Sternick v. Roman Catholic Bishop of Stockton CA3 ( 2021 )


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  • Filed 10/29/21 Sternick v. Roman Catholic Bishop of Stockton CA3
    NOT TO BE PUBLISHED
    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 This opinion has not been certified for publication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
    THIRD APPELLATE DISTRICT
    (Calaveras)
    ----
    LAURA STERNICK,                                                                            C088661
    Plaintiff and Appellant,                                     (Super. Ct. No. 16CV41484)
    v.
    ROMAN CATHOLIC BISHOP OF STOCKTON et
    al.,
    Defendants and Respondents.
    Plaintiff Laura Sternick appeals in pro per from a judgment of nonsuit (Code Civ.
    Proc., § 581c) in favor of defendants Roman Catholic Bishop of Stockton (the Diocese)
    and Madonna of Peace Retreat Center (the Retreat Center).1 She argues the trial court
    erred in granting nonsuit on a negligence action arising from a fire. She also argues the
    trial court erred in coordinating her case with related cases arising from the same fire.
    She also challenges various evidentiary rulings. We reject all of Sternick’s contentions
    and affirm the judgment.
    1   Undesignated statutory references are to the Code of Civil Procedure.
    1
    I. BACKGROUND2
    Sternick filed a form complaint against the Diocese and Retreat Center on March
    1, 2016.3 The complaint alleges the Diocese owns and operates the Retreat Center. The
    complaint further alleges that a fire broke out at the Retreat Center on June 22, 2014.
    According to the complaint, the fire spread to Sternick’s nearby property, causing
    damage to her personal and real properties.
    The complaint does not address the cause or causes of the fire. However, the
    record elsewhere indicates that the fire was caused by Cirilo Alvarado and Jacinto Flores,
    members of a radio club that used the Retreat Center’s property for club activities. 4 The
    record indicates that Alvarado and Flores were attempting to construct a cattle barrier
    around a pump house in which radio club equipment was stored. A spark generated in
    the construction process apparently blew onto some dry grass, causing the fire to ignite.
    The Diocese and Retreat Center answered the complaint and denied the allegations.
    A.     Related Cases
    Other actions were brought against the Diocese and Retreat Center in the
    aftermath of the fire. The Diocese and Retreat Center gave notice of one such case—
    2 We have only a limited record of the trial court proceedings. As we shall discuss,
    Sternick has elected to proceed with a settled statement prepared according to California
    Rules of Court, rule 8.137 (all further rule references are to the California Rules of Court)
    rather than a reporter’s transcript. The settled statement is unclear in numerous respects.
    Sternick has also provided only a partial clerk’s transcript. We have done our best to
    ascertain the relevant facts and procedural history from the incomplete record before us.
    3The complaint names Stockton Catholic Diocese and Madonna Retreat. The correct
    party names are the Roman Catholic Bishop of Stockton and Madonna of Peace Retreat
    Center.
    4The Retreat Center filed a cross-complaint against Alvarado and Flores, but the cross-
    complaint was dismissed.
    2
    Nordstrom v. Diocese of Stockton, et al, Calaveras County Superior Court, Case No.
    16CV41573 (the Nordstrom case)—on May 9, 2016.
    The trial court held a case management conference on July 6, 2016. Afterwards,
    the trial court entered an order setting a further case management conference “to be heard
    at the same time as related case 16CV41573 [the Nordstrom case].”
    The trial court held another case management conference on December 28, 2016.
    Afterwards, the trial court entered an order stating, “These matters will continue to be
    coordinated for case management and trial.” The order does not identify the
    “coordinated” matters.
    The Retreat Center filed a settlement conference statement on January 11, 2018.
    The settlement conference statement characterizes the present action as “one of three
    cases being tried simultaneously.” The settlement conference statement identifies the
    other cases as the Nordstrom case and California Department of Forestry and Fire
    Protection v. Madonna of Peace Retreat Center, et al., Calaveras County Superior Court,
    Case No. 16CV41659 (the Cal Fire case). The settlement conference statement also
    indicates that a fourth related case had been filed but never served, McDonald v. Powell,
    et al., Calaveras County Superior Court, Case No. 16CV41704 (the McDonald case).
