Opinion
B309663
01-06-2023
LISA BACALL-TEHRANI, as Successor in Interest, etc., Plaintiff and Appellant, v. CEDARS ASSISTED LIVING, INC., Defendant and Respondent.
Klapach & Klapach, Joseph S. Klapach for Plaintiff and Appellant. Law Offices of Barry M. Wolf and Barry M. Wolf; Jampol Law, Alan R. Jampol for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC673872 Gregory Keosian, Judge. Affirmed.
Klapach & Klapach, Joseph S. Klapach for Plaintiff and Appellant.
Law Offices of Barry M. Wolf and Barry M. Wolf; Jampol Law, Alan R. Jampol for Defendant and Respondent.
RICHARDSON (ANNE K.), J. [*]
INTRODUCTION
This is an appeal from a judgment after a jury verdict in favor of Defendant Cedars Assisted Living, Inc. (Cedars) in an action for negligence and wrongful death. Plaintiff Anita Bacall, by and through her successor in interest Lisa Bacall-Tehrani (Bacall), makes three contentions on appeal: 1) the trial court erred in granting Cedars's motion for summary adjudication on her elder abuse claim (see Elder Abuse and Dependent Adult Civil Protection Act, Welf. &Inst. Code, § 15600 et seq. (Elder Abuse Act)); 2) the trial court abused its discretion in excluding certain testimony of two witnesses; and 3) the trial court erred in refusing to give a destruction of evidence instruction to the jury.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
Cedars is a residential care facility for the elderly. Bacall was admitted there in April 2012 at the age of 75. She was a resident in their dementia wing on the night of her death on December 7, 2016.
Unless otherwise designated, facts for this section are drawn from Plaintiff's opposition to motion for summary judgment.
At the time she was admitted, Bacall's past health history included "bipolar disease, hypertension, chronic obstructive pulmonary disease and dementia." She required a low salt diet, some assistance with eating, and was noted to be confused, forgetful, and withdrawn.
Bacall was admitted to a hospital three times between the date she first became a resident at Cedars and the date of her death. In November 2013, Bacall was taken to an emergency room at an unrelated hospital and treated for various ailments. On November 7 and 8, 2013, a speech therapist performed a swallow evaluation on Bacall, noting that she turned away all attempts to eat or drink, and that her diet was" 'nothing-by-mouth.'" On November 9, 2013, another swallow evaluation was performed, and recommendations were made for "puree texture foods with nectar-thickened liquids, one-to-one assistance with meals, swallow precautions and to be up in chair at 90 degrees for meals." Four days later her discharge diagnosis included "dysphagia" (defined by Bacall in her brief as a term used to describe difficulty swallowing food).
In October 2015, Bacall was again taken to the emergency room at the same hospital after complaints of decreased communication and possible facial droop. Discharge instructions included" 'a mechanical soft diet with nectar-thickened liquids, a speech therapy evaluation and treatment.' "
Then in November 2015, Bacall was admitted to a different hospital with multiple issues, including septic shock due to a urinary tract infection. Although she was fed through a nasogastric tube during her hospitalization, by the time of her discharge on November 23, 2015, she was able to tolerate oral intake. Discharge instructions included a" 'mechanical soft diet with nectar-thickened liquids.'" She was transferred from the hospital to a rehabilitation center until December 17, 2015, when she returned to Cedars.
Eleven months later, on November 11, 2016, Cedars staff completed an annual care assessment for Bacall. Staff stated that Bacall should be provided a regular diet with" 'no added salt'" and" 'needs minor assistance in cutting up meats, etc., but able to feed self.' "
On December 7, 2016, Cedars caregiver Jeorjet Rameshk entered Bacall's room and provided her dinner consisting of a ham sandwich, french fries, and a piece of cake. After dropping off Bacall's meal, Rameshk proceeded to feed a woman named Martha, the other resident in Bacall's room, who could not feed herself. Rameshk was no more than three feet away from Bacall during her dinner that evening, but Bacall ate her meal alone. After about 15 minutes, Rameshk observed Bacall not showing any reaction. After seeing Bacall unresponsive, Rameshk started shaking her.
