Legardy v. San Antonio Community Hosp. CA4/2 ( 2013 )

Filed 12/19/13 Legardy v. San Antonio Community Hosp. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
TANJA LEGARDY, et al.,
Plaintiffs and Appellants, E052950
v. (Super.Ct.No. CIVRS803538)
SAN ANTONIO COMMUNITY OPINION
HOSPITAL,
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. David A. Williams,
Judge. Affirmed.
Diane B. Weissburg for Plaintiffs and Appellants.
Davis, Grass, Goldstein, Housouer, Finlay & Brigham, Jeffery W. Grass and
Carol A. Hoehn, for Defendant and Respondent.
Plaintiffs and appellants Tanja Legardy and Sean Legardi, Sr., initiated this
personal injury action against San Antonio Community Hospital (SAC Hospital)
following Mrs. Legardy’s fall during a visit. Following a jury trial, judgment was entered
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in favor of SAC Hospital. Plaintiffs appeal, contending misconduct on the part of the
trial judge warrants reversal of the judgment. We reject their claims and affirm.
I. PROCEDURAL BACKGROUND AND FACTS
On April 13, 2006, Mrs. Legardy fell during a visit to SAC Hospital. As a result,
plaintiffs initiated this action on April 8, 2008, alleging claims for negligence and
premises liability. A jury trial commenced with opening statements on November 30,
2010. A special verdict in favor of SAC Hospital was rendered on December 16, 2010.
Plaintiffs appeal.
II. DISCUSSION
As SAC Hospital aptly notes, “in reading the Opening Brief, it is generally
difficult to determine the basis of appeal for any particular issue.” For the most part, it
appears that plaintiffs’ primary claim is that the trial judge committed numerous instances
of misconduct that denied plaintiffs their right to a fair trial. Our review of the record
will focus on the various acts of misconduct pointed out by plaintiffs.
A court must avoid even an appearance of unfairness pervading the record. The
California Supreme Court stated in an early pronouncement: “The trial of a case should
not only be fair in fact, but it should also appear to be fair. And where the contrary
appears, it shocks the judicial instinct to allow the judgment to stand.” (Pratt v. Pratt
(1903) 141 Cal. 247, 252.) More recently courts have agreed that “In conducting trials,
judges ‘“should be exceedingly discreet in what they say and do . . . lest they seem to
lean toward or lend their influence to one side or the other.” [Citation.]’ [Citation.]
Their conduct must ‘“‘“accord with recognized principles of judicial decorum consistent
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with the presentation of a case in an atmosphere of fairness and impartiality.”’”’
[Citation.] ‘“The trial of a case should not only be fair in fact, . . . it should also appear to
be fair.”’ [Citation.]” (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994,
1002.)
On the other hand, a judge may form an opinion based on the evidence: “When a
judge’s state of mind appears to be adverse to one of the parties but is based on actual
observance of the witnesses and the evidence, that circumstance does not amount to
prejudice disqualifying the judge from trying the action. The judge’s duty is to consider
and pass on the evidence and, when that evidence is in conflict, to resolve the conflict.
The opinion that the judge thus forms does not amount to improper bias and prejudice.”
(7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 245, p. 298, and cases cited therein.)
A. Judicial Disparaging and Discourteous Remarks
Plaintiffs fault the trial court saying, “‘You know, I don’t care.’” They claim that
from this comment, we can presume prejudice. In a related argument, plaintiffs assert
that the trial court made so many disparaging comments (“no less than twelve (12)”) that
it is clear “he ‘favored’ the defense over the plaintiffs.” No specific conduct is identified;
however, plaintiffs reference a hearing held on November 3, 2009, more than one year
prior to commencement of trial. The November 3 hearing addressed plaintiffs’ ex parte
application to continue the trial and re-open discovery. Over SAC Hospital’s objection,
the trial court granted all relief requested by plaintiffs, continuing the trial to May 10,
2010. Given the outcome of the hearing, we are at a loss as to how the cited record
references demonstrate judicial prejudice.
