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Filed 9/27/19 Chandler v.

State of California CA1/3


NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

JAN CHANDLER et al.,


Plaintiffs and Respondents,
A149508
v.
STATE OF CALIFORNIA, (San Mateo County
Super. Ct. No. CIV501071)
Defendant and Appellant.

The State of California (the State) challenges a jury verdict rendered against it in a
wrongful death action brought by Jan, Courtney, Brittany, and Tyler Chandler
(plaintiffs)—the surviving wife and daughters of Christopher Chandler, who was struck
and killed by a car while in a crosswalk. The State contends the trial court erred in:
(1) allowing plaintiffs to present evidence of accidents that were not sufficiently similar
to the subject accident; (2) declining to instruct the jury with CACI No. 1112 regarding a
reasonableness defense and omitting a question related to the defense from the verdict
form; (3) declining to instruct the jury with CACI Nos. 1120 and 1121 regarding limited
immunities; (4) precluding the State from presenting testimony that it complied with
standards set forth in its manual; and (5) failing to recuse a juror who realized during the
trial that he knew one of the witnesses. We reject the State’s contentions and affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The surviving family members of Christopher Chandler (Chandler) brought a
wrongful death action against the State and Matthew Simon (Simon), the driver of the car

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that struck Chandler. After settling with and dismissing Simon, plaintiffs alleged in their
second amended complaint against the State only that the State created and/or maintained
a dangerous condition at the intersection at which Chandler was struck and had notice of
the condition; the injury was reasonably foreseeable; and the dangerous condition was a
substantial factor in causing Chandler’s death. The trial court denied the State’s motion
for summary judgment, and the matter proceeded to trial. The first trial resulted in a
mistrial, and a second trial took place. The following evidence was presented at the
second trial.
On the morning of September 30, 2010, Chandler was standing at the intersection
of El Camino Real (El Camino) and Isabella Avenue (Isabella) in Atherton, San Mateo
County. It was a clear, dry, and sunny day.
El Camino has three northbound and three southbound lanes and one left turn lane.
It has a posted speed limit of 35 miles per hour, although the “critical speed,” which
means the speed at which 85 percent of drivers drive, is 40 miles per hour. El Camino is
straight and level and “very busy” where it intersects with Isabella; in 2010, the
intersection had an average daily traffic of about 30,000 vehicles.
Isabella is an eastbound/westbound street with one lane of traffic in each direction.
There is a stop sign on Isabella, which intersects at about a 90-degree angle with
southbound El Camino from the west, forming a T-intersection. The intersection is
known as an “uncontrolled intersection” because there is no stop sign or stoplight on the
main street, El Camino. The crosswalk at the El Camino and Isabella intersection was
marked with two white parallel lines.
With his bicycle at his side, Chandler stepped onto the marked crosswalk to walk
across El Camino. While he was legally in the crosswalk, he was struck by a car driven
by Simon, who was driving southbound on El Camino.
At the time of the accident, Simon was on his way home from a routine dental
appointment. He was not in a rush and his sightlines were clear. He went through the
intersection without braking because he did not see Chandler at all; it was estimated that
his car struck Chandler at 42 miles per hour. Simon pulled over because he heard a

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“bang” and his windshield “was completely shattered.” He thought a tree branch had
fallen on his car but eventually realized what had occurred and became “extremely
upset.” Chandler was still breathing when officers arrived but was pronounced dead at
the scene.
Plaintiffs presented evidence of various studies that have shown over the years that
placing simple crosswalk markings such as two white parallel lines at uncontrolled
intersections like the El Camino and Isabella intersection is dangerous for pedestrians.
In 1972, the Herms study, which analyzed 400 marked crosswalks and 400 unmarked
crosswalks over the course of five years, concluded that the risk of a pedestrian being
struck while in a crosswalk was significantly higher when crosswalk markings were
placed at intersections, as compared to leaving the crosswalks unmarked. The study
recommended that state and local agencies review and update their guidelines based on
the study’s findings and that these agencies “ ‘reevaluate[]’ ” their “ ‘[e]xisting
crosswalks.’ ”
In 1994, the State’s Department of Transportation (Caltrans) funded and
conducted a study known as the Gibby study, which “look[ed] at the question of whether
it was safer to mark crosswalks or leave them unmarked at uncontrolled intersections.”
In three of the tests conducted for the study, pedestrian-related accidents were six to
75 times higher at marked crosswalks as compared to unmarked crosswalks. As of 1986,
each of the 10 governmental agencies that were polled as part of the study had a policy of
removing marked crosswalks at uncontrolled intersections because of the danger of
marking crosswalks. The study noted that Caltrans’s own policy as stated in its Traffic
Manual of 1993 was to “discourage” the marking of crosswalks in uncontrolled
intersections.
Plaintiffs’ evidence also included expert testimony and other evidence that while it
may seem counterintuitive, placing simple crosswalk markings at uncontrolled
intersections is dangerous because a marked crosswalk is “like an invitation for
everybody to cross there.” It gives pedestrians “a false sense of security” that vehicles
will see the crosswalk and stop, even though drivers may not be able to see the crosswalk

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at all. Except on expressways, pedestrians in California are, by law, entitled to cross at
any intersection, whether marked or unmarked, but if there is no marked crosswalk,
pedestrians are discouraged from walking across at that location and are prompted to be
more careful if they do.
Plaintiffs also presented evidence showing that the danger of placing simple
crosswalk markings at uncontrolled intersections is exacerbated in multi-lane highways
such as El Camino because of the risk of a “multiple-threat collision,” where a vehicle in
the lane next to the curb slows down to yield to a pedestrian, thereby obstructing both the
pedestrian’s view of approaching traffic in other lanes and other drivers’ views of the
pedestrian. Drivers in other lanes cannot see that the vehicle next to the curb has slowed
down or stopped for a pedestrian; the drivers are therefore unaware a pedestrian is there
and continue forward in their own lanes, thereby placing the pedestrian who steps beyond
the stopped vehicle at great risk of being struck at full speed by one or more approaching
vehicles in other lanes. Multiple-threat collisions are a significant portion of the total
crashes that occur at marked crosswalks in uncontrolled intersections. A pedestrian has a
nine in ten chance of surviving when hit by a vehicle that is going 20 miles per hour or
slower, but only a one in ten chance of surviving when hit by a vehicle that is going 40
miles per hour or faster at the time of impact.
In 2000, the Federal Highway Administration (FHA) issued its first draft of a
study entitled “Safety Effects of Marked Versus Unmarked Crosswalks at Uncontrolled
Locations.” This was a major study, which a traffic engineer described as “the study of
all studies . . . .” The FHA examined pedestrian accidents at 1,000 marked crosswalks
and 1,000 unmarked crosswalks in 30 cities in 16 states. FHA concluded in its final draft
published in 2005 that crosswalks at uncontrolled intersections should not be marked
when there are multiple lanes of traffic, speeds in excess of 35 miles per hour, and an
average daily traffic of over 12,000 vehicles. The FHA study recommended that public
agencies monitor conditions at crosswalks to determine whether safety enhancements or
other actions are warranted. The study observed that multiple-threat collisions were
eliminated if crosswalks at uncontrolled intersections were not marked.

