Opinion
D077379
03-15-2021
JAMES BULLER, Plaintiff and Appellant, v. BLACK IPO, INC., Defendant and Respondent.
Bona Law, Jarod Bona, Aaron R. Gott, David C. Codell, and Kristen Harris for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre, Peter L. Garchie, and James P. McDonald for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2017-00002228-CU-PO-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Katherine A. Bacal, Judge. Affirmed. Bona Law, Jarod Bona, Aaron R. Gott, David C. Codell, and Kristen Harris for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre, Peter L. Garchie, and James P. McDonald for Defendant and Respondent.
James Buller appeals from a judgment entered against him following a jury trial on his claims for negligence and premises liability against a labor subcontractor, Black IPO, Inc. (Black IPO). He sought to recover compensatory damages he sustained from an injury he incurred while working at a construction site. The jury found that Black IPO was not negligent and did not control the area of the construction site where the accident took place. Buller contends the judgment should be reversed because the trial court abused its discretion by declining to exclude evidence of his criminal history under Evidence Code section 352, and by failing to prevent Black IPO from introducing at trial evidence of the general contractor's liability.
Undesignated statutory references are to the Evidence Code.
We affirm. Buller fails to establish that any error in admitting evidence of his criminal history prejudicially affected the verdict. Moreover, the trial court properly exercised its discretion in allowing evidence of the general contractor's liability at trial, and Buller has not shown that the admission of this evidence, even if erroneous, was prejudicial.
FACTUAL AND PROCEDURAL BACKGROUND
James Buller, a welder employed by plumbing contractor Pan Pacific Mechanical (Pan Pacific), tripped on one of several plywood boards lined up to form a pathway through a construction site. Although he received medical treatment, he did not fully recover from his injuries and was unable to continue working in his chosen field.
On January 18, 2017, Buller filed a complaint seeking compensatory damages from the construction project's general contractor, Hensel Phelps Construction Company (Hensel Phelps). He alleged causes of action for negligence and premises liability on the theory Hensel Phelps had negligently maintained the work site, had failed to ensure the plywood was "properly fastened and/or nailed down . . . ," and had failed to warn of the dangerous condition of the pathway.
On February 2, 2018, Hensel Phelps filed a motion for summary judgment, arguing Buller was working for one of its subcontractors, Pan Pacific, at the time of the incident, that his injuries were covered by Pan Pacific's workers' compensation insurance, and that Hensel Phelps was therefore not liable to Buller for tort damages under the doctrine announced in Privette v. Superior Court (1993) 5 Cal.4th 689, 702 (Privette). Hensel Phelps also argued that Buller could not establish an exception to Privette, including because it had not retained control over the allegedly dangerous pathway. (See Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 [holding the hirer of a contractor may be liable for negligent exercise of retained control over worksite safety conditions provided it actually exercises its retained control so as to affirmatively contribute to worker's injuries].) In support of the motion, Hensel Phelps submitted the declaration of its project manager, Charles Robben, who averred that the plywood pathway on which Buller tripped had been installed by Hensel Phelps's general labor subcontractor, Black IPO, and that Hensel Phelps had not controlled the details of Black IPO's work.
Buller did not oppose the motion. Instead, he dismissed Hensel Phelps from the action with prejudice and amended the complaint to substitute Black IPO as a Doe defendant. On August 16, 2018, Black IPO, represented by the same counsel that had previously represented Hensel Phelps, filed an answer to the complaint.
The case proceeded to a jury trial in October 2019. Before trial, Buller filed several motions in limine, two of which are relevant to this appeal. In the first motion in limine, Buller sought to exclude evidence of his criminal history, which, according to the motion, included a 1990 conviction for lewd and lascivious conduct with a minor, a 1995 burglary conviction, and one or more theft-related offenses for which the year of conviction was later determined to be 2002. Buller argued in part that while section 788 permits the introduction of evidence of felony convictions to impeach credibility, the probative value of admitting evidence of his criminal record for this purpose was outweighed by the likelihood the evidence would prejudice the jury against him. The trial court granted the motion as to the 1990 and 1995 convictions and denied it without prejudice as to the 2002 theft conviction, ruling that before it would allow the jury to hear evidence of the 2002 offense, Black IPO would first be required to present records from which the court could take judicial notice that the conviction was a felony.
