Lewis, Miller & Co. v. Carrick CA6

Filed 11/22/13 Lewis, Miller & Co. v. Carrick CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
LEWIS, MILLER & COMPANY, INC., H038152
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. CV194886)
v.
PAUL M. CARRICK,
Defendant and Appellant.
Appellant Paul M. Carrick was stung 80 to 100 times by bees. After he started to
go into anaphylactic shock, his beekeeping helper called 911 and persuaded his neighbors
to drive him from a remote location in the Santa Cruz Mountains to a hospital.
Firefighters met them en route. Based on Carrick’s condition, the firefighters called
California Shock Trauma Air Rescue (CALSTAR). CALSTAR flight nurses treated
Carrick and arranged for him to be transported by helicopter to a hospital. Carrick
subsequently refused to pay CALSTAR’s bill for $31,197.59. CALSTAR assigned its
rights to respondent Lewis, Miller and Company, Inc. (LMC), which sued Carrick in this
debt collection action. The case was tried to the court, which concluded that Carrick had
entered into an oral contract with CALSTAR for treatment and transport, and entered a
judgment in favor of LMC.
On appeal, Carrick raises claims of error regarding delays in discovery and the
exclusion of evidence at trial. He asserts a variety of legal errors. But Carrick
misunderstands our standard of review and uses the appeal as an opportunity to reargue
his case. We conclude that substantial evidence supports the court’s findings on
contested factual issues and that Carrick has not met his burden of demonstrating error on
appeal on the other points he raises. We will therefore affirm the judgment.
FACTS
Both sides presented evidence at trial. LMC’s witnesses were firefighter
Christopher Cunningham, CALSTAR’s flight nurses Francine Abbruzzese1 and Kristine
Tate, and CALSTAR’s accounts receivables manager, John Bunner. Carrick testified and
represented himself at trial.
Carrick lives in a remote area of the Santa Cruz Mountains. He has worked as an
emergency medical technician (EMT), although the record does not disclose when he did
such work.2 He is also a beekeeper.
Carrick’s Testimony
Around 6:30 p.m. on August 24, 2010, while tending his honey bees, Carrick and
his helper, Deann Hamernick, were both stung multiple times. According to the first
responders, Carrick was stung 80 to 100 times. Hamernick went inside, while Carrick
continued to tend the bees. Carrick testified that later, he went into the kitchen and said
“ ‘I am not feeling too good.’ ” But since he did not have health insurance, he told
Hamernick he did not want her to call 911. Carrick then said, “ ‘I’m going into
anaphylactic” shock. Carrick testified that he “fell down unconscious and hit the chair
1
Abbruzzese’s first name is listed as both “Frances” and “Francine” in the record.
We shall use “Francine,” which is the name she used on her written report for
CALSTAR.
2
Carrick’s opening brief cites his EMT registry number and says it expires on
November 30, 2013. This information was not before the trial court.
2
and broke it on the floor and hurt [his] head.” Carrick, who was 62 years old, began
shaking on the floor. Hamernick called 911. She later told Carrick, “ ‘Well, I couldn’t
stand to see you die, so I called 911.’ ” Carrick testified that initially, he “was in a pretty
deep coma” and shock.
There was some delay in getting an emergency crew to respond and Carrick and
Hamernick had difficulty communicating with the 911 operator because of poor phone
reception, so they asked Carrick’s neighbors, Aimee Levine and Josh Harness, to drive
them down the mountain. Levine and Harness placed Carrick in the front seat of their
van and Harness drove to Quail Rocks, where they met an emergency crew from the
Burrell CAL FIRE3 fire station. Carrick testified that Levine was “very worried” about
him because he “wasn’t breathing, hadn’t breathed, and [his] heart was not functioning.”
Testimony of Firefighter Christopher Cunningham
Cunningham and two other firefighters responded to the 911 call. Cunningham
was the primary crew member assigned to Carrick. As they headed “up the hill,” they
encountered Levine’s van on Loma Prieta Avenue near the Quail Rocks area. When the
firefighters arrived, Carrick was sitting upright in the front passenger seat of the van.
Levine told Cunningham that, during the drive, Carrick had stopped breathing completely
for about 30 seconds. She said she reached around the seat and “pulled on” Carrick’s
chest until he started breathing again.
Cunningham leaned Carrick’s seat back to treat him for shock, placed him on
oxygen, and assessed his vital signs. Cunningham observed that Carrick’s lips were
cyanotic (blue), that hives were starting to form on his chest and abdomen, and that he
was having trouble breathing; the firefighters were also unable to get a blood pressure
3
CAL FIRE is an acronym used by the California Department of Forestry and
Fire Protection. (See e.g., http://calfire.ca.gov/about/about.php [as of Nov. 21, 2013].)
3
from Carrick. Cunningham had been informed that, because of their location in the
mountains, it would take at least 40 minutes for a ground ambulance to arrive and less
than 15 minutes for a CALSTAR helicopter to arrive. Based on all these factors,
Cunningham asked his captain to call CALSTAR.
After placing Carrick in the shock position and giving him oxygen, the firefighters
“were able to finally get a blood pressure,” but it was low. Cunningham told Carrick,
“We’re going to need to transport you to the hospital.” Carrick nodded. Cunningham
said “ ‘We have a helicopter on the way’ ” and Carrick “kind of grunted” in response.
Since Carrick seemed to understand that he needed to go to the hospital, Cunningham
assumed the grunt meant “yes” and “get me there.”
After five to ten minutes on oxygen, Carrick was able to talk and said his pain
level was an “8.” A short time later, Cunningham reassessed Carrick as the helicopter
landed. Upon reassessment, Carrick reported that his pain was a “3” and was able to
explain how the bee stings occurred. But Carrick was still breathing heavily, with
wheezes; he was slightly disoriented; and his lips were still cyanotic.