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B. Court Failed to Enforce Its Order that SAC Hospital Produce Evidence
Plaintiffs contend that 11 days prior to the initial trial date of November 9, 2009,
SAC Hospital produced evidence that it intended to use at trial; however, the evidence
had not previously been produced for plaintiffs. Plaintiffs moved to exclude the
evidence, or, in the alternative, continue the trial and reopen discovery. The trial court
granted the alternative. Plaintiffs cite the discussion between the court and counsel;
however, as SAC Hospital notes, it is unclear how the court’s decision to continue the
trial and reopen discovery constituted judicial misconduct. Regarding the specific
evidence that was allegedly hidden by SAC Hospital, plaintiffs fail to support this claim
via citation to the record identifying the late-produced evidence. We conclude the trial
court did not commit any act of misconduct in ordering the trial continued and discovery
re-opened.
C. SAC Hospital’s Request to Depose a Witness
Citing the discussion from the May 6, 2010, hearing on plaintiffs’ motion to quash
a deposition subpoena, plaintiffs fault the trial court for granting defense’s request.
According to the record, plaintiffs had identified Dr. Landouer as a witness. SAC
Hospital scheduled the doctor’s deposition on two separate occasions; however, on the
last occasion the doctor refused to proceed without his personal attorney present.
Recognizing that defense counsel had exerted reasonable efforts to schedule the
deposition, the trial court denied plaintiffs’ motion to quash. The court informed the
parties that because there were no courtrooms available, the trial that was scheduled to
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begin on May 10, 2010, would have to be continued to July 19, 2010. We discern no
judicial misconduct at the hearing on the motion to quash.
D. SAC Hospital’s Motion to Continue the Trial and Motions in Limine Filed
Prior to the May and July Trial Dates
Plaintiffs assert the trial court was biased in favor of SAC Hospital because (1) it
granted defense counsel’s request on July 8 and July 15, 2010, to continue the trial based
on unavailability of counsel, and (2) it failed to summarily deny SAC Hospital’s motions
in limine as untimely, having been filed in violation of the Superior Court of San
Bernardino County, Local Rules, rules 411 and 415.1
Regarding plaintiffs’ claim involving SAC Hospital’s motions in limine, they
reference the discussion between the court and counsel on May 6, 2010, and July 8, 2010;
however, they offer no legal authority to support their claim. “‘Appellate briefs must
provide argument and legal authority for the positions taken. “When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived.”’ [Citation.] ‘We are not bound to develop
appellants’ arguments for them. [Citation.] The absence of cogent legal argument or
citation to authority allows this court to treat the contention as waived.’ [Citations.]”
(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill).)
Notwithstanding the absence of a legal argument, the trial court did not err in
refusing to summarily deny the defense motions in limine as untimely. “A motion in
1In this opinion, the term “local rule” shall refer to the Superior Court of San
Bernardino County Local Rules unless otherwise indicated.
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limine is made to exclude evidence before it is offered at trial on the ground that the
evidence is either irrelevant or subject to discretionary exclusion as unduly prejudicial.
