Opinion
D071108
10-18-2017
SARA E. WHITFIELD, Plaintiff and Respondent, v. GERALD F. MOORE et al., Defendants and Appellants.
Dracup & Patterson, Jeffrey A. Dracup and Terry H. Bell for Defendants and Appellants. Business Law Group, Lowell Robert Fuselier and David J. Hart for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed herein on October 18, 2017, be modified as follows:
On page 22, after the first full paragraph ending "Taylor does not support Defendants' assertions here," add new paragraphs as follows:
For the first time in a rehearing petition, Defendants cite Miller v. Republic Grocery, Inc. (1952) 110 Cal.App.2d 188 (Miller) and Abassi v. Welke (2004) 118 Cal.App.4th 1353 (Abassi) for the proposition that the trial court should instruct a self-represented party to request a separate hearing on the statute of limitations. However, both cases are materially distinguishable and do not support imposing such obligations on trial courts.
Miller, supra, 110 Cal.App.2d 188 did not involve any statute of limitations issue. Miller was a suit on a promissory note. Due to an oversight, the allegation as to the assignment of the note was omitted from the complaint. When the assignment was offered in evidence objection was made and sustained on the ground it was not within the issues. Counsel did not ask leave to amend his complaint. A nonsuit followed. Plaintiff's attorney later made a motion to set aside the judgment of nonsuit, to reopen the case and for permission to file an amended complaint. The motion was denied. On appeal, the court held that it was an abuse of discretion to deny the motion. (Id. at pp. 191-193.)
Miller, supra, 110 Cal.App.2d 188 involved a very different situation from the one here. In Miller, a suggestion by the trial judge that the complaint be amended to allege the assignment was all that was required. Here, however, Defendants' argument would require the trial judge to assist and advise the Defendants in framing an issue, presenting evidence, and then pass upon its admissibility and weight. "In view of the intricacies involved in the problems here presented this is an undue burden to place upon [the court] and [the court] should not be expected or required to assume it." (Lombardi, supra, 137 Cal.App.2d at pp. 210-211 [distinguishing Miller].)
In Abassi, supra, 118 Cal.App.4th 1353, the trial court denied the defendant's first motion for summary judgment but granted his second motion for summary judgment. There, two years after the defendant's first motion for summary judgment had been denied, and after many of the issues had been resolved, a status conference was held. During this conference, one of the lawyers suggested that a summary judgment motion might dispose of an adverse party's cross-complaint. (Id. at p. 1358.) In response, the court invited a second summary judgment motion so it could reassess its previous ruling. (Ibid.) Abassi does not help Defendants' argument because in Abassi a party asked for leave to file the second summary judgment motion. The court did not initiate the filing of the motion or give any advice on how it should be litigated.
There is no change in the judgment.
Defendants' petition for rehearing is denied.
McCONNELL, P. J. Copies to: All parties
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. 37-2013-00070369-CU-MM-NC) APPEAL from a judgment of the Superior Court of San Diego County, Earl H. Maas III, Judge. Affirmed. Dracup & Patterson, Jeffrey A. Dracup and Terry H. Bell for Defendants and Appellants. Business Law Group, Lowell Robert Fuselier and David J. Hart for Plaintiff and Respondent.
Nonlawyers who represent themselves in a civil trial are usually at a considerable disadvantage, as would be anyone attempting to function in a complex task without the necessary training, education, and experience. Nevertheless, self-represented litigants are held to the same standards as lawyers because a contrary rule "would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 (Rappleyea).)
This case demonstrates consequences that can result from uninformed self-representation. Defendants, self-represented at this bench trial for alleged dental malpractice and fraud, failed to obtain a court reporter and did not request a statement of decision. The court entered a $322,450 judgment against them.
On appeal, defendants contend (1) the action is barred by the statute of limitations, (2) there is no evidence supporting the judgment against Sima Moore (also known as Sima Tahmouressi), (3) the court erred in failing to apportion noneconomic damages, and (4) the $250,000 award of noneconomic damages is not supported by substantial evidence.
With no reporter's transcript and no statement of decision, we are unable to meaningfully review these contentions. The record does not show defendants even raised a statute of limitations defense during trial. Nor does the record show either defendant asked the court to apportion noneconomic damages. Moreover, with no statement of decision, we must presume the trial court made all findings necessary to support the judgment for which there is substantial evidence. (LSREF2 Clover Property 4, LLC v. Festival Retail Fund 1, LP (2016) 3 Cal.App.5th 1067, 1076.) And with no reporter's transcript, defendants are precluded from asserting the evidence is insufficient to support the judgment. (Estate of Fain (1999) 75 Cal.App.4th 973, 992 (Fain).)
