Opinion
B303926
01-14-2022
SEAN McGROARTY, Plaintiff and Appellant, v. AMERICAN MULTI-CINEMA, INC., Defendant and Respondent.
Klinedinst, Heather L. Rosing and Benjamin C. Wohlfeil for Plaintiff and Appellant. Manning & Kass, Ellrod, Ramirez, Trester, Brian T. Moss, Karen Liao and Mark R. Wilson for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC686161, James A. Kaddo, Judge. Affirmed.
Klinedinst, Heather L. Rosing and Benjamin C. Wohlfeil for Plaintiff and Appellant.
Manning & Kass, Ellrod, Ramirez, Trester, Brian T. Moss, Karen Liao and Mark R. Wilson for Defendant and Respondent.
LAVIN, Acting P. J.
INTRODUCTION
Plaintiff and appellant Sean McGroarty (plaintiff) fell over a flatbed cart as he exited the men's restroom inside a movie theater owned by defendant and respondent American Multi-Cinema, Inc. (AMC). Plaintiff sued AMC, seeking damages relating to the injuries he purportedly sustained in the fall. A jury determined AMC was not negligent and awarded plaintiff nothing.
Plaintiff does not challenge the jury's verdict directly. Instead, plaintiff contends the court erred in denying his motion for new trial. Plaintiff's motion argued the trial court erred by giving the jury copies of two exhibits that did not include markings made by witnesses during their trial testimony. In addition, plaintiff claimed the court improperly responded to a question from the jury during its deliberations. The court rejected both arguments and denied the motion. Plaintiff appeals.
We conclude plaintiff has failed to carry his burden to establish prejudicial error on appeal. Accordingly, we affirm the judgment in favor of AMC.
FACTS AND PROCEDURAL BACKGROUND
In July 2017, plaintiff and his two sons went to see a movie at an AMC movie theater in Santa Monica. After entering the theater, plaintiff's sons went to the concession stand on the main floor while plaintiff went to the men's restroom.
At the same time, an AMC employee, Josue, was planning to move stock from the first floor to the concession stand on the main floor. He obtained a flatbed cart from a storage area on the main floor and proceeded to the elevator. As Josue waited near the elevator with the cart, plaintiff exited the men's room, which was adjacent to the elevator. Plaintiff tripped over the flatbed cart and fell to the floor.
During his examination, the witness indicated counsel could use his first name in addressing him. We do the same in the opinion. No disrespect is intended.
Plaintiff subsequently filed a complaint against AMC and others asserting claims for general negligence and premises liability. Plaintiff later elected to proceed on the premises liability claim. The matter proceeded to a jury trial in November 2019. One primary point of contention related to the position of the flatbed cart immediately before plaintiff fell over it.
The jury found that AMC was not negligent, and the court entered judgment accordingly. Plaintiff filed a timely motion for new trial asserting the court made two significant errors. First, plaintiff contended the court "inadvertently mistakenly gave the jury the wrong copies of Exhibits 50 and 52 for the jury to rely on during its deliberations." Plaintiff noted that during the trial, several witnesses had marked the copies of Exhibits 50 and 52 contained in the exhibit binders placed at the witness stand. But when the court gave the jury copies of the admitted exhibits to use during its deliberations, the court gave the jury unmarked copies of Exhibits 50 and 52. Second, plaintiff argued the court misled and confused the jury in its response to a question regarding the elements of the claim for premises liability. The court rejected both arguments and denied the motion for new trial.
AMC asserts that the court lacked jurisdiction to consider plaintiff's motion for new trial because it was untimely. AMC is incorrect. The judgment was entered on December 2, 2019, and the court clerk served notice of entry of judgment on December 3, 3019. Plaintiff filed his notice of motion and motion for new trial on December 17, 2019, within the 15 days provided by Code of Civil Procedure section 659, subdivision (a)(2). Because AMC did not file a protective cross-appeal, we do not address AMC's argument concerning the method of service of the motion for new trial. Plaintiff's request for judicial notice, filed July 12, 2021, regarding the method of service is denied.
Plaintiff timely appeals.
DISCUSSION
Plaintiff contends the court erred by denying his motion for new trial. Specifically, plaintiff asserts that the court mishandled certain exhibits given to the jury during deliberations and, in addition, responded incorrectly to a question from the jury during deliberations. As we will explain, plaintiff fails to demonstrate prejudicial error on both points.
An order denying a motion for new trial is not appealable. (Rodriguez v. Barnett (1959) 52 Cal.2d 154, 156.) Such an order, however, may be reviewed on appeal from the underlying judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.)
1. The Appellant's Burden on Appeal
The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and "it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) " 'All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).)
