Pulido v. Cemak Trucking CA4/1 ( 2015 )

Filed 8/12/15 Pulido v. Cemak Trucking CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BRIDGET PULIDO, D065789
Plaintiff and Respondent,
v. (Super. Ct. No. CIVVS-1203259)
CEMAK TRUCKING, INC.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino County,
Pamela Preston King, Judge. Affirmed.
Cholakian & Associates, Kevin K. Cholakian and David L. Barch for Defendant
and Appellant.
Perona, Langer, Beck, Serbin, Mendoza & Harrison, Ellen R. Serbin; Law Office
of Scott E. Spell, Scott E. Spell; Sekin, Begakis & Bish and Mindy S. Bish for Plaintiff
and Respondent.
Cemak Trucking, Inc. (Cemak) appeals from a judgment of $1,978,794.69 against
it following a jury's finding that Cemak's negligence caused Bridget Pulido to be hit and
injured by a truck driven by a Cemak employee.
Cemak contends that (1) the trial court prejudicially erred in striking Cemak's
supplemental expert designation; (2) the trial court should not have admitted the
testimony of Pulido's expert witness regarding certain items of future economic damages;
(3) the trial court should have granted Cemak's motion for a new trial based on
insufficient evidence to support the verdict and based on excessive damages; and
(4) counsel for Pulido improperly made inflammatory statements during closing
argument. As we will explain, we conclude that Cemak's appeal lacks merit, and we
accordingly affirm the judgment.
We also consider and deny Pulido's motion for sanctions and motion to strike
portions of Cemak's appellate brief.
I
FACTUAL AND PROCEDURAL BACKGROUND
At approximately 2:00 a.m. on July 27, 2010, Pulido was walking southbound on
the shoulder of National Trails Highway toward Victorville, facing oncoming traffic. Her
friend, Michael Contreras, was walking southbound on the other side of the highway.
Responding to a report of a pedestrian in the roadway, California Highway Patrol officers
Fernando Contreras and Jerry Dean Martin stopped their patrol car on the shoulder
behind Michael Contreras and activated their spotlight on him. Pulido stopped walking
on the other side of the highway shoulder and turned to watch the officers. Officer
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Martin illuminated Pulido with his flashlight and saw that she was standing where the
asphalt shoulder met the dirt at the side of the highway.
Four or five seconds later, a truck driven by a Cemak employee, Darryl Black,
drove past Pulido going northbound. As the truck passed Pulido, both Officer Martin and
Officer Contreras saw Pulido being thrown into the air and hitting the ground. Pulido had
been hit by Black's truck, with the most immediately obvious injury to her arm, on which
the skin and muscle were peeled back. During later medical treatment it was determined
that Pulido had suffered a broken collarbone, a broken scapula, multiple rib fractures, two
fractures to her arm bones, skin and nerve damage to her arm, a collapsed lung, a torn
liver, and facial bruising.
Black did not stop his truck after hitting Pulido, but Officer Contreras pursued
Black and brought him back to the scene of the accident. A subsequent examination of
Black's truck revealed that it was 62-feet-long, composed of a tractor and two trailers,
and Pulido's body tissue was on the inside of the rear fender tire on the second trailer.
Black claimed that he did not see Pulido on the side of the road and did not know that he
hit her. According to Black, he was blinded from the glare of the patrol car's spotlight
and maneuvered his truck in response as he passed the patrol car.
Pulido filed this lawsuit against Black and Cemak, and it proceeded to trial.
Pulido's accident reconstruction expert testified that Black's truck struck Pulido while she
was standing on the shoulder due to a phenomenon known as rearward amplification or
"crack the whip," in which a back and forth steering maneuver that has a small effect at
the front of the truck will have an amplified effect at the rear of the truck, causing the rear
3
trailer to swing out beyond the roadway. Further, a trucking safety expert called by
Pulido testified that Cemak did not have an established safety program that might have
educated its employees to avoid maneuvers leading to rearward amplification, and opined
that Black violated the standard of care in several ways when passing Pulido, including
going too fast and being distracted by the patrol car on the other side of the road. An
orthopedic surgeon, Dr. Stuart Miles Gold, and a plastic surgeon, Dr. Robert Applebaum,
testified about Pulido's injuries and her future surgical needs. A registered nurse, Jan
Roughan, with a specialty in long-term treatment planning (also referred to as "life care"
planning), testified to the costs associated with Pulido's future medical needs based on
her consultation with Pulido's doctors. An economist, Tamorah Hunt, testified to the
present value of those future medical costs. Cemak did not present the testimony of any
expert witness, in part because the trial court struck Cemak's supplemental expert
designation prior to trial.