Rameshk" 'tried to remove whatever cake was in Mrs. Bacall's mouth in order to help clear her breathing if that was a problem.'" According to Rameshk's declaration, Bacall did not choke, as she" 'did not cough, sputter, or make any oral sounds of any kind. Her hands and arms were still; she did not gesture, grab her throat, reach out, wave, or do anything else physical. She just lay there still without any movement or sound.' "
Rameshk did not begin CPR, but instead called a coworker, caregiver Anthony Santos, paged the medication room, and called another employee, Aristotle Vergara, L.V.N.
Vergara testified that he was on his way home when he was called on his cell phone about an emergency. He told another co-worker to call 911 and ran back to the facility where staff showed him that Bacall was not responding. He and Anthony Santos moved Bacall to the floor and Vergara started CPR until the paramedics arrived. He testified that he checked Bacall's airway and that" '[t]here was nothing in her airway; her throat was clear.' "
Paramedics with the Los Angeles Fire Department arrived on the scene and noted that Bacall's airway was" 'fully obstructed.'" One of them suctioned out large chunks of debris from Bacall's trachea. A summary of the case stated:" 'Patient was being fed food by staff when she all of a sudden began to choke and became unconscious, staff immediately started CPR.' "
That evening, Bacall's niece Gayle Denny came to Cedars. She testified that Santos told her that Bacall had choked to death while eating her dinner.
Bacall's expert, Dr. Marvin Pietruszka, M.D., provided a sworn declaration that Cedars's staff failed to provide Bacall with an appropriate diet; failed to clear her airway and begin CPR in a timely manner; and failed to follow their own policy for service plans including individualized instructions for a resident's specific needs.
Bacall stated three causes of action in her complaint, for elder abuse, negligence and wrongful death.
Cedars moved for summary judgment on all claims or, in the alternative, summary adjudication of the first cause of action for elder abuse. The trial court denied the motion as to the claims for negligence and wrongful death, concluding that "there exist triable issues of fact as to whether Bacall choked and whether the conduct of Cedars' employees caused her death."
However, the trial court granted the motion as to the elder abuse claim. Reviewing the caselaw, the trial court concluded: "there may be issues of fact as to whether the correct diet was given to Bacall, or whether the resuscitative measures taken by Cedars staff, [sic] were adequate, but there is no evidence that this failure rose above mere negligence to the level of intentional or reckless neglect."
Prior to trial, Cedars filed several motions in limine, two of which are relevant here. Cedars sought to preclude Bacall's niece from testifying that caregiver Santos told her that Bacall had choked to death. Cedars also sought to exclude portions of the paramedics' reports and any testimony by any of the paramedics that they were told that Bacall had choked. The trial court granted these motions, as more fully described post.
On the fourth day of trial, the court granted a mistrial after Cedars produced to Bacall during trial a "box of possible client records." Bacall raises no issues on appeal relating to that first trial. The matter was re-tried some months later. At the second trial, the trial court and the parties acknowledged that the trial court's in limine rulings from the first trial remained in force at the retrial.
Prior to closing argument, Cedars argued that the trial court should give the jury CACI No. 204 regarding destruction of documents because Bacall's entire chart had been lost or was missing. The trial court declined to give the instruction, but did instruct the jury with CACI No. 203 regarding distrusting weaker evidence when a party could have provided stronger evidence.
The jury returned a verdict finding that Cedars's care or treatment was negligent, but that the negligence was not a substantial factor in causing Bacall's death. Bacall timely appealed.
DISCUSSION
A. The trial court did not err in granting summary adjudication on Bacall's elder abuse claim.
Bacall argues that the trial court erred in granting summary adjudication on her cause of action under the Elder Abuse Act because she is not required to prove recklessness under the act. She contends that recklessness is only required for a plaintiff seeking the" 'enhanced remedies'" of attorney's fees and greater punitive damages as provided by Welfare &Institutions Code section 15657. She argues in the alternative that even if recklessness is required, she presented sufficient evidence of recklessness to withstand summary judgment.
Neither claim has merit.
