Opinion
B303765
04-12-2021
CINDY NASH, Plaintiff and Appellant, v. PAULINE ROMANO et al., Defendants and Respondents.
The Novak Law Firm, and Sean M. Novak for Plaintiff and Appellant. Kirk & Myers, Jeffrey Cabot Myers and Christina E. Wang for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC647302) APPEAL from a judgment of the Superior Court of Los Angeles County. Cary H. Nishimoto, Judge. Affirmed. The Novak Law Firm, and Sean M. Novak for Plaintiff and Appellant. Kirk & Myers, Jeffrey Cabot Myers and Christina E. Wang for Defendants and Respondents.
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Cindy Nash sued her landlords, Pauline and Joseph Romano (the Romanos), after she broke her ankle stepping on a paver in the backyard. A jury returned a verdict in favor of the Romanos. On appeal, Nash contends the court gave an erroneous jury instruction, the evidence compelled a verdict in her favor, and the Romanos' counsel engaged in misconduct. She also contends the court erroneously awarded the Romanos expert fees under Code of Civil Procedure section 998. We decline to consider Nash's challenge to the expert fees because she did not file a notice of appeal of the award. Nash's remaining arguments are either forfeited or lack merit. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Nash began renting a duplex from the Romanos in 2015. A little over a year later, she broke her ankle while walking on an allegedly unstable paver the Romanos had installed in the backyard. Nash filed a lawsuit against the Romanos, asserting causes of action for premises liability and negligence.
At trial, Nash presented evidence that the backyard contained several large concrete pavers that were placed directly on top of the ground. Nash and her wife frequently walked on the pavers to get from the main house to the laundry room. They thought the pavers were a tripping hazard, and they expressed their concerns to the property manager and a repairman. Neither Nash nor her wife realized the pavers might be unstable.
According to Nash, on July 6, 2016, she went outside to look after her granddaughter, who was playing in the backyard. Nash stepped on one of the pavers and it shifted, causing her ankle to roll and fracture. Nash subsequently injured the same ankle a few months later. She continued to have pain and receive medical treatments for the ankle.
A few days after the incident, the Romanos' handyman buried the pavers so they were level with the ground. The work took less than a day.
Nash's expert, Brad Avrit, testified that the pavers constituted an unsafe condition caused by an improper installation. According to Avrit, if a paver is not properly embedded in the ground, it will begin to wobble over time.
In their defense, the Romanos presented testimony from their daughter, Laurie Sasson, who managed the property. Sasson would visit the property every two to three months. During those visits, she would check if anything in the backyard needed repairs or maintenance. Sasson had walked on the pavers multiple times and never detected any movement. Had she known the pavers were loose, she would have corrected the problem. Sasson denied that Nash or her wife ever complained about the pavers being dangerous prior to Nash's fall.
The Romanos also presented testimony from Juan Sanchez, who worked as their handyman for many years. One of Sanchez's jobs was to inspect the property to see if it needed repairs or maintenance. Sanchez visited the property at least twice per month, and he had walked on the pavers many times. Sanchez never noticed them move, and no one had complained to him about them. Sanchez, therefore, believed they were safe. Had he felt a paver move, he would have repaired it immediately.
The Romanos' expert, Thomas Parco, testified that the manner in which the pavers were installed did not violate any applicable building codes. Parco also did not see any indication that the pavers were unstable, and he believed they had been installed safely.
The jury returned a verdict in favor of the Romanos. The court entered a defense judgment, and Nash appealed.
It appears the jury completed a special verdict form, but Nash did not include that form in her appellant's appendix. It is not clear, therefore, on what basis the jury reached its verdict.
DISCUSSION
I. Nash Forfeited Her Jury Instruction Argument
Nash argues the trial court erroneously instructed the jury on Evidence Code section 1151, which makes evidence of subsequent remedial measures inadmissible to prove negligence. According to Nash, the instruction was misleading because it did not inform the jurors that such evidence may be used for other purposes. The Romanos contend Nash forfeited the argument. We agree with the Romanos.
A. Background
During trial, the Romanos requested the court read the jury Evidence Code section 1151, which states as follows: "When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event."
Nash's counsel objected to the instruction, noting that evidence of remedial measures can be used for other purposes, such as proving ownership, control, or the feasibility of cautionary measures. Counsel represented that he did not intend to argue the Romanos' negligence was evident from the fact that they subsequently repaired the pavers. Instead, he would use the evidence only to show the repair was feasible.