The helicopter landed in a nearby field. A passerby with a flatbed truck
transported the flight nurses from the helicopter to the van where Carrick was seated.
Other volunteers arrived and “worked the landing zone.”
After the CALSTAR nurses arrived, Cunningham “backed away,” because they
were in a confined space. He, therefore, could not hear whether Carrick consented to be
transported by helicopter. Later, he did hear Carrick refuse to be intubated. Cunningham
did not see Carrick resist treatment or transport, except for intubation. After the flight
nurses evaluated Carrick, they took him to the flatbed truck on a spine board and
transported him to the helicopter. Cunningham was with Carrick when he was loaded
onto the helicopter.
While Cunningham evaluated and treated Carrick, his partners assessed
Hamernick. As the helicopter took off, Hamernick started to react to her bee stings in an
4
anaphylactic way. By then, a ground ambulance had arrived. The ground ambulance
took Hamernick to a hospital.
Cunningham works on a Basic Life Support rig and is not allowed to carry
medications like Epinephrine. He testified that he may only administer sugar or oxygen
or the patient’s own medication (i.e., he may give Epinephrine using the patient’s Epi-
pen). The firefighters never considered letting Levine and Harness transport Carrick to
the hospital because, as civilians, they would provide a lesser level of care, their van was
not an ambulance, and the situation was stressful. They also had their two children with
them.
Testimony of Flight Nurses Francine Abbruzzese and Kristine Tate
CALSTAR flight nurses Francine Abbruzzese and Kristin Tate responded to a call
regarding a possible mission in the Santa Cruz Mountains. After checking the weather to
make sure they could fly, they accepted the mission.
The evidence included CALSTAR’s detailed Transport Medical Record.
According to that report, CALSTAR received the call at 8:26 p.m. The helicopter was en
route 13 minutes later at 8:39 p.m., arrived on scene 20 minutes after that at 8:59 p.m.,
departed 32 minutes later at 9:31 p.m., and arrived at the hospital nine minutes later at
9:40 p.m. It took about three minutes to travel from the helicopter to Levine’s van by
truck. Allowing for travel time to and from the helicopter, the nurses spent
approximately 26 minutes treating Carrick at the scene before transport.
Abbruzzese testified that when they first contacted Carrick at 9:03 p.m., she said,
“Hi, my name is Francine. This is Kris. We’re both nurses with CALSTAR. We’d like
to examine you and transport you to Valley Medical Center by helicopter. Do we have
your permission to do so?” Both nurses testified that in response, Carrick “nodded his
head” and said the word “Yes.” Abbruzzese testified that Carrick never refused
transport.
5
When the nurses arrived, Carrick was seated in the van and was having a “hard
time breathing.” The firefighters gave the nurses a history of multiple bee stings and
described what had transpired up to that point. In their report, the nurses noted that upon
their arrival, Carrick was “awake, alert and oriented x 3”; his coma score on the Glasgow
scale was 15 out of 15 (normal) and remained the same throughout their encounter. He
was perspiring heavily and had small raised welts on his face, neck, and both legs.
Abbruzzese testified that Carrick’s presentation was consistent with anaphylactic shock.
Since he was having trouble breathing, the nurses determined that keeping his airway
open was a priority. The nurses gave him 0.3 mg of Epinephrine and started him on
intravenous fluids; Carrick’s condition improved with treatment. Abbruzzese believed
the situation was an emergency. Tate testified that it was necessary to fly Carrick to the
hospital because he was in “significant distress,” it was a life-threatening situation, and
he could have died.
At 9:18 p.m., fifteen minutes after the flight nurses first made contact with
Carrick, they removed him from the van and placed him on a spine board for transport to
the helicopter. Carrick complained of fatigue and increased difficulty breathing. The
nurses noted “slight increased swelling” of Carrick’s tongue and discussed “advanced
airway placement” with him. Carrick refused intubation, saying he did not want a
breathing tube down his throat. Carrick said that as long as he was awake and breathing
on his own, he did not want any airway intervention; but if he passed out, the nurses had
his permission to do it. The nurses noted that Carrick was able to “reverbalize the risk of
[his] decision” to refuse airway intervention. Abbruzzese testified that this was the only
type of treatment Carrick refused and that he otherwise continued to consent to care and
transport. A few minutes later, the nurses gave him 50 milligrams of Benadryl. At 9:30
p.m., just before take-off, the nurses noted that Carrick’s tongue was still swollen; he
continued to complain of difficulty breathing and refused airway intervention a second
time. At take off, Carrick’s blood pressure was still low, but it slowly improved on the
6
way to the hospital. According to Abbruzzese, Carrick’s vital signs did not stabilize until
they reached the hospital.
Testimony of CALSTAR Accounts Receivables Manager John Bunner
On September 2, 2010, CALSTAR billed Carrick $31,197.59. The bill included
the “Base Rate” of $27,015.43; a “Loaded Miles” charge of $4,029 for transporting
Carrick 17 miles ($237 per mile), and $153.16 for oxygen. Bunner testified that
CALSTAR is a non-profit company, that these are the usual and customary charges for
its services and in the industry, and that insurance companies pay these rates.
In September and November 2010, CALSTAR sent Carrick three letters inquiring
into the status of the bill. Carrick never responded to the letters. According to Bunner,
someone at CALSTAR spoke to Carrick once by telephone and referred him to Valley
Medical Center for assistance in applying for aid programs. CALSTAR also offered pre-
screening for its hardship program, but got no response from Carrick. On February 16,
2011, CALSTAR assigned its rights in the account to LMC.