    The trial court conducted a settlement conference on January 19, 2018. Following
    the settlement conference, the trial court entered an order stating, “For all purposes, [the]
    Court on its own motion adds 16CV41704 [the McDonald case] to the coordinated cases
    of 16CV41659 [the Cal Fire case], 16CV41573 [the Nordstrom case], and 16CV41484
    [the present case], including trial dates being set.” A jury trial was set for November 7,
    2018. However, Sternick’s case appears to have been the only one to proceed to trial. 5
    5 As we shall discuss, Sternick filed a renewed motion to reopen discovery in the present
    case, in which she represented that the Cal Fire case would not be going to trial. We take
    judicial notice of Sternick’s renewed motion on our own motion. We also take judicial
    3
    B.       Order Denying Discovery Motions
    On February 23, 2018, the trial court entered an order denying three interrelated
    discovery motions by Sternick. 6 The order characterizes the motions as: (1) a motion
    seeking relief from Sternick’s failure to timely disclose expert witnesses; (2) a motion
    seeking to reopen discovery; and (3) a motion allowing Sternick to serve a tardy
    disclosure of expert witnesses and/or quashing objections to notices she had served in
    lieu of subpoenas (presumably of her desired experts). The trial court denied the first and
    second motions on the grounds that Sternick failed to file the required meet-and-confer
    declarations. (§ 2016.040.) The trial court denied both motions “Without Prejudice to be
    renewed expeditiously and with full compliance with all statutory requirements.”
    C.       Order Denying Renewed Discovery Motion
    On September 27, 2018, Sternick filed a renewed motion to reopen discovery and
    submit tardy expert witness information before trial. The motion represents that the
    California Department of Forestry and Fire Protection (Department) had decided to
    discontinue prosecution of the Cal Fire case. The motion argues that the Department’s
    actions in the Cal Fire case necessitated “EMERGENCY EXTENDED DISCOVERY
    DEADLINE AND A REOPENING OF EXPERT DISCOVERY” in the present case.
    On October 26, 2018, the trial court entered an order denying the renewed
    motion. The trial court found that “waiting over seven months to file a renewed motion
    falls far short of being ‘renewed expeditiously’ and amounts to laches, a failure to do
    equity that justifies denying a request for relief that is essentially of an equitable nature.”
    “Moreover,” the trial court continued, “to grant the requested relief on the eve of trial
    notice on our own motion of a notice of entry of dismissal filed in the Nordstrom case on
    April 2, 2018, and a minute order entered in the McDonald case on November 28, 2018.
    6   The motions have not been made part of our record on appeal.
    4
    would result in necessarily further delaying resolution of the numerous claims that have
    been coordinated for trial purposes, thereby prejudicing all other parties.”
    D.       Motions in Limine
    The Diocese and Retreat Center filed several motions in limine. First, the Diocese
    and Retreat Center moved to preclude Sternick from reading into the record the
    deposition testimony of any person or party other than John Powell, the caretaker for the
    Retreat Center. The Diocese and Retreat Center explained that Powell’s deposition had
    been taken in the Cal Fire case, along with the depositions of various Department
    employees. However, the motion continued, the Department was not a party to the
    present litigation. Accordingly, the Diocese and Retreat Center argued that section
    2025.620 precluded Sternick from reading the depositions of Department employees into
    the record. The trial court granted the motion.
    Second, the Diocese and Retreat Center moved to exclude expert testimony,
    presumably on the ground that Sternick failed to disclose any experts. 7 The trial court
    granted the motion.
    Third, the Diocese and Retreat Center moved to exclude evidence of any alleged
    non-economic losses. The trial court granted the motion.
    Fourth, the Diocese and Retreat Center moved to exclude evidence of Sternick’s
    financial condition. The trial court granted the motion.
    Fifth, the Diocese and Retreat Center moved to preclude Sternick from offering
    opinions regarding credibility prior to final argument. The trial court granted the motion.
    7   We have not been provided with a copy of the motion to exclude expert testimony.
    5
    Sixth, the Diocese and Retreat Center moved to preclude Sternick from violating
    the “Golden Rule” by inviting jurors to put themselves in her position. The trial court
    granted the motion. 8
    Sternick opposed the above-described motions in limine and filed two such
    motions of her own. First, Sternick moved to preclude the Diocese and Retreat Center
    from referring to their religious affiliation. The trial court denied the motion. Second,
    Sternick moved to preclude the Diocese and Retreat Center from referring to their
    financial condition and nonprofit status. The trial court granted the motion to exclude
    evidence of the Diocese and Retreat Center’s financial condition but denied the motion to
    exclude evidence of their nonprofit status.