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In July 2005, Caltrans published a document entitled “Pedestrian and Bicycle
Facilities in California, a Technical Reference and Technology Transfer Synthesis for
Caltrans Planners and Engineers.” The publication reached the same conclusion as the
FHA study and stated: “ ‘Marked crosswalks alone are insufficient, since pedestrian
crash risk may be increased due to providing marked crosswalks alone.’ ” Caltrans
recommended against marking crosswalks at uncontrolled intersections where there are
multiple lanes, speed limits of 35 miles per hour or more, and an average daily traffic of
over 15,000 vehicles. The publication also recommended placing safety enhancements at
crosswalks that were already marked, including painting more visible “zebra” or “ladder”
stripes at the crosswalks or installing flashing lights.
Plaintiffs’ accident reconstruction expert testified that the accident that killed
Chandler was a multiple-threat collision, with Chandler entering the crosswalk from
lane 3, the side of El Camino next to the Isabella curb. Simon’s car approached the
crosswalk in lane 1 or 2. An accident eyewitness testified there were other vehicles to the
side of Simon’s car and all vehicles were progressing toward Chandler. In particular, the
witness recalled seeing a full-size pickup truck approaching the crosswalk in lane 3. The
accident reconstruction expert testified the pickup truck obscured Chandler’s sight line,
causing “a problem for him to be able to see Mr. Simon’s vehicle as it’s approaching.”
Similarly, the pickup truck obscured Simon’s vision so that he was not able to see
Chandler as he began to enter the crosswalk. This was true regardless of whether
Simon’s vehicle was in lane 1 or 2.
Plaintiffs presented testimony regarding the various safety measures that are
available to prevent against the dangers of marked crosswalks at uncontrolled
intersections. One safety measure is a “high-visibility crosswalk” that makes the
crosswalk more visible to drivers with additional stripes called longitudinal markings,
i.e., markings in the direction the traffic is moving. Other precautions include: using
fluorescent yellow-green pedestrian signs so that drivers can easily see there is a
crosswalk ahead; using “in-street yield signage,” i.e., a sign affixed to the roadway
surface that informs drivers to yield to pedestrians; using signs above the roadway stating

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it is state law to yield to pedestrians; and placing flashing beacons that indicate a
pedestrian is trying to cross. Removing the two white lines that mark a crosswalk at
uncontrolled intersections would also enhance safety and eliminate multiple-threat
collisions.
Another safety measure is a “pedestrian refuge island”—a raised median that
pedestrians can use to stop after crossing one-half of a roadway and assess the traffic
before proceeding across the other one-half. This measure, which limits the crossing
distance and also allows the pedestrian to look for vehicles in only one set of lanes at a
time, reduces the pedestrian crash rate at marked crosswalks by almost half. The
crosswalk at the El Camino and Isabella intersection was difficult to cross at once
because it was 78 feet across seven lanes of traffic and had an average daily traffic of
30,000 vehicles, or one vehicle per every one and a half seconds.
Two neighbors testified regarding their experiences at and observations of the
El Camino and Isabella intersection. Carl Ferrero, who has lived across the street from
the intersection for 40 years, testified he does not use the Isabella crosswalk or allow his
family members to use it because it is “just too dangerous,” with “too many lanes of
traffic and traffic goes too fast” at about 10 miles over the speed limit. Before Chandler’s
accident, he had witnessed other accidents and “near misses” at the intersection,
including “the collision of a car into two pedestrians [who] were crossing at Isabella.”
The two pedestrians brought an action against the State, and Ferrero was deposed in the
case. In another incident, a car struck a homeless person who was crossing El Camino.
There were so many accidents that Ferrero and his neighbors brought the problem to the
attention of the City of Atherton.
Patricia Young, who lives near the El Camino and Isabella intersection, is familiar
with the intersection. Young testified she has “pretty much avoided all the [El Camino]
crosswalks in Atherton” because “[i]t’s very unsafe in my opinion.” “[C]ars go 50 miles
an hour in a 35-mile-an-hour zone. And it’s very hard [to see the crosswalk] with just
two [crosswalk] stripes” that are “kind of thin.” “Sometimes you can’t even see the
person crossing until you’re right up to them [sic].” Young was aware of two other

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accidents that had occurred at an El Camino intersection before Chandler was killed. On
one occasion, Young’s gardener was driving within the speed limit on El Camino as he
approached its intersection with Stockbridge Avenue in Atherton. He did not realize a
car to his left had stopped to allow a child to cross the street, and his car struck the child.
The other accident was at El Camino near Almendral Avenue, where a homeless man
pushing a shopping cart was struck. Young was so concerned about the danger of
crosswalks on El Camino that she wrote two letters to Caltrans. She asked Caltrans to
install pedestrian-activated flashing lights or “put some orange flags out [on both ends of
the crosswalk] at least” as “a cheap solution in the meantime” so that pedestrians crossing
can hold orange flags up as they cross, making them more visible to drivers. She did not
receive a response from Caltrans.
Plaintiffs also presented evidence of a March 2006 case in which a vehicle struck
pedestrian Emily Liou while she was in a marked crosswalk at the uncontrolled
intersection of El Camino and Ludeman Lane (Ludeman) in Millbrae, San Mateo County
(the Liou accident). Liou, who was injured, sued the State in February 2007 and argued,
among other things, that the crosswalk in which she was injured was dangerous “because
it was marked instead of being left unmarked.” A jury found in favor of Liou, finding the
State was liable for creating or maintaining a dangerous condition at the intersection.
Caltrans chief engineer Katie Yim, who oversees traffic safety for Solano and San
Mateo counties, acknowledged that based on the FHA study, the El Camino and Isabella
intersection was not a candidate for a marked crosswalk at the time of the accident. After
the FHA study came out in 2005, the State did not remove the white lines at the Isabella
and El Camino intersection. It also did not place any safety enhancements such as more
visible stripes, advanced yield lines, or overhead lights at the intersection before Chandler
was killed.
Yim acknowledged at trial that in the Liou action she was aware the Millbrae
public works department had complained after the Liou accident that El Camino is
dangerous for pedestrians and that Caltrans is “ ‘ “notoriously recalcitrant about allowing
any alterations that might enhance pedestrian safety” ’ ” due to its concern that alterations