Carrick challenged the reasonableness of CALSTAR’s charges with a brochure
from a helicopter company that charges $325 for 108-mile helicopter tours from
Watsonville to Big Sur. Bunner acknowledged that CALSTAR’s services are expensive,
but testified that they are distinguishable from helicopter tours because of the type of
helicopter involved, as well as the cost of retrofitting it to carry medical equipment and of
having highly trained nurses, pilots, mechanics, and other support personnel available
around the clock.
Additional Testimony by Carrick
Carrick testified that he was “unconscious through this whole affair,” that he could
not remember being asked whether he wanted to be transported by CALSTAR, that he
could not “remember either accepting or declining” helicopter transport, and that he was
7
unable to recall what occurred that day. But he does recall being asked about intubation
and “emphatically” declining it.
PROCEDURAL HISTORY
LMC filed its complaint for “Money Due on Agreement for Emergency Services”
on February 23, 2011. The complaint contains causes of action based on book account,
account stated, quantum meruit, and oral contract theories.
The case was tried to the court in February 2012. Neither party requested a
statement of decision. The court found that Carrick had consented to be transported by
helicopter. The court entered judgment for LMC for $35,788.94 (the amount billed plus
$4,591.35 in prejudgment interest) and awarded LMC its costs of suit.
Carrick filed a motion for new trial, arguing that he was entitled to a new trial so
that two witnesses who were unavailable for trial (Hamernick and Frank Deto) could
testify. Carrick alleged that their testimony would support his contentions that he did not
consent to air transport and did not have the ability to consent because of his medical
condition. The motion also repeated other arguments Carrick had made at trial. At the
hearing on the new trial motion, Carrick told the court what Deto and Hamernick would
have said had they appeared at trial. The court denied the motion for new trial. Carrick
appeals.
DISCUSSION
Before addressing Carrick’s many contentions, we shall discuss three important
rules of appellate practice that guide our review of this case: the presumption of
correctness, the doctrine of implied findings, and the substantial evidence rule.
8
The Presumption of Correctness
“To this appeal, like every other, we apply basic tenets prescribing the scope and
limits of appellate review, starting with the most fundamental—the presumption of
correctness. An appealed judgment is presumed to be correct. We will indulge all
intendments and presumptions to support the judgment on matters as to which the record
is silent and prejudicial error must be affirmatively shown.” (Shaw v. County of Santa
Cruz (2008) 170 Cal. App. 4th 229, 267 (Shaw), citing Denham v. Superior Court (1970) 2
Cal. 3d 557, 564 (Denham) and In re Marriage of Arceneaux (1990) 51 Cal. 3d 1130,
1133.)
Doctrine of Implied Findings
Pertinent here, and not addressed by either party, is the doctrine of implied
findings. This doctrine applies when the trial court does not issue a statement of
decision, as occurred here.4 The doctrine requires the appellate court to presume that the
trial court made all factual findings necessary to support the judgment for which
substantial evidence exists in the record. “The necessary findings of ultimate facts will
be implied and the only issue on appeal is whether the implied findings are supported by
substantial evidence.” (Shaw, supra, 170 Cal.App.4th at p. 267.)
4
Code of Civil Procedure section 632 provides in pertinent part that “upon the
trial of a question of fact by the court, written findings of fact and conclusions of law
shall not be required. The court shall issue a statement of decision explaining the factual
and legal basis for its decision as to each of the principle controverted issues at trial . . . .”
Code of Civil Procedure section 634 provides in part that “When a statement of decision
does not resolve a controverted issue, or if the statement is ambiguous and the record
shows that the omission or ambiguity was brought to the attention of the trial court . . . it
shall not be inferred on appeal . . . that the trial court decided in favor of the prevailing
party as to those facts or on that issue.” As we have noted, neither party requested a
statement of decision in this case.
9
Although there are instances in which a court’s oral comments may be valuable in
illustrating the trial judge’s theory, they may never be used to impeach the order or
judgment on appeal. (In re Marriage of Ditto (1988) 206 Cal. App. 3d 643, 646 (Ditto).)
“This is because a trial court retains inherent authority to change its decision, its findings
of fact, or its conclusions of law at any time before entry of judgment and then the
judgment supersedes any memorandum or tentative decision or any oral comments from
the bench. [Citations.] Thus, a trial judge’s prejudgment oral expressions do not bind the
court or restrict its power to later declare final findings of fact and conclusions of law in
the judgment. [Citation.] In the absence of a statement of decision, a reviewing court
looks only to the judgment to determine error. [Citation.]” (Shaw, supra, 170
Cal.App.4th at p. 268.) When, as here, the option of requesting a statement of decision is
available, “the trial court’s less formal comments on the record or in the minutes are
insufficient to form the basis of reversible error.” (Ibid.) “A formal statement of
decision enables a reviewing court to determine what law the trial court employed. A
failure to request a statement of decision results in a waiver of findings and conclusions
necessary to support the judgment and we will accordingly infer such conclusions.” (Id.
at p. 269.) “Moreover, we will affirm a judgment correct on any legal basis, even if that
basis was not invoked by the trial court. [Citation.] There can be no prejudicial error
from erroneous logic or reasoning if the decision itself is correct.” (Ibid.)
Substantial Evidence Standard of Review
Some of Carrick’s points challenge the trial court’s factual findings; he reargues
the evidence and asks this court to reweigh the evidence. As we shall explain, that is not
our role under the substantial evidence standard of review.
“The trial court’s factual findings . . . are subject to limited appellate review and
will not be disturbed if supported by substantial evidence.” (Williams v. Saunders (1997)
55 Cal. App. 4th 1158, 1162.) “When a trial court’s factual determination is attacked on
10
the ground that there is no substantial evidence to sustain it, the power of an appellate
court begins and ends with the determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will support the
determination.” (Bowers v. Bernards (1984) 150 Cal. App. 3d 870, 873-874 (Bowers),
original emphasis omitted.) As long as there is substantial evidence, the appellate court
must affirm, even if the reviewing justices personally would have ruled differently if they
had presided over the proceedings below and even if other substantial evidence supports
a different result. (Id. at p. 874.)