    E.     Jury Trial and Nonsuit
    A jury trial commenced on November 7, 2018. The Diocese and Retreat Center
    moved for nonsuit after Sternick’s opening statement. The trial court denied the motion.
    Sternick called herself as a witness and testified in narrative form. She also called
    Powell (the Retreat Center’s caretaker), Bradley James Niven (an investigator with the
    Department), and Flores (one of the radio club members). As noted, we have not been
    provided with a reporter’s transcript of the trial. We summarize relevant portions of the
    settled statement below.
    At the close of Sternick’s case in chief, the Diocese and Retreat Center moved for
    nonsuit a second time. The trial court denied the motion without prejudice. Following a
    discussion concerning ownership of the Retreat Center, the trial court reconsidered the
    ruling on the motion for nonsuit and granted the motion as to the Retreat Center only.
    8 The Diocese and Retreat Center also moved to exclude evidence regarding losses or
    damages related to Sternick’s business, All Terrain Landscaping. The trial court denied
    the motion.
    6
    The next day, the trial court advised the parties that, “after much consideration,” the court
    found “a lack of causation and grant[ed] the nonsuit as to all causes of action.”
    F.      Settled Statement
    As noted, Sternick elected to proceed with a settled statement rather than a
    reporter’s transcript. The settled statement asserts, inter alia, that the trial court erred in
    granting nonsuit because the evidence showed the Diocese and Retreat Center caused the
    fire.
    The settled statement indicates that Sternick testified, in substance, that (1) the
    Diocese and/or Retreat Center leased land to an unidentified cattle owner, (2) Powell
    used pipes as an obstruction near the entrance of the pump house, (3) Alvarado and
    Flores took it upon themselves to construct a cattle barrier, and (4) “RADIO CLUB
    MEMBERS CAUSED A FIRE DURING [THE] CONSTRUCTION PROCESS.” The
    trial court appears to have sustained objections to much of Sternick’s testimony.
    The settled statement offers the following summary of Nevin’s testimony:
    “FIRE[ ]INVESTIGATOR CAPTAIN BRADLEY NEVIN, TESTIFIED
    WHERE THE WORK WAS BEING CONSTRUCTED, THAT THE SURROUNDINGS
    WERE NOT CLEARED FOR FIRE IN HIS OPINION AS HE WAS 1ST
    INVESTIGATOR AT THE FIRE.” The settled statement indicates the trial court
    sustained defense objections to a “FIRE INVESTIGATORS REPORT” for lack of
    foundation.
    The settled statement indicates Powell testified, in substance, that: (1) he was the
    caretaker of the Retreat; (2) he rarely spoke with radio club members or visited the pump
    house; (3) the Diocese gave him a set of written rules governing the use of the Retreat
    Center, but the rules were written in English and did not address fire risks; and (4) when
    he arrived at the pump house on the day of the fire, radio club members told him,
    “ ‘ACCIDENT JOHN, []NO GOOD.’ ”
    The settled statement does not offer a summary of Flores’s testimony.
    7
    II. DISCUSSION
    A.     Motion for Nonsuit
    Sternick argues the trial court erred in granting nonsuit for lack of causation. 9 “On
    review of a judgment of nonsuit, as here, we must view the facts in the light most
    favorable to the plaintiff. ‘[C]ourts traditionally have taken a very restrictive view of the
    circumstances under which nonsuit is proper. The rule is that a trial court may not grant a
    defendant’s motion for nonsuit if plaintiff’s evidence would support a jury verdict in
    plaintiff’s favor. [Citations.] [¶] In determining whether plaintiff’s evidence is
    sufficient, the court may not weigh the evidence or consider the credibility of witnesses.
    Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting
    evidence must be disregarded. The court must give “to the plaintiff[’s] evidence all the
    value to which it is legally entitled, . . . indulging every legitimate inference which may
    be drawn from the evidence in plaintiff[’s] favor . . . .” ’ [Citation.] The same rule
    applies on appeal from the grant of a nonsuit.” (Castaneda v. Olsher (2007) 
    41 Cal.4th 1205
    , 1214-1215.)
    Sternick’s negligence cause of action required a showing that the Diocese or
    Retreat Center caused her damages. (Wiener v. Southcoast Childcare Centers, Inc.
