Rosario v. Abdelhalim CA1/3

Opinion

Filed 9/10/26 Rosario v. Abdelhalim CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FRANCISCUS DYLAN ROSARIO, Plaintiff and Appellant, A173827 v. SUBHI ABDELHALIM et al., (City and County of San Francisco Super. Ct. No. CGC-21-594102) Defendants and Respondents.

Franciscus Dylan Rosario sued Subhi Abdelhalim and Sonoma Liquor, alleging Abdelhalim caused him injury by negligently driving a vehicle; a jury concluded to the contrary. On appeal, Rosario argues the trial court erred by answering a jury question during its deliberations. We affirm. BACKGROUND In July 2021, Rosario sued Abdelhalim. Rosario alleged Abdelhalim negligently struck him and his scooter while Abdelhalim was making a right turn in his vehicle. At trial, Abdelhalim testified his truck was moving about five miles per hour as it turned. Before the turn, he looked in the side view mirror and in front of him and did not see any pedestrians, scooters, or bicyclists. He did not feel any impact. After the turn, he pulled over because he heard someone yelling for help. When he exited the vehicle, he noticed Rosario yelling at him. Abdelhalim called 911. He did not see any marks on the vehicle. A 1 police officer testified the scooter and vehicle sustained no damage, and Rosario caused the collision by driving the scooter against the flow of traffic. During the jury’s deliberations, it asked the trial court, “in considering the question of whether the defendant was negligent should we consider the provisions of Vehicle Code sections 22107 and 21804(a)[?]” (Italics and some capitalizations omitted.) With the agreement of the parties, the court responded, “You may not consider Vehicle Code sections 22107 and/or 21804(a) nor will the court instruct the jury on those provisions.” (Italics omitted.) After the court issued its response to the jury, Rosario moved for a mistrial because the jury mentioned the sections. The court denied the motion. The jury concluded Abdelhalim was not negligent.1 DISCUSSION Relying on Code of Civil Procedure section 614, Rosario contends the trial court erred by not instructing the jury on Vehicle Code section 22107 after it submitted its question. He forfeited the contention. Ordinarily, a “ ‘civil litigant must propose complete instructions in accordance with his or her theory of the litigation and a trial court is not ‘obligated to seek out theories [a party] might have advanced, or to articulate for him that which he has left unspoken.” ’ ” (Hurley v. Department of Parks & Recreation (2018) 20 Cal.App.5th 634, 655.) But “[t]rial courts are duty bound to give supplemental instructions if additional guidance is necessary to give the jury ‘ “a full and complete understanding of the law applicable to the 1 We grant Rosario’s unopposed motion for judicial notice. We deny as unnecessary his motion to disregard or strike passages of the respondent’s brief and his application to file a reply brief with respect to that motion. To the extent Abdelhalim’s brief contains factual assertions unsupported with record citations, we disregard them. (Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520.) 2 facts.” ’ ” (Flores v. Liu (2021) 60 Cal.App.5th 278, 289; Code Civ. Proc., § 614.) The “failure to provide legal instructions in response to a jury’s question may be reversible error under certain circumstances.” (Eng v. Brown (2018) 21 Cal.App.5th 675, 706, fn. 9.) For example, when “original instructions are inadequate, and the jury asks questions indicating their confusion and need for further explanation, failure to give proper additional instructions is usually reversible error.” (Sesler v. Ghumman (1990) 219 Cal.App.3d 218, 227.) “ ‘An appellate court applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.’ ” (People v. Fleming (2018) 27 Cal.App.5th 754, 765.) Rosario forfeited his claim by agreeing to the trial court’s response to the jury’s question. (People v. Bohana (2000) 84 Cal.App.4th 360, 373 [“[w]here . . . appellant consents to the trial court’s response to jury questions during deliberations, any claim of error with respect thereto is waived”].) Indeed, his position was that the Vehicle Code was “immaterial,” and the jury’s consideration of it would be grounds for a mistrial. As the case law he cites indicates, he cannot now claim that response was error. (Ibid.; Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212 [“Under the doctrine of invited error, when a party by its own conduct induces the commission of error, it may not claim on appeal that the judgment should be reversed because of that error”]; Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653 [invited error doctrine “bars an appellant from attacking a verdict that resulted from a jury instruction given at the appellant’s request”].) Rosario also advances two other arguments but indicates he does so “solely to defeat harmlessness claims.” Given our conclusion above, we need 3 not evaluate whether the alleged error was harmless. (People v. Mora and Rangel (2018) 5 Cal.5th 442, 505.) DISPOSITION The judgment is affirmed. Abdelhalim is to recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

4 _________________________ RODRÍGUEZ, J.

WE CONCUR:

_________________________ FUJISAKI, Acting P. J.

_________________________ PETROU, J.

A173827; Rosario v. Abdelhalim et al.