1. Standard of Review
We review an order granting summary judgment de novo, considering all the evidence in the moving and opposing papers except that to which objections have been sustained. (Sakai v. Massco Investments, LLC (2018) 20 Cal.App.5th 1178, 1183.) We view the evidence in a light favorable to the plaintiff as the losing party, liberally construing its evidentiary submission while strictly scrutinizing the defendants' showing, and resolving any evidentiary doubts or ambiguities in the plaintiff's favor. (Ibid.) We deem the facts alleged by the party opposing summary adjudication and the reasonable inferences we can make from those facts to be true. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1507.) We "must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law." (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.)
A motion for summary judgment shall be granted if the papers show that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant meets its burden in moving for summary judgment by showing that one or more essential elements of the cause of action cannot be established, or there is a complete defense thereto. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense. (Aguilar, at p. 849.)
"When a motion for summary judgment is made in a case where the plaintiff's claim carries a clear and convincing burden of proof, the evidence and all inferences which can reasonably be drawn therefrom must meet that higher standard." (Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1724.)
2. A cause of action for elder abuse contains the element of recklessness
As an initial matter, Bacall did not make the contention she now makes on appeal, that a cause of action for elder abuse need not necessarily prove recklessness, but must do so only to obtain the enhanced remedies that statute allows. Rather, her complaint alleged recklessness as an element of her claim under the Elder Abuse Act, citing the California civil jury instruction "(CACI) VF 3105" for "elder abuse/neglect." Neither did she argue that the elder abuse claim did not require recklessness in her opposition to summary adjudication. Instead, she argued that she had presented triable issues of fact as to whether Cedars' employees acted with recklessness, oppression or malice in their care of Bacall.
We are not required to consider a new theory never raised in the trial court, even if it raises a pure question of law. (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767.) Nonetheless, we will exercise our discretion and consider the argument on the merits.
Welfare & Institutions Code section 15657 provides: "Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse . . . or [neglect] as [further], defined in Section 15610.05, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, the following shall apply, in addition to all other remedies otherwise provided by law." (Italics added.)
The additional remedies set forth include attorney's fees and costs and an expanded right to pain and suffering by partially removing the limitations to receive such damages in a wrongful death action. (Welf. &Inst. Code, § 15657, subds. (a) &(b); Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779-780 (Covenant Care).) As explained by the Supreme Court in Delaney v. Baker (1999) 20 Cal.4th 23, 33 (Delaney), the legislative purpose behind the Elder Abuse Act was to encourage lawyers to take elder abuse cases by expanding remedies available" 'when a verdict of intentional and reckless abuse was handed down after the abused elder dies.' [Citation.]"
Bacall is correct that the Elder Abuse Act does create a separate cause of action and does not merely add remedies to another cause of action. (Perlin v. Fountain View Management, Inc. (2008) 163 Cal.App.4th 657, 665.) However, the cause of action it creates is for "reckless neglect," as the Supreme Court put it in Delaney, supra, 20 Cal.4th at p. 40, and Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 116. As the court in Perlin held, while violation of the Elder Abuse Act constitutes an independent cause of action, the elements of that claim are statutory and require, among other things, proof of causation by clear and convincing evidence. (Perlin v. Fountain View Management, Inc., supra, 163 Cal.App.4th at p. 666.) The claim by plaintiffs in Perlin that the Elder Abuse Act provided for additional remedies "when elder neglect is proved in connection with an underlying cause of action unrelated to the Act's provisions" was rejected. (Id. at pp. 665, 666.) Whether a plaintiff argues that the Elder Abuse Act does not create a cause of action but merely adds remedies for other claims (as they did in Perlin), or that it is a cause of action, but recklessness is only needed when seeking the additional remedies (as Bacall argues here), the conclusion is the same: the Elder Abuse Act creates a cause of action, but it is for reckless neglect, which must be proved by clear and convincing evidence.
In both cases, the Supreme Court was distinguishing the cause of action for "reckless neglect" under the Elder Abuse Act from a cause of action for professional negligence as to which limits were imposed by other statutes. (Delaney, supra, 20 Cal.4th at p. 35; Barris v. County of Los Angeles, supra, 20 Cal.4th at p. 116.)
