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Hanke v. California Auto Dealer's Exchange6/28/2004
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant California Auto Dealer's Exchange, Inc., doing business as Bay Cities Auto Auction (Bay Cities) appeals from a judgment entered in favor of plaintiff Roger Hanke and his wife on their complaint for personal injury , premises liability, and loss of consortium. Bay Cities contends that Hanke's attorney committed prejudicial misconduct by improperly relying on evidence of remedial measures taken by Bay Cities after Hanke's injury, that there was no evidence to support the jury instruction given on the willful destruction of evidence, and that the trial court improperly permitted Hanke to prove his personal lost earnings with evidence of a decrease in the profits of his business. We conclude that Bay Cities waived its claim for attorney misconduct, that the destruction of evidence instruction was supported by substantial evidence, and that the evidence of Hanke's business responsibilities supported use of the declining business profits as a measure of his lost earnings. Accordingly, we affirm.
Factual and Procedural History
In February 2000, Hanke and his wife filed a complaint against Bay Cities for personal injury , premises liability, and loss of consortium arising out of an accident that occurred while Hanke was attending a Bay Cities auction. The matter was tried before a jury in June 2002. The following evidence was presented at trial.
Hanke has owned and operated a U-Save Auto Rental franchise in Fresno, California since 1988. He also sells used cars at the same location. He purchases many of the cars at auctions conducted by Bay Cities, at which Bay Cities auctions approximately 3,000 cars in a single day. The auctions are conducted in a large arena containing nine lanes of traffic with pedestrian areas between each lane. At the end of each lane is a podium where the auctioneer, a clerk, and the owner of the car sit. The pedestrian area between the podium and the traffic lane is two feet, five inches wide. When a car is being auctioned, it is driven down a traffic lane by a Bay Cities employee. The car stops in front of the podium for approximately two minutes, while potential buyers examine the car and bid. Then it is driven out of the arena. At the time of the accident, the driver's lanes were painted dark gray and the pedestrian areas were painted a lighter shade of gray. After the accident, Bay Cities added yellow stripes at the edge of the pedestrian area to demarcate it from the driving lanes.
Hanke was injured on September 15, 1999, when a car ran over his right foot while he was attending a Bay Cities auction. The testimony was undisputed that just prior to the accident, Hanke approached the podium while the vehicle being auctioned was stopped, and handed the owner's representative a cigar. The parties offered conflicting testimony as to what happened next. Hanke testified that as he was handing the cigar to the owner's representative, the front wheel of the car being auctioned ran over his foot. Hanke's expert testified that based on the tire tracks on Hanke's shoe and the damage to his pants, he believed that Hanke had been inside the pedestrian area when the car strayed from the driver's lane and ran over Hanke's foot. Bay Cities' expert opined that Hanke's foot was run over when he turned away from the podium after delivering the cigar and stepped onto the driver's lane into the path of the
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