The jury returned a special verdict finding that Cemak was negligent and that
Cemak's negligence was a substantial factor in causing Pulido's injuries.1 The jury found
that Pulido's total damages were $1,978,794.69, composed of: $162,229.69 in past
economic damages; $666,565 in future economic damages; $350,000 in past
noneconomic damages; and $800,000 in future noneconomic damages. The trial court
entered judgment against Cemak in the amount of $1,978,794.69.
1 Although both Black and Cemak were defendants at trial, after the verdict, the trial
court ordered the case dismissed as to Black, and it entered judgment only against
Cemak.
4
Cemak filed a motion for new trial, arguing that the amount of the award for future
economic damages should be reduced because it was not supported by competent
evidence, and that counsel for Pulido made improper remarks during closing argument,
which inflamed the jury and caused an inflated damages award. The trial court denied
the motion for new trial. Cemak appeals from the judgment and also contends that the
trial court erred in denying the motion for new trial.
II
DISCUSSION
A. The Trial Court Did Not Prejudicially Err in Striking Cemak's Supplemental
Expert Designation
Cemak's first contention is that the trial court prejudicially erred in striking
Cemak's supplemental expert designation.
As an initial matter, we review the applicable statutory requirements. The Code of
Civil Procedure provides that upon demand, the parties shall "simultaneously exchange
information concerning each other's expert trial witnesses," including the name and
address of the expert and an expert witness declaration setting forth the general substance
of the expert's expected testimony. (Code Civ. Proc., § 2034.210; id., 2034.260.) A
party may submit a supplemental expert witness list within 20 days of the initial
exchange containing information about "any experts who will express an opinion on a
subject to be covered by an expert designated by an adverse party to the exchange, if the
party supplementing an expert witness list has not yet previously retained an expert to
testify on that subject." (Id., § 2034.280, subd. (a).) If a party has "unreasonably failed"
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to list a witness as an expert in an initial exchange, "the trial court shall exclude from
evidence the expert opinion" upon the motion of an opposing party who has completely
and timely complied with its own expert exchange requirements. (Id., § 2034.300.)
Here, Cemak and Pulido both served initial expert designations on October 21,
2013. Pulido identified seven retained experts and 12 nonretained experts. The retained
experts included Joseph G. Yates, an expert on accident reconstruction, and V. Paul
Herbert, an expert on trucking issues. Cemak did not identify any retained experts in its
designation, and identified only a single surgeon as a nonretained expert.
On November 8, 2013, Cemak served a supplemental expert designation. Cemak's
supplemental designation identified two experts. The first expert, Michael S. Varat, was
described as an expert on accident reconstruction. Cemak stated that Varat was
"expected to . . . rebut[] the claims of Plaintiff's accident reconstruction expert, Mr.
Yates, and will also offer his own opinions on the mechanics of how the accident
between Ms. Pulido and Mr. Black occurred." The second expert, Lawrence Grant, was a
general manager at Cemak. According to Cemak, Grant was "expected to . . . rebut[] the
claims of Plaintiff's truck safety expert, Paul Herbert, regarding the requirements for the
safe operation of a tractor and two trailers."
Pulido filed an ex parte application in which it sought an order striking Cemak's
supplemental expert designation, arguing that Cemak should have identified Varat and
Grant in its initial expert designation. To emphasize that Cemak should have been aware
of the need to designate its own experts on trucking safety and accident reconstruction in
its initial designation, counsel for Pulido explained in a declaration that "long before the
6
expert designation date, [Pulido] demanded an inspection of the actual truck at [Cemak's]
yard and specifically was advised that [Pulido] had retained trucking and collision
reconstruction experts who would conduct the inspection." Further the declaration stated
that counsel had discussed "on multiple occasions" that in this case "the central dispute
has been how the collision occurred and whether the truck driver was negligent in
causing it."