Thus, while it may be true as Bacall argues that most civil causes of action require the preponderance of the evidence standard, the Legislature required a different standard in order to prove a claim under the Elder Abuse Act. (Covenant Care, supra, 32 Cal.4th at p. 779.)
There is no language in any of the cases cited by Bacall or in the code that lends credence to Bacall's argument that in addition to a cause of action for reckless neglect, there is also a claim for "neglect" under the Elder Abuse Act, in which recklessness need not be shown, and in which the standard should be a preponderance of the evidence. To the contrary, the Supreme Court has distinguished claims under the Elder Abuse Act from claims of professional negligence subject to other statutory caps by reviewing the language of the act: If the neglect is" 'reckless,'" or done with" 'oppression, fraud or malice,'" then the Elder Abuse Act applies. (Delaney, supra, 20 Cal.4th at p. 35.)
3. Bacall did not present sufficient evidence of recklessness to constitute a claim of elder abuse
Bacall also argues, as she did below, that she presented sufficient evidence of recklessness to withstand summary judgment. We disagree.
In order to prevail in a claim under the Elder Abuse Act, one must show reckless neglect. Such conduct is distinguished from simple or even gross negligence. (Covenant Care, supra, 32 Cal.4th at p. 785.) "[T]he Elder Abuse Act's goal was to provide heightened remedies for, as stated in the legislative history, 'acts of egregious abuse' against elder and dependent adults . . . while allowing acts of negligence in the rendition of medical services . . . to be governed by laws specifically applicable to such negligence. That only these egregious acts were intended to be sanctioned under section 15657 is further underscored by the fact that the statute requires liability to be proved by a heightened 'clear and convincing evidence' standard." (Delaney, supra, 20 Cal.4th at p. 35.)
Bacall argues that Cedars "deliberately and recklessly fed Ms. Bacall an improper diet for over three years" with inadequate supervision, despite knowing she suffered from various medical conditions that created a high probability she would choke. She argues that every time Cedars fed Bacall, "they knowingly played Russian Roulette with her life."
However, the cases she contends are analogous do not support her contention that her evidence, even if true, would be sufficient to state a claim under the Elder Abuse Act. For example, in Covenant Care, supra, 32 Cal.4th at p. 778, the decedent was left in his bed unattended and unassisted for excessively long periods, became malnourished, lost body weight, was left in his excrement, developed ulcers on his body that exposed muscle and bone and became septic, and became severely dehydrated. These facts are hardly analogous to the facts in this case, contrary to Bacall's assertion. (See also Delaney, supra, 20 Cal.4th at p. 27 [decedent was frequently left lying in her own urine and feces for extended periods of time and at the time of her death had stage III and stage IV pressure ulcers (meaning that her tissue had been eaten away down to the bone)]; Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 83-87 [facility subjected resident to skin deterioration, ignored a medical care plan requiring the facility to check the dependent adult's skin on a daily basis and failed to notify a physician when pressure ulcers and other skin lesions developed]; Benun v. Superior Court (2004) 123 Cal.App.4th 113, 116-117 [staff failed to assist a 90-year-old blind and demented woman with eating; used physical and chemical restraints to punish her; and physically and emotionally abused her by bruising her, withholding food and water, screaming at her and threatening her]; Country Villa Claremont Healthcare Center, Inc. v. Superior Court (2004) 120 Cal.App.4th 426, 430, 434-435 [facility failed to provide adequate pressure relief to 76-year-old woman; dropped her; left her in filthy and unsanitary conditions; and failed to provide her the proper diet, monitor food intake and assist her with eating].)
In Cochrum v. Costa Victoria Healthcare, LLC (2018) 25 Cal.App.5th 1034, 1044-1047 the court upheld a trial court's grant of JNOV on an Elder Abuse Act claim. After surveying the caselaw, including the cases noted ante, the Cochrum court concluded that evidence of inadequate staffing, training, failure to monitor and/or provide the right diet was not sufficient to suggest the staff was acting with callous indifference rather than simple negligence. (Cochrum, at pp. 1047-1050).