Black IPO appears to have opposed both motions, but the opposition briefs were not made part of the appellate record.
In the other motion in limine at issue in this appeal, Buller sought to preclude Black IPO from presenting evidence of Hensel Phelps's liability at trial. He argued that Black IPO's attorneys, when they sought summary judgment on behalf of Hensel Phelps, had taken the position that Hensel Phelps was not legally responsible for the condition of the pathway, and that his counsel had relied on these representations in dismissing Hensel Phelps from the action. Therefore, Buller maintained, evidence of Hensel Phelps's liability had been rendered irrelevant under section 350, and its admission also would be unduly prejudicial, misleading or confusing to the jury in violation of section 352. The court denied this motion, reasoning that evidence of the parties' respective responsibilities at the site was admissible.
At trial, the parties disputed whether Black IPO was responsible for creating or maintaining the plywood pathway, whether Buller had tripped because of a defect in the pathway or because of his own carelessness, and whether his symptoms were related to the incident, among other issues. Buller testified on his own behalf and also presented testimony from the foreman and former safety officer of Pan Pacific as well as several of his treating practitioners and expert witnesses. Black IPO called Buller and the Black IPO project manager as fact witnesses and presented testimony from a construction industry standard of care expert. Deposition testimony of Robben was read to the jury, although this part of the proceedings was not reported. The court also apparently admitted a redacted version of the Robben declaration into evidence, although neither this nor any other trial exhibit was designated for inclusion in the clerk's transcript or otherwise transmitted to this court with the appellate record.
One of the treating practitioners called by Buller was his clinical psychologist, Dr. James LaPilusa, who testified that Buller had suffered psychological distress due to chronic pain caused by his physical injuries. LaPilusa stated that he had performed a comprehensive psychological evaluation of Buller, which included taking his personal history and administering certain psychological tests. As a result of this process, he had diagnosed Buller with depressive disorder and somatic symptom disorder, a condition in which physical pain causes emotional and cognitive symptoms, and had additionally determined that Buller was in remission from cocaine dependence. He had recommended a course of therapeutic treatment based on this evaluation.
On direct examination, LaPilusa was frequently unable to recall pertinent information, and Buller's counsel repeatedly refreshed LaPilusa's recollection using a report LaPilusa had prepared setting forth his psychological evaluation of Buller. During a recess, counsel for Black IPO notified the court that the report included information Buller had provided to the doctor about certain aspects of his criminal history. Defense counsel argued this information appeared to have been taken into consideration by LaPilusa in connection with his care and treatment of Buller, and that it was therefore relevant to Buller's psychological background and a permissible subject of inquiry.
The trial court responded that the information about Buller's criminal history set forth in the report was admissible because the report had been used to refresh the doctor's recollection. Buller's counsel interjected that LaPilusa had not relied on that particular part of the report for refreshment. The court disagreed that this was a relevant consideration, reasoning that as "a general rule," a document used to refresh a witness's recollection can be received in evidence at the request of the opposing party. The court stated that Black IPO would be permitted to cross-examine LaPilusa to determine whether he relied on Buller's history of criminal behavior in rendering treatment. Buller's counsel objected that defense counsel should first be required to make an offer of proof that Buller had sustained a felony conviction as required by the court's prior in limine rulings. The court responded that the in limine ruling was not applicable because there was no reference to a felony conviction in the report.
On cross-examination, over Buller's objection "[p]ursuant to the motion in limine," LaPilusa confirmed that Buller had reported suffering a 1989 arrest for child molestation. Black IPO's counsel also elicited that Buller had told LaPilusa he was incarcerated for 38 months for this offense and had also served 28 months in jail for receiving stolen goods.