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would impede traffic flow. Yim explained that Caltrans must exercise “engineering
judgment” by coming up with a decision based on such factors as traffic and the number
of accidents at any given location.
The precise date the crosswalk at the El Camino and Isabella intersection was
marked was unknown, but the crosswalk was depicted in a 1994 construction design plan,
so it had been in place at least since that time. As the person most knowledgeable about
the original decision to mark the crosswalk, Yim searched for paperwork regarding the
decision but was unable to find anything indicating whether the State exercised
engineering judgment to mark the crosswalk. She was also unable to find anything
regarding engineering judgment that went into the decision not to remove the crosswalk
markings or place safety enhancements after the FHA study was published or after the
Liou accident occurred.
Yim testified about the various sources on which the State relies in determining
whether changes to a road are necessary. The State oversees 50,000 miles of roads and
does not routinely monitor all crosswalks; rather, it relies on the Traffic Accidents
Surveillance and Analysis System (TASAS), which collects and analyzes statewide data
from the California Highway Patrol (CHP) and local police investigations of reported
accidents. Every three months, based on this data, TASAS generates a “Table C” report
to Caltrans’s headquarters, listing specific locations that have reached a certain threshold
number of accidents. Each of Caltrans’s geographical district offices then investigates
these locations.
The El Camino and Isabella intersection had never appeared on the TASAS
Table C report because it had not met the threshold number of accidents. TASAS
showed that three reported accidents occurred at the El Camino and Isabella intersection
before Chandler’s accident and that none of them involved a pedestrian. Yim testified

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she therefore had no notice from TASAS that the intersection was unsafe at the time of
Chandler’s accident.1
The State also receives information by way of complaints from the general public,
local governments, and the CHP. Safety-related complaints are forwarded to the State’s
Office of Traffic Safety for evaluation and analysis of whether safety measures should be
taken at that location. Neither Yim nor the sergeant who reviews traffic collision reports
for the Atherton Police Department had received any complaints regarding the El Camino
and Isabella intersection before Chandler’s accident.
With respect to roadway designs, the State relies on the Manual on Uniform
Traffic Control Devices (MUTCD), an engineering manual that sets forth mandatory
standards for such things as dimensions and spacing requirements for crosswalk
markings. The MUTCD provides under the title “Standard” that crosswalk lines “shall
consist of solid white lines that mark the crosswalk.” “Crosswalks should be marked at
all intersections where there is substantial conflict between vehicular and pedestrian
movements” and “at other appropriate points of pedestrian concentration . . . .”
“Crosswalk lines should not be used indiscriminately. An engineering study should be
performed before they are installed at locations away from highway traffic signals or
STOP signs.”
The MUTCD also provides various statements under the titles “Option” and
“Guidance,” including the following “Option”: “For added visibility, the area of the
crosswalk may be marked with white diagonal lines at a 45-degree angle to the line of the
crosswalk or with white longitudinal lines parallel to traffic flow . . . .” It provides the
following “Guidance”: “In general, crosswalks should not be marked at intersections
unless they are intended to channelize pedestrians.” The “Guidance” section goes on to
state: “The following factors may be considered in determining whether a marked

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Plaintiffs countered this evidence by presenting testimony that TASAS is not a
reliable source of safety information because it is primarily data for vehicles, not for
pedestrian or bicycle accidents, and because up to 50 percent of accidents are not
reported and never end up in the database.

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crosswalk should be used: [¶] . . . Vehicular approach speeds from both directions[;]
[¶] . . . Vehicular volume and density[;] [¶] . . . Vehicular turning movements[;] [¶] . . .
Pedestrian volumes[;] [¶] . . . Roadway width[;] [¶] . . . Day and night visibility by both
pedestrians and motorists[;] [¶] . . . [¶] Discouragement of pedestrian use of undesirable
routes. . . .”
Yim testified the State follows the standards set forth in the MUTCD whenever it
performs traffic engineering design or installs traffic control devices. The El Camino and
Isabella crosswalk complied with the applicable MUTCD standards. Yim also testified
there is nothing in the MUTCD that requires the removal of marked crosswalks at
uncontrolled intersections. Several witnesses for plaintiffs acknowledged the MUTCD
sets forth standards, which are “mandatory,” while studies like the FHA study provide
only “optional” recommendations and are for reference only.
Yim testified she was aware that one of the arguments Liou made in her case was
that the crosswalk in which she was injured was dangerous “because it was marked
instead of being left unmarked.” Yim acknowledged that Liou’s attorneys showed her
various studies supporting this argument during the litigation and that she had been
informed as of March 2006 that marked crosswalks give pedestrians a false sense of
security. When the jury returned a verdict in favor of Liou, Yim understood the verdict
to mean that the jury found the crosswalk was dangerous because it was marked without
safety enhancements.
Yim testified there would not have been enough time between the July 2010 Liou
verdict and Chandler’s accident in September 2010 to make changes to the crosswalk at
the El Camino and Isabella intersection. She explained that in addition to the El Camino
and Isabella intersection, there are 28 other similarly marked crosswalks at uncontrolled
intersections in San Mateo County. The MUTCD standards require 30 days’ notice
before a crosswalk can be removed, and the State has a policy of holding public hearings
and working with local governments before making changes. When asked how much
time would have been necessary to make changes to the 29 crosswalks, Yim testified “it
could take at least one to two months of time to get a decision or approval from