In addition, parties must provide citations to the appellate record directing the court to the supporting evidence for each factual assertion contained in that party's briefs. When an opening brief fails to make appropriate references to the record in connection with points urged on appeal, the appellate court may treat those points as waived or forfeited. (See, e.g., Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384; Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 779-801 [several contentions on appeal "forfeited" because appellant failed to provide a single record citation demonstrating it raised those contentions at trial].) Further, "an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived." (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 867.) Matters not properly raised or that lack adequate legal discussion will be deemed forfeited. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656.)
An appellant has the burden not only to show error but prejudice from that error. (Cal. Const., art. VI, § 13.) If an appellant fails to satisfy that burden, his argument will be rejected on appeal. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 (Century Surety Co.).) "[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.]" (Ibid.)
2. Legal Principles and Standard of Review
The grounds upon which a motion for a new trial may be granted are set forth in Code of Civil Procedure section 657 (section 657):
"1. Irregularity in the proceedings ... by which either party was prevented from having a fair trial.
"2. Misconduct of the jury ... .
"3. Accident or surprise ... .
"4. Newly discovered evidence ... .
"5. Excessive or inadequate damages.
"6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.
"7. Error in law, occurring at the trial and excepted to by the party making the application."
"A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion.' "The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."' [Citation.]" (People v. Davis (1995) 10 Cal.4th 463, 524; see Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 622-624.)
3. Plaintiff fails to demonstrate any error by the court regarding Exhibits 50 and 52.
Plaintiff contends the trial court "mishandled" two exhibits and that such conduct by the court constitutes an "irregularity in the proceedings" under section 657. The record does not support plaintiff's claim of error.
3.1. Additional Facts
Pursuant to local guidelines, plaintiff prepared and submitted to the court before trial three sets of binders containing potential trial exhibits. The binders were labeled for use by the court, the judicial assistant, and the witnesses, respectively. The exhibits were numbered, tabbed, and separately paginated. The exhibit binders provided by plaintiff included Exhibits 50 and 52. Each of those exhibits is a photograph taken by plaintiff's son Kieran shortly after plaintiff's fall. Both photographs show plaintiff sitting on the floor outside the men's restroom near the elevator doors, with a flatbed cart nearby.
The Los Angeles Superior Court has adopted special pretrial practice guidelines for personal injury matters.
Plaintiff's counsel used Exhibit 50 during the testimony of AMC's employee, Josue, who had been using the flatbed cart at issue. Counsel questioned Josue about where he had been standing and the position of the cart before plaintiff's fall. Josue testified that he had been standing in front of the elevator facing away from the elevator with the cart in front of him. Josue drew a stick figure on Exhibit 50 depicting his position and drew a rectangle to show the position of the cart. Counsel did not separately identify the marked version of Exhibit 50. At the end of Josue's examination, plaintiff's counsel asked to move an exhibit into evidence and the court indicated it would rule on the admissibility of evidence after the parties rested.
Counsel used several exhibits during his examination of Josue. At the end of the examination, plaintiff's counsel said, "Your Honor, I would move exhibit -" and the court interjected, "I will give you a chance when you have rested your case to bring all documents to the attention of the court for their admissibility. I don't want to argue those things in front of the jury now."
Plaintiff's counsel used Exhibit 52 with two witnesses. First, during his examination of plaintiff's son Kieran, counsel asked Kieran to describe what he saw at the time of the accident. Kieran did not see plaintiff fall but saw him on the floor after he fell. Plaintiff was on the floor, belly down, with his legs stretched behind him in the direction of the men's restroom. Kieran also saw the flatbed cart in front of the men's restroom door, just a few inches away from plaintiff's feet.
Kieran confirmed that he took several pictures of the scene after plaintiff fell, including the photograph marked as Exhibit 52. Counsel asked the court's permission to publish Exhibit 52 to the jury and the court responded, "When it's admitted into evidence, I will allow it." Unable to use the photograph, counsel proceeded, "Okay. So let's use objects to describe where people were." Kieran then described the scene and the position of the cart, a trashcan, and AMC employees. At counsel's request, Kieran drew on Exhibit 52 to show the positions of plaintiff and the cart after plaintiff fell. Consistent with his testimony, Kieran's markings indicated that the cart was in front of the men's restroom door and that plaintiff landed on the floor near the cart.
Counsel used Exhibit 52 again during plaintiff's testimony. At counsel's request, plaintiff drew a circle on Exhibit 52 indicating the location of his cell phone. He also testified to the phone's location in his right rear pocket.
After all witnesses testified, both sides rested subject to the admission of evidence. The court conferred with counsel outside the presence of the jury regarding several issues including jury instructions and the verdict form. The court then asked whether counsel had reached any consensus concerning the admission of documentary evidence. Counsel had not completed the process and requested that the court review the materials and rule on any objections. The court agreed and additional proceedings were conducted but not transcribed by the court reporter. The minute order from that day reflects that several exhibits previously marked for identification, including Exhibits 50 and 52, were admitted into evidence.