[Citations.]” (Ceja v. Department of Transportation (2011) 201 Cal.App.4th 1475, 1480-
1481.) By its very nature, such motion is brought at the threshold of trial (or even during
trial) to “‘avoid the obviously futile attempt to “unring the bell”’” when prejudicial
evidence is offered and then stricken. (People v. Morris (1991) 53 Cal.3d 152, 188,
overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) The
use of motions in limine promotes trial advocacy and management. (People v. Morris,
supra, at p. 188.) While local rule 411 provides that “[a]ll motions in limine shall have
been submitted in writing with service completed at least 8 days before the [trial
readiness] conference,” and local rule 415 sets forth the contents of the declaration that
must accompany the motion in limine,2 the trial court is vested with the authority to
2 “(a) Motions made for the purpose of precluding the mention or display of
inadmissible and prejudicial matter in the presence of the jury shall be accompanied by a
declaration that includes the following:
“(1) A clear identification of the specific matter alleged to be inadmissible and
prejudicial;
“(2) A representation to the court that the subject of the motion has been discussed
with opposing counsel, and that opposing counsel has either indicated that such matter
will be mentioned or displayed in the presence of the jury before it is admitted in
evidence or that counsel has refused to stipulate that such matter will not be mentioned or
displayed in the presence of the jury unless and until it is admitted in evidence;
“(3) A statement of the specific prejudice that will be suffered by the moving party
if the motion is not granted; and
“(4) If the motion seeks to make binding an answer given in response to discovery,
the declaration must set forth the question and the answer and state why the use of the
answer for impeachment will not adequately protect the moving party against prejudice in
the event that evidence inconsistent with the answer is offered.” (Local Rules, rule
415(a)(1), (2), (3) & (4).)
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determine how to manage trials in its courtroom and may “defer ruling upon a motion in
limine.” (Local Rules, rule 415(d).) (See Superior Court of California, County of San
Bernardino, Local Rules of Court (eff. July 1, 2013) [as of October 1, 2013].)
When plaintiffs’ counsel objected to SAC Hospital’s motions in limine as not complying
with the court’s local rules, the court overruled the objection. It was within the trial
court’s discretion to overrule the objection, and we discern no abuse of discretion in its
decision to do so. Thus, the defense motions were not untimely, and when the trial was
continued to November 2010, and the motions in limine were heard on a date past the
assigned date for hearing them, there was no judicial misconduct.
Regarding their challenge to the trial court’s decision to continue the trial, the
record shows that the court required defense counsel to submit a declaration setting forth
counsel’s unavailability and showing that counsel was actually engaged in trial at that
time. At the further hearing, the trial court accepted the evidence that defense counsel
was engaged in a trial elsewhere. The court noted that the trial involved a five-year case.
After considering the declaration of counsel, as well as the vacation schedule of
plaintiffs’ counsel, the court continued the trial to November 8, 2010. The need for a
continuance was justified, and the trial court had previously continued the trial to
accommodate plaintiffs’ counsel. Moreover, the trial court granted a second request by
plaintiffs’ counsel for a short continuance of the trial to November 12, 2010. Thus, we
discern no judicial bias in the court’s treatment of either counsel.
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E. Plaintiffs’ Motion in Limine
Plaintiffs fault the trial court for refusing to rule on their sole motion in limine.
Plaintiffs cite to pages 502 through 914 of the clerk’s transcript, more than 400 pages.
This motion sought to suppress certain discovery that plaintiffs alleged was untimely
produced. It was originally filed on November 2, 2009, prior to the original trial date.
SAC Hospital opposed the motion, noting that it addressed numerous documents, which
ostensibly had not been produced when plaintiffs had many opportunities following the
continued trial and discovery cutoff dates to obtain them. The trial court questioned
whether the motion was moot, given the fact that the trial and discovery cutoff dates had
been continued. Given the number of items addressed in the motion, the trial court
reserved ruling “because if something comes up and [the court believed it to be]
prejudicial, [it] may keep it out.” The court decided “to deal with that on an item-by-item
basis.”
As SAC Hospital point outs, plaintiffs offer no argument how the court’s ruling
constituted judicial misconduct or resulted in prejudice. Thus, we deem it waived.
(Cahill, supra, 194 Cal.App.4th at p. 956.) Nonetheless, we conclude the court did not
abuse its discretion in reserving ruling, nor did such decision amount to judicial
misconduct.
F. Preclusion of Evidence of Surveillance Cameras
Plaintiffs contend the trial court committed misconduct when it denied its prior
ruling to allow them to elicit testimony about cameras in the hospital that captured any
roving patrols around the time of the accident.