An appellate court is “not in a position to weigh any conflicts or disputes in the
evidence. Even if different inferences can reasonably be drawn from the evidence, [the
appellate court] may not substitute [its] own inferences or deductions for those of the trial
court. [Its] authority begins and ends with a determination of whether, on the entire
record, there is any substantial evidence, contradicted or uncontradicted, which will
support the judgment. [Citations.] Therefore, we must consider all of the evidence in the
light most favorable to the prevailing party, giving that party the benefit of every
reasonable inference from the evidence tending to establish the correctness of the trial
court’s decision, and resolving conflicts in support of the trial court’s decision.” (Estate
of Beard (1999) 71 Cal. App. 4th 753, 778-779.) Under the substantial evidence standard,
the appellate court will not reweigh the evidence. That function belongs exclusively to
the trier of fact (the trial judge in cases such as this that are tried to the court). (Shamblin
v. Brattain (1988) 44 Cal. 3d 474, 479.)
“Substantial” evidence is not synonymous with “any” evidence. (DiMartino v.
City of Orinda (2000) 80 Cal. App. 4th 329, 336.) “Substantial” evidence is evidence of
“ponderable legal significance”; it must be “reasonable . . . , credible, and of solid value
. . . .” (Kuhn v. Department of General Services (1994) 22 Cal. App. 4th 1627, 1633.)
“Thus, the focus is on the quality, not the quantity of the evidence. Very little solid
evidence may be ‘substantial,’ while a lot of extremely weak evidence might be
11
‘insubstantial.’ ” (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220
Cal. App. 3d 864, 871.) The testimony of a single witness may constitute “substantial”
evidence. (In re Marriage of Mix (1975) 14 Cal. 3d 604, 614.)
Discovery Issues
Carrick complains that “excessive delays” by the trial court in issuing discovery
subpoenas prevented him from obtaining discovery and that “many witnesses were
excluded by the Court’s . . . delay.” According to Carrick, he sent blank subpoenas to the
court four times before a judge signed them, which resulted in a two-month delay and
cost him “valuable discovery time.” According to his brief, the first time he sent the
subpoenas to the court, the clerk sent them back to him “with a note about typos in the
Court address.” Thus, Carrick was partially responsible for any delay. Carrick’s brief
does not explain why the subpoenas were returned to him on the other occasions. Carrick
also complains that CALFIRE (which is not a party) did not provide him with the names
of the firefighters involved in his treatment until December 27, 2011, eight weeks before
trial.
We begin by noting that none of the facts Carrick relies on to make this argument
are in the record on appeal. Generally, documents and facts that were not presented to
the trial court cannot be considered on appeal. (Pulver v. Avco Financial Services (1986)
182 Cal. App. 3d 622, 632 (Pulver); In re B.D. (2008) 159 Cal. App. 4th 1218, 1239 [“It has
long been the general rule . . . that an appeal reviews the correctness of a judgment as of
the time of its rendition, upon a record of the matters which were before the trial court for
its consideration”].) An appellate court will generally disregard arguments that are based
on facts that are outside the record or that were improperly included in the record.
(Kendall v. Allied Investigations, Inc. (1988) 197 Cal. App. 3d 619, 625 (Kendall); Pulver,
supra, at p. 632.) In addition, it does not appear that Carrick made any discovery motions
or asked the court for a trial continuance based on the alleged delays he encountered in
12
conducting discovery. An appellate court “ordinarily will not consider a challenge to a
ruling if an objection could have been but was not made in the trial court.” (In re S.B.
(2004) 32 Cal. 4th 1287, 1293, superseded by statute on another ground as stated in In re
S.J. (2008) 167 Cal. App. 4th 953, 962.) “Although the loss of the right to challenge a
ruling on appeal because of the failure to object in the trial court is often referred to as a
‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is
‘forfeiture,’ because a person who fails to preserve a claim forfeits that claim.” (In re
S.B., at p. 1293, fn. 2.) We conclude that by failing to raise the alleged discovery errors
in the trial court, Carrick has forfeited those claims on appeal.
Even if we were to exercise our discretion to excuse the forfeiture, which we do
only in rare circumstances (In re S.B., supra, 32 Cal.4th at p. 1293), Carrick does not
explain how he was prejudiced by the alleged delays. He does not identify any specific
witnesses or evidence that he was unable to present at trial because of the delay in issuing
subpoenas. He had the names of the firefighters eight weeks before trial, in sufficient
time to take their depositions.
The only evidence that Carrick offered that the court excluded were the transcripts
of the depositions of Hamernick and Bill Finch (the fire captain for CALFIRE) taken on
January 9, 2012 (six weeks before trial). The transcripts were excluded because Carrick
took the depositions without giving notice to opposing counsel and LMC was, therefore,
denied the opportunity to cross-examine those witnesses. Carrick told the court
Hamernick was unavailable for trial because she was recovering from surgery.
Hamernick’s deposition is in the record. Hamernick essentially testified to the same facts
as Carrick: she explained how the bee stings occurred, that she called 911, and what
transpired before the firefighters arrived.5 Thus, her testimony was cumulative of
5
LMC introduced a copy of Hamernick’s deposition transcript in support of its
opposition to Carrick’s motion for new trial.
13
Carrick’s. Carrick did not say why Finch was unavailable for trial. Finch’s deposition
transcript is not in the record, but Carrick’s description of Finch’s testimony suggested
that it was cumulative of Cunningham’s testimony.