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management” plus a mandatory 30 days of notice that must be given to the public under
the MUTCD, for a total of “three months, plus,” assuming “we expedite everything in-
house.”
The jury unanimously found the intersection of El Camino and Isabella was
dangerous at the time of Chandler’s accident; the State created or had notice of the
dangerous condition; the injury was foreseeable; and the dangerous condition was a
substantial factor in causing Chandler’s death. The jury awarded $3.5 million to Jan
Chandler and $2 million to each of the three children. The jury found the State was
90 percent at fault for plaintiffs’ injuries and Simon was 10 percent at fault. The State
filed a motion for a new trial which the trial court denied.
DISCUSSION
1. Similar Accidents
The State contends the trial court erred in allowing plaintiffs to present evidence
of accidents that were not sufficiently similar to the subject accident. In particular, the
State argues the court erred in denying its motion in limine to exclude evidence of the
Liou accident and in allowing plaintiffs to elicit “vague, anecdotal” testimony from
neighbors about other accidents. (Italics omitted.) We reject this contention.
Government Code section 8352 provides that “a public entity is liable for injury
caused by a dangerous condition of its property if the plaintiff establishes that the
property was in a dangerous condition at the time of the injury, that the injury was
proximately caused by the dangerous condition, that the dangerous condition created a
reasonably foreseeable risk of the kind of injury which was incurred, and that either:
[¶] (a) A negligent or wrongful act or omission of the employee of the public entity
within the scope of his employment created the dangerous condition; or [¶] (b) The public
entity had actual or constructive notice of the condition . . . [sufficiently] prior to the
injury to have taken measures to protect against the dangerous condition.” “ ‘Dangerous
condition’ means a condition of property that creates a substantial (as distinguished from

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All further undesignated statutory references are to the Government Code.

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a minor, trivial or insignificant) risk of injury when such property or adjacent property is
used with due care in a manner in which it is reasonably foreseeable that it will be used.”
(§ 830, subd. (a).)
A plaintiff may present evidence of prior accidents to prove the existence of a
dangerous condition or to show the public entity had notice of the dangerous condition.
(Genrich v. State of California (1988) 202 Cal.App.3d 221, 227 (Genrich).) Before
evidence of prior accidents may be admitted, it must first be shown that “ ‘the
circumstances are similar, and the happenings are not too remote in time.’ ” (Ibid.) The
requirement of similarity varies in strictness according to the purpose for which the
evidence is introduced. (Id. at p. 228.) For example, “ ‘if offered to show a dangerous
condition of a particular thing—such as a step—the other accident must be connected in
some way with that thing.’ ” (Ibid.) The strictness of this requirement of similarity is
“ ‘much relaxed’ ” when the purpose of the offered evidence is to show notice because
“ ‘all that is required [in that case] is that the previous injury should be such as to attract
the defendant’s attention to the dangerous situation which resulted in the litigated
accident.’ [Citations.]” (Laird v. T.W. Mather, Inc. (1958) 51 Cal.2d 210, 220; Genrich,
at p. 228.) The admissibility of evidence of prior accidents is confined to the trial court’s
sound discretion. (Genrich, at p. 233.)
Here, the trial court determined the Liou accident was admissible on “[t]he issue
[of] notice.” This was not an abuse of discretion. As noted, Liou, like Chandler, was a
pedestrian who was struck by a car while walking across a marked crosswalk at an
El Camino intersection in San Mateo County. The Liou accident occurred in 2006, just a
few years before Chandler’s accident. Like the El Camino and Isabella intersection, the
intersection at which Liou was injured was busy with an average daily traffic of 30,000 or
more vehicles. The El Camino speed limit at both intersections was 35 miles per hour.
At both intersections, El Camino had more than four lanes. Both intersections were
uncontrolled. When plaintiffs’ counsel asked Yim at her deposition, “ ‘Anything
different about those two intersections that you can think of?’ ” Yim responded, “ ‘Not
really.’ ”

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Moreover, in her action against the State, Liou argued, as plaintiffs did in the
present case, that the crosswalk at which she was injured was dangerous because it was at
an uncontrolled El Camino intersection and was marked instead of being left unmarked.
In fact, Yim suggested it was through the Liou case that she learned about the various
studies relating to the dangers of marking crosswalks at uncontrolled intersections. She
acknowledged she understood the Liou verdict to mean that the jury found the crosswalk
was dangerous because it was marked without safety enhancements.
The State points out several ways in which the intersections differed—one
intersection was in a more commercial area; the intersections were 20 miles apart; Liou
was struck in the evening whereas Chandler was struck during the day; the topography
was different; and Liou did not have a bicycle with her. The State argues, for example,
that the topography or the time of day an accident occurs can affect a driver’s ability to
see, or that the fact that Chandler had a bicycle likely made him more visible to
oncoming drivers. The State does not, however, explain how these differences affected
the issue of notice. Further, although the intersections were 20 miles apart, they were
both located in San Mateo County, where Yim was responsible for overseeing traffic
safety on behalf of the State. (See Morfin v. State of California (1993) 12 Cal.App.4th
812, 816 [evidence of collisions at different DMV locations discoverable on the issue of
whether a DMV office in Chula Vista was unreasonably designed where the designs at
the other DMV locations and the Chula Vista DMV were similar].)
As noted, the requirement of similarity is “ ‘much relaxed’ ” when the purpose of
the offered evidence is to show notice. (Laird v. T.W. Mather, Inc., supra, 51 Cal.2d at
p. 220.) “ ‘[A]ll that is required . . . is that the previous injury should be such as to attract
the defendant’s attention to the dangerous situation which resulted in the litigated
accident.’ [Citations.]” (Ibid.) Because the two intersections and accidents were
sufficiently similar in material ways and provided the State with actual or constructive
notice of the dangers of placing marked crosswalks with no safety enhancements at
uncontrolled El Camino intersections, the trial court did not abuse its discretion in
allowing plaintiffs to present evidence of the Liou accident.