The following day, the jury deliberated and returned its verdict in favor of AMC. The court then ordered all exhibits returned to the offering party. After plaintiff's counsel reviewed the exhibit binders at his office, he surmised that the jury had been given copies of some exhibits, including Exhibits 50 and 52, from the exhibit binders used by the judicial assistant. He then realized that the copies of Exhibits 50 and 52 that had been marked by witnesses during their testimony had not been given to the jury.
3.2. Analysis
Plaintiff contends the court "mishandled" Exhibits 50 and 52 by giving the jury copies from the judicial assistant's set of exhibit binders, which were unmarked, rather than the copies from the witness exhibit binders, which had been marked by witnesses during their testimony. Plaintiff's assertion that the court erred assumes that the court admitted the marked version of Exhibits 50 and 52 into evidence but gave the jury the unmarked-and unadmitted-versions of Exhibits 50 and 52. The record does not support that assertion, however.
As noted ante, plaintiff's counsel did not specifically or separately identify the marked versions of Exhibits 50 and 52 after the witnesses marked them. As a result, there is ambiguity in the record about which versions of the exhibits-marked or unmarked-were admitted into evidence. Other elements of the record do not clarify the point. The proceeding in which the exhibits were offered and admitted was not transcribed and plaintiff has not provided an alternative summary. (See Cal. Rules of Court, rule 8.120(b).) The minute order indicates only that Exhibits 50 and 52 were admitted. And counsel's declaration in support of the motion for new trial does not specify which versions of Exhibits 50 and 52 were offered and admitted into evidence. Counsel states, for example, that "[d]uring trial on November 7, 2019, [he] requested that the Court admit into evidence Exhibits 50 and 52." Finally, it appears that counsel used these exhibits during closing argument. Counsel began his argument, "What you've got here is a photograph taken by Kieran. You can see the elevator. You can see the men's restroom. You can see the cart. And, of course, you can see [plaintiff] on his butt just a few minutes later." At no point, however, did counsel reference any drawing or marking made by a witness on the photograph. Because the court urged counsel to use only admitted exhibits during closing argument, the transcript supports an inference that Exhibits 50 and 52 were offered and admitted without witness markings.
Plaintiff's arguments generally place the blame for the ambiguity in the record at the court's feet. Plaintiff urges, for example, that "there is no rule that required … Plaintiff to re-label Exhibits 50 and 52 to Exhibits 50-A and 52-A" and "[n]either the trial court nor AMC cited any authority for such a rule." Further, plaintiff states that "[a]ll indications in this trial were that the exhibits that would be given to the jury were the exhibits that the witnesses saw and authenticated during their trial testimonies. That is the way it should be." And counsel's declaration in support of plaintiff's motion for new trial avers repeatedly that counsel "did not know" which copies of the exhibits would be and were given to the jurors for purposes of deliberations. Fundamentally, however, it is a party's responsibility to identify, offer, and obtain the admission of evidence essential to proving the case. And" '[i]t is axiomatic that in reviewing the liability aspect of a judgment based on a jury verdict, we may not review exhibits identified, but not admitted at trial.' [Citation.]" (Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 298, fn.2.)
Plaintiff also asserts that "[t]he trial court should have avoided this entire issue by simply admitting Exhibits 50 and 52 immediately upon Plaintiff's counsel's request" in part because "AMC did not object to admission of Exhibits 50 and 52 in the parties' Joint Exhibit List." First, the record does not reflect that counsel offered either of the exhibits for admission during the testimony of witnesses that marked the exhibits. Second, the joint exhibit list was submitted to the court before trial and, critically, before the exhibits had been marked by witnesses. The absence of an objection from AMC before trial does not assist plaintiff.
In sum, plaintiff has failed to establish any error by the court because the record does not indicate which versions of Exhibits 50 and 52 were offered and admitted into evidence. (See Denham, supra, 2 Cal.3d at p. 564 [" 'All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' "].) And, in any event, plaintiff has also failed to establish prejudice. (See Century Surety Co., supra, 139 Cal.App.4th at p. 963 ["[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.]"].) Each of the three witnesses that marked Exhibits 50 and 52 also described what he was marking during his testimony. Plaintiff, for example, drew a circle on Exhibit 52 indicating the location of his cell phone. He also testified that Exhibit 52 showed the cell phone in his rear right pocket. Both Josue and Kieran testified similarly about their markings on the exhibits.
4. Plaintiff fails to demonstrate any prejudice regarding the court's answer to the jury's question during deliberations.