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1. Further background facts
One of SAC Hospital’s motions in limine sought to preclude references to
surveillance cameras. During argument on the motion, plaintiffs asserted that SAC
Hospital had cameras capable of having still photographs; however, Carol Hull, Director
of Risk Management, determined there was no need to save any videos that may have
depicted Mrs. Legardy’s fall. They argued that the cameras are relevant to establish
exactly where the fall occurred, how Mrs. Legardy was injured, the substance on the
floor, and who assisted her. Plaintiffs asserted that spoliation of evidence had always
been an issue.
In response, SAC Hospital argued the point of its motion in limine is that there
were no cameras in the area where Mrs. Legardy fell; any electronic imaging was
recycled every 30 days; and SAC Hospital had not received any notice prior to the 30
days to preserve any imaging. Plaintiffs replied that SAC Hospital knew where Mrs.
Legardy fell but it was trying to say she fell somewhere else. Additionally, plaintiffs said
the cameras are relevant as to “whether or not there’s a roving patrol,” because “[o]ne of
their defenses is that there’s a roving patrol in the hospital.” Plaintiffs continued to argue
that SAC Hospital intentionally destroyed any pictures of the fall.
The court noted that plaintiffs had no evidence of deliberate destruction. SAC
Hospital commented the map indicated there were no cameras located in the area that
could have captured Mrs. Legardy’s fall. Furthermore, the hospital was not disputing that
she fell, that there was a liquid on the floor, or that she hit her knee on the floor. The
court ruled as follows: “I’ll grant the motion with a caveat. I’ll allow plaintiff to go into
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the existence of these surveillance cameras with regard to the issue of roving patrols. The
allegation will be that they had a policy of roving patrols. And I’ll allow her to challenge
whether they had a camera system and did they pick up any roving patrols on that day
either sometime before the accident or after the accident. I think that’s important because
the issue of roving patrols can—most likely will be prejudicial to the plaintiff but
prejudicial in an admissible way to the plaintiff, and I think they have to have an avenue
to try and impeach for that. And if they know there’s [sic] video cameras, of course, they
say ‘they erased everything so we can’t show it.’ I think that that makes it fair to both
sides. [¶] I think the issue is obviously important to the defense. ‘Look, our policy was
to have people walk through there, and they inspected the hallways.’ [¶] And her
contention is ‘You didn’t have anybody, and did you have a video of them on that day?’
[¶] Let it be explained why they didn’t or if the cameras weren’t there. Do you
understand, counsel? [¶] . . . [¶] I’ll allow you to go into it with regard to the issue of
roving patrols only; [d]o you understand?” Other than roving patrols, plaintiffs were not
allowed to pursue the issue of whether surveillance cameras captured anything else.
During the redirect examination of Gene Santilli, the facility director of SAC
Hospital in 2006, plaintiffs’ counsel asked him about the surveillance cameras and
whether they would have captured images of the people who walked through the
hallways. Counsel also asked whether he had received any request to save the videos
from the time that Mrs. Legardy fell. Counsel further inquired into how long the tapes
would last, how many days of video are saved before being recycled, and how difficult it
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is to download a tape or a still picture. The court asked both counsel to approach the
bench.
Noting that plaintiffs’ counsel’s questions exceeded cross-examination, the court
inquired into the relevance of whether or not Mr. Santilli was able to take still pictures
from the surveillance videos. Plaintiffs’ counsel explained that because defense counsel
had inquired into how SAC Hospital employees are trained to monitor the hallways, she
believed it opened the door to inquire about the cameras. The court disagreed on the
grounds that the previous testimony established the fact that SAC Hospital did not have
anyone who patrolled the hallways. Plaintiffs’ counsel argued that the video would show
who was in the hallways, who monitored it, where Mrs. Legardy fell, who responded, and
who was present. She added this was relevant to proving that SAC Hospital was not
monitoring the hallways. The court replied there was no video, and thus, counsel was
trying to present evidence of spoliation, i.e., that there were videos or pictures which
SAC Hospital hid from plaintiffs. Following further discussion, the court told plaintiffs’
counsel: “Whatever conspiracies you have [regarding spoliation of evidence] which may
or may not be true are not relevant to what’s going on in the trial right now. It’s not
relevant.” Over further argument of plaintiffs’ counsel, the trial court said: “We’re done.
