Osborne v. Todd Farm Service

Filed 5/2/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
REBECCA OSBORNE, 2d Civil No. B260280
(Super. Ct. No. 56-2012-00416941-CU-
Plaintiff and Appellant, PO-VTA
(Ventura County)
v.
TODD FARM SERVICE, et al.,
Defendants and Respondents.
An attorney is an officer of the court. He or she must respect and follow
court orders whether they are right or wrong. (People v. Pigage (2003) 112 Cal. App. 4th
1359, 1374; Bus. & Prof. Code §6068, subd. (b).) These time honored rules were lost
upon counsel. The trial court dismissed with prejudice his client's complaint for personal
injuries during jury trial as a sanction for repeated violations of its orders excluding
hearsay and opinion testimony. Appellant contends the trial court abused its discretion in
granting the terminating sanction and erred when it granted respondents' motions in
limine. We affirm.
Facts
Appellant was employed as a stable maintenance worker at the Ojai Valley
School. One of her job duties was to lift and move hay bales to feed horses kept at the
school. In May 2010, she climbed to the top of a stack of hay bales, to throw one of the
upper bales down to the ground. When she inserted hay hooks into the bale to move it,
the bale gave way causing her to fall 11 feet to the ground. Appellant was severely
injured in the fall. Neither the bale or its strapping were preserved after the fall.
Todd Farm Service (Todd) sold and delivered the hay bale to Ojai Valley
School. Todd produced documents indicating that it purchased hay from three suppliers
in the six months before appellant's accident. One of those suppliers is Berrington
Custom Hay Stacking and Transport, Inc. (Berrington) located in Nevada. Todd's other
suppliers are located in Southern California.
Appellant's complaint alleged that Berrington manufactured the bale and
sold it to Todd. The documents produced by Todd, however, did not establish that
Berrington supplied the hay bale involved in appellant's accident. Todd stored hay from
various suppliers in the same barn. It did not segregate hay bales by supplier and hay
bales received from the various suppliers were comingled in the barn. Todd did not
maintain a record of which supplier's hay bales were delivered to a particular customer.
Expert Designation
During discovery, appellant failed to make a timely designation of expert
witnesses. Instead, after respondents served their designations of expert witnesses,
appellant served a "supplemental" designation naming hers. The trial court granted
Berrington's motion to strike appellant's supplemental designation. Its minute order
explained, "[Appellant] unreasonably failed to designate her experts pursuant to [Code of
Civil Procedure] § 2034.260. Having failed to comply with this section, she is not
entitled to supplement pursuant to [Code of Civil Procedure] § 2034.280. Even if she
were entitled to supplement, her designation is not a true supplement but rather what
appears to be a calculated attempt to put [respondent] at a disadvantage as to designation
of experts. (See Fairfax v. Lords (2006) 138 Cal. App. 4th 1019, 1026.)" Appellant does
not challenge this order on appeal and as we shall explain, this order precluded her from
testifying as an expert as to the derivation of the subject hay bale.
Motions in Limine
As trial commenced, respondents, both of them, made two motions in
limine that are at issue here. Motion in Limine No. 2 sought to exclude opinion testimony
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from appellant, based on the order striking her designation of expert witnesses.
Specifically, respondents requested that appellant be precluded from testifying that she
could determine the geographic origin of hay bales by looking at the color and texture of
the hay, and from offering any other opinions concerning the manner in which hay is cut,
harvested, baled, manufactured, stored and moved. Motion in Limine No. 4 asked the
trial court to preclude appellant, on hearsay grounds, from testifying to any statements
made by unidentified Todd employees relating to the "identity" or origin of hay delivered
to the school or the bale involved in appellant's accident. The trial court granted both
motions.
Appellant made an offer of proof that the defective bale was manufactured
by Berrington. She intended to testify that, "The usual alfalfa hay bales Todd Farm
delivered to the Ojai Valley School were cut, harvested and baled the same, and they had
the same look and texture in that they were really green with a lot of fresh leaf and soft
grass stems. From 20 years of experience I could recognize and know really green alfalfa
hay bales with fresh leaf and soft grass stems come from up north, where there is more
water; whereas alfalfa bales from Southern California are usually browner, with dry leaf
and harder grass stems." Berrington is located in Nevada where, appellant believes, there
is more water than in Southern California, the location of the other suppliers used by
Todd.