Defendants also contend the court should have helped them by advising them to litigate the statute of limitations issue and to request a statement of decision. However, although a trial judge should ensure a cause is not defeated by mere inadvertence of a self-represented party, a trial court has no obligation to develop a self-represented party's case as well as judge it. (Lombardi v. Citizens Nat. Trust etc. Bank (1955) 137 Cal.App.2d 206, 208-210 (Lombardi).) "Litigants who choose to represent themselves must be treated in the same manner as other litigants and attorneys and must follow correct rules of procedure." (Cal. Judges Benchbook: Civil Proceedings Before Trial (CJER 2017) Parties, § 10.103, p. 768 (CJER Benchbook).)
Because the judgment is presumed correct and defendants are unable to establish prejudicial error by an adequate record, we are compelled to affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because there is no reporter's transcript, agreed statement, settled statement, or statement of decision, the factual background is by practical necessity based on Whitfield's complaint.
A. Alleged Dental Malpractice
On October 9, 2013, Sara E. Whitfield filed a complaint against Gerald F. Moore (Moore); his wife and employee, Sima Moore (aka Sima Tahmouressi) (Defendants); and Breeze Hill Family Dental Care for dental malpractice, fraud, and several other causes of action. Whitfield alleged she is a cosmetologist, model, and stage artist who was in good dental health with the exception of a filling in 1997 and temporary bonding on her front teeth due to loss of enamel. She asked Moore for recommendations to improve the appearance of her teeth and smile.
Sima Tahmouressi answered the complaint, stating she was erroneously sued as Sima Moore.
Whitfield alleged Moore recommended that "Lumineers could be a permanent solution" that would address her loss of enamel and lengthen her small teeth "to enlarge her smile and perfect the proportion of all of her teeth." Whitfield alleged she told Defendants she was concerned about cost, her lack of insurance, the longevity of the proposed work, and the pain—but Defendants reassured her that those concerns were unfounded, the cost would be discounted and, if Whitfield obtained dental insurance, Defendants would bill the work as being crowns, which would be partially paid by insurance.
Lumineer is a brand of veneer, which is a material placed over a tooth to improve one's appearance.
Whitfield alleged that in April 2006 Moore began filing and drilling her upper teeth to prepare them for the veneers in an "extraordinarily painful" procedure. Within a few weeks, Moore installed the upper veneers "with minimal pain" and Whitfield alleged, "Almost all of the upper set are still intact and comfortable."
Whitfield alleged that "[w]ith the good result from the installation of the upper teeth," Tahmouressi reassured her to proceed with the lower teeth. However, Whitfield alleged that after her next visit, she suffered a "debilitating headache and a swollen, bloody mouth" after Moore "filed down all of [her] bottom front teeth, without anesthetic, into pointy little jack-o-lantern teeth." She alleged that Moore installed veneers on the lower teeth, but with poor results.
Whitfield alleged that Moore attempted to repair her bottom teeth; however, the cement bonding material "would get on or between other teeth, which would be extremely painful" and cause her teeth to "throb and try to shift away from each other because they became fused together." She also alleged she suffered "unbearable pain" for six visits. Without specifying dates of treatment, Whitfield alleged she had "more than a dozen office visits" to get the veneers "glued back on or replaced," is still missing four, and two more are cracked.
Whitfield alleged her veneers "would fall off at inopportune moments," and she has "turned down jobs that would have required her to be in front of the camera due to being self-conscious about her discolored and deformed mouth." She alleged her "last dental appointment with Moore was on September 27, 2012, when Moore replaced (again) one of [her] cracked or missing Lumineers." She also alleged that on July 13, 2013, she sent Moore a notice of intent to sue under Code of Civil Procedure section 364.
Undesignated statutory references are to the Code of Civil Procedure.
Section 364, subdivision (d) provides: "If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice."
B. Defendants' Answer
In November 2013 Moore and Tahmouressi, represented by attorneys, filed an answer consisting of a general denial and 16 affirmative defenses, including the statute of limitations.
C. Withdrawal of Counsel
In April 2014 the attorneys representing Moore and Tahmouressi filed a motion to be relieved as counsel, asserting they had not been paid and there was a breakdown in the attorney-client relationship. In May 2014 the trial court granted that motion.
D. Bench Trial
About two years later—in May 2016, the parties waived jury and tried the case to the court. Whitfield was represented by counsel, but Defendants were self-represented. Whitfield filed a trial brief; Defendants did not. There was no court reporter.
