954(a) states that a pedestrian must yield the right of way to motorists if they are not in a marked crosswalk.  However, subsection (b) to that same section states that subsection (a) does not relive the driver of its duty to use ordinary care for the safety of pedestrians upon the roadway.

One of the first California cases interpreting section 21954 was the appropriately named 1929 decision of Potter v. Driver (1929) 97 Cal.App. 311.  Potter was a pedestrian versus car accident case.  It is an interesting read and the San Diego accident lawyer should familiarize themself with the Potter case.  Potter was crossing the street outside the crosswalk.  He looked both ways and saw no cars so he proceeded.  He kept looking for cars and saw none until Mr. Driver’s vehicle was upon him causing personal injury.

The court noted section 21954 and stated that it created a reciprocal duty upon both the driver of the automobile and the pedestrian to use ordinary care upon the roadway to avoid car accidents and personal injury.  The driver of the automobile has no right to assume the roadway is clear of pedestrians because there are no crosswalks.  Both are required to exercise that degree of prudence and car upon the roadway to avoid personal injury.

San Diego personal injury lawyers should not shy away from a car accident case because the pedestrian was outside of the crosswalk.  Likewise, the pedestrian in the crosswalk can also be the cause of personal injury.  Just like the driver of an automobile must use due care to prevent personal injuries to pedestrians that are not in the crosswalk, the pedestrian is not bullet proof simply by virtue of being in the crosswalk.  A pedestrian in the crosswalk against the do not cross light is not using due care.  The pedestrian that darts into traffic may likewise not be

using due care even though they darted into traffic while in a crosswalk.

Diligent San Diego car accident attorneys must make good use of the client interview and reviewing all documentation including the police incident report.  San Diego car accident attorneys should not shy away from a case because the pedestrian client was not in a crosswalk.  Even in light of the somewhat pro-crosswalk drafting and appearance in section 21954, the general rule of Potter is a reciprocal duty of both the driver and the pedestrian.  Shepardize the Potter decision and the injury attorney will find that Potter is just the beginning of a line of cases in California that support this reciprocal duty.  Just because your pedestrian was outside the crosswalk is no justification for motorists to run them down.

The purpose of venue in a personal injury case is to give the defendant some control in the choice of forum.  Alexander v. Superior Court (2003) 114 Cal.App. 4th 723, 731.  When plaintiff fails to heed the venue rules, the court must transfer the entire case to any proper forum chosen by the moving defendant.¹  Brown & Weil, supra, section 3:551-3:552 (emphasis original).

“The right of a defendant to have certain personal injury actions tried in the county of his residence is an ancient and valuable right, which has always been safeguarded by statute and is supported by a long line of judicial decision.”  Goossens v. Clifton (1946) 17 Cal.App.2d 44, 48.  “In passing on a motion for change of venue the court must take the pleading as it is written. . . .  All ambiguities will be construed against the pleader to the end that a defendant shall not be deprived improperly of his fundamental right to have the cause tried in the county of his residence.”  Haurat v. Superior Court (1966) 241 Cal.App.2d 330, 334.

The “general rule of venue” in personal injury cases is set forth in Code of Civil Procedure section 395 as follows: “Except as otherwise provided by law . . . the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.’”  Tutor-Saliba-Perini Joint Venture v. Superior Court (1991) 233 Cal.App.3d 736, 742.

The injury attorneys first step in a venue analysis is classifying actions as “local” or “transitory.”  Brown & Weil, supra, Chapter 3, at section 3:457.  Local actions are those dealing with land and must be filed in the county were the real estate is located.  Code of Civ. Proc. §392(a)(1).  Transitory actions are those in which “the claim may have arisen anywhere.”  Brown & Weil, supra, Chapter 3, at section 3:458.  “When the main relief sought is personal, the action is transitory.”  Brown & Weil, supra, Chapter 3, at section 3:457.  “The defendant has the right to have a transitory action against him or her tried in the county were he or she resides.”  Brown & Weil, supra, Chapter 3, at section 3:481 (emphasis original).