Appellant was also prepared to testify that, on one occasion, Todd delivered
bales that were "brown, had dry leaf and hard grass stems." The "delivery guys" from
Todd told appellant these bales came from Southern California. On May 13, 2010, four
days before her fall, Todd delivered bales to the school that appellant "could tell were
from Berrington because they were cut-harvested-baled the same, and were really green
with a lot of leaf and soft grass stems; which showed they were from the north and not
the south." She commented that the horses would love that hay and the delivery men
"told me the alfalfa bales looked really fresh because they 'just came off the Berrington
truck.'" The bale involved in appellant's accidental fall was one of the bales delivered on
May 13.
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Appellant offered to testify that she saw the delivery men with a receipt
identifying Berrington as the supplier of the hay bales. She did not have the receipt itself
and had no other documentary evidence that the bale involved in her accident was
supplied by Berrington. Appellant's trial counsel represented that the Todd employee
who delivered hay bales to Ojai Valley School on May 13 died prior to trial.
In granting respondents' Motion in Limine No. 4, the trial court concluded
appellant's proposed testimony concerning statements made by Todd delivery men and
the contents of their delivery receipt or ticket was hearsay because the testimony would
be offered against Berrington, to prove the truth of her assertion that the hay bale came
from Berrington. It admonished appellant's trial counsel, "There should be no reference
to Berrington paperwork or mention the name 'Berrington' by the delivery people." In
response to questions from appellant's counsel, the trial court further clarified that its
ruling also applied to appellant's proposed testimony that she was told "the green stuff is
from up north, which again would be hearsay to her."
Trial
Appellant's trial counsel disregarded these admonitions in his opening
statement. He asserted the evidence would show "that the hay bale that broke causing the
fall and serious injuries to [appellant] came from the Berringtons." Appellant's counsel
informed the jury that appellant would testify "she knows the alfalfa was from
Berrington. Looking at the alfalfa hay that came from up north in Northern Nevada from
the Berringtons, it was greener. It didn't contain the dryer hard stems that she noticed in
other deliveries." He later said, "The evidence is also going to show that the horses loved
the Berrington hay. Berrington hay was a higher quality hay." Rejecting the defense
theory that "no one keeps track of the hay," counsel assured the jury that appellant "could
tell, depending on the bales, which general area the bales were coming from. . . . [¶] She
saw that the bales from Berrington were greener, they appeared fresher, and they had soft
grass stems. And the horses did much better, much happier with those bales." Trial
counsel also informed the jury, "[Appellant] knows these are Berrington bales as well
because she saw a delivery receipt." At that point, respondents objected and the trial
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court instructed the jury to disregard "any reference to a receipt . . . ." It also informed
appellant's trial counsel, "You're violating a previous ruling of the court . . . ."
Within a few minutes of this exchange, appellant's trial counsel informed
the jury, "We have the exact date [the hay bales] were delivered on May 13th. We have
the delivery ticket." This prompted another instruction from the trial court for counsel to
"move on, please."
At the next recess, respondents' counsel expressed concern that appellant's
counsel "didn't grasp the meaning of the motions in limine" because he kept referring to
matters that had been excluded. Appellant's counsel responded, "Your honor, the – we
have the delivery tickets. We have the sales receipts . . . . [¶] If she saw a delivery
receipt, why can't we say that?" The trial court repeated its prior ruling that, "there can
be no reference to an alleged word 'Berrington' on a delivery ticket that we don't have."
Appellant's counsel represented, "we do have the Berrington delivery tickets. We also
have the Todd sales receipts. We do have those documents." Berrington's counsel
objected, "He doesn't have a delivery ticket that says 'Berrington' on it. He never did."
The trial court denied respondents' motion for a mistrial but warned appellant's counsel,
"[Y]ou are flirting with [a mistrial] if you continue to try and violate or get around it in a
way that is inappropriate. . . . [¶] So no mention of the word 'Berrington' on a clipboard
or on a piece of paper that was present at the time of any delivery by Todd Farm. That's
the ruling."
During his direct examination of appellant, counsel asked her at least five
times whether her supervisor told her where the hay deliveries came from. The trial court
sustained objections to each question. At the next recess, the trial court stated its belief
that appellant's counsel, "seem[s] to be driving at an area that I've already ruled you can't
go to. So I don't know what the relevance of where the hay came from would be other
than to get to the hearsay that's been excluded." Appellant's counsel explained he was
trying to establish that Todd delivered all of the school's hay. The trial court reminded
appellant that Todd's delivery of the hay was not in dispute and that testimony about
where Todd got the hay has been ruled inadmissible. It concluded, "So to be clear, Mr.
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Murphy, there's to be no testimony in front of the jury that the hay came from Berrington
or that anybody said that or that any piece of paper said that, unless I approve it in
advance. Or anything that resembles what I just described."