    (2004) 
    32 Cal.4th 1138
    , 1145.) “A tort is a legal cause of injury only when it is a
    substantial factor in producing the injury.” (Soule v. General Motors Corp. (1994) 
    8 Cal.4th 548
    , 572.) “ ‘A substantial factor in causing harm is a factor that a reasonable
    person would consider to have contributed to the harm. It must be more than a remote or
    9Sternick also challenges the trial court’s grant of nonsuit as to the Retreat Center,
    apparently on grounds pertaining to ownership of the property. We need not reach the
    merits of the trial court’s initial ruling as to the Retreat Center, as we conclude the
    subsequent motion for nonsuit was properly granted as to all causes of action against both
    defendants.
    8
    trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a
    substantial factor in causing harm if the same harm would have occurred without that
    conduct.’ ” (Raven H. v. Gamette (2007) 
    157 Cal.App.4th 1017
    , 1025, quoting CACI
    No. 430; accord In re Ethan C. (2012) 
    54 Cal.4th 610
    , 640.)
    The evidence appears to have been undisputed that Alvarado and Flores were the
    actual cause of the fire, i.e., the source of the activity or activities that caused the ignition.
    Although objections appear to have been sustained to much of her testimony, even
    Sternick appears to have acknowledged that “RADIO CLUB MEMBERS CAUSED A
    FIRE” in the course of their construction activities. Sternick does not challenge the
    seemingly undisputed evidence that Alvarado and Flores caused the fire. Instead, she
    suggests the Diocese and Retreat Center contributed to the spread of the fire by failing to
    clear vegetation from the property. This theory makes sense in the abstract, but Sternick
    offered no evidence to support it.
    As noted, the trial court precluded Sternick from presenting expert opinion
    testimony. As a result, she was unable to present expert opinion evidence that negligent
    vegetation management increased her risk of harm. In the absence of any such evidence,
    Sternick was forced to rely on percipient witnesses. However, none of these witnesses
    appear to have testified to the Retreat Center’s vegetation maintenance practices, and
    none appear to have observed any connection between the presence of uncleared
    vegetation at the Retreat Center and the spread of the fire to Sternick’s property. 10 On
    the record before us, there was no evidence from which the jury could have reasonably
    10 According to the settled statement, Nevin, the fire investigator, testified, “WHERE
    THE WORK WAS BEING CONSTRUCTED, THAT THE SURROUNDINGS WERE
    NOT CLEARED FOR FIRE IN HIS OPINION.” Nevin’s testimony, as here described,
    shows only that the area was not optimized for preventing fires from construction
    activity. It does not support an inference that the Diocese or Retreat Center failed to
    conduct necessary maintenance, or that any such failure of maintenance contributed to
    the spread of the fire.
    9
    inferred that the Diocese and Retreat Center failed to properly maintain vegetation at the
    Retreat Center, or that any such failure contributed to the spread of the fire to Sternick’s
    property.
    Sternick offers an alternative theory of liability. She suggests the Diocese and
    Retreat Center caused her damage by breaching a duty to prevent the dangerous activities
    of Alvarado and Flores. She points to evidence that the gates to the Retreat Center were
    always open, allowing radio club members to come and go as they pleased. She also
    points to evidence that the Diocese had rules regarding the use of the Retreat Center, but
    the rules were 20 years old and failed to appreciate current fire risks. She also notes that
    the rules were written in English and may have been hard for the Spanish-speaking
    members of the radio club to understand. This evidence does not support an inference
    that the Diocese or Retreat Center breached a duty of care to Sternick.
    When analyzing the possible duty a defendant may owe a plaintiff with respect to
    harm at the hands of third parties, courts distinguish between “misfeasance”—meaning
    the defendant has acted affirmatively in a way that “created a risk” of harm at the hands
    of a third party—and “nonfeasance”—meaning “ ‘the defendant has failed to aid plaintiff
    through beneficial intervention.’ ” (Melton v. Boustred (2010) 
    183 Cal.App.4th 521
    , 531,
    citing Weirum v. RKO General, Inc. (1975) 
    15 Cal.3d 40
    , 49.) This distinction is
    important, because, as a general rule, one “who has not created a peril is not liable in tort
    merely for failure to take affirmative action to assist or protect another” from acts of a
    third party. (Williams v. State of California (1983) 
    34 Cal.3d 18
    , 23; see Pamela L. v.