The clerk's minutes indicate that Whitfield's first witness was an expert, George Georgakis, who was cross-examined by both Moore and Tahmouressi. Whitfield, who testified next, was cross-examined by Moore. Whitfield's husband, Brian Whitfield, testified and was cross-examined by Tahmouressi. Next, Tahmouressi and Moore testified. The court took the matter under submission. The trial lasted about two and a half hours.
E. Minute Order Ruling
Two days later, on May 13, 2016, the court issued a minute order containing its decision. The order recites, "No [c]ourt reporter was provided by either party" and "trial was completed in less than one day and no party requested a [s]tatement of [d]ecision."
Based on Georgakis's testimony, the court's order states Moore's treatment of Whitfield was negligent, and repairing the damage caused would cost $33,580. The order also states Whitfield testified the process "went bad as soon as they started work on her lower teeth," and while she did not know the specifics, "'it felt wrong.'" The minute order states that Tahmouressi denied telling Whitfield the veneers would be covered by insurance.
The order states the court "found all parties to be credible" and determined Whitfield's damages to be: $18,000 for the cost of the veneers, $1,200 for cost of repairs, $20,000 for lost income, and $250,000 for noneconomic damages, for a total amount of $289,200.
F. Motion for New Trial
On May 24, 2016, Defendants—still self-represented—filed a motion for new trial, asserting (1) Tahmouressi's status as a defendant is "accident or surprise" because she was "led to believe that her name was removed from the case as a defendant"; (2) there was "new evidence" of the condition of Whitfield's teeth, showing Whitfield "clearly perjured herself" at trial; (3) damages are excessive and unsupported by the evidence.
The same date, Moore filed "Objections to Minute Order Dated May 13, 2016," essentially repeating the assertions made in the motion for new trial and adding that the court erred in excluding evidence showing Moore did not breach the standard of care.
With leave of court, on June 27, 2016, Defendants filed another motion for new trial. In addition to issues raised in the previously filed motion, they also asserted (1) the action against Moore was an "accident" because Whitfield should have pursued a product liability action against Lumineers; (2) there was newly discovered evidence that Whitfield had gum disease and was grinding and clenching her teeth, which "negates causation"; (3) there was newly discovered evidence that another dentist had altered Whitfield's teeth before Georgakis, the standard of care expert, examined Whitfield; and (4) the statute of limitations for dental malpractice expired before Whitfield filed her complaint. Defendants filed supporting declarations and other documents, including excerpts from Whitfield's dental records.
Whitfield filed opposition, asserting, "The fact that Defendants have now come up with evidence that they failed to introduce at the first trial does not entitle them to a second trial." She asserted a judgment against Tahmouressi for fraud was supported by her testimony that Tahmouressi encouraged her to undergo the procedure and attempted to "'pass[]off'" the veneers as crowns to fraudulently induce the insurance company to pay a greater portion of the cost. Whitfield also asserted Tahmouressi practiced dentistry without a license by (1) analyzing impressions of Whitfield's teeth, (2) interpreting dental records to conclude Whitfield was suffering from gum disease, and (3) advising Whitfield on dental matters. Whitfield asserted Defendants waived any statute of limitations defense by not raising it during the trial, and it was too late to do so for the first time in a new trial motion:
"In this case, Defendants' statute of limitations argument appears for the first time in its motion for new trial. The issue was not identified in the [p]re-[t]rial [c]onference [r]eport, nor was it raised at trial in any argument nor supported by any evidence. Because any
purported bar of the statute of limitations was not raised at trial . . . , Defendants cannot raise the issue as grounds for a new trial."
Whitfield attached to her opposition a notice of intent to sue, addressed to Moore and dated July 13, 2013, which she asserted extended the limitations period to make the complaint timely filed.
In reply, Defendants asserted their self-represented status required the trial court to reopen the case to take additional evidence. They asserted their answer pleaded the statute of limitations defense, they "continuously asserted that too much time has passed," and being self-represented "with no background in the law [they] cannot be expected to use legal terms such as 'statute of limitations.'"
After conducting an unreported hearing, the court denied the motion for new trial, stating, "Defendants have failed to establish any grounds that would require the granting of a new trial." Subsequently, the court entered judgment, jointly and severally against Moore and Tahmouressi for $322,450 plus prejudgment interest and costs.
The judgment includes $33,580 for cost of "future" repairs that is mentioned in the text of the court's minute order, but not included in the order's itemization of damages. The parties do not address this discrepancy. Also, the judgment is silent as to Breeze Hill Family Dental Care, which Whitfield sued as "an entity of unknown form." The parties' briefs do not address this either.