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We further conclude the trial court did not abuse its discretion in allowing
plaintiffs to present the testimony of neighbors Ferrero and Young. In Genrich, the State
argued on appeal that the trial court abused its discretion in allowing a neighbor to testify
generally regarding “ ‘burning rubber,’ ” “ ‘fender benders,’ ” “ ‘near misses,’ ” and
“ ‘screeching tires’ ” that he observed or heard at the subject intersection even though
there was no showing that any of his testimony related to accidents involving pedestrians.
(202 Cal.App.3d at pp. 231–232.) The Court of Appeal held the testimony was properly
admitted on the issue of notice because these observations and experiences led the
neighbor to complain to Caltrans that the intersection was unsafe for pedestrians. (Id. at
p. 232.)
Similarly, here, neighbors Ferrero and Young testified regarding their experiences
at and observations of the El Camino and Isabella intersection and other similar
intersections along El Camino. They described specific pedestrian injuries and deaths
that had occurred and explained that these experiences led them to complain to
government officials about what they believed were dangerous conditions.
The State argues Young should not have been allowed to testify about the accident
in which her gardener struck a child at an El Camino intersection because it was based on
hearsay and it was not sufficiently similar to Chandler’s accident. Specifically, the State
points out that the gardener’s accident involved a multiple-threat collision where the
gardener did not see the child because of a car in the lane next to the curb that blocked his
view of the child. Here, in contrast, there was no evidence other than plaintiffs’ expert’s
testimony that Chandler’s accident was a multiple-threat collision. The State goes on to
argue that plaintiffs’ expert’s testimony should have been excluded as hearsay because
the expert improperly relied on police reports in opining that Chandler’s accident was a
multiple-threat collision. (Citing People v. Sanchez (2016) 63 Cal.4th 665 [it is improper
for an expert to testify to case-specific out-of-court statements to explain the bases for his
or her opinion].)
To the extent the State is arguing that both Young’s testimony and the expert’s
testimony should have been excluded as hearsay, we note the State’s failure to object to

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the witnesses’ testimony on hearsay grounds forfeits the issue. (Evid. Code, § 353,
subd. (a) [“verdict shall not be set aside” “by reason of the erroneous admission of
evidence” unless objection and “specific ground of the objection” is timely made]; Coit
Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611.) In any
event, even if the gardener’s accident was a multiple-threat collision and Chandler’s
accident was not, we conclude this difference alone did not render the gardener’s
accident, which was a vehicle-pedestrian accident that occurred at an El Camino
intersection, so dissimilar from Chandler’s accident that it should have been excluded as
a matter of law. Moreover, in the same way the neighbor’s testimony in Genrich
regarding dissimilar accidents was admissible to show what prompted him to complain to
Caltrans, Young’s testimony about her gardener’s accident was properly admitted to
explain why she decided to write two letters to Caltrans about the dangerous condition at
El Camino intersections, thus providing Caltrans with notice of such dangerous
conditions. (Genrich, supra, 202 Cal.App.3d at pp. 231–232.)
Finally, we note the State made no objection at trial that the accidents Ferrero
described were not substantially similar to Chandler’s accident. As nearly all of the
incidents and accidents he described occurred at the very intersection at issue in this case,
his testimony provided probative evidence of the danger the crosswalk presented.
2. CACI No. 1112
The State contends the trial court erred in declining to instruct the jury with
CACI No. 1112 regarding a reasonableness defense and omitting a question related to the
defense from the verdict form. We disagree.
A party is entitled upon request to correct, nonargumentative instructions on every
theory of its case that is supported by substantial evidence. (Soule v. General Motors
Corp. (1994) 8 Cal.4th 548, 572.) CACI No. 1112, entitled “Affirmative Defense—
Reasonable Act or Omission to Correct (Gov. Code, § 835.4(b)),” provides: “A public
entity is not responsible for harm caused by a dangerous condition if its failure to take
sufficient steps to protect against the risk of injury was reasonable. If [defendant] proves
that its conduct was reasonable, then your verdict must be for [defendant]. [¶] In

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determining whether [defendant’s] conduct was reasonable, you must consider how much
time and opportunity it had to take action. You must also weigh the likelihood of
seriousness of the potential injury against the practicality and cost of protecting against
the risk of injury.” (CACI No. 1112 (2008 rev.) (2019 ed.) p. 673.)
To prevail in this defense, the public entity has the burden of showing it would
have been “ ‘too costly and impractical . . . to have done anything else,’ ” i.e., that
“ ‘under all the circumstances, including the alternative courses of action available to it
and the practicability and cost of pursuing such alternatives, its action in creating or
failing to remedy the condition was not unreasonable.’ ” (Metcalf v. County of San
Joaquin (2008) 42 Cal.4th 1121, 1138.) The determination of reasonableness involves a
weighing of “the probability and gravity of potential injury to persons and property
foreseeably exposed to the risk of injury against the practicability and cost of protecting
against the risk of such injury.” (§ 835.4, subd. (b).)
This defense allows public entities to “defend against liability on the basis that,
because of financial or political constraints, the public entity may not be able to
accomplish what reasonably would be expected of a private entity.” (Metcalf v. County
of San Joaquin, supra, 42 Cal.4th at p. 1138.) In Ducey v. Argo Sales Co. (1979)
25 Cal.3d 707, 712–714, for example, the plaintiffs argued that the lack of median
barriers on highways constituted a dangerous condition. The State countered that it was
financially unable to remedy the condition because the former California Highway
Commission, which had set aside funding for the construction of barriers, withdrew all
funding shortly before the accident, based on a decision to instead change the entire
configuration of its highways. (Ibid.) The jury ultimately found in favor of the plaintiffs,
but the evidence the State presented was deemed sufficient to trigger the trial court’s
obligation to instruct the jury on a reasonableness defense. (Id. at pp. 714, 720.)
Here, the trial court declined to give CACI No. 1112 on the ground that there was
insufficient evidence to support it. We agree there was insufficient evidence to support
the giving of the instruction. The State points out that it oversees over 50,000 miles of
roadway; El Camino traverses three counties; and there were 29 uncontrolled crosswalks