    Farmer (1980) 
    112 Cal.App.3d 206
    , 209 [“a person should not be liable for
    ‘nonfeasance’ in failing to act as a ‘good Samaritan’ ”].) By contrast, if a defendant
    “create[s] an unreasonable hazard,” which facilitates harm at the hands of third parties,
    such misfeasance may support a duty to protect the plaintiff against such harm, even
    though “third parties were the immediate cause of the . . . injury.” (Garcia v. Paramount
    Citrus Assn., Inc. (2008) 
    164 Cal.App.4th 1448
    , 1453, fn. 3.) A defendant may also owe
    10
    an affirmative duty to protect another from the conduct of third parties if he or she has a
    “special relationship” with the other person. (Melton v. Boustred, supra, at pp. 531-532.)
    Nothing in the record suggests the Diocese or Retreat Center had a special
    relationship with Sternick or engaged in affirmative conduct that increased the risk of
    harm to her. Although the Diocese and Retreat Center allowed members of the radio club
    to use the property, nothing suggests they “created a peril” (Williams v. State of
    California, supra, 34 Cal.3d at p. 23; see Pamela L. v. Farmer (1980) 
    112 Cal.App.3d 206
    , 209), by engaging in “active conduct that increased the risk of harm” to Sternick.
    (Melton v. Boustred, supra, 183 Cal.App.4th at p. 533). So far as the settled statement
    reveals, Sternick presented no evidence that the club’s ordinary activities were inherently
    dangerous or posed an inevitable fire risk. Nor does Sternick appear to have presented
    evidence that the Diocese or Retreat Center authorized or approved of Alvarado and
    Flores’s construction efforts. Indeed, nothing suggests anyone from the Diocese or
    Retreat Center knew about Alvarado and Flores’s attempt to construct a cattle barrier.
    On the record before us, there was no substantial evidence that the Diocese or Retreat
    Center engaged in affirmative conduct that increased the risk of harm to Sternick.
    Nonsuit was properly granted.
    B.     Coordination of Related Cases
    Sternick next challenges the trial court’s decision to “coordinate” the present case
    with the Nordstrom, Cal Fire, and McDonald cases (together, the related cases). She
    suggests the trial court acted in excess of its authority in coordinating the related cases
    because (1) no coordination petition was filed (§ 404 [establishing procedures for
    coordinating civil actions sharing common questions of fact or law]), and (2) the court
    failed to comply with rule 3.400 [setting forth definitions for complex cases].) She also
    argues, somewhat inconsistently, that the trial court erred in terminating the allegedly
    improper coordination on the eve of trial. These purported procedural maneuvers were a
    problem, Sternick says, because she was planning to use evidence developed in the Cal
    11
    Fire and McDonald cases to prove her case but was prevented from doing so. Sternick’s
    confusing argument lacks merit.
    It is true, as Sternick observes, that the trial court used the word “coordinated” to
    describe the relationship between the related cases. However, we do not believe the trial
    court intended to “coordinate” the related cases within the meaning of section 404. The
    trial court does not appear to have considered any petition for coordination (as Sternick
    also observes), and the statutory procedure for coordinating cases from different courts
    would not seem to apply here in any event. (§ 404; Wegner, et al., Cal. Practice Guide:
    Civil Trials and Evidence (The Rutter Group 2020) ¶ 4:432.10 [“When separate lawsuits
    have common issues of law or fact, the court may order them consolidated or
    coordinated for trial. (Consolidation involves cases pending in the same court;
    coordination involves cases pending in different courts)”].) We do not presume the trial
    court erroneously coordinated the related cases pursuant to an inapplicable statute. (See
    Jameson v. Desta (2018) 
    5 Cal.5th 594
    , 608-609.) It seems to us more likely that the trial
    court intended to order the cases related pursuant to rule 3.300. (See 4 Witkin, Cal.
    Procedure (5th ed. 2020) Coordination of Related Cases, § 375, [describing procedure for
    ordering cases related under rule 3.300].) We need not resolve this mystery, however, as
    it is undisputed that the related cases were no longer “coordinated” (if they ever were) by
    the time of trial. This brings us to Sternick’s argument that the trial court improperly
    terminated the purported coordination.
    Sternick argues without citation to the record that the trial court took some sort of
    action with respect to the purported coordination on the eve of trial. But the record
    reflects no such action, and Sternick’s representations to the trial court in this case and
    judicially noticeable records in the other related cases indicate that the Nordstrom and
    Cal Fire cases had been resolved months before. The McDonald case, by contrast, does
    not appear to have been at issue. The trial court could not have caused any of these
    developments, even assuming the related cases had previously been erroneously
    12
    coordinated. Furthermore, though Sternick implies she was blindsided on the eve of trial,
    her renewed motion to reopen discovery made clear that she knew the Cal Fire case
    would not be going forward well before her own trial date.