Bacall distinguishes that case by arguing that the conduct at issue in Cochrum was a one-time, accidental failure to provide a special diet in that case, whereas the facts here included feeding Bacall over three years. This is not persuasive. The evidence Bacall cited in her summary judgment opposition had to do with her treatment and discharge instructions from two different hospitals and a rehab center on prior occasions. By contrast, Cedars's own most recent analysis, performed less than a month before Bacall passed away, did not provide any special diet other than no additional salt and needing" 'minor assistance in cutting up meats, etc.'" A plaintiff must present facts to support a finding of recklessness, not merely assert that it was reckless. (Cf. Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 223 [a plaintiff must plead facts that show the conduct was reckless, not simply assert that it was; affirming sustaining of demurrer].)
The trial court correctly concluded that while the evidence presented by Bacall could be sufficient, if believed by a jury, to support a claim for negligence and wrongful death, it was not sufficient for an elder abuse claim involving recklessness.
4. Even if Bacall did present sufficient evidence of recklessness, any error was harmless
Because we conclude that recklessness is required to state a claim under the Elder Abuse Act, and that the trial court did not err in granting summary adjudication on the ground there was insufficient evidence of recklessness, we need not consider whether there was any prejudice as a result. However, we note that the jury in this case found no causation even though it found that Cedars did act negligently. The jury would have had to find both recklessness and causation to prevail on the elder abuse claim. (Nevarrez v. San Marino Skilled Nursing &Wellness Centre (2013) 221 Cal.App.4th 102, 128.) Thus, even if Bacall had been allowed to present her claim of elder abuse to the jury, there is no reason to believe that they would have found causation for Bacall on a cause of action that has a higher level of fault than the one for which they found no causation. In short, any error was harmless.
B. The trial court did not abuse its discretion in excluding the comments from two lay witnesses Bacall challenges the trial court's rulings granting two of Cedars's motions in limine.
We review trial court rulings on in limine motions for abuse of discretion. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1493.) "[A] trial court's ruling must be affirmed even if' "given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion."' [Citation.]" (T.A.W. Performance, LLC v. Brembo, S.p.A. (2020) 53 Cal.App.5th 632, 643.)
In reviewing the trial court's ruling on a motion in limine, we must consider the facts before the court at the time of its ruling, and not by reference to evidence produced at a later date. (Sacramento Area Flood Control Agency v. Dhaliwal (2015) 236 Cal.App.4th 1315, 1328, fn. 5.)
Cedars filed a motion to strike portions of the reply brief that cited trial testimony to support Bacall's argument that the motions in limine were not correctly decided, or in the alternative, to ignore such references. Rather than strike the portions cited, we grant the alternative relief requested and will simply ignore all such references. (Connecticut Indemnity Co. v. Superior Court (2000) 23 Cal.4th 807, 813, fn. 2.)
1. Anthony Santos' comment
One of Cedars's motions in limine sought to exclude a comment allegedly made by caregiver Santos. Bacall's niece testified in her deposition and was expected to testify at trial that on the night her aunt, Anita Bacall, died, Santos told her when she arrived at Cedars that "Ms. Bacall choked to death."
Cedars moved to exclude this testimony on multiple grounds, including that it lacked foundation and was speculative because Mr. Santos was not in the room when Bacall became unresponsive and thus did not see what caused her to become unresponsive. Cedars contended that Santos "denie[d] making any such statement." Cedars argued that even if the evidence had any probative value, which it denied, that value was "outweighed by the prejudice to Cedars and the confusion it will cause to the jury, which will treat the statement as actual evidence that Ms. Bacall choked," citing Evidence Code section 352 (court may in its discretion exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury).
In response, Bacall provided deposition testimony from Santos, Bacall's niece, and the caregiver in the room when Bacall became unresponsive, Jeorjet Rameshk. Bacall argued that because Rameshk testified that Santos attempted to perform the Heimlich maneuver on Bacall, Santos "actually was present and thus did perceive the events that took place in Anita Bacall's room" in the relevant time period and therefore had personal knowledge.
Bacall argues that by granting this motion in limine, the trial court prevented the jury from hearing "some of Plaintiffs' best evidence on the issue of causation." We disagree. While evidence that Santos told Denny that she choked may have had emotional appeal, it lacked foundation and was properly excluded by the trial court.