Counsel continued: "Evidence Code 1151 being read [to the jury] would literally be an accurate representation of what the law says on the subject, but whether we need to read them 1151, I would say I don't believe that we do. But if we were to do something, I think it would be, as the defense is requesting, it would be to read 1151 to the jury." Counsel later reiterated, "We object to reading [Evidence Code section 1151] . . . but if the court were inclined to do anything, it would be, then, we would agree it would be reading 1151." The court overruled Nash's objection and read the jury the text of Evidence Code section 1151.
During closing argument, Nash's counsel highlighted evidence showing the Romanos buried the pavers shortly after Nash was injured. He then argued, "So that could have been accomplished well in advance of Ms. Nash being injured, and in fact, that Defendants waited until someone got hurt before they took action is not reasonable conduct of a landlord owner." Counsel also pointed out that the evidence showed the handyman buried the pavers in less than a day, which he argued was relevant to show it would not have been difficult to protect Nash from the harm.
B. Analysis
As Nash conceded below, the court's instruction on Evidence Code section 1151 was a correct statement of the law. Indeed, the court simply read the statute verbatim. The instruction was also clearly relevant to the case. The jury heard extensive evidence that the Romanos buried the pavers after learning of Nash's injury. Absent a limiting instruction, the jurors were likely to use this evidence as proof of the Romanos' negligence, which Evidence Code section 1151 prohibits.
Nonetheless, Nash now contends the instruction was incomplete and misleading because it did not inform the jurors they might use evidence of subsequent remedial measures for other purposes, such as determining the scope of the Romanos' duty and the feasibility of eliminating the dangerous condition. (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1169 [evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct, but may be admitted to prove other issues, such as ownership, control, or feasibility of precautionary measures].) Nash has forfeited this argument.
Where, as here, " 'the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.' " (Conservatorship of Gregory (2000) 80 Cal.App.4th 514, 520, italics in original.) "The requirement of an objection is premised upon the idea that a party should not sit on his or her hands, but instead must speak up and provide the court with an opportunity to address the alleged error at a time when it might be fixed." (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 266.)
Nash did not request the court instruct the jurors on the alternative purposes for which they might use the subsequent remedial measures evidence. To the contrary, she told the court that if it were to instruct the jurors on Evidence Code section 1151, it should simply read the statute. The court did precisely what Nash suggested. Her failure to request any additional or qualifying instructions forfeits the issue on appeal. (Conservatorship of Gregory, supra, 80 Cal.App.4th at p. 520; see People v. Nilsson (2015) 242 Cal.App.4th 1, 25 [" 'Because the instruction as given was generally accurate, but potentially incomplete in certain cases, it was incumbent on [the defendant] to request a modification if [he] thought it was misleading on the facts of this case.' "].)
II. The Evidence Does Not Compel a Verdict in Nash's Favor
Nash contends the jury's verdict is inconsistent with the evidence presented at trial. We disagree.
Nash urges us to review the verdict for substantial evidence, and she insists the evidence presented at trial was "more than sufficient" to establish the Romanos' liability under that standard. However, where "the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528, disapproved of on other grounds by Conservatorship of O.B. (2020) 9 Cal.5th 989, 1003, fn.4.) The question instead is "whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.' [Citation.]" (Ibid.; accord Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.)
Nash contends the evidence presented at trial establishes she was injured by an unstable paver that was installed improperly, and the Romanos were aware of, or should have been aware of, this dangerous condition. In support, she simply summarizes the evidence in her favor, while wholly ignoring the evidence tending to show the Romanos were not negligent. She ignores, for example, the Romanos' expert's opinion that the pavers were installed safely and in a manner that did not violate any applicable building codes. She also ignores Sasson's and Sanchez's testimony that they frequently walked on the pavers, but they did not detect any movement. Nash similarly testified that the pavers had never moved prior to the incident, and there was no reason for her to suspect they would. In light of this testimony, we cannot say Nash's evidence was uncontradicted and unimpeached, or of such a character and weight as to leave no room for the jury to find against her. As such, it does not compel a finding in her favor as a matter of law.