At the conclusion of the case, after deliberating for one day, the jury returned a special verdict in favor of Black IPO. By a vote of 11 to 1, the jury found that Black IPO was not negligent and did not control the area of the property where the incident took place. Based on these findings, the jury was not required to answer special verdict questions asking whether Black IPO's negligence was a factor in causing harm to Buller, whether Buller had suffered damages, and whether Buller's own negligence contributed to his injuries.
The special verdict was not included in the appellate record. However, we derive its contents from the judgment, into which it was retyped.
The trial court entered judgment on the verdict on December 23, 2019.
DISCUSSION
Buller's challenges on appeal are confined to the trial court's evidentiary rulings allowing the jury to hear evidence of his criminal background and denying his motion in limine seeking to prevent Black IPO from presenting evidence of Hensel Phelps's liability at trial. Buller argues the evidence of his criminal history should have been excluded under section 352, and that the court should have ruled evidence of Hensel Phelps's liability inadmissible because it was irrelevant as well as prejudicial, confusing, and misleading.
I. Applicable Legal Principles
A. Relevant Evidence and Exclusion of Evidence Under Section 352
Only relevant evidence is admissible. (§ 350.) Relevant evidence is evidence that has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) Under section 352, a trial court possesses discretion to "exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time." (People v. Scott (2011) 52 Cal.4th 452, 490 (Scott); § 352.) " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.' " (People v. Karis (1988) 46 Cal.3d 612, 638 (Karis).) "The more substantial the probative value" of an item of evidence, "the greater must be the prejudice in order to justify [its] exclusion." (Burke v. Almaden Vineyards, Inc. (1978) 86 Cal.App.3d 768, 774.) Among the factors to be evaluated are the materiality of the evidence, "whether it goes to a main issue or merely to a collateral one," and "whether it is necessary to prove [the] proponent's case . . . ." (Ibid.)
B. Standard of Review
" 'A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner . . . .' " (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.) This standard of review applies to trial court determinations of the relevance of evidence as well as the admissibility of evidence under section 352. (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167 [relevance]; Karis, supra, 46 Cal.3d at p. 637 [§ 352].)
Moreover, an error in admitting or excluding evidence is not reversible unless it has resulted in a miscarriage of justice. "No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, 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." (Cal. Const., art. VI, § 13.) "An evidentiary error results in a miscarriage of justice when the reviewing 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 the error.' (People v. Watson (1956) 46 Cal.2d 818, 836 .)" (Alexander v. Community Hospital of Long Beach (2020) 46 Cal.App.5th 238, 258 (Alexander).) II. Buller Fails to Demonstrate that the Trial Court's Admission of Evidence of His Criminal History, Even if Erroneous, Was Prejudicial
Buller contends the trial court's ruling on his first motion in limine was correct but complains that the court later reversed course, and "[d]espite [its] motion in limine ruling, during trial, the court overruled [his] objections to allow a witness to testify about Mr. Buller's criminal history." He then asserts that "[a]s expected, the testimony about Mr. Buller's extremely distant criminal history effectively pulled at the jury's emotions and had a serious prejudicial effect on Mr. Buller. Mr. Buller's credibility was not central to liability in this simple negligence case, but because of the nature of his convictions, the jury may have decided, and likely did decide, its verdict on those crimes instead of the merits of his negligence claim." These three sentences comprise the entirety of Buller's appellate argument about the court's purported legal error and its prejudicial effect.
It is a fundamental rule of appellate advocacy that the appellant bears the burden of demonstrating an abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 332.) To meet this burden in the context of this case requires Buller to present reasoned argument establishing that the probative value of LaPilusa's testimony about his criminal record was substantially outweighed by its prejudicial effect. (Scott, supra, 52 Cal.4th at pp. 490-491.) Buller does not fully comply with this obligation, however, because he fails to address the context or rationale for the trial court's ruling allowing information about his criminal record into evidence. His appellate briefs are devoid of any description of what occurred at trial, either generally or with respect to this issue. Although Buller cites three limited portions of the transcript of LaPilusa's testimony (none of which encompass LaPilusa's testimony about the details of his criminal record), he does not identify LaPilusa, discuss his role as a witness, or address LaPilusa's reliance on the psychological report to refresh his memory. Indeed, he does not refer to LaPilusa's report at all, despite its central role in the court's decision to allow the challenged testimony.