In its opposition to the ex parte application, Cemak conceded that Grant should be
"de-designated" as an expert, as Cemak should have foreseen that it would need expert
testimony on "the standard of care for a trucking company and its drivers." However,
Cemak contended that it could not have reasonably foreseen that it would need to
designate an expert on accident reconstruction, as it was planning to rely solely on
percipient witness testimony as to how the accident occurred.
The trial court granted Pulido's ex parte application, striking Cemak's
supplemental expert designation.2
We apply an abuse of discretion standard of review when considering whether the
trial court properly excluded Cemak's expert witness designation on the ground that
2 Cemak has not included a transcript of the hearing on the ex parte application as
part of the appellate record. Pulido argues that we should decline to consider Cemak's
challenge to the ruling striking the supplemental expert designation, as Cemak has not
provided the reporter's transcript from the hearing. (See Hotels Nevada v. L.A. Pacific
Center, Inc. (2012) 203 Cal. App. 4th 336, 348 (Hotels Nevada) [the appellant's failure to
provide an adequate record on an issue requires that the issue be resolved against
appellant].) We will exercise our discretion to consider the issue on the merits, as we are
able to evaluate whether the trial court abused its discretion based on the briefing for the
ex parte application and the trial court's minute order.
7
Cemak unreasonably failed to comply with the expert exchange requirements. (Boston v.
Penny Lane Centers, Inc. (2009) 170 Cal. App. 4th 936, 950; Stanchfield v. Hamer Toyota,
Inc. (1995) 37 Cal. App. 4th 1495, 1504.)
As we have explained, Cemak conceded in the trial court that the supplemental
designation of Grant as an expert witness on trucking safety should be stricken. Thus,
any error by the trial court in striking the designation of Grant was invited error and not
cognizable on appeal. (Mary M. v. City of Los Angeles (1991) 54 Cal. 3d 202, 212
["[W]hen a party by its own conduct induces the commission of error, it may not claim
on appeal that the judgment should be reversed because of that error."].) The only issue
properly before us on appeal, therefore, is whether the trial court abused its discretion in
striking the supplemental designation of Varat as an accident reconstruction expert.
The trial court is required by statute to grant a motion to preclude an expert
witness from testifying, upon motion from the opposing party, if the designating party
has "unreasonably failed" to list a witness as an expert in an initial exchange. (Code Civ.
Proc., § 2034.300.) As the court explained in Fairfax v. Lords (2006) 138 Cal. App. 4th
1019, 1025-1026 (Fairfax), when a party reasonably foresees that an expert witness will
be designated by the opposing party on a central issue in the case, that party may not
simply wait to receive the opposing party's expert witness designation and then file a
supplemental designation identifying its own expert witness on that issue. Specifically,
in Fairfax, during an initial expert exchange in a medical malpractice case, the defendant
designated an expert witness "to address the only real disputed issue in this case—i.e.,
whether [the defendant's] treatment of [the plaintiff] complied with the standard of care."
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(Id. at p. 1027.) The defendant did not designate an expert witness on the standard of
care during the initial exchange, and instead waited to identify an expert witness on that
issue in a supplemental designation. (Id. at p. 1022.) Fairfax concluded that, under the
circumstances, the trial court erred in denying the plaintiff's motion to strike the
defendant's supplemental expert designation. Because the standard of care was the
central issue in the case, the plaintiff "had every reason to anticipate such a designation"
and thus "had a corresponding obligation to designate whatever expert he expected to
have testify on the issue at the same time." (Id. at p. 1027.) As Fairfax summarized the
applicable legal principle: the Code of Civil Procedure requires "a 'simultaneous'
exchange of information, in which each side must either identify any expert witnesses it
expects to call at trial, or state that it does not intend to rely upon expert testimony.