You have made your record, and we’ll go out and finish this witness, and we’ll move
away from what was clearly a violation of the motion in limine, and there was no basis to
it. You may think there was a basis, but it was not based on the questions he asked. It
had nothing to do with cameras. It had nothing to do with anybody who could spot these
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things. It only had to do with whether there were people regularly walking through, and
he said no. Let’s move on.”
Later during the trial, SAC Hospital requested that the jury be admonished
regarding the surveillance cameras. Plaintiffs’ counsel argued that because SAC Hospital
brought up floor observation or maintenance programs or supervision of the floors, she
was entitled to bring up the rebuttal evidence of the cameras. The court disagreed,
finding that counsel had violated the court’s prior order granting SAC Hospital’s motion
in limine. The court thus agreed to admonish the jury as follows: “‘There is no evidence
of surveillance cameras that would have captured imaging of the area where Ms. Legardy
claims she fell or where the hospital claims she fell. Accordingly, you are instructed to
disregard any and all questioning and testimony regarding surveillance cameras.’”
2. Discussion
Plaintiffs argue that the trial court completely disregarded its order regarding the
motion in limine which dealt with the issue of surveillance cameras. According to
plaintiffs, “if [SAC Hospital] asserted that there were roving patrols employees of the
hospital that Plaintiff[s] could introduce evidence of the lack of tape evidence showing
that there were no roving patrols the day of Plaintiff’s fall.” They further fault the court
for not allowing them to state during opening statement that the hospital had 63 cameras.
Plaintiffs maintain that the evidence “would have shown the [h]ospital violated [its] own
procedures, that all of [its] employees were not trained; and that the hospital did not have
a roving patrol monitoring the floors for spills.” Thus, they contend the trial court erred
in excluding relevant evidence. We disagree.
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The trial court did not disregard its order. Plaintiffs were told that, other than
roving patrols, they were not allowed to pursue the issue of whether surveillance cameras
captured anything else. Witnesses testified there were no designated persons who
patrolled the halls at certain times of the day looking for things such as spills. Rather, if
someone noticed a spill, he or she would page one of the floaters, or people who would
respond to calls, such as, “stat calls on beds, hazardous waste, furniture lifting, just
basically helping out anybody in their needs.” According to Mr. Santilli, all employees
were responsible for keeping their eyes open for spills or other items on the floor.
Because there was no evidence of roving patrols, it was improper for plaintiffs’ counsel
to question any witness about surveillance cameras. Even if the court did disregard its
earlier ruling on a motion in limine, such rulings are tentative. The trial court retains the
discretion to make a different ruling as the evidence unfolds. (Rufo v. Simpson (2001) 86
Cal.App.4th 573, 608 [“A ruling on a pretrial motion in limine is necessarily tentative
because subsequent evidentiary developments may change the context.”].)
G. Outrageous Comments Made by the Trial Court Before the Jury
Plaintiffs assert they were prejudiced by the trial court’s outrageous comments
made before the jury. In support of their claim, plaintiffs cite to a discussion between the
court and their counsel regarding their counsel’s desire to recall Mr. Legardy to the stand.