Other evidence that was not admitted included the written statement of Frank Deto
and Aimee Levine’s December 12, 2010 letter to CALSTAR. At trial, Carrick
acknowledged that both statements contained hearsay, said Deto could not be at trial “for
medical reasons,” and did not explain why Levine could not be there. Even though the
documents were not admitted, the trial court allowed Carrick to make an offer of proof at
trial regarding what both witnesses would say, which was not objected to by LMC. The
content of Levine’s and Deto’s statements was therefore before the court. Nothing in the
record supports the conclusion that the discovery delay Carrick complains of prevented
him from obtaining a fair trial or presenting his case.
For all of these reasons, we reject Carrick’s claim of error arising from purported
delays in obtaining discovery subpoenas and the names of the firefighters who treated
him.
Exclusion of Evidence
Evidence of Abbruzzese’s Salary
Carrick contends the trial court erred when it excluded evidence of Abbruzzese’s
salary. Carrick asked Abbruzzese what her salary was, LMC objected on relevance
grounds, and the court sustained the objection. Carrick did not follow up or explain why
the evidence was relevant. On appeal, he argues that “[t]he answer to this question was
foundational to proving that financial motives effected the nurse’s answers.”
We review the trial court’s decisions on the admissibility of evidence, including
the relevance of proffered evidence, for an abuse of discretion. (Shaw, supra, 170
Cal.App.4th at p. 281.) Under that standard, the appropriate test is whether the trial court
14
exceeded the bounds of reason, all circumstances before it being considered. (In re
Marriage of Connolly (1979) 23 Cal. 3d 590, 598.) Appellate courts will disturb
discretionary trial court rulings only when there is “a clear case of abuse” and “a
miscarriage of justice.” (Blank v. Kirwan (1985) 39 Cal. 3d 311, 331.)
We find no abuse of discretion here. Both nurses testified that they were
employed by CALSTAR. A reasonable inference from that fact is that CALSTAR paid
their salaries. The nurses also testified regarding their training, certifications, and
experience. Reasonable inferences from that testimony are that they were highly skilled
and that they were paid a professional salary commensurate with their skill level. At
trial, Carrick argued that the nurse’s written report did not say he consented to transport,
that it was only after he disputed the bill that the nurses said he consented, and that “their
motives for not contesting [sic] it are clear because they—that’s how they get paid.” The
important fact for the purpose of arguing the nurses’ bias was that they were paid by
CALSTAR, not the amounts they were paid. Therefore, we conclude that the court did
not abuse its discretion when it excluded evidence of the amounts the nurses were paid.
Exclusion of Frank Deto’s Written Statement
Carrick contends the court erred when it excluded a notarized statement from
Frank Deto in which Deto stated that he saw Carrick being prepared for transport and that
Carrick was “half conscious but disoriented” and “did not consent to transport.”
Although a copy of Deto’s statement is in the record, there is nothing in the record
indicating that Carrick offered Deto’s written statement as evidence at trial.6 The fact
that Carrick did not offer it into evidence belies his assertion that the court erred in
6
The statement was not marked or identified on the record. It is not listed with
the other exhibits in the minute order of the trial or the index of exhibits in the reporter’s
transcript. We note also that it was notarized on March 12, 2012, almost three weeks
after the trial.
15
excluding it. There was nothing to exclude. For this reason, we hold that Carrick has not
demonstrated prejudicial error in the alleged exclusion of Deto’s statement.
Exclusion of Hamernick’s Deposition and Note From Her Doctor
Carrick argues that the court erred when it excluded the transcript of Hamernick’s
deposition testimony and a note from her doctor explaining why she could not appear at
trial. But he does not provide us with any reasoned argument or citation to authority that
supports the conclusion that the court abused its discretion when it excluded those items.
As we have said, in conducting our appellate review, we presume that the
appealed judgment or order is correct. “ ‘All intendments and presumptions are indulged
to support it on matters as to which the record is silent, and error must be affirmatively
shown.’ ” (Denham, supra, 2 Cal.3d at p. 564; Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal. App. 4th 939, 956 (Cahill).)
Under these principles, Carrick has the burden of overcoming the presumption of
correctness. That burden includes providing this court with reasoned argument and legal
authority on each point raised. (Niko v. Foreman (2006) 144 Cal. App. 4th 344, 368
(Niko); Cahill, supra, at p. 956.) “ ‘[E]very brief should contain a legal argument with
citation of authorities on the points made. If none is furnished on a particular point, the
court may treat it as waived, and pass it without consideration.’ ” (People v. Stanley
(1995) 10 Cal. 4th 764, 793 (Stanley); see, e.g., In re Marriage of Falcone & Fyke (2012)
203 Cal. App. 4th 964, 1004 [“appellate court can treat as waived or meritless any issue
that, although raised in the briefs, is not supported by pertinent or cognizable legal
argument or proper citation of authority” (italics in original)].)
As we noted, the court excluded Hamernick’s deposition transcript because LMC
was not given notice of the deposition and an opportunity to cross-examine her. Carrick
does not provide us with any argument or citation to authority that support the conclusion
that the court abused its discretion when it excluded the transcript on that ground. Nor
16
does he provide argument and authority supporting the contention that the court abused
its discretion when it refused to accept the doctor’s note. For this reason, we conclude
that he has waived these contentions on appeal.
Moreover, as we have stated, Hamernick’s testimony was duplicative of Carrick’s.
Consequently, Carrick was not prejudiced by the exclusion of either the deposition
transcript or the doctor’s note.
Exclusion of Brochure From Specialized Helicopters
In his cross-examination of Bunner, Carrick attempted to introduce evidence that
CALSTAR’s fees were excessive by introducing a brochure from Specialized Helicopters
(SH) of Watsonville, which offers helicopter tours. Although Carrick was allowed to
question Bunner about CALSTAR’s rates in comparison to the rates charged by SH, the
court refused to admit the brochure into evidence on the grounds that it was not properly
authenticated and that it was irrelevant.