Appellant's counsel stated he was planning to ask appellant if she had ever
seen a receipt from Berrington confirming its delivery of hay to Todd. The trial court
responded, "And that would be – sounds to me like it's going to be a direct violation of
my order." After additional argument from appellant's counsel, the court warned counsel,
"[Y]ou're just proving the point that everybody's worried about, that you're not going to
abide by the ruling and one way or another you're going to try and sneak [excluded
testimony] in."
The next morning, appellant re-argued her objections to the orders in
limine, offering to testify that she saw Todd delivery receipts identifying Berrington as
the supplier of hay bales delivered to the school. The trial court declined to change its
prior ruling, reasoning that appellant "utterly failed" to link Berrington to the hay
delivered to the school.
Appellant's direct examination continued. Despite the trial court's prior
ruling, counsel asked appellant whether she could "tell what kind of hay" was in the
bales, and whether she could tell, "from looking at hay the different qualities of hay[.]"
The trial court sustained objections to these questions and to others that appeared to call
for hearsay or expert opinions.
After the jury was excused for lunch, appellant's counsel reargued the
evidentiary rulings. Appellant offered to testify that she could see the difference between
alfalfa and straw, and recognized the bale involved in her accident as alfalfa. The trial
court declined to change its prior ruling.
Appellant resumed her testimony after the lunch recess. The following
exchange occurred:
Q: The hay bale that you were moving, the one where the twine broke apart,
do you remember that bale of hay?
A: I do.
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Q: Do you remember what that bale of hay looked like?
A: Yes.
Q: Do you have that in your mind, the bale – that bale of hay?
A: Yes.
Q: You have not forgotten it have you?
A: No, I have not.
Q: If you close your eyes, can you see that bale of hay as it broke apart?
A: Yes, I can.
Q: Where did that bale of hay come from?
A: Berrington.
The trial court immediately excused the jury. In the argument that
followed, the court referred to the line of questions as "flagrant, flagrant misconduct.
Flagrant misconduct in violation of the Court['s] repeated rulings." Appellant's counsel
denied the exchange had been planned, insisting that he only asked appellant whether she
knew where the hay had been delivered from, not where it was grown and baled.
Respondents requested the case be dismissed with prejudice as to all defendants, as a
sanction for appellant's misconduct. Appellant's counsel contended the jury should be
instructed to disregard the offending testimony.
The trial court rejected appellant's explanations. It ordered the case
dismissed with prejudice against all defendants, "[a]s a sanction against both [appellant's
counsel] and [appellant] for flagrant and repeated violations of the Court's order, and this
isn't the first one but this one takes the cake . . . ."
Standard of Review
"'Broadly speaking, an appellate court reviews any ruling by a trial court as
to the admissibility of evidence for abuse of discretion.' (People v. Alvarez (1996) 14
Cal. 4th 155, 201.)" (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77
Cal. App. 4th 619, 639.) This deferential standard of review applies to our review of the
trial court's determination whether evidence is relevant (Shaw v. County of Santa Cruz
(2008) 170 Cal. App. 4th 229, 281); whether to receive lay opinion testimony (Osborn v.
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Mission Ready Mix (1990) 224 Cal. App. 3d 104, 112); whether proffered evidence
constitutes inadmissible hearsay (Thompson v. County of Los Angeles (2006) 142
Cal. App. 4th 154, 168); and whether evidence should be excluded in limine. (Hernandez
v. Paicius (2003) 109 Cal. App. 4th 452, 456 [disapproved on another ground, People v.
Freeman (2010) 47 Cal. 4th 993, 1007].)
We reject appellant's contention that we should apply the standard of
review applicable to an order granting a nonsuit, because the trial court's orders in limine
effectively excluded all evidence relevant to an essential element of her causes of action.
(See, e.g., Edwards v. Centex Real Estate Corp. (1997) 53 Cal. App. 4th 15, 28.) In
Edwards, supra, the motions in limine "constituted an objection to any and all evidence
on the grounds appellants' pleadings were fatally defective and failed to state a cause of
action. As such, they operated as a general demurrer to appellants' complaints or a
motion for judgment on the pleadings." (Id., at p. 27.) Here, by contrast, the trial court
excluded two discreet categories of evidence: opinion testimony regarding the source of
the defective hay bale and hearsay on the same subject. It did not exclude all possible
evidence supporting appellant's claims. For example, she could have questioned Todd
about the quantity of hay it purchased from each of its suppliers, and about its storage,
record keeping and delivery practices. Because the orders in limine did not have the
effect of granting a nonsuit or judgment on the pleadings, the abuse of discretion standard
of review applies.