III. Nash Forfeited Her Attorney Misconduct Arguments
Nash contends the Romanos' counsel made improper arguments designed to inflame the jurors and incite them to act from passion and prejudice. The Romanos insist Nash forfeited the issue. We agree with the Romanos.
"Attorney misconduct is an irregularity in the proceedings and a ground for a new trial. . . . [T]o preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial and the party must also have moved for a mistrial or sought a curative admonition unless the misconduct was so persistent that an admonition would have been inadequate to cure the resulting prejudice. [Citation.] This is so because '[o]ne of the primary purposes of admonition at the beginning of an improper course of argument is to avoid repetition of the remarks and thus obviate the necessity of a new trial.' [Citation.]" (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148.)
Here, Nash contends the Romanos' counsel engaged in misconduct during closing argument by stating Nash was on a "litigation train" and "plaintiffs get told they can turn your pain to rain." Nash, however, did not object to any of these remarks, nor did she request an admonition from the trial court. Her failure to do so forfeits the issue on appeal.
Nash objected to a single statement by the Romanos' counsel during closing argument: "Ladies and gentlemen, litigation is not a lottery. It's not a chance to strike it rich or retire." The court sustained the objection. Nash did not identify this statement in her opening brief on appeal as an example of counsel's misconduct. Even if she had, she forfeited the issue by failing to request an admonition after the court sustained her objection. (Garcia v. ConMed Corp., supra, 204 Cal.App.4th at p. 148.)
IV. We Lack Jurisdiction to Consider Nash's Arguments Regarding Expert Fees
Nash contends the trial court erred in awarding the Romanos their expert fees and costs pursuant to Code of Civil Procedure section 998 (section 998). We lack jurisdiction to consider the issue because Nash failed to appeal the award.
We requested the parties submit supplemental briefs addressing this issue.
Our jurisdiction is limited in scope to the notice of appeal and the judgment or order from which an appeal is taken. (Ellis v. Ellis (2015) 235 Cal.App.4th 837, 846.) " ' "[W]here several judgments and/or orders occurring close in time are separately appealable . . . each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal." ' [Citations.]" (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.)
Although we must liberally construe notices of appeal, (Cal. Rules of Court, rule 8.100(a)(2)), " ' "a notice of appeal will not be considered adequate if it completely omits any reference to the judgment [or order] being appealed." ' [Citation.]" (Colony Hill v. Ghamaty (2006) 143 Cal.App.4th 1156, 1172.) "The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders." (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 47 (Norman).)
A postjudgment order awarding costs is separately appealable and "if no appeal is taken from such an order, the appellate court has no jurisdiction to review it." (Norman, supra, 220 Cal.App.3d at p. 46.) In Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270 (Pfeifer), for example, the court dismissed an appeal to the extent it challenged an award of expert fees under section 998 where the appellant failed to identify the award in the notice of appeal. (Id. at p. 1316.)
In this case, the court entered judgment on the jury verdict on November 22, 2019. About two weeks later, the Romanos filed a memorandum of costs, which included a request for approximately $33,000 in expert fees pursuant to section 998. Nash moved to tax the costs.
On January 17, 2020, while the request for costs and motion to tax were pending, Nash filed a notice of appeal. The notice indicates Nash appealed a judgment after jury trial entered on November 22, 2019. It does not indicate Nash appealed any orders or awards after judgment.
Sometime after Nash filed the notice of appeal, the court denied her motion to tax, effectively awarding the Romanos their costs, including expert fees pursuant to section 998. Nash did not file a separate notice of appeal of that order or the award. Absent such a notice, we lack jurisdiction to consider whether the court erred in awarding the Romanos their expert fees. (See Pfeifer, supra, 220 Cal.App.4th at p. 1318.) Accordingly, we decline to consider Nash's arguments on this issue.
Nash insists the trial court never filed an order specifically awarding the Romanos their expert fees, so it was impossible for her to file a notice of appeal challenging the award. It is difficult for us to evaluate this claim because Nash did not include in the appellate record the reporter's transcript or minute order from the hearing on her motion to tax. In any event, even if the court did not issue an order awarding expert fees, we would still lack jurisdiction to consider the issue. This is because, until there is such an order, there is nothing to challenge on appeal. (See Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1027 [an award of expert fees under section 998 is discretionary, not automatic].)
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
BIGELOW, P. J. We concur:
GRIMES, J.
WILEY, J.