FILED

NOT FOR PUBLICATION

DEC 22 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIGUEL MARTINEZ-PINEDA, an No. 21-55143 individual; AIA ALTAIBA, an individual, D.C. No. 5:17-cv-02256-WDK-SP Plaintiffs-Appellees,

v. MEMORANDUM*

UNITED STATES OF AMERICA,

Defendant-Appellant.

MIGUEL MARTINEZ-PINEDA, an No. 21-55160 individual, No. 21-55171

Plaintiff-Appellant, D.C. No. 5:17-cv-02256-WDK-SP

and

AIA ALTAIBA, an individual,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appeal from the United States District Court for the Central District of California William D. Keller, District Judge, Presiding

Argued and Submitted November 18, 2022 Pasadena, California

Before: WARDLAW and W. FLETCHER, Circuit Judges, and KENNELLY,**

District Judge.

Martinez-Pineda and his wife Aia Altaiba (together, “Plaintiffs”) brought

claims against the United States (“Defendant”) under the Federal Tort Claim Act

(“FTCA”) for negligence and loss of consortium after a car accident with a military

convoy rendered Martinez-Pineda quadriplegic. Defendant appeals the result of

the bench trial, arguing that the district court erred by (1) applying a heightened

“extreme caution” standard of care in determining that Defendant was 75 percent at

fault in causing the accident; (2) referencing military policies in assessing the

standard of care owed; (3) finding Defendant an additional 7.5 percent at fault for

conduct Defendant argues is protected under the discretionary function exception;

and (4) finding that Altaiba is not an “owner” of the vehicle driven by Martinez-

Pineda within the meaning of California Civil Code § 3333.4. Plaintiffs cross-

appeal, arguing that the district court erred by (5) placing Martinez-Pineda’s

** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. 2 damages for future medical expenses in a reversionary trust; (6) calculating

Altaiba’s loss of consortium damages using his post- rather than pre-injury life

expectancy; and (7) barring Martinez-Pineda from recovering noneconomic

damages under § 3333.4. We have jurisdiction under 28 U.S.C. § 1291. We

affirm in part, reverse in part, and remand for the limited purpose of determining

Martinez-Pineda’s pre-injury life expectancy and recalculating damages for loss of

consortium.

1. We review de novo whether the district court applied the correct standard

of care. Miller v. United States, 587 F.2d 991, 991 (1978). “[W]here reasonable

minds could differ as to whether an activity is inherently dangerous, the

determination is a question of fact to be determined by a fact-finder.” McMillan v.

United States, 112 F.3d 1040, 1044 (9th Cir. 1997). Therefore, to the extent the

litigants’ disagreement regarding the “extreme caution” standard of care is

predicated on a factual disagreement about whether the movement of the military

convoy of light armored vehicles (“LAVs”) at night on a public highway was

inherently dangerous, we review for clear error. Harbeson v. Parke Davis, Inc.,

746 F.2d 517, 521 (9th Cir. 1984) (holding that findings of fact are reviewed for

clear error).

3 Under the FTCA, the United States can be held liable in tort only “in the

same manner and to the same extent as a private individual under like

circumstances.” 28 U.S.C. § 2674. Defendant argues that § 2674 prevented the

district court from considering the specific facts in this case in determining the

appropriate standard of care. Defendant misconstrues § 2674. Section 2674

simply requires that private persons would be under the same duty at common law

in “like circumstances.” See Indian Towing Co. v. United States, 350 U.S. 61,

64–65 (1955). It is immaterial to the proper analysis that private individuals

cannot be in the identical circumstance as those participating in a military convoy.

A “like circumstance” is all that the FTCA requires. Id.; see also United States v.

Olson, 546 U.S. 43, 45–47 (2005) (applying Indian Towing to reject the contention

that the FTCA shields the government from liability for “unique governmental

functions”).

The district court appropriately took into account the particular

circumstances of this case in determining the standard of care. The court did not

clearly err in finding that the movements of the convoy were inherently dangerous.

LAVs are very heavy, slow moving, camouflaged vehicles that are subject to

frequent breakdowns. The convoy was traveling at 35 miles per hour at night on a

particularly dangerous unlighted highway colloquially known as the “highway of

4 death.” It is telling that Defendant’s own Standard Operating Procedures

characterize convoy movements as “hazardous by nature.”

2. The district court did not err when it looked to military policies to help

determine the appropriate standard of care. While violations of federal law cannot

generate a claim under the FTCA in the absence of a state-law duty, see United

Scottish Ins. Co. v. United States, 614 F.2d 188, 192–93 (9th Cir. 1979), once a

state-law duty is found to exist, a “federal statute or regulation may then provide

the standard of reasonable care in exercising the state-law duty,” Lutz v. United

States, 685 F.2d 1178, 1184 (9th Cir. 1982). The district court properly referenced

military policies here, because the policies reflect the state common law duty to

exercise care in driving.

3. We review de novo the district court’s determination that government

conduct falls outside the scope of the discretionary function exception. Sutton v.

Earles, 26 F.3d 903, 907 (9th Cir. 1994).

We affirm the district court’s determination that the fragmentation of the

convoy, as well as its timing and duration, fall outside the scope of the

discretionary function exception. Defendant’s argument fails at prong two of the

two-step Berkovitz-Gaubert test, which requires us to determine whether an

exercise of discretion is “by its nature, susceptible to a policy analysis.” Miller v.

5 United States, 163 F.3d 591, 593 (9th Cir. 1998).1 We have previously held that

“driving a car” is “totally divorced from the sphere of policy analysis.” Whisnant

v. United States, 400 F.3d 1177, 1181 (9th Cir. 2005). Defendant points to nothing

in the record suggesting that actions taken by a convoy on a public highway in the

United States during peacetime should be treated differently. See Terbush v.