    Ultimately, however, Sternick’s arguments concerning the purported coordination
    or lack of coordination of the related cases appear to rest on the notion that she should
    have been able to draft behind the plaintiffs in the other related cases, using their
    evidence to prosecute her separate claims against the Diocese and Retreat Center.
    Sternick maintains that she enjoyed cooperative relationships with attorneys for the
    plaintiffs in the Cal Fire and McDonald cases, and she planned to use deposition
    transcripts and exhibits from those cases in her own case-in-chief. This strategy might
    have made sense had the related cases been consolidated in some fashion (§ 1048, subd.
    (a)), but nothing suggests consolidation was ever on the table, and no reasonable attorney
    would have believed that she could rely entirely on deposition transcripts and exhibits
    from other cases in presenting and proving her own independent action. 11 That Sternick
    erroneously believed she could present her case in tag-along fashion does not establish
    error by the trial court. (Rappleyea v. Campbell (1994) 
    8 Cal.4th 975
    , 984-985 [“Except
    when a particular rule provides otherwise, the rules of civil procedure must apply equally
    to parties represented by counsel and those who forgo attorney representation”].)
    C.     Evidentiary Challenges
    Finally, Sternick challenges many of the trial court’s evidentiary rulings, including
    most of the court’s rulings on the parties’ motions in limine. We typically review a trial
    court’s evidentiary decisions for abuse of discretion. (Twenty-Nine Palms Enterprises v.
    Bardos (2012) 
    210 Cal.App.4th 1435
    , 1447.) When a motion in limine is used to dispose
    of an entire cause of action, we apply a more rigorous standard of review, with inferences
    11 Indeed, the Diocese and Retreat Center’s attorney tried to warn her against such a
    strategy.
    13
    and conflicts of evidence resolved in favor of the nonmoving party. (Kinda v. Carpenter
    (2016) 
    247 Cal.App.4th 1268
    , 1279-1280.)
    1.     Motions in Limine as Dispositive Motion
    Sternick argues the Diocese and Retreat Center improperly used their motions in
    limine as a substitute for a dispositive motion. We accept the premise that motions in
    limine should not replace dispositive motions prescribed by the Code of Civil Procedure,
    such as motions for summary judgment. (Johnson v. Chiu (2011) 
    199 Cal.App.4th 775
    ,
    780-781; Amtower v. Photon Dynamics, Inc. (2008) 
    158 Cal.App.4th 1582
    , 1594.) But
    nothing in the record suggests that anything like that happened here. 12
    The Diocese and Retreat Center’s motions in limine succeeded in precluding
    Sternick from presenting expert opinion evidence and reading certain deposition
    transcripts into the record. As far as we can tell from the incomplete record, the motions
    operated only to exclude particular evidence, including evidence that was already
    excluded by reason of the trial court’s discovery rulings. Nothing in the record suggests
    that any of the motions called upon the trial court to evaluate all of Sternick’s evidence or
    determine whether, without the excluded evidence, she would be unable to prove her
    case. (See Amtower v. Photon Dynamics, Inc., supra, 158 Cal.App.4th at pp. 1593-1594
    [observing that some courts “have also used the in limine process to examine the
    sufficiency of the evidence”].) Although Sternick would later prove unable to show
    causation without expert opinion testimony, there does not appear to have been any
    evidentiary proceeding or formal motion establishing this was the case. On the record
    before us, the trial court can only be said to have enforced the discovery rulings dealing
    with Sternick’s failure to disclose experts. No error appears.
    12As noted, we have not been provided with a copy of the Diocese and Retreat Center’s
    motion to exclude expert testimony.
    14
    2.     Use of Depositions
    Sternick also challenges the trial court’s in limine ruling precluding her from
    reading transcripts of depositions taken in other cases into the record. We perceive no
    error.
    Under Evidence Code section 1291, subdivision (a)(2), subject to certain
    conditions not relevant here, previously recorded testimony may be offered at trial only if
    the deponent is unavailable as a witness. Section 2025.620, subdivision (b) establishes an
    exception to this rule in that it allows the deposition of a party or one who was an
    employee of a party at the time the deposition is taken to be used at trial against the other
    party, whether or not the deponent is available.