Moreover, although the report was marked as an exhibit and admitted in evidence in redacted form, Buller did not designate it for inclusion in the clerk's transcript or cause it to be transmitted to this court. Although rule 8.224(d) of the California Rules of Court authorizes this court to obtain trial exhibits, we decline to do so in this instance, given that Buller has not discussed or cited the report in his appellate briefing nor has he otherwise argued that the trial court erred in relying on the report to rule the evidence of his criminal background admissible. We will not seek out the exhibit to undertake an effort Buller has not initiated on his own behalf. (See, e.g., Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 ["The appellate court is not required to search the record on its own seeking error"]; Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 657 ["[W]e are not required to make an independent search of the record, and '[w]here exhibits are missing we will not presume they would undermine the judgment.' "].)
Buller also fails to contend with the court's rationale for allowing Black IPO to question LaPilusa about his criminal history. He mischaracterizes the court's ruling as a decision allowing his criminal history information into evidence to impeach his credibility. (See § 788 [witness credibility may be attacked through evidence of felony convictions].) The court actually ruled the information admissible because it appeared in the report used to refresh LaPilusa's recollection, and because it was part of Buller's psychological history and potentially relevant to his clinical treatment. Buller's task is to establish that the probative value of the challenged evidence was outweighed by its potential to create prejudice, yet he has essentially ignored the first half of this analytical exercise. It is not our role to supply these arguments for him. (See, e.g., Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [" '[t]his court is not inclined to act as counsel for . . . any appellant and furnish a legal argument as to how the trial court's rulings in this regard constituted an abuse of discretion' "].)
Black IPO, on the other hand, does address the grounds for the trial court's ruling and takes the position the court reasoned correctly when it determined that Buller's use of the report to refresh LaPilusa's memory made the entire document admissible in evidence. We disagree. The rules for refreshing witness's recollection are codified at section 771. Once a document is used to refresh a witness's memory, then under section 771, subdivision (b), the adverse party may "introduce in evidence such portion of [the document] as may be pertinent to the testimony of the witness." (§ 771, subd. (b), italics added; see Assem. Com. on Judiciary com., 29B pt. 2B West's Ann. Evid. Code (2019 ed.) foll. § 771, p. 208 [explaining that "[s]ubdivision (b) gives an adverse party the right to introduce the refreshing memorandum into evidence" but "[t]his right is not unlimited" and "[o]nly those parts of the refreshing memorandum that are pertinent to the testimony given by the witness are admissible under this rule"]; People v. Silberstein (1958) 159 Cal.App.2d Supp. 848, 851-852 ["the right to inspect [a writing used to refresh a witness's memory] cannot be denied although its admission in evidence may be refused if . . . its contents are immaterial"].) One practice guide posits that the effect of this statutory limitation is that "[o]nly those parts of the writing actually used to refresh recollection may be moved into evidence." (Effective Introduction of Evidence in Cal. (Cont.Ed.Bar 2d ed. 2020) § 44.11; see also 3 Witkin, Cal. Evidence (5th ed. 2012) Presentation at Trial, § 194, p. 293 ["[T]here is no right to introduce parts [of the writing] wholly unrelated to the testimony and purpose of its use."]; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2020) ¶ 9:199, pp. 9-42 ["The opposing party may not introduce the whole document. Only those parts . . . that are 'pertinent to the testimony' given by the witness whose memory was refreshed thereby may be introduced. Other portions are irrelevant.") Thus, the court erred insofar as it operated under the mistaken belief that as a "general rule" a document, once used for refreshment, becomes admissible in evidence in its entirety, and failed to consider whether the part of the report in which Buller's criminal history was discussed had been used to refresh LaPilusa's memory or was otherwise pertinent to his testimony.