United States, 516 F.3d 1125, 1134 (9th Cir. 2008) (holding that the government

bears the burden to produce “some support” in the record to demonstrate that a

decision is susceptible to policy analysis).

4. For purposes of California Civil Code § 3333.4, “[v]ehicle ownership is a

fact question . . . to determine in light of all the circumstances.” Savnik v. Hall, 88

Cal. Rptr. 2d 417, 424 (Ct. App. 1999). We therefore apply clear error review to

the question of Altaiba’s ownership status.

The district court did not clearly err when it concluded that Altaiba was not

an owner of the Kia within the meaning of California Civil Code § 3333.4. The

court found that at the time of the accident, Altaiba did not drive, did not have a

driver’s license, had not made payments on the car or its insurance, and was not

included as a driver on the vehicle’s insurance policy. Given Altaiba’s limited

1 While the district court did not reach prong two of the Berkovitz-Gaubert test, we may affirm on any ground supported by the record. Serrano v. Francis, 345 F.3d 1071, 1076–77 (9th Cir. 2003). 6 English language skills and her cultural background, the district court reasonably

concluded that Altaiba acted as a “scrivener” in signing paperwork for the purchase

of the car. Considering the evidence, we cannot say with a “definite and firm

conviction that a mistake has been committed.” Harbeson v. Parke Davis, Inc.,

746 F.2d 517, 521 (9th Cir. 1984); see Savnik, 88 Cal. Rptr. 2d at 424 (holding, on

similar facts, that the jury’s finding as to plaintiff’s ownership was “abundantly

supported”).

5. We review de novo whether the district court erred in imposing a

reversionary trust on Martinez-Pineda’s damages for future medical expenses. The

scope of the district court’s authority to specify the form of an award of damages is

a question of law. See Hull by Hull v. United States, 971 F.2d 1499, 1504 (10th

Cir. 1992). Plaintiffs objected to the reversionary trust, seeking a lump sum

payment of the damages awarded.

We have previously approved a reversionary trust in an FTCA action only in

a circumstance in which a state statute required periodic payments. See Dutra v.

United States, 478 F.3d 1090, 1092 (9th Cir. 2007). Here, there is no California

statute requiring that damages be in the form of periodic payments. We decline to

fashion a rule that would broaden the scope of the district court’s authority to

fashion a reversionary trust in an FTCA action.

7 The district court reasoned that a reversionary trust would avoid the

“windfall potential” in the event Martinez-Pineda dies earlier than expected. We

find the reasoning unpersuasive. Because there is also a risk that Martinez-Pineda

will die later than expected, the imposition of a reversionary trust is a lopsided

approach to the distribution of risk. See Peterson v. United States, 469 F. Supp. 2d

857, 860–61 (D. Haw. 2007) (holding that declining to impose a reversionary trust

better comports with principles of fairness).

We therefore reverse the district court’s decision to impose a reversionary

trust on Martinez-Pineda’s future medical expenses. We hold that Martinez-Pineda

is entitled to receive damages for future medical expenses as a lump-sum payment.

6. We review damages awards in FTCA cases for clear error. Trevino v.

United States, 804 F.2d 1512, 1514–15 (9th Cir. 1986). Under the FTCA,

“allowable damages are determined with reference to state law.” Cummings v.

United States, 704 F.2d 437, 440 (9th Cir. 1983).

The district court clearly erred when calculating Altaiba’s damages for loss

of consortium. The court did not err when it determined that Martinez-Pineda’s

post-accident life expectancy was 23.5 years. Nor did it err in awarding $1,000 per

day in loss-of-consortium damages. But the court did clearly err in failing to

account for the reduction in Martinez-Pineda’s life expectancy due to the accident.

8 Under Boeken v. Philip Morris USA, Inc., 230 P.3d 342 (Cal. 2010), damages for

these “lost years” are recoverable in a claim for loss of consortium. We therefore

remand for limited fact-finding to determine Martinez-Pineda’s pre-injury life

expectancy and for a recalculation of Altaiba’s loss-of-consortium damages in light

of Boeken.

7. We review de novo a district court’s ruling on a summary judgment

motion. Nieves Martinez v. United States, 997 F.3d 867, 875 (9th Cir. 2021).

Plaintiffs argue that Martinez-Pineda is entitled to noneconomic damages

because California Civil Code § 3333.4 was not designed to bar relief for

individuals whose vehicles were uninsured at the time of an accident due to “mere

mistake.” However, § 3333.4 does not authorize an inquiry into why an owner

fails to maintain insurance. Cal. Civ. Code § 3333.4. Because the plain language

of the statute is clear, our analysis stops here. See Kobzoff v. Los Angeles Cnty.

Harbor/UCLA Med. Ctr., 968 P.2d 514, 520 (Cal. 1998) (“If the plain language of

a statute is unambiguous, no court need, or should, go beyond that pure expression

of legislative intent.”). Therefore, the district court did not err in granting

Defendant’s motion for partial summary judgment as to Martinez-Pineda’s claim

for noneconomic damages.

***

9 Based on the foregoing, we REVERSE the district court’s imposition of a

reversionary trust for Martinez-Pineda’s future medical expenses. We REMAND

for limited fact-finding to determine Martinez-Pineda’s pre-injury life expectancy

and to recalculate damages for loss of consortium in light of Boeken v. Philip

Morris USA, Inc., 230 P.3d 342 (Cal. 2010). On all other issues, we AFFIRM.

Each party shall bear its own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED in part.

10