When it comes to issues that both sides anticipate will be disputed at trial, a party cannot
merely 'reserve its right' to designate experts in the initial exchange, wait to see what
experts are designated by the opposition, and then name its experts only as purported
'rebuttal' witnesses." (Fairfax, at p. 1021.)
This case falls squarely within the situation described in Fairfax. As the parties
agree, the main disputed issue to be resolved at trial was how the accident occurred. Did
Black's truck move onto the shoulder and strike Pulido, or did Pulido step onto the
highway into the path of the truck? Moreover, as established by the uncontradicted
declaration filed by counsel for Pulido, Cemak was told prior to the initial expert
exchange that Pulido had retained an accident reconstruction expert. Thus, as in Fairfax,
the trial court had ample reason to conclude that this was "not a situation in which
9
[Cemak] was somehow surprised by the content of [Pulido's] expert designation."
(Fairfax, supra, 138 Cal.App.4th at p. 1027.) The trial court accordingly did not abuse
its discretion in concluding that Cemak's supplemental expert designation of Varat should
be stricken on the ground that Cemak unreasonably failed to identify Varat in its initial
expert designation.
Cemak contends that this case is controlled by Barboni v. Tuomi (2012) 210
Cal. App. 4th 340 (Barboni), rather than Fairfax. We disagree. In Barboni, neither side
served expert witness designations by the agreed-upon date. (Id. at p. 343.) The
defendant sought leave to serve a late expert witness designation, explaining that counsel
had missed the original deadline because the date had been inadvertently miscalendared.
(Ibid.) The trial court credited the explanation and gave the defendant leave to serve the
late expert designation. (Ibid.) The appellate court concluded that the trial court had not
abused its discretion in granting leave to serve a late expert designation. (Id. at p. 353.)
As Barboni explained, it was not in a position to second guess the trial court's decision to
credit counsel's explanation for missing the deadline, and more importantly, "while the
exchange was not simultaneous, it was also not crafted by one party to put the other at a
disadvantage in designating experts last." (Ibid.)
This case is nothing like Barboni. Here, unlike the plaintiff in Barboni, Pulido
followed the rules for simultaneous exchange of expert information by timely serving an
initial expert designation listing numerous experts, but Cemak waited to until after seeing
Pulido's designation to identify its own experts on the same issues, putting Pulido at a
disadvantage. Further, unlike in Barboni, where the court accepted counsel's explanation
10
that he miscalendared the date, the trial court here was well within its discretion to
conclude that Cemak's failure to initially designate an accident reconstruction expert was
not a mistake, but rather a tactical ploy. Thus, the relevant case here is Fairfax, not
Barboni.
Moreover, even had Cemak been able to establish that the trial court abused its
discretion in striking the designation of Varat as an expert in accident reconstruction,
Cemak did not establish that any error was prejudicial. As provided in Code of Civil
Procedure section 475, "[n]o judgment . . . shall be reversed . . . by reason of any error
. . . unless it shall appear from the record that such error . . .was prejudicial" and that "a
different result would have been probable if such error . . . had not occurred or existed."
" 'Prejudice from error is never presumed but must be affirmatively demonstrated by the
appellant.' " (Hernandez v. County of Los Angeles (2014) 226 Cal. App. 4th 1599, 1616.)
In this context, "[t]o establish prejudice, an appellant must show a reasonable probability
exists that, in the absence of the error, he or she would have obtained a more favorable
result." (People ex rel. City of Santa Monica v. Gabriel (2010) 186 Cal. App. 4th 882,
887.)
Here, the record contains no offer of proof as to (1) what the substance of Varat's
expert opinion would have been had he been permitted to testify at trial as an expert on
accident reconstruction, and (2) whether he would have reached an opinion any different
from Pulido's expert regarding how the accident occurred. Therefore, we are unable to
conclude that a reasonable probability exists that the jury would have reached a result
11
more favorable to Cemak had Varat's expert testimony on accident reconstruction been
introduced at trial.