    Sternick complains that the trial court’s in limine ruling precluded her from
    reading deposition transcripts from the Cal Fire and McDonald cases into the record. 13
    She does not suggest she was improperly precluded from reading the deposition transcript
    of a party to the present action or an employee of a party. Instead, she suggests that
    section 2025.620 should not apply to depositions taken in the Cal Fire and McDonald
    cases because the related cases were coordinated in some fashion. Although not entirely
    clear, she appears to argue that the purported coordination turned the related cases into a
    single consolidated case with an expanded roster of parties. This argument, to the extent
    we understand it, flies in the face of Sternick’s previously discussed argument that the
    trial court improperly terminated the purported coordination on the eve of trial.
    Regardless, we reject Sternick’s contention that the related cases were formally
    coordinated, or that the purportedly coordinated cases morphed into a consolidated case,
    13 Sternick argues without citation to the record that the trial court “Prejudicially
    Eliminated Evidence of Witness testimony of Brad McDonald.” We understand Sternick
    to mean that the trial court precluded her from reading McDonald’s deposition testimony
    into the record.
    15
    such that the parties to each related case all became parties to the same case. We find no
    trace of any such metamorphosis in the record, and no basis for concluding the trial court
    abused its discretion in granting the motion in limine.
    3.     Cal Fire Report and Alvarado Statement
    Sternick argues the trial court erroneously excluded a report prepared by the
    Department (the Cal Fire report), and a witness statement given to Nevin by Alvarado
    (the Alvarado statement). We are not so sure. The record indicates the trial court marked
    the Cal Fire Report and Alvarado statement for identification, found a lack of foundation
    as to both records, and refused to receive either into evidence. Without a reporter’s
    transcript, we have no way of determining whether the trial court erred. Because Sternick
    failed to provide an adequate record, the claim of error must be resolved against her.
    4.     Other Motions in Limine
    Finally, Sternick offers scattershot challenges to the trial court’s rulings on the
    Diocese and Retreat Center’s other successful motions in limine (namely, the motions to
    exclude expert opinion testimony and evidence of Sternick’s alleged non-economic losses
    and financial condition, and preclude Sternick from offering opinions regarding
    credibility and violating the Golden Rule). Sternick also challenges the trial court’s
    rulings on her unsuccessful motions to preclude the Diocese and Retreat Center from
    referring to their religious affiliation or presenting evidence of their nonprofit status.
    These challenges are largely unintelligible. They are frequently presented without
    citations to the record or coherent sequential headings (see rule 8.204(a)(1) [requiring
    briefs to “[s]upport any reference to a matter in the record by a citation to the volume and
    page number of the record” and “[s]tate each point under a separate heading or
    subheading”]) and entirely unsupported by reasoned legal analysis or pertinent authority.
    As appellant, Sternick has the burden to present argument supported by relevant
    legal authority as to each claim of error. Satisfaction of this requirement involves more
    than simply stating a bare conclusion that the trial court’s rulings were wrong, in whole
    16
    or in part, and leaving it to the appellate court to figure out why. It is not our role to
    construct theories or arguments that would undermine the judgment and defeat the
    presumption of correctness. (Niko v. Foreman (2006) 
    144 Cal.App.4th 344
    , 368.)
    “When an issue is unsupported by pertinent or cognizable legal argument it may be
    deemed abandoned and discussion by the reviewing court is unnecessary.” (Landry v.
    Berryessa Union School Dist. (1995) 
    39 Cal.App.4th 691
    , 699-700.) Sternick’s self-
    represented status does not relieve her of her obligation to present intelligible argument
    supported by the record and applicable legal authority. (Nwosu v. Uba (2004) 
    122 Cal.App.4th 1229
    , 1246-1247.) We deem Sternick’s remaining challenges to the trial
    court’s in limine rulings to be forfeited and decline to address them further. (Evans v.
    Centerstone Development Co. (2005) 
    134 Cal.App.4th 151
    , 165.)
    III. DISPOSITION
    The judgment is affirmed. Respondents are entitled to recover their costs on
    appeal. (Rule 8.278(a)(1) & (2).)
    /S/
    RENNER, J.
    We concur:
    /S/
    MAURO, Acting P. J.
    /S/
    HOCH, J.
    17
    

Document Info

Docket Number: C088661

Filed Date: 10/29/2021

Precedential Status: Non-Precedential

Modified Date: 10/29/2021