On appeal, Carrick makes the bare assertion that the court erred when it refused to
consider the brochure, but does not provide any reasoned argument or citation of
authority supporting the assertion that the court abused its discretion when it excluded
this evidence on relevance and authentication grounds. Carrick does not even mention
the court’s reasons for excluding the brochure. As we have stated, Carrick’s burden on
appeal includes making reasoned arguments with citation to authority on each point
raised. (Niko, supra, 144 Cal.App.4th at p. 368.) This requires more than making a bare
assertion that the trial court was wrong and leaving it to the appellate court to figure out
why. It is not our role to act as counsel for the appellant and construct legal arguments
that undermine the judgment and defeat the presumption of correctness. (Ibid.) For this
reason, Carrick has waived any claim of error related to the exclusion of the SH brochure.
(Stanley, supra, 10 Cal.4th at p. 793.)
17
Standard of Proof
Under the heading “Clear and Convincing Standard of Proof,” Carrick quotes from
DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30
Cal. App. 4th 54 (DRG). DRG was an action for breach of a commercial lease in which
the lessor alleged that the lessee had waived certain contingencies in the lease. (Id. at
p. 58.) One of the issues on appeal was the standard of proof for a waiver of rights under
a commercial contract. The court explained, “ ‘ “Waiver is the intentional relinquishment
of a known right after knowledge of the facts. [Citations]. The burden, moreover, is on
the party claiming a waiver of a right to prove it by clear and convincing evidence that
does not leave the matter to speculation, and ‘doubtful cases will be decided against a
waiver.’ ” ’ ” (Id. at p. 60, quoting City of Ukiah v. Fones (1966) 64 Cal. 2d 104, 107-
108.)
It is not clear what Carrick is arguing under this point. His argument heading and
the discussion of DRG suggest that his contention is that the trial court applied the wrong
standard of proof. However, he argues, “I deny any waiver of my right not to contract
with CALSTAR or any provider of treatment and transport” and “I did not give an
affirmative answer to Chris Cunningham” and “I clearly proved both by my statements
and by my actions that I did not wish to contract with CALSTAR . . . .” Based on this,
his argument appears to be that he did not consent to transport and treatment by
CALSTAR, a point that we address in the next section. Moreover, we are not persuaded
that by recasting his contention that he did not consent as “I did not waive my right not to
consent,” Carrick would be entitled to invoke the higher standard of proof applicable to
claims of waiver.
18
Substantial Evidence Supports the Trial Court’s Implied Finding that Carrick
Consented to Transport and Treatment by CALSTAR
At many points in his brief, Carrick argues that he did not agree to be transported
by CALSTAR. This issue was contested in the trial court.
On appeal, Carrick focuses on and reargues the evidence that supports his
contention that he did not consent to be transported. He argues that he only grunted when
Cunningham said he was calling CALSTAR. Furthermore, he contends the flight nurses
did not report that they obtained his consent in their Transport Medical Record and that
the nurses did not mention obtaining his consent until after he disputed CALSTAR’s bill.
He also argues that the nurses had no reason to ask him whether he wanted to be
transported because they thought he was the one who called 911 and believed he had
already requested transport. And he contends the nurses should have removed the
oxygen mask so that he could answer. He relies on Cunningham’s testimony that he
(Cunningham) did not hear the nurses ask Carrick if he consented to helicopter transport.
Carrick asserts that while the nurses testified that he was fully oriented, Cunningham
testified that he was “slightly disoriented.” He argues both that the nurses did not apply
the proper tests to determine whether he was oriented and that they did not test him at all.
He asserts that the nurses had every reason to lie “to protect their company and their
jobs” because CALSTAR’s margins were “ ‘razor thin’ according to John Bunner.”
Carrick made most of these arguments in the trial court. Essentially, he is asking
us to reweigh the evidence on the contested issue whether he consented to helicopter
transport. That is not our role. Under the substantial evidence standard of review, we
determine whether there is substantial evidence to support the trial court’s factual finding
that Carrick consented to be transported by CALSTAR. (Bowers, supra, 150 Cal.App.3d
at pp. 873-874.) Although there may be evidence, as argued by Carrick, that supports a
finding that he did not consent, that is not grounds for reversal when substantial evidence
supports the trial court’s finding and the judgment. (Ibid.)
19
The following substantial evidence supports the trial court’s finding. Although
Cunningham testified that Carrick grunted when he first told him that a helicopter was on
its way, he also testified that after Carrick was on oxygen for a few minutes, he was able
to speak. Before the nurses arrived, Carrick answered questions about his pain and told
Cunningham how the bee stings occurred. Both nurses testified that by the time they
arrived, Carrick was alert and oriented and that he nodded his head and said the word
“yes” when they asked him whether he consented to be transported by helicopter.
Contrary to Carrick’s assertion, the nurses’ Transport Medical Record states that the
nurses obtained “Verbal consent for helicopter transport from [patient]” when they first
contacted him. The nurses testified that they prepared the Transport Medical Record at
the end of their shift on the day of the incident. The report itself indicates that it was
prepared the morning after Carrick was transported and has not been modified since then.
Although Cunningham testified that he did not hear the nurses ask Carrick for consent to
transport him, he also stated that he stepped out of the van when the nurses arrived
because it was a confined space. A reasonable inference from that testimony is that he
was not in a position to hear the exchange between the nurses and Carrick.
In addition, that Cunningham did not hear Carrick consent to transport but did hear
him refuse intubation may be explained by the timing of events. The nurses did not
discuss airway intervention with Carrick until after they removed him from the van and
placed him on the spine board. They discussed it with him again shortly before takeoff.