16
along El Camino. The State, however, did not present any evidence it was financially or
otherwise incapable of making changes to the 29 crosswalks. It did not present evidence,
for example, that unmarking the 29 crosswalks or adding safety enhancements such as
painting more visible stripes was cost-prohibitive. Yim testified that the El Camino and
Isabella intersection had not met the “threshold” number of accidents on TASAS for the
State to take any action, but the State did not argue or present any evidence as to what the
“threshold” number is, whether and why it is reasonable for the State to rely on TASAS,
and why it is unable to take action until a certain number of accidents or deaths have
occurred. The State did not even argue in closing that it acted reasonably; rather, it
argued only that there was no dangerous condition, suggesting that the State, too,
understood that evidence of reasonableness was sparse.
The State argues the instruction should have nevertheless been given based solely
on Yim’s testimony about time constraints, i.e., that there was insufficient time to take
action between July 2010 when the Liou verdict was rendered—the date the State claims
it was placed on notice of the dangerous condition—and September 2010, when
Chandler’s accident occurred. The Liou accident, however, occurred in 2006, and Liou
filed her action against the State in February 2007, more than three and a half years
before Chandler’s accident. One of Liou’s claims throughout her case related to the
dangers of marking crosswalks at uncontrolled intersections. Shortly after Liou was
injured, the Millbrae public works department spoke out about how dangerous El Camino
is for pedestrians, and Yim acknowledged she was aware of this warning. Yim also
acknowledged she had been informed as of March 2006 that marked crosswalks give
pedestrians a false sense of security that vehicles will see the crosswalks and stop.
Further, an expert in the Liou case submitted an affidavit in October 2009 that
alerted the State to the dangers of “marking crosswalks at uncontrolled intersections on
El Camino,” and he testified regarding his opinions at an April 2010 deposition. In
addition, there were various studies including an FHA study and a study Caltrans funded
that alerted the State to this dangerous condition; in fact, Caltrans’s own 2005 publication
reached the same conclusion as the FHA study: “ ‘Marked crosswalks alone are

17
insufficient, since pedestrian crash risk may be increased due to providing marked
crosswalks alone.’ ” Further, Yim acknowledged that based on the FHA study, the
El Camino and Isabella intersection should not have been marked. In light of the
overwhelming evidence that the State had actual or constructive notice of the dangerous
condition well before the Liou verdict was rendered, the trial court did not err in
declining to give CACI No. 1112.
In light of our conclusion that the trial court did not err, we also reject the State’s
contention that the court erred in failing to include a question relating to the
reasonableness defense in the jury verdict form. “[I]f, as here, the trial court does not
instruct the jury on the section 835.4 defense, it should not include a question pertaining
to that defense in the verdict form given the jury.” (Metcalf v. County of San Joaquin,
supra, 42 Cal.4th at p. 1137, fn. 5.)
3. CACI Nos. 1120, 1121
The State contends the trial court erred in declining to instruct the jury with CACI
Nos. 1120 and 1121. We disagree.
CACI No. 1120, entitled “Failure to Provide Traffic Control Signals (Gov. Code,
§ 830.4),” provides: “You may not find that [name of defendant]’s property was in a
dangerous condition just because it did not provide a [insert device or marking].
However, you may consider the lack of a [insert device or marking], along with other
circumstances shown by the evidence, in determining whether [name of defendant]’s
property was dangerous.” (CACI No. 1120 (2003 new) (2019 ed.) p. 675.) The
instruction is based on section 830.4, which “ ‘precludes a plaintiff from imposing
liability on a public entity for creating a dangerous condition merely because it did not
install the described traffic control devices.’ [Citation.] In short, ‘[t]he lack of a traffic
signal at the intersection does not constitute proof of a dangerous condition.’ ” (Mixon v.
Pacific Gas & Electric Co. (2012) 207 Cal.App.4th 124, 135, italics added.)
CACI No. 1121, entitled “Failure to Provide Traffic Warning Signals, Signs, or
Markings (Gov. Code, § 830.8),” provides: “A public entity is not responsible for harm
caused by the lack of a [insert relevant warning device] unless a reasonably careful

18
person would not notice or anticipate a dangerous condition of property without the
[insert relevant warning device].” (CACI No. 1121 (2003 new) (2019 ed.) p. 677.) This
instruction is based on section 830.8, which provides a limited immunity for public
entities exercising their discretion in the placement of warning signs. (Kessler v. State of
California (1988) 206 Cal.App.3d 317, 321.)
Cases interpreting sections 830.4 and 830.8 have held they “provide[] a shield
against liability only in those situations where the alleged dangerous condition exists
solely as a result of the public entity’s failure to provide a regulatory traffic device or
street marking” or warning sign. (Washington v. City and County of San Francisco
(1990) 219 Cal.App.3d 1531, 1534 (Washington) [traffic device or marking]; Hilts v.
County of Solano (1968) 265 Cal.App.2d 161 [traffic device, marking, and warning sign]
(Hilts).) “If a traffic intersection is dangerous for reasons other than the failure to provide
regulatory signals or street markings, the statute provides no immunity.” (Washington, at
pp. 1534–1535.)
In Hilts, the county argued the trial court should have granted its motion for
judgment notwithstanding the verdict because the evidence showed that it had no duty to
warn the plaintiffs of the dangerous condition under section 830.8 and that it could not be
liable on any basis other than the failure to provide regulatory signals for which it had
immunity under section 830.4. (Hilts, supra, 265 Cal.App.2d at p. 173.) The Court of
Appeal rejected the argument, holding: “The testimony of . . . the traffic engineer[]
indicates that the instant intersection was dangerous not only because of the failure to
provide warning or regulatory signs or signals but also because of the conjunction of
other factors such as the presence of trees . . . and the method of striping the intersection.
Accordingly, we cannot say as a matter of law that the immunities of sections
830.4 and 830.8 governed this case.” (Hilts, at p. 174, italics added.) “Section 830.4
states that a condition is not a dangerous condition merely because of the failure to
provide regulatory traffic control signals, stop signs, yield right-of-way signs, speed
restitution signs, or distinctive roadway markings. Section 830.8 prevents the imposition
of liability solely on the basis of the failure to provide traffic regulatory or warning