DISCUSSION
I. THE APPELLATE IMPACT OF NO REPORTER'S TRANSCRIPT, NO SUBSTITUTE
FOR A REPORTER'S TRANSCRIPT, AND NO STATEMENT OF DECISION
There is no reporter's transcript of the trial, nor is there an adequate substitute such as an agreed statement under California Rules of Court, rule 8.134 or a settled statement under rule 8.137. Moreover, neither party requested a statement of decision, and the court did not prepare a statement of decision. As a result of this state of the record, four principles of appellate procedure dictate the disposition of this appeal.
Further references to rules are to the California Rules of Court.
For a discussion of these alternatives to a reporter's transcript, see generally Randall v. Mousseau (2016) 2 Cal.App.5th 929, 933-934.
A. The Presumption of Correctness
An appealed judgment is presumed correct, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) This is not only a general principle of appellate practice, but part of the constitutional doctrine of reversible error. (Ibid.) "'"A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed."'" (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.)
B. The Doctrine of Implied Findings
Upon a party's timely and proper request, section 632 requires a trial court to issue a statement of decision upon "the trial of a question of fact by the court." (§ 632.) The statement must explain "the factual and legal basis for [the court's] decision as to each of the principal controverted issues at trial . . . ." (Ibid.) In trials completed in one calendar day, a request for statement of decision must be made before the matter is submitted for decision. (Ibid.)
A party's failure to request a statement of decision when one is available triggers the doctrine of implied findings. Under the doctrine of implied findings, "when parties waive a statement of decision expressly or by not requesting one in a timely manner, appellate courts reviewing the appealed judgment must presume the trial court made all factual findings necessary to support the judgment for which there is substantial evidence." (In re Marriage of Condon (1998) 62 Cal.App.4th 533, 549, fn. 11.) "In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267 (Shaw).)
C. Minute Order No Substitute for Statement of Decision
Defendants contend that because there is no statement of decision, we should treat the court's minute order after trial "as a statement of decision." However, the law is to the contrary. "An applicable corollary to the doctrine of implied findings is the rule that a trial court's tentative memorandum decision is no substitute for a statement of decision." (Shaw, supra, 170 Cal.App.4th at p. 268.) "'A memorandum opinion is not a decision. Although it may purport to decide issues in the case, it is merely an informal statement of the views of the trial judge. It does not constitute findings of fact.'" (Ibid.) The memorandum decision "'"cannot be relied upon to fill the interstices in the findings and conclusions left void by the failure to find pursuant to a properly filed request . . . "' for a statement of decision." (Id. at pp. 268-269.) "[W]here the option of requesting a statement of decision . . . is available, the trial court's less formal comments . . . in the minutes are insufficient to form the basis of reversible error." (Id. at p. 268.) "In the absence of a statement of decision, a reviewing court looks only to the judgment to determine error." (Ibid.)
To be distinguished is a situation where a memorandum opinion may properly be used to explain, but not contradict, the court's determinations. (See Kuffel v. Seaside Oil Co. (1977) 69 Cal.App.3d 555, 568.)
We requested, and have reviewed, the parties' supplemental briefs on Shaw, supra, 170 Cal.App.4th 229.
D. No Reporter's Transcript—No Challenge to Sufficiency of the Evidence
Where "no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence." (Fain, supra, 75 Cal.App.4th at p. 992.)
II. NO STATUTE OF LIMITATIONS ERROR
A. Malpractice Statute of Limitations
Section 340.5 provides in part: "In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first."
Cobbling together (1) certain allegations in Whitfield's complaint, along with (2) dental records Moore submitted in his new trial motion; and (3) statements the court made in its minute order after trial, Defendants contend that as a matter of law, Whitfield's dental malpractice cause of action accrued no later than July 2008, making her action filed in October 2013 time-barred.
Specifically, Defendants point out that in the complaint, Whitfield alleged she suffered a "debilitating headache and a swollen, bloody mouth" when Moore began work on her lower teeth. Plus, in the minute order after trial, the court stated "[t]he process went bad as soon as [Moore] started work on [Whitfield's] lower teeth. While she did not know the specifics, 'it felt wrong." Moreover, dental records Moore submitted with his motion for new trial indicate Moore worked on Whitfield's lower teeth in December 2008.
1. Defendants forfeited the statute of limitations defense
The absence of a reporter's transcript and statement of decision make Defendants' statute of limitations argument untenable. First, a statute of limitations defense is waived if not raised during trial. Merely pleading it as an affirmative defense is not enough to preserve the point. (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997 (Nellie Gail Ranch).) This rule is based on fairness. "'"Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. . . ."'" (Ibid.)