California courts possess inherent power to issue a terminating sanction for
"pervasive misconduct[.]" (Slesinger, Inc. v. Walt Disney Co. (2007) 155
Cal. App. 4th 736, 765.) We accept the trial court's factual determinations concerning
misconduct if they are supported by substantial evidence. (Sauer v. Superior Court
(1987) 195 Cal. App. 3d 213, 230.) We review the order to issue a terminating sanction
based on those factual findings for abuse of discretion. (Slesinger, Inc. v. Walt Disney
Co., supra, 155 Cal.App.4th at p. 765.)
In deciding whether the trial court's orders excluding evidence or its order
terminating the action as a sanction for misconduct constituted an abuse of discretion, we
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"view the entire record in the light most favorable to the court's ruling, and draw all
reasonable inferences in support of it. [Citation.] We also defer to the trial court's
credibility determinations. [Citation.] The trial court's decision will be reversed only 'for
manifest abuse exceeding the bounds of reason.' (Kuhns v. State of California (1992) 8
Cal. App. 4th 982, 988.)" (Slesinger, Inc. v. Walt Disney Co., supra, 155 Cal.App.4th at p.
765.) From the cold record, we do not know if counsel's "pervasive misconduct" was
intentional, negligent, or resulted from ignorance. But the record shows the trial court
did not credit counsel's explanation (ante p. 7) and believed that counsel acted
intentionally. We are bound by this implied credibility finding.
Opinion Testimony
Appellant contends the trial court abused its discretion when it made orders
excluding evidence that were tantamount to a nonsuit and when it granted the terminating
sanction. There was no abuse.
The trial court permitted appellant to testify about the appearance of hay
bales delivered to the school. It excluded her opinion testimony that the hay bale
involved in her fall must have come from Berrington because of its color and other
characteristics. This order was not an abuse of discretion.
If appellant's opinion testimony was offered as an expert opinion, the trial
court properly excluded it based on her failure to make a timely designation of expert
witnesses. (Fairfax v. Lords (2006) 138 Cal. App. 4th 1019, 1025-1027; Zellerino v.
Brown (1991) 235 Cal. App. 3d 1097, 1117-1118.) If appellant's testimony was offered as
a layperson's opinion, it was properly excluded because no layperson can express an
admissible opinion on where hay was grown and baled. A layperson's opinion testimony
is admissible only if it is "(a) Rationally based on the perception of the witness; and (b)
Helpful to a clear understanding of his [or her] testimony." (Evid. Code, § 800.)
Appellant could not, and did not, demonstrate her opinions about the appearance of hay
bales had any rational basis. The trial court correctly excluded her opinion testimony.
(See, e.g., Jambazian v. Borden (1994) 25 Cal. App. 4th 836, 848-849 [rejecting the
argument that "a lay witness may render a medical opinion as to whether a patient has a
9
condition which requires particular advice be given as to the risks of a surgery[,]"
because the diagnosis of medical conditions and the risks associated with them are not
matters within the general knowledge of laypersons].)
Hearsay
The trial court also correctly granted respondents' Motion in Limine No. 4,
to exclude hearsay regarding the source of the hay bales. Appellant offered to testify that
Todd's delivery person told her the hay bales came from Berrington. She would also
have testified that the same delivery person had a receipt identifying Berrington as the
supplier of the hay bales. This testimony was properly excluded as hearsay because
appellant offered it to prove the truth of her assertion that the hay bale involved in her
accident was supplied by Berrington. (Evid. Code, § 1200.)
Appellant contends the delivery person's statement was an admission or a
declaration against interest by Todd. (Evid. Code, §§ 1222, 1230.) There was, however,
no evidence the delivery person was authorized by Todd to make statements on its behalf.
Without that foundation, neither exception to the hearsay rule applies. (WT Grant Co. v.
Superior Court (1972) 23 Cal. App. 3d 284, 286; O'Mary v. Mitsubishi Electronics
America, Inc. (1997) 59 Cal. App. 4th 563, 569.) Moreover, as the trial court correctly
reasoned, the evidence was irrelevant with respect to Todd because Todd stipulated that it
delivered the hay bale involved in the fall.
Even if the testimony would have been admissible against Todd, it was
hearsay with respect to Berrington. The delivery person was employed by Todd, not
Berrington. There is no evidence he was authorized to do or say anything on behalf of
Berrington. (Evid. Code, § 1222.)
The trial court also correctly excluded appellant's proffered testimony that
she saw Todd's delivery person with a delivery "ticket" or receipt identifying Berrington
as the source of the hay bale. Writings, such as a delivery receipt, must be authenticated
before they, or secondary evidence of their contents, may be admitted into evidence.