The classification of causes of action as transitory dates back to the California Supreme Court opinions in Graham v. Mixon (1917) 177 Cal. 88 and Monk v. Ehret (1923) 192 Cal. 186.  Graham was a personal injury action for libel.  Graham, supra, 177 Cal. at 89-90.  The court held that damages to reputation are personal, to wit, personal injury, thus making the action transitory.  Therefore, the proper venue for personal injury action for libel is the residence of the defendant.  Graham, supra, 177 Cal. at 92-93.  Monk expanded that rationale to false imprisonment cases.  The damages are personal and the case must be tried in the county where the defendant resides.  Monk v. Ehret, supra, 192 Cal. at 192-193.  Since that time, using the same analysis, California courts have held all non-bodily injury torts to be transitory.  Haurat v. Superior Court (1966) 241 Cal.App.2d 330, 333.  The only proper venue for these actions is the county where the defendant resides: Lucas v. Lucas (1937) 18 Cal.App.2d 453, 455 (conspiracy to defraud causing mental harm, monetary loss, anguish, humiliation and great embarrassment); Carruth v. Superior Court (1978) 80 Cal. App.3d 215, 220 (malicious prosecution resulting in financial loss and emotional distress); Plum v. Newhart (1931) 192 Cal.App. 73, 75 (lawsuit for injury to reputation); Cacciaguidi v. Superior Court (1990) 226 Cal.App.3d 181 (action for conspiracy and abuse of process); Johnson v. Superior Court (1965) 232 Cal.App.2d 212, 219 (action for fraud and slander resulting in damage to business reputation); Howe v. Tucker (1933) 219 Cal. 193, 194 (action for reformation causing financial injury); Beutke v. American Securities Company (1955) 132 Cal.App.2d 354, 359 (action for cancellation of trust deed causing financial injury); Gallin v. Superior Court (1991) 230 Cal.App.3d 541, 546 (Business and Profession Code 17200 action must be tried in the county where the defendant resides); Martinez v. Martinez (1950) 99 Cal.App.2d 425, 427-428 (reformation and injunction actions transitory and must be transferred to county of defendant’s residence); Brown v. Superior Court (1984) 37 Cal.3d 477, 481 (intentional infliction of emotional distress is transitory and must be tried in the county were the defendant resides).

Even though the defendant has many rights with regard to venue, the personal injury attorney should always remember that venue can be waived.  Objection for venue must be made at the time of the answer or demurrer.  The above rules apply “on timely motion, the court must order a transfer of an action ‘whenever the court designated in the complaint is not the proper court.’”  Brown & Weil (2008) Civil Procedure Before Trial, Jurisdiction and Venue, Chapter 3, section 3:550)(emphasis original), citing, Cal. Code of Civ. Proc. §§396b, 397(a).

All San Diego personal injury attorneys should become familiar with the claim filing requirements in cases involving California Governmental entities before taking a case for personal injuries against such an entity.  In general, before a personal injury lawsuit can be filed against a public entity, a formal claim must be filed against the public entity and rejected.  If that is not done, the personal injury lawsuit against the public entity is subject to demurrer which will likely be sustained without leave to amend.

The most important thing an injury lawyer should know about the claim form requirement is that the claim form must be filed within six months from the date of the injury.  This is true even though the statute of limitations for most personal injury claims in San Diego is two years.  In reality, the statute of limitations in a personal injury action against a public entity is six months if the claim form is not filed.

The stated purpose of the claim is to provide the public entity time to evaluate the claim and determine if they want to pay the claim and save the expense of litigation.  In reality, it is just a hoop that the knowledgeable personal injury lawyer must jump through in order to perfect the injured plaintiffs right to sue a public entity.  And of course it is a trap for the unknowledgeable injury attorney.  Also, if the action against the public entity is barred, then the action against the public employee will also be barred.