Black IPO additionally appears to maintain that Buller's criminal history was admissible because it was relied on by LaPilusa in reaching his diagnosis. However, the only evidence Black IPO cites in support of this assertion is testimony of LaPilusa in which he agreed with the abstract proposition that he takes a patient's history into account in making a clinical diagnosis. Black IPO fails to identify any location in the trial record where it was established that LaPilusa relied on Buller's criminal record, specifically, in determining Buller's psychological diagnosis. (See § 400 [defining "preliminary fact" to mean "a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence"].) Nor does Black IPO offer any other evidentiary basis for the admission of the challenged testimony.
Even assuming Buller's criminal background bore some degree of relevance to LaPilusa's diagnosis and therefore to the action, however, the admission of this information into evidence was still subject to section 352, and the trial court was authorized to exclude it based on its potentially prejudicial effect. "The admissibility of other-crimes evidence depends on three principal factors: (1) the materiality of the fact sought to be proved or disproved; (2) the tendency of the uncharged crime to prove or disprove the material fact; and (3) the existence of any rule or policy requiring the exclusion of relevant evidence, e.g., Evidence Code section 352. [Citations.]" (People v. Sully (1991) 53 Cal.3d 1195, 1224.)
We assume for purposes of our discussion that Buller's objection at trial "pursuant to the motion in limine" sufficed as an objection under section 352. (See § 353; People v. Holt (1997) 15 Cal.4th 619, 666-667 [a claim of the erroneous admission of evidence is preserved for appeal only if the objection to admission of the evidence alerted the trial court to the basis on which exclusion was sought].)
We are concerned by the trial court's decision to allow the jury to learn about Buller's criminal history under the circumstances of this case given its potentially inflammatory nature. Even if this aspect of Buller's past was admitted for the asserted purpose of establishing that it was part of Buller's psychological background or relevant to his clinical diagnosis, Buller's diagnosis does not appear to have been in dispute nor does it seem to have played a significant role in the case. LaPilusa's testimony about the details of Buller's criminal record, on the other hand, especially his arrest and apparent conviction for child molestation, had the clear potential to prejudice the jury against Buller. These considerations ordinarily counsel in favor of excluding evidence under section 352. (See, e.g., People v. Brown (1993) 17 Cal.App.4th 1389, 1397 [holding trial court abused its discretion by failing to exclude evidence of defendant's statements admitting to molesting two family members for the collateral purpose of bolstering the credibility of detectives].)
We need not and do not decide whether the court committed an abuse of discretion, however, because even assuming the court erred in admitting the challenged evidence, we conclude Buller has failed to demonstrate that the error resulted in a miscarriage of justice. An error in admitting or excluding evidence warrants reversal only if the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, §§ 353, 354.) To determine whether an evidentiary error has resulted in a miscarriage of justice, we examine " 'the entire cause, including the evidence' " to determine whether " 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (Alexander, supra, 46 Cal.App.5th at p. 258; see People v. Walker (2006) 139 Cal.App.4th 782, 808 [" '[T]he erroneous admission of prior misconduct evidence does not compel reversal unless a result more favorable to the defendant would have been reasonably probable if such evidence were excluded.' "]; Velasquez v. Centrome, Inc. (2015) 233 Cal.App.4th 1191, 1215 (Velasquez) [in determining legal effect of trial court's erroneous admission of prejudicial evidence, "the appropriate standard of review is to determine whether a result more favorable to the appealing party would have been reached in the absence of the error"].)
In his opening brief, Buller cites Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 677, for the proposition that the "erroneous denial of a motion in limine" is reversible per se where it "results in the denial of a fair trial." However, Buller has not presented authority supporting the proposition that the allegedly erroneous admission of evidence of his criminal history was reversible per se. (See Velasquez, supra, 233 Cal.App.4th at p. 1215, fn. 12 [declining to consider whether the erroneous admission of evidence of plaintiff's illegal immigration status in violation of § 352 was reversible per se where the appellant did not present "suitable authority to support this argument"].)