(Evid. Code, § 1401.) Authentication means evidence that the writing is actually what its
proponent claims it to be. (Jacobson v. Gourley (2000) 83 Cal. App. 4th 1331, 1334.)
10
Appellant failed to provide any such evidence. She did not possess the physical
document to which her testimony referred and no other witness who claimed to have seen
it. Todd, the alleged source of the document, testified that no such receipt ever existed.
He did not segregate hay in his barn by supplier and he did not document the supplier of
hay included in any delivery. Based on this evidence, it was well within the trial court's
discretion to find that appellant failed to prove the preliminary facts necessary to admit
her testimony about the delivery receipt into evidence. (Evid. Code, § 403.)
Terminating Sanction
Appellant contends the trial court issued a "hasty" dismissal of her case and
abused its discretion because it did not first issue monetary, or other less severe sanctions.
Trial courts have inherent authority to control the proceedings before them. (Cottle v.
Superior Court (1992) 3 Cal. App. 4th 1367, 1377.) This includes the authority to impose
a terminating sanction where a party willfully violates the court's orders. (Williams v.
Russ (2008) 167 Cal. App. 4th 1215, 1223; Reedy v. Bussell (2007) 148 Cal. App. 4th 1272,
1292.) In reviewing the order, "our task is not to supplant our own judgment for that of
the trial court, but to ascertain whether the trial court abused its discretion by imposing a
terminating sanction." (Electronic Funds Solutions, LLC v. Murphy (2005) 134
Cal. App. 4th 1161, 1183; see also Estate of Gilkison (1998) 65 Cal. App. 4th 1443, 1448-
1449 [abuse of discretion on appeal].) The question "is not whether the trial court should
have imposed a lesser sanction; rather the question is whether the trial court abused its
discretion by imposing the sanction it chose." (Do It Urself Moving & Storage, Inc. v.
Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 37.) It did not.
Appellant misstates the record when she claims the dismissal was prompted
by a single violation of the trial court's evidentiary orders. Our review of the record, as
recited ante, discloses numerous occasions during appellant's opening statement in which
counsel mentioned matters that had specifically been excluded. Similarly, during his
direct examination of appellant, counsel repeatedly asked questions calling for excluded
evidence. This occurred after the trial court had revisited and clarified its evidentiary
rulings at least three times. Appellant's counsel repeatedly disregarded the trial court's
11
orders by asking appellant questions relating to the source of hay delivered to the school
and her opinions regarding its appearance and condition. The trial court rationally
determined he would continue to feign misunderstanding its evidentiary rulings and to
solicit testimony on excluded matters. In these circumstances, the dismissal order was
not an abuse of discretion.
Nor did the trial court err in dismissing the action as to both Berrington and
Todd. The case was dismissed because appellant willfully and repeatedly violated the
trial court's orders in limine. This misconduct was unduly prejudicial to both
respondents. By repeatedly attempting to solicit testimony that had been excluded,
appellant was attempting to give jurors the impression that respondents, both of them,
were hiding the truth. In most, if not all of the previous rulings, both respondents were
objecting to the violations of the in limine orders. In a multi-defendant case, there is no
rule requiring that misconduct must relate to a specific defendant as a prerequisite to a
terminating sanction as to that defendant. (See, e.g., Parker v. Wolters Kluwer United
States, Inc. (2007) 149 Cal. App. 4th 285, 301 [terminating sanction may benefit any party
who "shows it suffered detriment as the result of the sanctioned party's" misconduct].)
Had the trial court limited its dismissal order to Berrington, Todd would
have been left to bear the burden of the jury's suspicions alone. The terminating sanction
was an appropriate response to appellant's repeated flagrant misconduct and consistent
with the trial court's inherent authority to "compel[] 'obedience to its judgments, orders
and process.'" (Sauer v. Superior Court (1987) 195 Cal. App. 3d 213, 230.)
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Conclusion
The judgment of dismissal is affirmed. Costs to respondents.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Vincent J. O'Neill, Judge
Superior Court County of Ventura
______________________________
Litigation and Advocacy Group, Glenn A. Murphy, for Plaintiff and
Appellant.
Paul B. Blatz, attorney for Defendant and Respondent, Steven Jackson
Todd, dba Todd Farm Service.
Yukevich, Cavanaugh, James J. Yukevich, Cristina M. Cimineli and Patrick
J. Cimmarusti, attorneys for Defendant and Respondent, Berrington Custom Haystacking
& Transport, Inc.
Diederich & Associates, Robert E. Henke, attorney for Defendants and
Respondents, Gary M. Berrington and Phyllis S. Berrington.