The discussion was outside the presence of the jury. They also reference an exchange
between the court and plaintiffs’ counsel, wherein the court reminded counsel to limit
redirect examination to the scope of cross-examination by commenting, “Counsel[],
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you’re supposed to stick within his questions.” Finally, plaintiffs complain that the court
“would say things like, ‘just testing you’ to [their c]ounsel in front of the jury.”3
Because the first discussion was outside the presence of the jury, there is no
evidence of discourteous and disparaging remarks made before the jury. Nonetheless,
plaintiffs also complain that the trial court refused to allow them to continue cross-
examination of the witness Lauriston Kenneth Smith the next day and continually
interrupted their counsel’s cross-examination of Mr. Smith reminding counsel that it was
“five minutes to four” and “five after.” According to our review of the record, plaintiffs’
counsel was seeking to impeach Mr. Smith with his deposition testimony on the issues of
(1) when he retired, (2) whether he was “going” to the cafeteria or “walking towards” the
cafeteria. Both of these areas are irrelevant. Mr. Smith was no longer employed by SAC
Hospital, and was living in Georgia. SAC Hospital wanted to introduce his deposition
testimony into evidence; however, plaintiffs refused. Thus, Mr. Smith had to fly to
California to testify at trial and the court was determined to not require him to stay
another day when plaintiffs’ counsel was questioning him beyond the scope of direct
examination or on irrelevant issues. More importantly, plaintiffs’ counsel ended her
cross-examination of Mr. Smith, stating, “I have nothing further.” She did not seek to
3“[THE COURT:] We’re right at 4:00. This is beyond the scope of cross-
examination.
“Who do you have for tomorrow?
“[PLAINTIFFS’ COUNSEL]: Tomorrow we have nobody, your Honor. We’re
dark.
“THE COURT: That’s right. We won’t be here tomorrow. Just testing you.
“[PLAINTIFFS’ COUNSEL]: Thank you, your Honor. Did I pass?”
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have him brought back the next day, nor did she state the need to continue questioning
him. We discern no misconduct or erroneous evidentiary rulings on the part of the trial
court.
The second comment was made to remind plaintiffs’ counsel that her redirect
examination was exceeding the scope of cross-examination. Because plaintiffs do not
argue that their counsel was not exceeding the scope of cross-examination, there is no
prejudice. Finally, regarding the last comment, when considered in the context of when it
was made, i.e., at the end of the day, and plaintiffs’ counsel’s response, we conclude it
was not discourteous or disparaging. Rather, as SAC Hospital notes, the comment
appears to be “nothing more than a lighthearted exchange between the trial judge and
[plaintiffs’] counsel.”
H. CACI No. 1011
Plaintiffs contend the court used SAC Hospital’s “jury instruction and judgment
on special verdict that was not in compliance with Ortega v. Kmart [Corp.] (2001) 26
Cal.4th 1200, 1205 [(Ortega)], and CACI 1011, over repeated objections.”
(Capitalization omitted.) They argue the court rejected their requested instructions and
“blindsided” them with the ones used. However, they supply little pertinent legal
argument and no analysis. As such, their claim may be deem waived. (Cahill, supra,
194 Cal.App.4th at p. 956.) Even if their arguments have not been waived, plaintiffs
cannot prevail.
As SAC Hospital notes, our state’s highest court addressed the scope of an
owner’s duty to visitors regarding dangerous conditions of the property. (Ortega, supra,15
26 Cal.4th at p. 1205-1207.) “It is well established in California that although a store
owner is not an insurer of the safety of its patrons, the owner does owe them a duty to
exercise reasonable care in keeping the premises reasonably safe. [Citation.]” (Id. at p.
1205.) “Because the owner is not the insurer of the visitor’s personal safety [citation],
the owner’s actual or constructive knowledge of the dangerous condition is a key to
establishing its liability. Although the owner’s lack of knowledge is not a defense, ‘[t]o
impose liability for injuries suffered by an invitee due to [a] defective condition of the
premises, the owner or occupier “must have either actual or constructive knowledge of
the dangerous condition or have been able by the exercise of ordinary care to discover the
condition, which if known to him, he should realize as involving an unreasonable risk to
invitees on his premises. . . .”’ [Citations.]” (Id. at p. 1206.)