In Kinsey v. Pac. Mut. Life Ins. Co. of California (1918) 178 Cal. 153, 156, the Supreme Court long ago was faced with a similar legal issue. There, one party called as witnesses the lifeguards who witnessed a death and who aided in efforts to resuscitate the decedent. The trial court sustained an objection as to a question seeking to elicit their "opinion based upon their observation of [the] deceased as to whether the death . . . was due to drowning." (Ibid.) Affirming the exclusion of the evidence, the court held that while perhaps the evidence showed "that these witnesses were skilled in the methods of rescuing drowning persons from the water," it failed to show that they had any knowledge from which they could opine as to the cause of death. (Ibid.)
More recent cases have come to the same conclusion. (See People v. McAlpin (1991) 53 Cal.3d 1289, 1308 [lay witness opinion "that goes beyond the facts the witness personally observed" is inadmissible, citing Kinsey v. Pac. Mut. Life Ins. Co. of California, supra, 178 Cal.153]; Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1046 [lay testimony on causation properly excluded as beyond the facts of what the witness observed].)
The court did not abuse its discretion in excluding opinion testimony as to the cause of death by a lay witness who was not present until after the decedent became unresponsive. (People v. Adams (2004) 115 Cal.App.4th 243, 253 [exclusion of evidence" 'that produces only speculative inferences is not an abuse of discretion' "].)
Since we find that the evidence was properly excludable on this ground, we need not address the parties' contentions as to whether the statement was subject to a hearsay exception.
2. Statements by paramedics
Cedars also moved in limine to exclude 1) portions of two reports by paramedics that repeated statements made to them to the effect that Bacall choked to death and 2) any testimony by the paramedics that unnamed Cedars staff told them that Bacall had choked. Cedars argued that the evidence was hearsay not subject to any exception, without foundation, incompetent, speculative, and subject to Evidence Code section 352.
Specifically, the relevant portions of the reports read as follows: "Patient had been eating and choked on her food and went into cardiac arrest" and "Patient was being fed food by staff when she all of a sudden began to choke and became unc [sic]."
The motion attached the two reports and deposition testimony of two of the paramedics who reported to the scene. One paramedic said that he personally conveyed the latter statement to another paramedic, and that the statement had been conveyed to him by someone else. He could not "remember exactly if [he] was told" whether Bacall had choked. He stated: "[t]hat was the conversation in the room. It was a caretaker there. John, myself, and the two. And at one point is [sic] how did she get all this food in her mouth. And they said, well, she was being fed by the caretaker when she became unresponsive and subsequent cardiac arrest [sic]. So I don't remember telling me specifically to me [sic] but that was the talk among the room [sic]." He did not specifically remember them using the word "choked."
A second paramedic testified similarly that he did not remember who told him the latter statement above that he wrote into the report. He stated that he would be speculating as to whether it was a staff member or one of his fellow paramedics, concluding "[i]t was probably one of the paramedics that was on scene."
No deposition testimony was cited, and no proffer was made, specifically about the initial statement referenced above, other than the above-cited testimony about what the paramedics were told about Bacall having choked.
Bacall argues that it was an abuse of discretion to exclude this testimony and the report at trial. She contends that the statements to the paramedics would be admissible as a party admission (Evid. Code, §§ 1220, 1222), statement of a declarant whose breach of duty was at issue (Evid. Code, § 1224), spontaneous statement (Evid. Code, § 1240), or inconsistent statement (Evid. Code, § 1235).
We conclude that the evidence was properly excluded. Given that no one could identify who told the paramedics that Bacall choked, it would have been error to allow the evidence. Where a report "does not identify the declarant or declarants from whose statements the [writer] drew his factual summary" there is no basis to say whether a hearsay exception applies. (People v. Reed (1996) 13 Cal.4th 217, 230-231.)