B. The Trial Court Did Not Abuse Its Discretion in Admitting Roughan's Testimony
on Future Economic Damages
Cemak's next contention is that the trial court erred in admitting certain portions of
the testimony of Roughan, the registered nurse who testified as to the costs that Pulido
was expected to incur in the future as part of her ongoing medical treatment. "A trial
court's determination that expert testimony is admissible is reviewed for an abuse of
discretion." (Summers v. A. L. Gilbert Co. (1999) 69 Cal. App. 4th 1155, 1168.)
Roughan's testimony described a long list of specific items for which Pulido was
expected to incur future expenses related to medical care, set forth in Exhibit 18A, which
was referred to at trial. At the present economic value, the total cost of Pulido's expected
future medical costs as described by Roughan was $787,565.3 Cemak challenges
Roughan's testimony as to only three items: (1) the long-term cost of the prescription
drug Cymbalta, used to treat pain; (2) the long-term cost of a physiatrist, or pain
management specialist;4 and (3) the cost of setting up a special needs trust to manage and
3 This amount contained $716 in contingent expenses related to one of the surgical
procedures.
4 According to Roughan, physiatry is a specialty involving physical medicine and
rehabilitation, but not including surgery.
12
preserve the monetary funds required for Pulido's future medical care, including the legal
services associated with the trust.5
As an initial matter, we note that Cemak made no objection at trial to Roughan's
testimony about the costs associated with the special needs trust. A party may not seek
reversal on appeal based on the erroneous admission of evidence unless it made a specific
objection to the evidence in the trial court. (Evid. Code, § 353.) Accordingly, we
conclude that Cemak has not preserved its appellate challenge to the admission of the
evidence concerning the costs associated with the special needs trust, and we do not
consider it further.
As to Roughan's testimony about Pulido's future need for Cymbalta and
physiatry/pain management care, Cemak's objection at trial was that because Roughan is
a registered nurse, not a doctor, she was not qualified to testify to Pulido's expected costs
for Cymbalta medication and physiatry/pain management care, and thus there was no
foundation for the admission of the evidence on those subjects. Further, Cemak argued
that as to those two items, there was no testimony at trial from any other qualified
5 As the economist Hunt testified, at present value the expected cost of the
Cymbalta is $117,090, the expected cost of the physiatry or pain management care is
$5,881, and the cost of special needs trust is $87,502. Cemak contends that Hunt's
testimony on those issues compounded the purported error in allowing Roughan to testify
about them. To the extent Cemak is making a separate argument that portions of Hunt's
testimony should have been excluded, we reject the argument for two reasons. First,
Cemak made no objection at trial to the admission of Hunt's testimony on the issues she
now focuses on in her appeal, and she accordingly may not raise a challenge to the
admission of that evidence on appeal. (Evid. Code, § 353.) Second, the premise for
Cemak's challenge to Hunt's testimony fails, because, as we will explain, Cemak has not
established any error in admitting Roughan's testimony.
13
witness, such as Dr. Gold (the orthopedic surgeon) or Dr. Applebaum (the plastic
surgeon), establishing that Pulido would require Cymbalta or physiatry/pain management
care. Cemak pointed out that Roughan testified that she consulted with Dr. Lawrence S.
Miller — who examined Pulido — about Pulido's need for physiatry/pain management
care and the prescription of Cymbalta, but Dr. Miller did not testify at trial.
The trial court overruled both objections. As to Roughan's testimony about
Pulido's expected future expenses for Cymbalta, the trial court concluded that a sufficient
foundation existed based on Dr. Gold's testimony and Roughan's own testimony about
her reliance, as a long-term treatment planner, on her consultations with Pulido's doctors.
As to the physiatry/pain management care, the trial court ruled that Dr. Gold's testimony
about Pulido's ongoing pain and nerve damage supplied a sufficient foundation for
Roughan's testimony about Pulido incurring future costs for physiatry/pain management.
"It is the long-standing rule in California that experts may rely upon and testify to
the sources on which they base their opinions (Evid. Code, §§ 801, 802), including
hearsay of a type reasonably relied upon by professionals in the field." (People v. Cooper
(2007) 148 Cal. App. 4th 731, 746.) As provided in Evidence Code section 801,
subdivision (b), an expert is authorized to render an opinion "[b]ased on matter . . .
perceived by or personally known to the witness or made known to [the witness] at or
before the hearing, whether or not admissible, that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to which [the expert]
testimony relates . . . ." Specifically, one medical expert may rely on the opinion of
another medical expert. (People v. Catlin (2001) 26 Cal. 4th 81, 137 (Catlin).)