19
signals or devices of a type not listed in section 830.4. . . . We, therefore, conclude that it
does not appear that as a matter of law County was immune from liability under sections
830.4 or 830.8.” (Hilts, at p. 174; see Washington, supra, 219 Cal.App.3d at p. 1535
[agreeing with Hilts].)
Here, plaintiffs did not argue—and the evidence did not show—that a dangerous
condition existed at the El Camino and Isabella intersection solely as a result of the
State’s failure to provide a traffic device, street marking, or warning sign. Although
plaintiffs argued that various safety enhancements such as traffic signals or warning signs
would have made the intersection less dangerous, they also argued that a refuge island
should have been installed, that the State was aware of warnings that it should not have
marked the crosswalk at all, and that the intersection was very busy with heavy traffic
and vehicles traveling at over 35 or 40 miles per hour. Just as the plaintiff in Hilts
presented evidence that the peculiarly-shaped intersection at issue was dangerous in part
because of “the method of striping the intersection” (265 Cal.App.2d at p. 174), plaintiffs
here argued the State made an uncontrolled, heavily-trafficked intersection more
dangerous by affirmatively marking it with a crosswalk consisting only of two white
parallel lines. Accordingly, the immunities under CACI Nos. 1120 and 1121 did not
apply in this case, and the trial court did not err in declining to give the instructions.
4. Compliance with the MUTCD
The State contends the trial court erred in barring testimony of its compliance with
standards set forth in the MUTCD. The contention fails because the record shows the
court did in fact allow the State to present such testimony. We also conclude that the
court did not abuse its discretion in excluding further testimony regarding MUTCD
compliance.
When counsel for the State began asking Yim about MUTCD standards, plaintiffs’
counsel objected on relevance grounds. Outside the presence of the jury, the State’s
counsel argued that nothing in the MUTCD required the removal of crosswalks or the
installation of safety enhancements at uncontrolled intersections and that the State should
be allowed to present evidence of compliance with the MUTCD to show it acted

20
reasonably. Counsel noted that plaintiffs had been allowed to present evidence of studies
and other accidents to show notice and that the State should be allowed to “counter” that
by showing it reasonably relied on MUTCD standards, which are “mandatory,” in
contrast to studies, which are not.
Plaintiffs’ counsel argued, “The question in this case is whether the intersection
was dangerous. We’ve introduced studies showing that it was. The State’s compliance
or noncompliance with . . . its own manuals that it wrote doesn’t touch upon that
question.” Plaintiffs’ counsel argued that the State “cannot give itself permission,
through a standard or otherwise, to leave a dangerous condition” and that jurors would be
misled into believing “oh, they [the State] did everything that they were supposed to do,
therefore, there can be nothing wrong with the intersection.”
The trial court asked counsel for the State, “Are you saying that if Caltrans had
notice of the dangerous condition, this standard allows them [sic] to essentially ignore
it?” Counsel responded the standard does not allow that but that the State should be
allowed to introduce the evidence to show it did not “violate[] anything that we were
required to do.” Ultimately, the court stated it would allow the State to present the
evidence: “I think it is relevant for the State to present their [sic] position . . . . I’m going
to let that testimony be given.”
Thereafter, the trial court allowed testimony regarding MUTCD compliance, and
the relevant MUTCD standards were admitted into evidence. Yim testified there is no
standard in the MUTCD that requires the State to remove marked crosswalks at
uncontrolled intersections and no standard in the MUTCD that requires the State to install
safety enhancements at uncontrolled intersections. The State also elicited testimony from
plaintiffs’ expert that the El Camino and Isabella crosswalk complied with MUTCD
standards.
In addition, several witnesses for plaintiffs testified that the MUTCD sets forth
“mandatory” standards while studies like the FHA study provide only “optional”
recommendations and are for reference only. The State also presented evidence that
although its 2005 Caltrans publication discussed the dangers of marking crosswalks at

21
uncontrolled intersections, the publication did not set forth a standard, specification, or
regulation and was not intended to replace existing mandatory standards. Yim testified
that for “ ‘authoritative and current information on standards and guidance regarding
pedestrian and bicycle facilities in California, there is no substitute for . . . the
MUTCD.’ ” Thus, the record establishes that the State did in fact present substantial
testimony of its compliance with MUTCD standards.
We also reject the State’s argument that the trial court should have allowed further
testimony, including its traffic engineer’s testimony, “on whether the subject intersection
met with applicable standards.” A trial court is vested with wide discretion in
determining whether evidence is admissible (Christ v. Schwartz (2016) 2 Cal.App.5th
440, 446–447), and it is the appellant’s burden to establish an abuse of discretion (Shaw
v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281). Here, in light of the
admission of the relevant MUTCD standards into evidence, testimony regarding the
State’s compliance with those standards, and Yim’s testimony that “there is no substitute
for . . . the MUTCD” when it comes to standards, the court could reasonably have
excluded further testimony on that issue as cumulative. (Horn v. General Motors Corp.
(1976) 17 Cal.3d 359, 371 [court has discretion to exclude cumulative evidence].) There
was no abuse of discretion.
5. Juror Information
Near the close of plaintiffs’ evidence on liability, Juror No. 1 (JN1) reported that
he realized he knew a witness, Patti Michelsen, who was scheduled to testify at trial. At a
hearing at which the trial court questioned JN1 and allowed the parties to question him,
JN1 explained: “You [the court] read off a very long list of names very quickly, and I
didn’t pick [Michelsen’s name] up. And then I saw a familiar face out there [in the
hallway].” JN1 said he went to school with Michelson’s daughter for 11 years and that
Michelson was the dance coordinator when JN1 was in a play in eighth grade. He said,
“So I’ve known her and her family for a long time.”
The trial court asked JN1 whether this would affect his decision in the case, and
JN1 responded, “Not at all, especially because I believe it’s for a character witness . . . .”