Thus, unlike the cases cited by Bacall, in which the circumstances or position of the person could be understood, even if the name was unknown, here it was not possible to determine whether the person who made those statements to the paramedics had personal knowledge and thus whether an applicable hearsay exception applied to them. (Cf. Labis v. Stopper (1970) 11 Cal.App.3d 1003, 1004 [statement by one of two workmen, whose names the officer did not secure, said he had moved a drop cloth" 'but he didn't realize anybody was standing on it at the time' "]); People v. Gutierrez (2000) 78 Cal.App.4th 170, 176 [statement by unnamed witness made under circumstances demonstrating admissibility under spontaneous utterance exception]); People v. Provencio (1989) 210 Cal.App.3d 290, 302 [same].) In each of these cases, the facts were such that the court could determine whether a hearsay exception would apply.
Bacall argues that it must have been Aristotle Vergara, the nurse, who told the paramedics that Bacall had choked while eating dinner. However, Bacall's record citations do not support that conclusion.
Even assuming Vergara was the individual who made the comments to the paramedics, the evidence was properly excluded as speculative. Vergara came into the room after Santos did, and so for all the same reasons Santos lacked foundation to provide a lay opinion as to the cause of Bacall's death, discussed ante, Vergara's statement similarly lacked foundation.
3. Even if the trial court abused its discretion, there was no prejudice
While we need not reach the issue, we conclude that even if the trial court abused its discretion in excluding the above discussed evidence, such exclusion was not prejudicial. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [judgment should be reversed" 'only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of error.' "].)
Here, the trial court permitted testimony of several witnesses who testified that Bacall had choked to death or gave evidence from which such an inference could be made. Rameshk testified that at the time Bacall became nonresponsive, she tried to take out some of the food in Bacall's mouth and was afraid that the food could get stuck in her throat. Rameshk testified that she was not able to get all the food out of Bacall's mouth and that she didn't know what had happened to Bacall, but she was concerned that Bacall might have trouble breathing with food in her mouth. Rameshk testified that she was afraid Bacall may have choked on her food, but later recanted that statement.
The jury also heard testimony from one of the paramedics who was the first emergency responder on the scene. He testified that he found Bacall's "airway fully obstructed"; "her mouth was just full of food"; "her trachea was occluded"; he had never seen so much food in a person's mouth in his 20 year career; and that the "scene was consistent with someone who choked on their food." However, he admitted he would not be "able to tell the difference between someone who had a heart attack while they were chewing with their mouth full of food versus someone who choked."
Additionally, the jury heard from Bacall's expert, Dr. Pietruszka, who testified about the cause of death. His opinion was, in laymen's terms, that Bacall "choked to death."
This evidence was based either on personal knowledge or expert opinion and was much more probative than anything Santos or Vergara (or any other unnamed Cedars employee) might have said to Bacall's niece or the paramedics. Despite this evidence the jury delivered its verdict after one hour and 21 minutes as to both negligence (for Bacall) and causation (for Cedars). Bacall cannot show prejudicial error based on, at best, cumulative evidence that the court had discretion to exclude. (People v. Robinson (2020) 47 Cal.App.5th 1027, 1032.)
For all these reasons, we conclude that any error in excluding the evidence was not prejudicial.
C. CACI No. 204
Finally, Bacall argues that the trial court erred in refusing to give CACI No. 204 as a jury instruction. We affirm the trial court's ruling.
1. Standard of review
Parties have the" 'right to have the jury instructed as to the law applicable to all their theories of the case which were supported by the pleadings and the evidence, whether or not that evidence was considered persuasive by the trial court.' . . . Therefore, we view the evidence in the light most favorable to [the party asserting error] to determine whether it was entitled to the giving of [the instruction]. [Citation.]" (Ayala v. Arroyo Vista Family Health Center (2008) 160 Cal.App.4th 1350, 1358.) However, "instructional error in a civil case is not grounds for reversal unless it is probable the error prejudicially affected the verdict." (Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1217. See also Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581 ["A judgment may not be reversed for instructional error in a civil case 'unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.' "].)
2. The trial court did not err in refusing to give the instruction
CACI No. 204 is appropriate "if there is evidence of willful suppression, that is, evidence that a party destroyed evidence with the intention of preventing its use in litigation." (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1434.) However, "the court is under no obligation to instruct if the evidence is minimal and unsubstantial." (Barry v. Raskov (1991) 232 Cal.App.3d 447, 458.) Just as in Barry, we find that the trial court correctly found there was insufficient evidence to support this jury instruction.