14
Roughan testified that she is a registered nurse with a specialty in developing
long-term treatment plans for patients, and that in doing so she regularly consults with the
patient's physicians regarding the particular medical care that is anticipated for the
patient. Based on this testimony, the trial court reasonably could determine that Roughan
was a qualified expert in the field of long-term treatment planning,6 and that the
information given to Roughan by a patient's doctors is the type of information that
Roughan reasonably could rely upon in forming a long-term treatment plan even though
she is not a doctor.
Here, Roughan specifically testified that she consulted with Drs. Miller, Gold and
Applebaum in developing the long-term treatment plan for Pulido. As to the need for the
Cymbalta and the physiatry/pain management care, Roughan explained that she
specifically consulted with Drs. Gold and Miller about the need to prescribe Cymbalta to
Pulido to manage her ongoing pain,7 and that she consulted with Dr. Miller, who is a
6 "[T]he trial court has broad discretion to determine whether a witness is competent
and qualified as an expert; and its determination will not be disturbed on appeal unless
' "a manifest abuse of discretion" ' is shown." (Mora v. Big Lots Stores, Inc. (2011) 194
Cal. App. 4th 496, 513; see also Evid. Code, § 720, subd. (a) ["A person is qualified to
testify as an expert if he has special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which his testimony relates."].)
Cemak has not questioned Roughan's qualifications to testify as an expert in the field of
long-term treatment planning, and the trial court was within its discretion to conclude,
based on Roughan's description of her background, that Roughan was qualified to testify
to her opinions in that area of expertise.
7 Roughan specifically testified at trial that Dr. Gold prescribed Cymbalta to Pulido
for pain. In its appellate brief, Cemak contends that Dr. Gold testified that he had not
prescribed Cymbalta. In support of that statement, Cemak provides a citation to the
15
physiatrist, about the long-term treatment plan. Further, all three doctors reviewed a draft
of the long-term treatment plan and approved it, including the medication. As additional
foundation for Pulido's need for ongoing pain management care, Dr. Gold testified that
based on her injuries, Pulido would have ongoing pain for the rest of her life.
Based on this testimony, the trial court was well within its discretion to conclude
that as an expert in preparing long-term treatment plans, Roughan had a sufficient
foundation to opine that Pulido was expected to incur specific expenses in connection
with the ongoing use of Cymbalta to manage pain and for ongoing physiatry/pain
management care even though Roughan is not a doctor.
Cemak relies at length on Mosesian v. Pennwalt Corp. (1987) 191 Cal. App. 3d
851, 860-861. However, Mosesian does not advance Cemak's argument. Mosesian does
nothing more than set forth the well-established principle, discussed in numerous
subsequent opinions, that "[e]xperts may rely upon hearsay in forming opinions[,]" but
"[t]hey may not relate an out-of-court opinion by another expert as independent proof of
fact." (Ibid.) Indeed, although "it generally is not appropriate for the testifying expert to
recount the details of the other physician's report or expression of opinion," it is left to the
" 'sound judgment' " of the trial court to decide how much of another expert's hearsay
opinion a testifying expert may describe in setting forth the basis for her own opinion.
(Catlin, supra, 26 Cal.4th at p. 137.) Here, the trial court reasonably concluded, within
its sound judgment, that in testifying about the long-term treatment plan she prepared for
whole of Dr. Gold's testimony. We have reviewed that testimony and find no support in
the record for Cemak's assertion.
16
Pulido, Roughan did not relate excessive details of the out-of-court statements of Pulido's
treating doctors. Based on the testimony at trial, the trial court reasonably could conclude
that Roughan explained only in a general manner that in formulating her expert opinion
on specific cost items she relied on her consultations with Pulido's doctors and included
that information in her final cost estimate for Pulido's long-term treatment.