Cunningham was outside the van when the nurses treated Carrick and was with Carrick
when he was loaded onto the helicopter. Cunningham testified that after he told Carrick
the helicopter was on the way, he understood Carrick’s grunt to mean “yes” and “get me
there.” It took three minutes to drive from the van to the helicopter. There is no evidence
that Carrick objected to helicopter transport while being moved from the van to the
helicopter. Reasonable inferences from Abbruzzese’s testimony that Carrick never
refused helicopter transport are that he did not object while being treated by the nurses at
20
the scene, while being driven from the van to the helicopter, or while being loaded onto
the helicopter. In addition, Carrick testified that he could not recall either accepting or
declining transport by CALSTAR.
This testimony by Cunningham, the flight nurses, and Carrick; the Transport
Medical Record; and the reasonable inferences therefrom provide substantial evidence
that supports the trial court’s finding of consent.
To support his position, Carrick quotes from a letter by Aimee Levine to
CALSTAR dated December 19, 2010. Although a copy of the letter was attached to
Carrick’s answer, he did not offer it as evidence at trial; his opening brief acknowledges
that the letter was not in evidence. As we have already explained, documents and facts
that were not presented to the trial court cannot be considered on appeal and the appellate
court will generally disregard arguments that are based on such matter. (Pulver, supra,
182 Cal.App.3d at p. 632; Kendall, supra, 197 Cal.App.3d at p. 625.)
Although Levine’s letter was not presented to the trier of fact, the court allowed
Carrick to make an offer of proof that Levine would testify that he resisted cooperating
with the nurses, that he “struggled against” accepting transport and treatment from them,
and that the nurses were “very forceful with [him] and leading [him] in the direction of
what [he] should do.” Presumably, the court weighed Carrick’s offer of proof against the
testimony of the flight nurses, which presented a very different picture on the question of
consent. On appeal, Carrick asks us to reweigh that evidence. As we have explained,
that is not our role under our standard of review.
Competency of and Necessity for CALSTAR’s Treatment and Other Fact Issues
Carrick makes several arguments challenging the competency of the CALSTAR
crew and the necessity for the treatment he received. We understand his arguments to
include: (1) that the nurses never contacted their “Base Controlling Physician” about
Carrick or whether to transport him; (2) that the nurses did not know enough about the
21
different types of anaphylaxis and could have given him “the wrong treatment”; and (3)
that the nurse’s job could have been done by a paramedic who would be paid $20 per
hour.
Carrick raised all of these points in the trial court. Abbruzzese testified that,
unlike paramedics, flight nurses do not customarily contact the base physician under the
circumstances presented in this case and that she had experience treating bee stings.
Unlike the firefighters, who were limited to administering oxygen, sugar, or the patient’s
own medication, the nurses were authorized to administer intravenous fluids and
medications they carried with them. There was no evidence that the nurses administered
the wrong medications or treated Carrick’s condition inappropriately. According to the
nurses’ report, when the helicopter took off, Carrick’s tongue was swollen, his blood
pressure was low and his skin was pale; he also complained of difficulty breathing.
When they arrived at the hospital, Carrick’s vital signs had improved, his tongue was less
swollen, and his breathing had improved. While cross-examining Abbruzzese, Carrick
acknowledged that EMT’s cannot do the type of interventions the nurses did.
Carrick argues that he is not responsible for CALSTAR’s bill because by the time
the nurses got to the scene, they were no longer needed. He contends that his treatment
was delayed by CALFIRE and CALSTAR and that he would have gotten to the
emergency room faster if his friends had been allowed to take him. He does not point to
any particular error by the trial court and merely reargues the evidence, repeating the
same arguments he made to the court below.
In summary, Carrick raised the competency of and the necessity for the treatment
he received from CALSTAR in the trial court. On appeal, he asks us to reweigh the
evidence presented on these issues. As set forth above, substantial evidence supports the
trial court’s implied findings that the CALSTAR nurses competently treated Carrick’s
condition and that the treatment was necessary. Indeed, they may have saved his life.
22
Carrick contends that CALSTAR’s services were unreasonably priced and
attempts to reargue the evidence on this point, too. In support of this contention, he cites
a report by Kent Burdick, the Medical Director for Emergency Medical Services in Santa
Cruz County with statistics for trauma admissions and air transports in that county. The
report was not before the trial court. As we have stated, documents and facts that were
not presented to the trial court cannot be considered on appeal and the appellate court will
generally disregard arguments that are based on such matter. (Pulver, supra, 182
Cal.App.3d at p. 632; Kendall, supra, 197 Cal.App.3d at p. 625.) Carrick has not asked
us to judicially notice the report and does not present any argument that supports the
conclusion that it is judicially noticeable on appeal. Even if it is judicially noticeable, we
question its relevance since it covers Santa Cruz County and Carrick was transported in
Santa Clara County. For these reasons, we shall disregard any argument based on
Burdick’s report.
Carrick also argues that (1) CALFIRE should have paid CALSTAR’s bill because
CALFIRE “carelessly” ordered the helicopter for its own “reassurance, not [Carrick’s]
well being” and to get him a shot of Epinephrine; and (2) the trial court erred when it
failed to consider why CALFIRE was not charged for the helicopter transport. Carrick
made these same arguments at trial and they were rejected by the trial court. In addition,
nothing in the record suggests the court ignored Carrick’s arguments on this point. Once
again, he asks us to reweigh the evidence and reconsider an argument that was rejected
by the trier of fact. That is not our role on appeal.
23
Failure to Follow Federal and State Regulations
Carrick argues that CALSTAR did not have the authority to charge for its services
because it was not following federal Department of Transportation and state regulations.7
In particular, he complains that CALSTAR did not follow the “Dispute Handling”
requirements in Government Code section 11000 et seq. and argues that all he ever
received from CALSTAR was a demand for payment.
