Kamell v. Del Taco CA4/3

Filed 11/17/20 Kamell v. Del Taco CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
RAFIK Y. KAMELL,
Plaintiff and Appellant, G057498
v. (Super. Ct. No. 30-2016-00891419)
DEL TACO, LLC, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Geoffrey
T. Glass, Judge. Affirmed.
Rafik Y. Kamell, in pro. per., for Plaintiff and Appellant.
Murchison & Cumming and Edmund G. Farrell for Defendant and
Respondent.
* * *
Rafik Kamell sued Del Taco alleging he suffered injuries from food
poisoning. The case went to trial and the jury returned a verdict in favor of Del Taco.
Kamell appeals, arguing the court improperly excluded two Orange County Health
Department (OCHD) inspection reports. We disagree and affirm the judgment.
FACTS
In December 2014, Kamell was hospitalized when he suffered an
esophageal tear as a result of vomiting not long after eating at a Del Taco restaurant. He
sued Del Taco alleging his injuries were caused by contaminated food.
At trial, Kamell sought to introduce expert testimony related to two OCHD
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inspection reports. The first report (Report 1) was based on an inspection eight months
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prior to Kamell’s visit to the Del Taco restaurant; the second report (Report 2) was based
on an inspection at the same Del Taco restaurant one month prior to Kamell’s injury.
Del Taco filed a motion in limine to exclude the OCHD reports and their
findings, arguing they were (1) case-specific hearsay, (2) not relevant evidence (Evid.
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Code, § 210), and (3) any probative value was substantially outweighed by the
prejudicial value (§ 352). Kamell argued in response the evidence was relevant and more
probative than prejudicial.
The court ruled the contents of the reports could be discussed, but the
reports themselves would not be admitted into evidence because “[t]hey are hearsay
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Report 1 identified seven “minor violations” and included the comment:
“Discussed bare hand contact/glove usage with the operator.”
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Report 2 listed six “minor violations” including, “Lack of/Improper
Handwashing/Handwashing Sup. [¶] Discontinue storing items in the handwash sink.
Maintain all handwashing sinks fully operative, in good repair and easily accessible,” and
“potentially hazardous” foods measured at improper temperatures.
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All further statutory references are to this code.
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evidence.” The court explained, “[The reports] are not business records. There has been
no argument they are business records.” The court added it was not clear from the
reports if the listed violations resulted in citations to Del Taco, and “certain things in the
reports . . . are irrelevant.”
Kamell presented expert testimony during trial. The expert opined Kamell
had suffered from “staphylococcal food poisoning,” which was related to the food he ate
at Del Taco. The expert said staphylococcal bacteria could be spread by unclean hands.
He discussed Report 2’s conclusion regarding items left in the restaurant’s handwashing
sink: “And to me that implied that the handwashing sink was not available for staff to
use because it was filled with whatever was being stored there.” The expert also
referenced Report 1’s comment concerning instructions the owners gave employees about
the importance of gloving, but said he was not sure how to interpret that instruction.
Kamell also called the manager of the Del Taco restaurant where he
purchased the food as a witness; he questioned the manager about the handwashing sink
violation.
After the Del Taco manager testified, the court revisited the admissibility of
the inspection reports. The trial judge observed, “so far we don’t have any evidence that
there were . . . violations,” concluding there was no “foundation for the business record
or that it in fact is a business record.” The court said it “would have a different feeling” if
a witness had actually seen the alleged violations or could testify as to how the reports
were created.
During closing argument, Kamell’s counsel told the jury: “The one thing
we do know to some degree is that on November 6th, 2014, when the Orange County
Health Department went there, they found that they were using the sink to store items.
The handwashing sink to store items.” He concluded, “the method in which [Del Taco
has] . . . their employees cleaning their hands has got to be the single most important
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thing a restaurant can do to stop this kind of spread of food poisoning. [¶] It is just
simple. That is most likely the cause.”
DISCUSSION
Kamell argues the court erred by excluding the OCHD inspection reports,
because they were admissible as either business records (§ 1271) or records by a public
employee (§ 1280). “A trial court has broad discretion in determining whether a party
has established these foundational requirements. [Citation.] Its ruling on admissibility
‘implies whatever finding of fact is prerequisite thereto . . . [Citation.]’ [Citation.] A
reviewing court may overturn the trial court’s exercise of discretion ‘“only upon a clear
showing of abuse.”’” (People v. Martinez (2000) 22 Cal. 4th 106, 120.) We find no such
abuse here.
Evidence Code section 1271 sets forth the business record hearsay
exception: “Evidence of a writing made as a record of an act, condition, or event is not
made inadmissible by the hearsay rule when offered to prove the act, condition, or event
if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing
was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other
qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The
sources of information and method and time of preparation were such as to indicate its
trustworthiness.”
Evidence Code section 1280 sets forth the public records exception to the
hearsay rule: “Evidence of a writing made as a record of an act, condition, or event is not
made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to
prove the act, condition, or event if all of the following applies: [¶] (a) The writing was
made by and within the scope of duty of a public employee. [¶] (b) The writing was
made at or near the time of the act, condition, or event. [and] [¶] (c) The sources of
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information and method and time of preparation were such as to indicate its
trustworthiness.”
The OCHD reports were not admissible as business records because Kamell
failed to lay a sufficient foundation to admit them as such; among other problems, neither
a custodian of records nor another qualified witness testified as to the identity and mode
of preparation regarding the reports as required by section 1271.
Del Taco argues, and we agree that Kamell forfeited the argument the
records were admissible under section 1280 by not raising that theory during trial.
(§ 354; People v. Alcala (1992) 4 Cal. 4th 742, 795-796.) At trial, Kamell argued the
reports were admissible as business records; he made no mention of section 1280’s
hearsay exception. “The proponent of hearsay has to alert the court to the exception
relied upon and has the burden of laying the proper foundation.” (People v. Livaditis
(1992) 2 Cal. 4th 759, 778.) Since Kamell never suggested the reports were admissible
under section 1280 in the trial court, “the issue is not properly before us.” (Id. at p. 780.)
Kamell argues the issue is not forfeited because “the court considered the
business records exception . . . .” He misses the point with this argument. The burden
was on Kamell to “alert the court to the [hearsay] exception relied upon” and he failed to
do so. (People v. Livaditis, supra, 2 Cal.4th at p. 778.) The court’s willingness to
evaluate a different hearsay exception does not alter Kamell’s burden.
In any event, even if the court erred in excluding the reports themselves,
Kamell was not prejudiced. The jury received the information Kamell believed was
crucial to his case through his expert who was able to discuss the content of the reports
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and explain how the safety violations influenced his opinion. Kamell also
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Although Del Taco raised a People v. Sanchez (2016) 63 Cal. 4th 665
case-specific hearsay objection to this evidence in their motion in limine, Kamell
presented the evidence to the jury without objection.
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cross-examined the Del Taco manager about the violations and emphasized their
importance in his rebuttal argument. “A verdict or finding shall not be set aside . . . by
reason of the erroneous exclusion of evidence unless the court which passes upon the
effect of the error or errors is of the opinion that the error or errors complained of resulted
in a miscarriage of justice . . . .” (§ 354.) Here, there is no reasonable likelihood the
admission of the reports themselves would have led to a different result. Their exclusion
did not constitute a miscarriage of justice.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
GOETHALS, J.
WE CONCUR:
MOORE, ACTING P. J.
ARONSON, J.
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