In sum, we conclude that the trial court did not err in overruling Cemak's
objections to Roughan's testimony.8
C. Cemak Has Waived Its Challenge to the Denial of the New Trial Motion Based on
Insufficiency of the Evidence and Excessive Damages Because It Has Not
Provided an Adequate Appellate Record
Next, we turn to Cemak's contention that the trial court erred in denying its motion
for a new trial. Specifically, Cemak contends that the trial court erred in rejecting its
contention that (1) the evidence was insufficient to support the damages award; and
(2) the damages award was excessive. A ruling on a motion for a new trial is reviewed
under an abuse of discretion standard. (Santillan v. Roman Catholic Bishop of Fresno
(2012) 202 Cal. App. 4th 708, 733.)
Before proceeding any further, we consider Pulido's contention that Cemak has
waived its challenge to the trial court's ruling on the motion for a new trial because it did
8 Further, we note that Cemak has not even established that the jury awarded all of
the cost of the Cymbalta and the physiatry/pain management care as part of its verdict on
future noneconomic damages. The evidence at trial showed that the cost associated with
the Cymbalta and the physiatry/pain management care was $122,971. The jury awarded
only $665,565 in future economic damages, which was $122,000 less than the $787,565
that Roughan and Hunt testified to as the expected cost of Pulido's future medical care.
17
not meet its burden to provide an adequate appellate record. " 'It is the duty of an
appellant to provide an adequate record to the court establishing error. Failure to provide
an adequate record on an issue requires that the issue be resolved against appellant.' "
(Hotels Nevada, supra, 203 Cal.App.4th at p. 348.) Here, Cemak has not provided an
adequate record on the motion for a new trial. The only pleading that Cemak provided
from the motion for a new trial is its own initial moving papers. Cemak did not include
Pulido's opposition to the motion for a new trial in the appellant's appendix, and if Cemak
filed any reply papers it did not include those either. Further, Cemak did not provide us
with a reporter's transcript from the hearing on the new trial motion. Although the
minute order from the hearing on the new trial motion is included in the appellant's
appendix, the content of the minute order makes clear that the reporter's transcript from
the hearing is essential to understanding the basis for the trial court's ruling.9
Because Cemak has failed to provide an adequate record for us to review the
ruling on the motion for a new trial to determine whether the trial court abused its
discretion, we conclude that Cemak has waived its appellate challenge to that ruling.10
9 Among other things, the minute order states that during the hearing, in making its
ruling, the trial court "lists ex[c]erpts of the record that show the testimony re:
prescription for C[y]mbalta by Dr. Miller in the [Evidence Code section] 402 hearing and
trial testimony by Dr. Gold that C[y]mbalta was prescribed."
10 Moreover, were we to reach the merits of Cemak's challenge to the order denying
the motion for a new trial, it is clear based on our earlier analysis that Cemak's argument
lacks merit. As the centerpiece of its motion for a new trial, Cemak argued that the
evidence was insufficient to support the jury's award of future economic damages to
Pulido based on the same challenge to Roughan's testimony that we have already
discussed and rejected above. Specifically, Cemak simply repeats its argument that
18
D. Because It Did Not Object During Trial, Cemak May Not Seek Reversal Based on
Statements That Opposing Counsel Made During Closing Argument
Cemak contends that the trial court erred by improperly allowing counsel for
Pulido to make statements during closing argument that purportedly inflamed the jury.
In support of its argument, Cemak points to statements made during Pulido's initial
closing argument and rebuttal. During Pulido's initial closing argument, counsel stated
that, depending on how the verdict comes out, Cemak will either "pop the corks on the
champagne, congratulate everybody and say 'We got away with it,' " or it will "sit back
and say 'We got caught. We shouldn't be doing business this way.' " During Pulido's
rebuttal argument, counsel stated that Cemak's attitude toward safety "puts all of us in the
community at risk" and that the jury should act as "the conscience of the community."