However, " '[p]rejudice is not presumed[,] and the burden is on the appellant to show its existence.' " (Candelaria v. Avitia (1990) 219 Cal.App.3d 1436, 1444; 9 Witkin, Cal. Procedure (5th ed. 2008), Appeal § 417, p. 476 [the appellant bears the burden "not alone to show error, but to show injury from the error"].) "Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice. [Citations.]" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 (Paterno).) Additionally, "our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument." (Ibid.)
Buller fails to meet this burden here because he has not presented an appropriately developed prejudice argument. In his opening brief, he merely asserts that the challenged testimony "had a serious prejudicial effect on Mr. Buller" and that "the jury may have decided, and likely did decide, its verdict based on those crimes instead of on the merits of his negligence claim." This assertion of prejudice fails to comport with the relevant legal standard, under which Buller is required to articulate a reasonable probability that he would have achieved a more favorable outcome in the absence of the alleged error. (Alexander, supra, 46 Cal.App.5th at p. 258; see Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465 [" 'Arguments should be tailored according to the applicable standard of appellate review.' "].) Moreover, Buller's unadorned, speculative assertions of prejudice fail to meet his burden of affirmatively demonstrating the existence of reversible error. (Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 615 [finding appellants' argument that they " 'clearly were prejudiced by this error' " failed to carry their burden of demonstrating prejudicial error].) Buller offers no explanation or insight into his reasoning, does not support his assertions with citations to the record, and thus fails to assist this court in understanding why, in the context of this case, he regards it as "likely" the jury decided the case based on his criminal record rather than on the merits. We are not required to "examine undeveloped claims, nor to make arguments for parties." (Paterno, supra, 74 Cal.App.4th at p. 106.) Nor must we undertake an unguided exploration of the trial record in search of support for Buller's bare assertions of prejudice. (Ibid.)
Even if we were inclined to do so, we would be unable to complete the task, because the trial record we have been provided is incomplete. Because "[a]ctual prejudice must be assessed in the context of the individual trial record" (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580), the appellant must not only argue prejudicial error but must also furnish "a record sufficient to determine whether the result would have been different in the absence of error . . ." (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136). If the appellant does not do so, "the trial court's discretion cannot be disturbed." (Ibid.) Here, our ability to discharge our constitutional duty to examine the "entire cause" is undermined by the fact that we have not been provided jury instructions, jury notes and responses, court minutes, or even the special verdict itself (although we are aware of the substance of the verdict because it was retyped into the judgment). Even if we could overlook these omissions, we do not have a record of all of the relevant trial testimony. Robben, whose declaration Hensel Phelps relied on to establish Black IPO's responsibility for the pathway, was apparently deposed; portions of the transcript of his deposition were read to the jury. However, the reading of the deposition transcript was not reported, and the transcript itself was not admitted into evidence. Both sides relied on Robben's deposition testimony in their closing arguments as evidence supporting or undermining their respective positions about Black IPO's responsibility for the walkway. Given that the jury's verdict was based on the finding that Black IPO was not negligent and did not control the walkway, we cannot treat the omission of this testimony from the appellate record as insignificant. These deficiencies in the record are charged against Buller and require us to leave the court's decision undisturbed.
We are aware the omission of these items from the record is due to appellate counsel's error in listing them for inclusion in the reporter's transcript rather than the clerk's transcript. However, the resulting appellate record was filed with this court on August 25, 2020, so Buller's counsel have been on notice of their mistake for months. They nevertheless proceeded to fully brief the appeal without seeking to augment the record to add the missing items. (See Cal. Rules of Court, rule 8.155(a)(1)(A) [providing that at any time, the appellate record may be augmented to include any document filed or lodged in the superior court].) As Buller has not sought augmentation and his appellate briefs do not reference or discuss the omitted documents, we refrain from supplementing the record on our own motion. (State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1528, fn.1 [stating that notwithstanding the reviewing court's authority to augment the record under rule 8.155, "it is not the responsibility of this court to obtain the documents necessary to consider the parties' arguments on appeal"].)