Defendants fail to cite anywhere in the record, other than their answer to the complaint, where they mention the statute of limitations. They filed no trial brief and no pretrial motions. There is no reporter's transcript of any proceeding in this case. Defendants' brief concedes that even the trial court's minute order after trial "is silent on the legal question of applying the appropriate statute of limitations . . . ." (Italics added.) The statute of limitations issue is, therefore, forfeited because there is nothing in the record showing Defendants raised it during trial.
2. No evidence in the record shows the action is time-barred as a matter of law
Defendants seek to avoid forfeiture by asserting the statute of limitations can properly be decided as question of law on undisputed facts and, therefore, may be raised even for the first time on appeal. Defendants contend the court's minute order after trial "is a suitable substitute for a reporter's transcript" because it refers to Whitfield's testimony indicating "[t]he process went bad as soon as they started to work on her lower teeth. While she did not know the specifics, '[I]t felt wrong.'" Defendants contend that by considering the minute order with dental records they submitted with the motion for new trial, the record shows they raised the statute of limitations issue in a posttrial motion and we can decide it for the first time on appeal as a matter of law.
This contention fails because we cannot give any consideration to alleged facts that are outside the record on appeal. (CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 539, fn. 1 (CIT Group).) To the extent Defendants ask us to treat the court's minute order as a statement of decision or a reporter's transcript, we are precluded from doing so. (Shaw, supra, 170 Cal.App.4th at p. 268; see also In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 647 (Ditto).) "A memorandum opinion is not a decision. Although it may purport to decide issues in the case, it is merely an informal statement of the views of the trial judge. It does not constitute findings of fact." (Taormino v. Denny (1970) 1 Cal.3d 679, 684.) This is because a trial court retains inherent authority to change its decision, its findings of fact, or its conclusions of law at any time before entry of judgment and then, the judgment supersedes any memorandum or tentative decision or any oral comments from the bench. (Shaw, supra, 170 Cal.App.4th at p. 268.)
Thus, where, as here, the option of requesting a statement of decision is available, the trial court's less formal comments in the minutes are insufficient to form the basis of reversible error. The minute order "'"cannot be relied upon to fill the interstices in the findings and conclusions left void by the failure to find pursuant to a properly filed request . . . "' for a statement of decision." (Shaw, supra, 170 Cal.App.4th at pp. 268-269.)
In the reply brief, Defendants contend Leiserson v. City of San Diego (1988) 202 Cal.App.3d 725 (Leiserson II) supports their contention that we may consider their statute of limitations defense for the first time on appeal because resolving this point involves applying law to undisputed facts. However, Leiserson II is completely off point. The appeal in Leiserson II stemmed not from a trial, but from a motion—an attorney fee motion under the private attorney general theory. (Id. at p. 729.) The motion was based on evidence—declarations—that were part of the record on appeal. (Id. at p. 732.) The plaintiff/appellant was a news photographer arrested while photographing a disaster scene, who, after the criminal charge was dismissed, sued the city under various tort theories. (Id. at p. 730.) The appellate court ultimately determined that he had been properly excluded from the disaster scene, but in so doing it defined, in a published opinion, the rights of the media under Penal Code section 409.5, subdivision (d) to be present at such scenes. (Leiserson II, at p. 730; see also Leiserson v. City of San Diego (1986) 184 Cal.App.3d 41 (Leiserson I ).)
After Leiserson I, supra, 184 Cal.App.3d 41 became final, the plaintiff sought attorney fees under the private attorney general theory, asserting that Leiserson I "delineated important media rights protected" by the statute. (Leiserson II, supra, 202 Cal.App.3d at p. 736.) The trial court denied Leiserson's fee motion, believing it was compelled to do so because Leiserson lost the underlying litigation. (Leiserson II, supra, at pp. 732-733.)
Although the trial court had applied an incorrect legal standard in denying the plaintiff's attorney fee motion, on appeal this court could determine whether Leiserson was a successful litigant within the meaning of the private attorney general doctrine because that determination was based on undisputed litigation facts, namely whether (1) the published appellate opinion in Leiserson I, supra, 184 Cal.App.3d 41 clarified or expanded the law; and (2) Leiserson's action sought to advance only his own personal economic interests. (Leiserson II, supra, 202 Cal.App.3d at pp. 737-738.) Applying the correct standard, this court held the plaintiff was not entitled to an attorney fee award because he confined his underlying tort action to seeking civil damages for himself. By "tactical design," the action was not intended to promote any interests other than his own. (Id. at p. 738.)