The instruction reads in full as follows: "You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party." It is derived from Evidence Code section 413, which provides: "In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party's . . . willful suppression of evidence."
At trial, Bacall argued that the trial court should give this instruction because Cedars had "lost a lot of documents, so I think it's up to the jury to decide whether they intentionally destroyed" them.
Cedars argued in response that the instruction did not apply to this case, where there was no evidence from which a reasonable person could assume that Cedars "deliberately lost or threw out" documents. Cedars argued that the testimony showed that there were missing documents, which occurred during renovation of the offices. It was not just Anita Bacall's records which were lost. The renovation during which the records were lost took place over a year beginning in early 2017. After hearing argument, the trial court agreed with Cedars and held that the instruction should not be given.
On appeal, Bacall does not cite to any testimony or evidence in the record suggesting that the documents were willfully suppressed or destroyed with the intent of preventing their use at trial. The citations that are provided relate to testimony about the records merely being "lost" or "missing," and her assertions that the records were intentionally destroyed lack record citations. Arguments made without citations to the record are deemed waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) We therefore take Bacall's counsel at his word during the argument on the jury instruction: he believed that based on the documents being missing, the jury should be allowed to conclude that they had been deliberately destroyed. However, we do not read the caselaw or the Evidence Code to require that.
Bacall argues that Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d1012 mandates reversal on this issue, but we disagree. In that case, the court of appeal upheld the use of the predecessor instruction (BAJI No. 2.03), concluding "there was evidence from which it could reasonably be concluded that appellants . . . willfully suppressed evidence." (Sprague, at p. 1051.) The court cited evidence that a party had taken documents out of a file pursuant to a procedure that was not instituted until after the suit was filed, and there was no reference to any credible justification for the missing documents.
Here, the trial court concluded that "I don't think this is the situation that this instruction would apply to. I mean, it's not a case where we're dealing with an issue of whether documents were destroyed or not. I don't think that allegation was even ever made. We're aware that there are missing documents, but I don't think anyone ever has raised the issue that these were intentionally destroyed or willfully destroyed."
Bacall also argues that Cedars took advantage of its selective production of certain documents and not others in having their witnesses testify that all the existing medical records confirmed that Bacall did not suffer from dysphagia at the time of her death in December 2016, as opposed to during her prior hospitalizations in 2013 and 2015. However, all of Bacall's record citations in support of that argument relate to testimony of witnesses while they were being questioned by Bacall's attorneys, not Cedars's. We do not find error based on this record.
3. Even if the trial court erred, there is no prejudice
Nor has Bacall shown prejudice. Bacall has not pointed to any inappropriate closing argument by Cedars. The jury did not request a re-reading of the instructions and there is no evidence it was misled. (Major v. Western Home Ins. Co., supra, 169 Cal.App.4th at p. 1218 [finding lack of prejudice where opposing party did not make inappropriate closing argument, the jury did not request rereading of the jury instructions, and there was no evidence jury was misled].)
Moreover, the jury was instructed on CACI No. 203, which states: "You may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence." The record does not reflect which party requested CACI No. 203, but both parties agreed to it during argument.
Bacall's attorneys argued in closing that there had been a cover-up including "disappearance of key documents, a lot of inconsistencies and testimony and so forth." While Bacall argues that the lack of CACI No. 204 to support the cover-up theory prejudiced her because the jury had no instruction to go with the argument about a cover-up, we are not persuaded. Had this jury believed Bacall's cover-up theory, they had CACI No. 203 on which to distrust the lack of records which constituted the weaker evidence. There is no reason to believe that CACI No. 203 advantaged Cedars without CACI No. 204 also being given.
We conclude based on this record that any error in the jury instructions was harmless in this case.
DISPOSITION
The judgment is affirmed. Cedars Assisted Living, Inc., shall recover its costs on appeal. Cedars's motion to strike portions of the reply brief is denied in part.
WE CONCUR: EDMON, P. J. EGERTON, J
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.