In its response brief, in addition to noting Buller's failure to make a showing of prejudice, Black IPO contends that any error the trial court may have committed in allowing Buller's criminal background into evidence was not prejudicial because the challenged testimony was "brief"; defense counsel did not make use of it in closing argument; the verdict was 11-to-1 in favor of the defense; and the grounds on which the jury reached its verdict indicate its decision was based on Black IPO's role in constructing or controlling the walkway, an issue that was established through witnesses other than Buller and that was logically unrelated to Buller or his criminal background. These are among the factors that can be considered in determining the extent to which a particular ruling affected a verdict, and they do tend to weigh against a finding of prejudice in this case. (See Wilson v. Southern California Edison Co. (2018) 21 Cal.App.5th 786, 808 [finding prejudice where improperly admitted evidence was "raised throughout the trial, from . . . opening statement, through several witnesses . . . to closing argument"]; Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294, 306-307 [11-to-1 verdict in favor of respondent not persuasive in demonstrating prejudice to appellant]; Velasquez, supra, 233 Cal.App.4th at p. 1216 [improperly admitted evidence of plaintiff's undocumented immigration status in workplace illness case was relevant to the causation issue on which the jury resolved the case, because the jury could have reasoned plaintiff would not have been injured but for his decision to enter the country illegally].)
In his reply brief, Buller does not respond to Black IPO's contention that he neglected to demonstrate prejudice, nor does he dispute its assertions that his criminal history information did not affect the outcome of his case.
We conclude that Buller has failed to carry his burden of demonstrating that the trial court's evidentiary ruling, even if erroneous, resulted in a miscarriage of justice. Accordingly, we reject Buller's first contention on appeal.
III. The Trial Court's Ruling on Buller's Motion in Limine Seeking Exclusion from Trial of Evidence of Hensel Phelps's Liability Was Neither Erroneous Nor Prejudicial
Buller's second contention on appeal is that the trial court erred in denying his motion in limine seeking to exclude from the trial any evidence of, or reference to, Hensel Phelps's liability. He argues that Hensel Phelps's liability was "irrelevant and immaterial" to the action because "as defense counsel have admitted, Hensel Phelps did not retain control over the plywood walkway which caused Mr. Buller's injuries." He also appears to argue that such evidence should have been excluded under section 352 because of a substantial danger it would be unduly prejudicial, confusing, or misleading to the jury. (§ 352, subd. (b).)
We perceive no error in the trial court's ruling. Evidence of Hensel Phelps's legal responsibility for the pathway was sufficiently related to the merits of Buller's claims to satisfy the test for relevance. " 'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) The purpose of the trial was to determine Black IPO's liability to Buller under theories of negligence and premises liability. "The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury." (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) "Premises liability ' "is grounded in the possession of the premises and the attendant right to control and manage the premises" '; accordingly, ' "mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act." ' [Citations.] But the duty arising from possession and control of property is adherence to the same standard of care that applies in negligence cases." (Ibid.) The trial court ruled that evidence of Hensel Phelps's liability was admissible to establish the parties' respective responsibilities for the site. Evidence that Hensel Phelps either controlled, maintained, or otherwise bore legal responsibility for the pathway had a tendency in reason to undermine the inference that Black IPO was responsible for controlling or maintaining the same pathway, and thus tended to establish Black IPO's lack of liability to Buller under theories of negligence or premises liability. In other words, the evidence was relevant. (§ 210.)