Government Code section 11000 et seq. is in part 1 of division 3 of title 2 of the
Government Code. Title 2 of the code contains statutes that apply to the Government of
the State of California; division 3 applies to the executive branch, and part 1 governs state
departments and agencies. This is the only legal authority Carrick cites in support of this
contention. Carrick does not tell us how the statutory scheme governing state
departments and agencies applies to CALSTAR, nor does he point to any specific statutes
that regulate the billing practices of non-profit companies like CALSTAR or that address
dispute resolution. Rather than cite relevant legal authority, he relies on a whole section
of the Government Code that on its face does not apply.
On this point, Carrick also refers to arguments in his trial brief, without repeating
or discussing those points in his brief on appeal. “The appellant may not simply
incorporate by reference arguments made in papers filed in the trial court, rather than
briefing them on appeal.” (Keyes v. Bowen (2010) 189 Cal. App. 4th 647, 655-656.) Such
practice does not comply with the requirement that an appellate brief “support each point
by argument and, if possible, by citation of authority.” (Cal. Rules of Court,
7
In support of this contention, Carrick refers to Bob Hesse’s deposition. Hesse
was CALSTAR’s Director of Medical Operations. On another point, Carrick refers to the
deposition of Bill Finch, Cunningham’s fire captain. Neither Hesse nor Finch testified at
trial and their depositions were not in evidence. We shall disregard any argument based
on their depositions. (Pulver, supra, 182 Cal.App.3d at p. 632; Kendall, supra, 197
Cal.App.3d at p. 625.)
24
rule 8.204(a)(1)(B).) We shall therefore disregard arguments “incorporated by reference”
from Carrick’s trial brief. (Parker v. Wolters Kluwer United States, Inc. (2007) 149
Cal. App. 4th 285, 290-291.) A litigant is not exempt from compliance with the rules of
appellate practice when he or she acts without an attorney on appeal. “Under the law, a
party may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is to be
treated like any other party and is entitled to the same, but no greater consideration than
other litigants and attorneys. [Citation.]’ [Citations].” (Nwosu v. Uba (2004) 122
Cal. App. 4th 1229, 1246-1247.)
Since Carrick fails to articulate a well-reasoned argument supported by relevant
legal authority, we shall treat his contention that CALSTAR failed to follow state law
governing dispute resolution as waived. (Niko, supra, 144 Cal.App.4th at p. 368; Stanley,
supra, 10 Cal.4th at p. 793.)
Other Legal Issues
Carrick raises several other legal issues, but fails to present well-reasoned
arguments supported by citation to relevant legal authority on these points as well. This
includes his arguments that: (1) since he told Hamernick not to call 911, he was estopped
from later changing his declaration and agreeing to services; (2) he was under duress at
the time he consented and that his consent was procured by undue influence because he
was strapped to a backboard and wearing an oxygen mask;8 (3) the statutory requirements
for oral contracts were not met; and (4) he never waived his “right to not contract for
treatment or transport.” This also includes his arguments based on the United States and
California Constitutions, which seems to be that there are constitutional protections
8
This claim is belied by the Transport Medical Record, which indicates that he
consented shortly after the nurses arrived at 9:03 p.m. and was not placed on a back board
until 9:18 p.m.
25
against enforcing contracts that are “unilaterally imposed by one party against another,”
and his claim based on the constitutional prohibition against bills of attainder. Since
Carrick fails to articulate well-reasoned arguments supported by relevant legal authority
on these points, we shall treat these contentions as waived and pass them without further
consideration. (Niko, supra, 144 Cal.App.4th at p. 368; Stanley, supra, 10 Cal.4th at p.
793.)
Under the heading “Bias,” Carrick asserts that the trial court did not consider some
of the arguments he made below. He argues that the court “refused less costly options,”
refused to acknowledge protections in California law against illegal contracts, and
“refused to acknowledge even the lack of any contract.” However, Carrick does not point
us to any part of the record that demonstrates any bias by the trial court. Our review of
the record indicates that the court read Carrick’s trial brief and listened to his closing
argument, which covered these issues. That the court rejected Carrick’s contentions does
not mean the court was biased against Carrick.
Denial of Motion For New Trial
Carrick’s argument on the motion for new trial seems to be that the court should
have granted his motion because the testimony of Deto and Hamernick would have
helped him prevail on the consent issue.
The standard of review of an order on a new trial motion is the deferential abuse of
discretion standard. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal. App. 4th 1152,
1160 (Sherman).) But in reviewing an order denying a new trial, we review the entire
record and make an independent determination whether the error that is the basis of the
new trial request was prejudicial. (Id. at pp. 1160-1161.)
Although Carrick’s new trial motion did not specify the statutory basis for the
motion, the court concluded that it was based on an alleged irregularity in the trial
proceedings, citing Code of Civil Procedure section 657, subdivision (1). That code
26
section provides that a new trial may be had for “[i]rregularity in the proceedings of the
court, jury or adverse party, or any order of the court or abuse of discretion by which
either party was prevented from having a fair trial.” Under the “order of the court or
abuse of discretion” prong, evidentiary rulings by which relevant evidence is erroneously
excluded may be grounds for a new trial if prejudicial to the moving party’s right to a fair
trial. (Townsend v. Gonzalez (1957) 150 Cal. App. 2d 241, 249-250.)
Carrick does not cite Code of Civil Procedure section 657 or provide any reasoned
argument with citation to legal authority explaining why the court erred when it denied
his new trial motion. As with his other contentions, we conclude that he has waived any
claim of error from the denial of his new trial motion. Moreover, as we have explained,
Carrick has not met his burden of demonstrating that the statements of Hamernick and
Deto were erroneously excluded. For these reasons, we hold that the court did not abuse
its discretion when it denied Carrick’s new trial motion.
DISPOSITION
The judgment is affirmed.
27
_______________________________
Márquez, J.
WE CONCUR:
______________________________
Elia, Acting P. J.
____________________________________________
Bamattre-Manoukian, J.
28