Unlike Leiserson II, supra, 202 Cal.App.3d 725, here the relevant facts are not undisputed litigation facts, but rather involve the question of when Whitfield discovered, or through the use of reasonable diligence should have discovered, her injury. No such facts are properly before us because there is no reporter's transcript of the trial, no agreed statement, no settled statement, and there is no statement of decision. There is also nothing in the record showing that the dental records Defendants now rely upon for their statute of limitations defense were offered into evidence at trial. The parties have not provided the trial exhibits in the record on appeal. The superior court clerk's minutes indicate that only the following documentary evidence was identified: (1) George Georgakis curriculum vitae, (2) "treatment case—Georgakis," (3) Whitfield billing statement, (4) United Healthcare service description, and (5) Accusation.
Moreover, to the extent anything properly before us touches on the statute of limitations issue, it highlights that the issue is a factual one that cannot be resolved for the first time on appeal. Whitfield's complaint alleges Moore last treated her in September 2012—not 2008 as Defendants contend. The complaint also alleges Whitfield gave notice of her intent to institute the action on July 13, 2013. The statute of limitations issue here is an intensely factual one depending on when Moore stopped treating Whitfield, what she knew or should have known, and the representations, if any, that Defendants made to Whitfield. Unlike the very different issue involved in Leiserson II, supra, 202 Cal.App.3d 725, these issues cannot be decided as a matter of law based on undisputed litigation facts in the record.
3. The trial court had no obligation to advise Defendants how to litigate a statute of limitations defense, nor to advise Defendants to request a statement of decision
In the reply brief, Defendants contend that because they were self-represented at trial, the trial court was obligated to "protect" their "rights" and alert them to "take action to enforce the limitations." Citing Taylor v. Bell (1971) 21 Cal.App.3d 1002 (Taylor) and Lombardi, supra, 137 Cal.App.2d 206, Defendants also contend that because they were self-represented at trial, they should not suffer the appellate consequences of failing to request a statement of decision. Defendants ask us to "encourage" trial courts to "at least ask the parties if a statement of decision will be needed" in cases involving self-represented litigants.
We appreciate the difficulty involved in Defendants representing themselves in a civil trial. There are good reasons why a law degree usually requires three years of full time rigorous study, and a license to practice law in California is issued only after one achieves a passing score on a rigorous written examination. Trying a case in the superior court is often a challenging and demanding task requiring proficiency in many areas of law and trial practice.
Nevertheless, although an individual has a "right to act as his own attorney," he or she is "'restricted to the same rules of evidence and procedure as is [sic] required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.'" (Lombardi, supra, 137 Cal.App.2d at pp. 208-209.) A self-represented party is due the same consideration as any other party from trial and appellate courts, but no greater. (Rappleyea, supra, 8 Cal.4th at p. 985.)
Accordingly, contrary to Defendants' assertions, a judge is not required to help a self-represented litigant present his or her evidence. (Lombardi, supra, 137 Cal.App.2d at p. 209.) Nor is a judge required to act as counsel for a party. (Taylor, supra, 21 Cal.App.3d at p. 1008.)
The judge does have a duty to see that a cause is not defeated by the mere inadvertence of a self-represented litigant. This could consist, for example, of liberally construing pleadings so that a hearing may be held on the merits, liberally granting leave to amend, explaining the jury selection process, advising of the right to subpoena witnesses. Moreover, although self-represented litigants are not entitled to more lenient treatment than represented parties, trial judges will typically ensure that such parties are not misled by statements of the court or opposing counsel, and will clearly explain the procedures that must be followed. (See CJER Benchbook, supra, § 10.103, pp. 769-771.) When dealing with self-represented litigants, the judge should take special care to ensure that verbal instructions given in court, the judge's orders, and written notices are clear and understandable by a nonlawyer. (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594.)
However, the fact a nonlawyer elects to represent himself or herself does not excuse a failure of proof. While a trial judge has a duty to see a cause is not defeated by mere inadvertence, the court is not expected to develop a defendant's case as well as judge it. (Lombardi, supra, 137 Cal.App.2d at pp. 208-210.) The trial judge cannot act as counsel for a self-represented litigant, investigate the case for a self-represented litigant, or apply different rules of law to self-represented litigants. While a trial judge may instruct a self-represented litigant how to accomplish a procedural action he or she is obviously attempting, or may direct them to resources that will provide instructions, the judge cannot tell a self-represented litigant what tactic to use, what witness to call, or what motion to file. The court is not the self-represented litigant's lawyer and cannot tell the self-represented litigant what to do next. "In other words, when a litigant accepts the risks of proceeding without counsel, he or she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable judgment than he or she would if represented by counsel." (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267 (Burnete).)