“To exercise a degree of care that is commensurate with the risks involved, the
owner must make reasonable inspections of the portions of the premises open to
customers. [Citations.] . . . An injured plaintiff has the burden of showing that the owner
had notice of the defect in sufficient time to correct it, but failed to take reasonable steps
to do so. [Citation.] One way to carry that burden is to raise an inference that the
hazardous condition existed long enough for the owner to have discovered it, if an owner
exercising reasonable care would have learned of it. [Citations.]” (Howard v. Omni
Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431, fn. omitted.) “It remains a
question of fact for the jury whether, under all the circumstances, the defective condition
existed long enough so that it would have been discovered and remedied by an owner in
the exercise of reasonable care.” (Ortega, supra, 26 Cal.4th at p. 1213.)
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The jury was instructed with CACI 1011, as follows: “‘In determining whether
[SAC] Hospital should have known of the condition that created the risk of harm, you
must decide whether, under all circumstances, the condition was of such a nature and
existed long enough that [SAC] Hospital had sufficient time to discover it, and using
reasonable care: 1, Repair the condition; or 2, Protect against harm from the condition;
or 3, Adequately warn of the condition. [¶] [SAC] Hospital must make reasonable
inspections of the property to discover unsafe conditions. If an inspection was not made
within a reasonable time before the accident, this may show that the condition existed
long enough so that an owner using reasonable care could have discovered it. [¶] What
constitutes a reasonable inspection must be determined from all the evidence.’”4
Additionally, the jury received Special Instruction Number 1 which provided:
“‘Defendant [SAC] Hospital is not an insurer of the safety of visitors, although it does
owe them a duty of reasonable care in keeping its premises reasonably safe.’”
(Capitalization omitted.)
Under current California law, the jury was properly instructed.
I. Exclusion of Expert Testimony on Damages
In their final argument, plaintiffs contend “[t]he Court refused expert opinions on
the subject of damages even though Plaintiff[s] complied in full with Bonds v. Roy (1999)
4 With the exception of the last paragraph, this instruction tracts the language
approved by the Judicial Council for CACI 1011. (See Judicial Council of Cal. Civ. Jury
Instns. (2012) CACI No. 1011.)
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20 Cal.4th 140, 147,[5] and over repeated objections.” Other than citing to the 10 pages
in the reporters transcript, plaintiffs offer no further discussion or analysis. As we have
previously noted, it is not our job to develop plaintiffs’ argument for them. Their failure
to do so allows this court to treat the contention as waived. (Cahill, supra, 194
Cal.App.4th at p. 956.)
Notwithstanding the above, SAC Hospital provided this court with the context of
plaintiffs’ argument and a response. Plaintiffs sought to elicit testimony on the
reasonableness of the medical expenses via Michael Alexander Wiener, M.D. SAC
Hospital objected on the grounds that the doctor had offered no such opinion in his
deposition and plaintiffs failed to inform SAC Hospital that Dr. Wiener would provide
such an opinion. (Kennemur v. State of California (1982) 133 Cal.App.3d 907 [expert
witness’s testimony is limited to opinions rendered at the time of his or her deposition].)
Following a discussion between the court and counsel, outside the presence of the jury,
the trial court sustained SAC Hospital’s objection under Kennemur. The trial court’s
ruling was proper. Moreover, as SAC Hospital points out, the excluded opinion
testimony concerning damages is moot because plaintiffs did not prevail on the issue of
liability at the trial level or on appeal.
5 Plaintiffs cite the Supreme Court’s observation that “it is difficult to distinguish
cases in which a party inaccurately describes the general substance of an expert’s
expected testimony from cases in which a party wholly fails to disclose an expert.
[Citations.]” (Bonds v. Roy, supra, 20 Cal.4th at p. 147.)
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III. DISPOSITION
The judgment is affirmed. Each party shall bear its own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
CODRINGTON
J.
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