Nor does Buller make a persuasive case that evidence of Hensel Phelps's liability was subject to exclusion under subdivision (b) of section 352. (See § 352, subd. (b) [a court may exclude evidence "if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury"].) The challenged evidence was not prejudicial within the meaning of this provision. (See Scott, supra, 52 Cal.4th at p. 491 ["The prejudice that section 352 ' "is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence." [Citations.]' "].) And while Buller perfunctorily and repetitively asserts that the jury was "confused" and "misled" by evidence of Hensel Phelps's liability, he offers no explanation for these assertions. The only evidence Buller identifies as having been admitted at trial in contravention of his in limine motion was testimony elicited from his own standard of care expert, John Hughes, who agreed on cross-examination that Hensel Phelps bore "some responsibility" for "fail[ing] to meet the standard of care in connection with this incident[.]" Buller fails to explain how this evidence was confusing or misleading to the jury and cites no legal authority that would support such a conclusion. (See, e.g., Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 ["An appellant must provide an argument and legal authority to support his contentions."].) We do not independently perceive this testimony to be confusing or misleading. Accordingly, we reject Buller's contention that the court erred in denying this motion in limine.
Throughout his briefs, Buller repeatedly refers to defense counsel's summary judgment arguments about Hensel Phelps's lack of liability, and the fact that the same defense counsel represented Black IPO at trial, as the reason Black IPO and defense counsel should have been precluded from presenting evidence of Hensel Phelps's liability at trial. It appears from these assertions that Buller's real complaint has to do with the perceived inequity of defense counsel taking inconsistent positions about Hensel Phelps's legal responsibility for the pathway. Equitable estoppel is the legal theory under which a party can be precluded from unfairly asserting inconsistent positions. Buller has not explicitly invoked this theory, but even if he had, it is unlikely he would have succeeded. " 'A party may invoke equitable estoppel to prevent his opponent from changing positions if (1) he was an adverse party in the prior proceeding; (2) he detrimentally relied upon his opponent's prior position; and (3) he would now be prejudiced if a court permitted his opponent to change positions.' " (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) Moreover, the detrimental reliance must have been reasonable. (Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261.) Setting aside the fact that Buller forfeited any equitable estoppel claim by failing to raise it below or on appeal, we perceive at least two difficulties with establishing the elements of equitable estoppel under the circumstances of this case. First, the differing positions Buller complains of were taken on behalf of two different parties, not the same party opponent. Second, while Buller is aggrieved that he relied on defense counsel's summary judgment arguments about Hensel Phelps's lack of liability when he dismissed Hensel Phelps from the action, the reasonableness of this course of conduct is debatable. Certainly, it would have been prudent to pursue discovery exploring the accuracy of Hensel Phelps's positions before taking the irrevocable step of voluntarily dismissing Hensel Phelps with prejudice, and the statutory procedures governing summary judgment would have allowed Buller to request a continuance for this purpose. (Code Civ. Proc., § 437c, subd. (h).)
Buller did not move to disqualify defense counsel based on an asserted conflict in counsel's successive representation of Hensel Phelps and Black IPO. Such a motion would have required him to establish that he had standing to seek counsel's disqualification despite not being a present or former client. (See, e.g., Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1358 [noting that under the majority view, only a present or former client may seek disqualification of counsel in a case of conflicting representation].)
We note that the request for dismissal form stated that the dismissal was pursuant to a settlement plaintiff reached with Hensel Phelps. Nevertheless, it was still plaintiff's decision to voluntarily dismiss Hensel Phelps with prejudice at this stage of the litigation.
Finally, even assuming the trial court's in limine ruling was erroneous, Buller has failed to show that he suffered prejudice as a result. As we have noted, the only trial evidence he identifies that would have been excluded had the court ruled differently was Hughes's testimony that Hensel Phelps had "some responsibility" for "fail[ing] to meet the standard of care in connection with this incident[.]" Buller fails to establish a reasonable probability he would have achieved a more favorable result at trial had this evidence been excluded. (Alexander, supra, 46 Cal.App.5th at p. 258.)
DISPOSITION
The judgment is affirmed. Black IPO is entitled to its costs on appeal.
IRION, J. WE CONCUR: McCONNELL, P. J. BENKE, J.