Defendants' failures here to present a statute of limitations defense at trial and then to request a statement of decision are not the result of inadvertence—that is, a mistake caused by an oversight. Rather, they are the product of either a deliberate decision to forgo such matters—or more likely in this case, ignorance of substantive law and civil procedure. Nothing in the record shows Defendants asked the court to rule on a statute of limitations defense during trial or made any attempt to request a statement of decision. The court had no obligation to educate Defendants on these points or try the case for them. (Lombardi, supra, 137 Cal.App.2d at pp. 208-210.) Moreover, Defendants are not entitled to relief from the judgment based on their mistaken assumption they could competently represent themselves. (Burnete, supra, 148 Cal.App.4th at p. 1264.)
Defendants' reliance on Lombardi, supra, 137 Cal.App.2d 206 and Taylor, supra, 21 Cal.App.3d 1002 as supporting a contrary result is unavailing. In Lombardi, the self-represented plaintiff offered documents that were objected to on the ground that there was no proof as to their signature. The objection was sustained for failure to lay a foundation. Plaintiff Lombardi then stated, "I don't know what to do." The court replied, "I can't tell you. I am trying the case, I am not an attorney to advise you," and thereafter granted a nonsuit for failure of proof. (Lombardi, supra, 137 Cal.App.2d at p. 208.) The plaintiff in Lombardi appealed on the grounds the judge failed to help him present his evidence, and as a result he was unable to get his evidence before the court. The appellate court rejected that assertion, stating, "We find no justification for a reversal." (Id. at p. 208.) The Lombardi court noted that a litigant has a right to act as his own attorney, but, in so doing, should be restricted to the same rules of evidence and procedure as is required of attorneys. (Id. at pp. 208-209.) Applying these principles, the court in Lombardi stated the plaintiff "received the decision to which he was entitled, namely, a nonsuit, since he did not establish any element of his case." (Id. at p. 209.) Like Defendants do here, the appellant in Lombardi argued that the judge knew he was a nonlawyer unlearned in legal procedure and the rules of evidence and, therefore, should have helped him. (Id. at p. 209.) The Lombardi court rejected that argument too, stating, "That would have been an unjust reward for ignorance . . . ." (Ibid.) Similarly here, the court had no duty to advise Defendants how to litigate a statute of limitations defense or to request a statement of decision.
Taylor, supra, 21 Cal.App.3d 1002, an action to enforce promissory notes, also involved a self-represented defendant. (Id. at p. 1004.) On appeal, defendant apparently complained the trial court had excused a witness without advising defendant she had a right to take the witness' deposition. (Id. at p. 1008.) Rejecting that claim, the appellate court stated, "While it is the duty of a trial judge presiding over the trial of a case being conducted by a [layperson] in propria persona to see that a miscarriage of justice does not occur through inadvertence, he is not required to act as counsel for that party in the presentation of evidence. [Citation.] A lay person, who is not indigent, and who exercises the privilege of trying his own case must expect and receive the same treatment as if represented by an attorney—no different, no better, no worse." (Id. at pp. 1008-1009.) Taylor does not support Defendants' assertions here.
B. Fraud Statute of Limitations
In addition to suing Moore for alleged malpractice, Whitfield's complaint also alleges causes of action against Moore and Tahmouressi for fraud and negligent misrepresentation based on three different misrepresentations. Whitfield alleged that Moore and Tahmouressi "represented to [her] that the installation of Lumineers was medically appropriate, painless and inexpensive for the purpose of inducing [Whitfield] into consenting" to the procedure. In the third cause of action for fraud, Whitfield alleged Moore and Tahmouressi knew that installing Lumineers was neither medically appropriate, painless, nor inexpensive. In the fourth cause of action for negligent misrepresentation, Whitfield alleged Moore and Tahmouressi made these misrepresentations "without reasonable grounds" to believe they were true. Whitfield alleged she justifiably relied on these representations in consenting to the dental procedures.
Whitfield also alleged that Defendants misrepresented they would install Lumineers on her teeth, but instead "substituted an inferior product" without her knowledge or consent.
Additionally, in the complaint's section entitled "General Allegations," Whitfield alleged that after she told Moore that she was concerned about the cost of the proposed veneers and her lack of dental insurance, Defendants told her the veneers could be billed to insurance as crowns where the costs would be 50 percent covered. The complaint incorporated this allegation by reference into the fraud and negligent misrepresentation causes of action.