Plaintiff contends the court provided a misleading and confusing response to a question from the jury about the elements of premises liability. We disagree.
4.1. Additional Facts
Among other jury instructions regarding premises liability, the court gave a modified version of CACI No. 1003-Unsafe conditions:
"AMC was negligent in the use or maintenance of the property if:
"1. A condition on the property created an unreasonable risk of harm;
"2. AMC knew or, through the exercise of reasonable care, should have known about it; and
"3. AMC failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition."
Approximately one hour after the jury began its deliberations, the jury sent the following question to the court: "For CACI [No.] 1003 Unsafe Conditions: [¶] Do ALL THREE have to be met to make AMC negligent?" The court conferred with counsel before crafting a response. Plaintiff's counsel argued the question was unclear because "three" could refer either to the three numbered elements of CACI No. 1003 or to the three alternative components of the third element. The court declined counsel's request to ask the jury for clarification.
The court provided the following written response to the jury's question: "Yes, #1, 2, & 3 have to be met[.]" Shortly thereafter, the jury returned its verdict finding AMC was not negligent.
4.2. Analysis
"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. [Citations.]" (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) The instruction at issue, the modified version of CACI No. 1003, correctly states the elements a plaintiff is required to prove where a concealed condition on property is the alleged cause of injury: "Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it." (Rowland v. Christian (1968) 69 Cal.2d 108, 119; Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 672-673.)
The court's response to the jury's question also properly stated the legal requirements of a claim for premises liability. The court plainly stated that plaintiff was required to prove all the elements-i.e., the three separately numbered elements in CACI-regarding a dangerous condition in the theater.
Citing Williams v. Carl Karcher Enterprises, Inc. (1986) 182 Cal.App.3d 479 (Williams), plaintiff argues that he "was also entitled to have the jury instructed that Plaintiff only needed to provide [sic] one of three alternatives: (a) AMC failed to repair the condition, (b) protected against harm from the condition, or (c) give adequate warning of the condition." But that is exactly how the jury was instructed in this case in the modified version of CACI No. 1003. In Williams, by contrast, the court failed to give the pattern instruction relating to premises liability and declined to give special instructions on that subject, as proposed by the plaintiff. The Court of Appeal concluded that the court's failure to give any instruction regarding the landowner's duty was reversible error. Williams is therefore inapposite.
But even if the court erred in some manner in its response to the jury's inquiry, plaintiff fails to establish such error was prejudicial. (Cal. Const., art. VI, § 13; Century Surety Co., supra, 139 Cal.App.4th at p. 963 ["[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.]"].) Plaintiff may not simply assert that an alleged error was prejudicial without meaningful analysis. Instead, plaintiff "bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
"In assessing prejudice from an erroneous instruction, we consider, insofar as relevant, '(1) the degree of conflict in the evidence on critical issues [citations]; (2) whether respondent's argument to the jury may have contributed to the instruction's misleading effect [citation]; (3) whether the jury requested a rereading of the erroneous instruction [citation] or of related evidence [citation]; (4) the closeness of the jury's verdict [citation]; and (5) the effect of other instructions in remedying the error [citations].' [Citation.]" (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570-571.) The first of these considerations, the degree of conflict in the evidence, merits a detailed discussion of the evidence presented by both sides. Plaintiff, however, includes only one paragraph in his opening brief under the heading "[t]he degree of conflict in the evidence on critical issues." He notes AMC denied liability, plaintiff argued AMC was totally at fault, and the experts presented at trial disagreed with each other. Plaintiff then asserts "[t]he evidence of AMC's liability-which is what CACI [No.] 1003 relates to-was plainly in conflict." That is the only evidentiary analysis and the handful of record citations included in this paragraph cite only to plaintiff's evidence. The reply brief also does not provide any substantive analysis of the evidence presented at trial.
None of the other considerations assist plaintiff either. Plaintiff's contention that AMC's counsel emphasized the court's purported error by noting, during closing argument, that plaintiff bore the burden of proof generally is without merit. The jury did not request a rereading of any instruction or testimony. We do not know if the jury's verdict was a close one because counsel did not request that the jury be polled. And as we have said, the instruction given adequately advised the jury of the necessary elements of premises liability where a dangerous condition is concealed.
In sum, plaintiff "may not ... rest on the bare assertion of error but must present argument and legal authority on each point raised. [Citation.]" (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649.) By failing to discuss the evidence presented by both sides at trial, and by further failing to provide even one example of a conflict in the evidence relating to CACI No. 1003, plaintiff fails to meet his burden on appeal to establish prejudicial error on this point.
DISPOSITION
The judgment is affirmed. Defendant and respondent American Multi-Cinema, Inc., shall recover its costs on appeal.
WE CONCUR: EGERTON, J., VIRAMONTES, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.