22
Plaintiffs’ counsel clarified that Michelsen is a damages witness, and the State’s counsel
asked, “So would it make any difference if Ms. Michelsen’s testimony . . . [is] regarding
damages issues[;] will that have any impact on your ability to be impartial?” JN1 said he
did not believe it would. The court instructed JN1 not to talk to Michelsen until after the
trial, and JN1 agreed.
After JN1 left the courtroom, the trial court asked plaintiffs’ counsel whether he
needed Michelsen to testify. Plaintiffs’ counsel said he did and added, “But, honestly, I
really don’t see how it’s an issue.” Counsel for the State stated it was “our preference”
and “request” “that given this disclosure . . . and given the time constraint . . . ,
Ms. Michelson not be allowed to testify in an abundance of caution.” Counsel for the
State said Michelsen was “not a critical witness,” and it would not “pose any severe
inconvenience or prejudice to the plaintiffs if . . . we were to have plaintiffs not call
Ms. Michelsen.”
The trial court stated, “Ms. Michelsen is really an ancillary witness talking about
the family. I don’t know how she knows the Chandler family. I don’t remember her as a
witness in the first trial. . . .” Plaintiffs’ counsel stated Michelsen did testify at the first
trial. The court continued: “But this is really an ancillary issue. She’s not an eyewitness.
She’s not a percipient witness. And given [that] it’s important, but . . . not fundamentally
important to liability issues, . . . the Court is going to allow her to testify. And I’m not
going to recuse Juror No. 1. He’s a really bright, energetic, young man. We don’t want
to lose him on the jury.” Counsel for the State said, “I would just add one thing. That
would be, do we anticipate Patti Michelsen testifying about her daughter?” Plaintiffs’
counsel responded, “No.” Michelsen testified about the close relationship plaintiffs
shared with Chandler. JN1 became the jury foreperson.
The State contends the trial court should have dismissed JN1 because he “admitted
he had a relationship with a witness and her family, which he failed to disclose during
voir dire, and it became clear that [he] spoke with that witness about the scope and nature
of her testimony during trial.” (Italics omitted.) Plaintiffs argue the State forfeited the
issue by “intentionally declining to object to [JN1’s] continued presence even after

23
learning that [he] knew Michelsen” and by not requesting a mistrial. We agree the State
forfeited the issue.
As noted, counsel for the State argued only that Michelsen should not be allowed
to testify. Counsel did not argue JN1 had committed misconduct and never requested
that he be dismissed. The State argues it would have been futile to object because the
trial court indicated it was not going to dismiss JN1, but the record shows that counsel for
the State had many opportunities to raise the issue but chose not to do so. For example,
when counsel discussed the “inherent . . . bias” that is involved “just by virtue of [JN1]
knowing [Michelsen],” counsel did not ask that JN1 be dismissed; rather, she argued it
would not “pose any severe inconvenience or prejudice to the plaintiffs if we were . . . to
have plaintiffs not call Ms. Michelsen.” After the court stated it was going to allow
Michelsen to testify and not going to dismiss JN1, counsel asked to “just add one
thing”—whether Michelsen would testify about her daughter. Throughout the hearing,
the State was concerned only with whether Michelsen should be allowed to testify and
with the content of her testimony, but not with whether JN1 should be dismissed in the
event Michelsen were to testify, or because of any misconduct he committed by speaking
to Michelsen.
In People v. Stanley (2006) 39 Cal.4th 913, at page 950, the Supreme Court held
“counsel failed to object to [the juror’s] continued service on the jury, and failed to
request a mistrial on grounds of juror misconduct. As such, the claim is waived on
appeal.” Similarly, here, the State forfeited the issue by not objecting to JN1’s continued
service and not requesting a mistrial.
Even assuming the State did not forfeit the issue, we conclude there was no
prejudicial error. First, we reject the State’s argument that JN1 “committed clear juror
misconduct” by failing to disclose his relationship to Michelsen, by “discussing the scope
and nature of Michelsen’s testimony with her,” and by continuing to converse with
Michelsen “even after the relationship was disclosed.” The State cites In re Hamilton
(1999) 20 Cal.4th 273, 294, for the proposition that when there is an “overt event [that] is
a direct violation of the oaths, duties, and admonitions imposed on actual or prospective

24
jurors, such as when a juror conceals bias on voir dire, consciously receives outside
information, discusses the case with nonjurors, or shares improper information with other
jurors, the event is called juror misconduct.”
Here, there was no evidence of any concealment on the part of JN1. Although he
did not disclose he knew Michelsen during voir dire, he explained this was because the
trial judge had “read off a very long list of names very quickly” and he “didn’t pick
[Michelsen’s name] up.” The State asserts the fact that JN1 knew Michelsen was a
“character witness” shows that he improperly spoke to Michelsen about her testimony or
that he continued to speak to her even after learning she was a witness in the case. JN1,
however, stated he saw “a familiar face out there”; he could have simply asked what
Michelsen was doing there, to which Michelsen would have replied she was a character
witness in the Chandler case. There is nothing in the record suggesting JN1 continued to
speak to Michelsen after learning she was a witness. Rather, it appears he promptly
informed the court clerk after realizing he knew a witness. Further, as noted, the trial
court held a hearing at which it allowed the parties to ask questions. If counsel for the
State had any concerns about concealment or about conversations JN1 may have had with
Michelsen, she was free to ask him at the hearing. The court did not err in declining to
dismiss JN1 on the basis of misconduct.
Second, even assuming the trial court should have dismissed JN1 based on any
inherent bias resulting from his relationship to Michelsen and/or Michelsen’s family, we
conclude there was no prejudice. A presumption of prejudice arises where juror
misconduct or an irregularity in the jury proceedings is shown. (Hasson v. Ford Motor
Co. (1982) 32 Cal.3d 388, 416.) This presumption may be rebutted by “an affirmative
evidentiary showing that prejudice does not exist or by a reviewing court’s examination
of the entire record to determine whether there is a reasonable probability of actual harm
to the complaining party.” (Ibid.)
Here, the evidence against the State was strong, and there was no indication that
absent JN1’s continued presence, the jurors would have reached a different verdict, either
by finding no liability or by awarding plaintiffs less in damages. That the State did not

25
ask for JN1’s dismissal suggests it believed his continued presence on the jury did not
pose a threat of prejudice. Moreover, Michelsen was a damages witness who testified
only about her observations of how close the family was. Her testimony was very brief
and was not particularly significant in light of other powerful testimony from Chandler’s
widow and daughters, and one of the daughter’s friends about the relationship the family
shared. The State did not ask Michelsen any questions and presented no contrary
evidence; it was undisputed that the family was close and that Chandler’s death was a
tremendous loss. There is nothing in the record to support a conclusion that JN1’s
continued presence on the jury prejudiced the State such that reversal is warranted.
DISPOSITION
The judgment is affirmed. Plaintiffs shall recover their costs on appeal.

26
_________________________
Fujisaki, J.

WE CONCUR:

_________________________
Siggins, P. J.

_________________________
Petrou, J.

A149508

27