On appeal, Defendants contend that as a matter of law, "the claim for misrepresentation of insurance proceeds was untimely" because Whitfield's dental chart, submitted with Defendants' motion for new trial, shows that in December 2008, Whitfield's husband called inquiring why insurance did not pay the bill. Defendants assert, "Surely, [Whitfield] would have discovered that the 'negligent' advice that her insurance would pay for the procedure was mistaken, shortly after submitting the invoice for payment or reimbursement."
We reject this statute of limitations argument for the same reasons the malpractice statute of limitations argument fails: (1) there is nothing in the record showing Defendants raised this statute of limitations defense at trial; and (2) even if the defense was not forfeited in this manner, the record does not show the medical records Defendants now rely on were offered into evidence at trial. (Nellie Gail Ranch, supra, 4 Cal.App.5th at p. 997; CIT Group, supra, 115 Cal.App.4th at p. 539, fn. 1; Shaw, supra, 170 Cal.App.4th at p. 268.)
Moreover, Defendants' opening brief does not address the other two fraud theories Whitfield alleged. Accordingly, the point is forfeited. (Dieckmeyer v. Redevelopment Agency of Huntington Beach (2005) 127 Cal.App.4th 248, 260 ["appellant's failure to raise an argument in its opening brief waives the issue on appeal"]) And even if not forfeited, with no trial transcript and no statement of decision, Defendants cannot sustain their burden of showing the trial court erred in making an implied finding that the fraud claims were not time-barred.
III. NO ERROR IN ENTERING JUDGMENT AGAINST TAHMOURESSI
The court's minute order after trial states Moore was negligent, but is silent with respect to any other cause of action alleged in Whitfield's complaint. The minute order also states Tahmouressi testified she never told Whitfield that her veneers would be covered by insurance, and the court found that testimony credible.
Relying on these aspects of the minute order, Defendants contend it is "clear no other stated cause [of action] was viable outside the claim for medical negligence." Because Whitfield did not name Tahmouressi as a defendant in the malpractice cause of action, but only in the fraud causes of action, Defendants contend the judgment must be reversed as to Tahmouressi.
This argument fails because it relies on the court's minute order as a substitute for a statement of decision. However, we cannot treat the court's minute order as a statement of decision. "[W]here the option of requesting a statement of decision . . . is available, the trial court's less formal comments on the record or in the minutes are insufficient to form the basis of reversible error." (Shaw, supra, 170 Cal.App.4th at p. 268.)
It is the statement of decision that allows the court to place upon the record its view of facts and law. Defendants' failure to request a statement of decision results in a waiver of such findings. (Ditto, supra, 206 Cal.App.3d at p. 647.) Because a statement of decision was not requested, the judgment therefore governs and "it will be presumed on appeal that the trial court found all facts necessary to support the judgment." (Id. at p. 649.) Because Defendants did not obtain a reporter's transcript or suitable substitute, we also presume such implied findings are supported by substantial evidence. In short, the record compels us to conclusively presume the court found Tahmouressi liable for fraud and to presume that the evidence supports such a finding. Insofar as Defendants assert that the judgment is inconsistent with the minute order after trial, the argument is legally groundless. (Ditto, supra, 206 Cal.App.3d at p. 648.)
Because we affirm the judgment on Whitfield's tort claims, it is unnecessary to consider Defendants' contention that "[t]he removal of the tort claim by the statute of limitations bars the award of non-economic damages." --------
IV. WITH NO REPORTER'S TRANSCRIPT, DEFENDANTS CANNOT SHOW
DAMAGES ARE EXCESSIVE
Defendants contend the award of $250,000 in noneconomic damages is not supported by substantial evidence. However, without a reporter's transcript or a settled or agreed statement describing the trial testimony, Defendants cannot challenge the sufficiency of the evidence to support the damage award. (See Navarro v. Perron (2004) 122 Cal.App.4th 797, 801 ["[w]here the appeal is on the clerk's transcript only, we must conclusively presume the evidence is sufficient to support the trial court's findings [on] damages"]; Fain, supra, 75 Cal.App.4th at p. 992 ["an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence"].)
In a related argument, Defendants also contend the court erred by not allocating the award of noneconomic damages in proportion to their proportionate share of comparative fault under Civil Code section 1431.2. However, a defendant seeking such an apportionment must ask the trial court to do so. (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1398.) The record fails to show the Defendants did so. Therefore, the issue is forfeited.
DISPOSITION
The judgment is affirmed. Plaintiff Sara E. Whitfield is entitled to costs incurred on appeal.
NARES, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.