Cemak did not object to these statements at trial. However, it argues on appeal that the
trial court should have "preclud[ed]" counsel for Pulido from making the statements
because they were designed to improperly inflame the jury.11
Roughan's testimony on Pulido's future expenses for Cymbalta, physiatry/pain
management care, and creating a special needs trust should have been excluded and
argues that the testimony therefore does not support the verdict. For the reasons we have
explained above, Cemak's challenge to foundation for Roughan's testimony is without
merit.
11 Cemak also contends that counsel for Pulido made the statements in violation of a
ruling on a motion for limine. Specifically, Cemak is referring to its motion in limine,
which is not included in the appellate record, which we infer from discussion in the
reporter's transcript sought a ruling preventing opposing counsel from violating the
"golden rule," under which counsel may not invite the jury to put itself in the victim's
position. (People v. Vance (2010) 188 Cal. App. 4th 1182, 1188.) However, the trial court
never ruled on the motion in limine, reserving its ruling until later.
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Because Cemak did not object to the statements during closing argument, it has
waived its ability to argue that the statement were improper. "Generally a claim of
misconduct is entitled to no consideration on appeal unless the record shows a timely and
proper objection and a request that the jury be admonished. . . . The purpose of the rule
requiring the making of timely objections is remedial in nature, and seeks to give the
court the opportunity to admonish the jury, instruct counsel and forestall the
accumulation of prejudice by repeated improprieties, thus avoiding the necessity of a
retrial. . . . In the absence of a timely objection the offended party is deemed to have
waived the claim of error through his participation in the atmosphere which produced the
claim of prejudice." (Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal. 2d 602, 610,
citations omitted.) Asserting misconduct for the first time in the context of a new trial
motion, as Cemak did here, does not preserve the issue for appeal. The objection and the
request for a curative instruction must be made during trial. (People v. Williams (1997)
16 Cal. 4th 153, 254-255.) Because Cemak did not object to counsel's comments during
closing argument and did not request that the jury be admonished, it may not rely on the
statements as a basis for seeking reversal of the judgment.
E. Pulido's Motion for Sanctions and Motion to Strike
As a final matter, we consider two motions filed by Pulido in the appellate court:
a motion for sanctions and a motion to strike, which we indicated by previous order that
we would consider together with this appeal.
Pulido argues in her motion for sanctions that we should impose monetary
sanctions on Cemak and its attorney. According to Pulido, sanctions are warranted
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pursuant to Code of Civil Procedure section 907 and California Rules of Court, rule 8.276
because the appeal is frivolous and was filed solely for the purpose of delay, and because
Cemak violated appellate court rules in drafting its brief.
We deny the motion. Based on our review of the record and the relevant legal
authority, as discussed above, the appeal is not wholly frivolous, and we do not perceive
that Cemak has been motivated by an effort to harass or delay. Further, Cemak's
violation of appellate court rules consist mainly of failing to include record citations in its
summary of the factual background, although record citations are present in the argument
portion of its brief. Those violations are not so egregious that sanctions are warranted.
Pulido's motion to strike seeks an order striking portions of Cemak's opening brief.
Specifically, Pulido requests that we strike (1) the opening brief's mention of Pulido's
felony convictions and a probation violation, as only one felony conviction was entered
into evidence at trial; and (2) the opening brief's statement of facts, as it contains no
citations to the record.
In ruling on the motion, we decline to strike any portion of the opening brief.
However, we will disregard any statements in Cemak's brief that are not supported by the
facts in the record. (See Hawran v. Hixson (2012) 209 Cal. App. 4th 256, 268 [instead of
striking a portion of a reply brief upon motion from opposing counsel, the court "g[a]ve
effect to" the motion to strike by "disregarding" improperly raised items].)
DISPOSITION
The judgment is affirmed. Pulido's motion for sanctions and motion to strike are
denied. As the prevailing party, Pulido is to recover her costs on appeal. Pursuant to the
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terms of the Court's June 15, 2015 order conditionally granting Cemak's request to vacate
submission and hold a second oral argument, Pulido's recoverable costs on appeal shall
include the attorney fees and expenses incurred by Pulido as a result of her counsel's
appearance at the oral argument on August 11, 2015.
IRION, J.
WE CONCUR:
McINTYRE, Acting P. J.
O'ROURKE, J.
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