Thirteen year-old Jonathan Hernandez was struck and killed by a First Student, Inc. school bus after he rode his bicycle off the sidewalk and into a crosswalk without stopping and while looking in another direction. Jonathan’s parents sued the bus driver and First Student for wrongful death. Horvitz & Levy was retained to attend trial, to consult with trial counsel, and assist with the preservation of the record for appeal.
Trial was bifurcated into liability and damages phases, and the jury concluded that Jonathan bore 80 percent of the responsibility for the accident. During the damages phase, the jury heard evidence that Jonathan’s mother habitually used drugs, had a history of violent behavior, and was repeatedly incarcerated during Jonathan’s childhood. The jury also heard evidence that Jonathan’s father lived out of state for most of Jonathan’s life and had only limited contact with his son. Plaintiffs’ counsel requested a $250 million damages award, but the jury awarded $250,000, which was subsequently reduced to $50,000 to account for Jonathan’s comparative fault. The trial court denied plaintiffs’ motions for additur and a new trial.
Plaintiffs appealed, raising a variety of arguments including (1) jury misconduct, (2) evidentiary error, (3) instructional error, and (4) attorney misconduct. Horvitz & Levy represented the defendants on appeal.
The California Court of Appeal (Second District, Division Eight) affirmed. The Court of Appeal agreed with Horvitz & Levy that the vast majority of plaintiffs’ appellate arguments were forfeited, either because plaintiffs failed to preserve them in the trial court or because plaintiffs failed to present them adequately in their briefing (or both). The Court of Appeal further concluded that the few arguments plaintiffs preserved for appeal were meritless. The court held that there was no evidentiary error, no instructional error, and no prejudicial attorney misconduct.