During the initial client interview in a personal injury case, it is important to determine whether a public entity is involved.  Some cases are easy for the injury attorney to make this determination.  For example, an injured party that is run over by a San Diego Police Department vehicle.  The San Diego injury attorney will have to file a claim against the City of San Diego within six months of the accident.  The more subtle example government operated hospital such as the University of San Diego Medical Center.

Many public entities have claim forms.  Although some do make them easy to obtain.  San Diego injury attorneys should know that using the entities form, while preferred, is not required.  The claim must show the name and address of the claimant, the date and place of the injury, a description of the incident causing injury, the damages or injury suffered, the names of the public employees at fault and the amount of the claim.  The San Diego injury lawyer should make a duplicate copy of the claim and should have the governmental entity stamp that upon filing the original.  That is often referred to in injury cases as the “conformed” copy and is used to show proof that the claim was filed.

If the claim is not denied within forty five (45) day from the date it is filed, then the claimant or plaintiff can treat it as denied and the personal injury claim is perfected.  The San Diego injury attorney should make sure to plead in the complaint the fact that the claim was submitted on a certain date that is within six months of the injury and that it was thereafter denied by the public entity or by operation of law (expiration of the 45 day period).  If that is not done, the complaint is technically subject to a demurrer as it related to the public entity.  See Government Code section 905, et seq. for exceptions and details related to these claims.

Under California law, a plaintiff is generally barred from discovering the net worth of a defendant. There are, however, certain recognized exceptions. One such exception is found in Civil Code section 3295(c). In relevant part, section 3295(c) states that “the court my at any time enter an order permitting the discovery otherwise prohibited by this subdivision if the court finds, on the basis of the supporting and opposing affidavits presented, that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294. Section 3294 states that punitive damages can only be awarded upon a finding of oppression, fraud or malice.
They say that punitive damages are often pled and rarely proven. Yet in the righteous injury case with strong evidence of to support a finding of oppression fraud or malice, the skilled personal injury lawyer should prepare declarations from the individuals that show the defendant engaged in oppression, fraud or malice. It must be used in the injury action where there is strong evidence of oppression, fraud or malice. This is because the standard is not prima facie. The lawyer must show a “substantial probability” of prevailing on the punitive damage claim. Kerr v. Rose (1990) 216 Cal.App.3d 1551, 1565; Code of Civ. Proc. §3295(c).
Why is this such an important weapon for the personal injury lawyer? It is important for three reasons. First, it is the lawyer’s burden to establish the net worth of the defendant in the punitive damage phase of the trial. If the lawyer cannot prove net worth, then the damage claim fails. So it is important to have these documents available to evaluate the sufficiency of the disclosure and to evaluate whether there will be enough evidence to establish net worth. Second, defendants may become uncomfortable with having to disclose their net worth. Some personal injury cases have been known to settle simply because a defendant did not want to disclose their net worth. And third, it should send a strong message to the defense lawyer, insurance adjustor and defendant if the judge makes a judicial finding that there is a substantial probability that the plaintiff will prevail on a claim for punitive damages. However, use the motion wisely. There could be a “backfire” effect if the motion is not granted. The defense lawyer would argue that there is no substantial probability that punitive damages will be awarded and it may embolden their defense position.
A good example of when to file such a motion is in a road rage case. Nobody likes road ragers; not jurors or judges. I had a San Diego personal injury case where two drivers were going at it on the freeway. One brake checked the other. The car that was checked lost control and did a sling shot across all lanes of traffic and struck my plaintiff, a plumber, minding his own business and on the way to his next job. One road rager admitted to the police that he brake checked the other. He also bent his windshield wiper washers so that he could spray cars that were following him too close (which he did in this case). And the car that was following too close was a woman that worked for the County Child Protective Services. Her job was to take children away from unfit parents. And her eight year old son was in the car when she engaged in this conduct and he broke his arm. In summary, use a Section 3295(c) motion in your righteous personal injury cases with strong evidence of oppression, fraud or malice. You may be pleasantly surprised by how the granting of such a motion affects the posture of your case.