Estevez v. Adams CA4/1

Filed 9/29/23 Estevez v. Adams CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MOISES ESTEVEZ et al., D080200
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2019-
00012475-CU-PA-NC)
CAROLINE ALINE ADAMS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Cynthia A. Freeland, Judge. Affirmed.
Law Office of Louis Gabbara, Louis J. Gabbara and Douglas S. Rafner,
for Plaintiffs and Appellants.
Law Offices of Kim L. Bensen, Kim Haycraft; Pollak, Vida & Barer,
Daniel P. Barer and Anna L. Birenbaum, for Defendant and Respondent.
INTRODUCTION
Moises Estevez and Ilse Bringas (together, Plaintiffs) were rear-ended
in an automobile accident by Caroline Aline Adams. Both Plaintiffs sought
ongoing medical treatment following the accident.
Plaintiffs ultimately sued Adams. Following a four-day trial, a jury
returned a verdict finding that Adams’s negligence was not a substantial
factor in causing harm to Estevez or Bringas and, therefore, declining to
award any damages.
Plaintiffs appeal the judgment, asserting four claims of error. Adams
contends Plaintiffs forfeited their assertions of error. We agree and therefore
affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND1
I.
Accident and Medical Treatment
On the afternoon of January 19, 2019, Adams was driving in stop-and-
go traffic. She said another car jutted into her lane about three or four cars
ahead of her, which resulted in the cars in front of her slamming on their
brakes. She did as well but did not slow down fast enough and hit Plaintiffs’
car, which was directly in front of hers. The airbags did not deploy in
Plaintiffs’ vehicle. Adams and Estevez exited their vehicles, and Adams
asked if everyone was alright. According to Adams, both Plaintiffs said they
were fine. Neither party called the police or an ambulance, and then
Plaintiffs drove away.
According to Estevez, his infant daughter was crying so they took her to
the emergency room to make sure she had not suffered a head injury or other
1 Plaintiffs’ introduction and statement of the case do not provide a
complete recitation of the facts. This deficiency will be addressed post. For
the facts they do include, the citations frequently are incorrect or omitted.
This violates California Rules of Court, rule 8.204(a)(1)(C), which requires
parties to support their arguments with citations to “the volume and page
number of the record where the matter appears.” (See Duarte v. Chino
Community Hospital (1999) 72 Cal.App.4th 849, 856 [“ ‘It is the duty of a
party to support the arguments in its briefs by appropriate reference to the
record, which includes providing exact page citations’ ”].)
2
harm. He said he told his wife on the way to the hospital that his back hurt.
Bringas reported having felt pain in her neck about five to 10 minutes after
the accident. At the hospital, Bringas told doctors she was experiencing pain
in her neck and back. Estevez stated that doctors recommended they get
pills from the pharmacy and follow up with a primary care physician.
Neither Estevez nor Bringas had a primary care provider, so six days
later, after contacting an attorney, Plaintiffs each saw Ron Brizzie, M.D.
Dr. Brizzie initially recommended medications for Estevez’s back and neck
pain, but then placed an order for magnetic resonance imaging (MRI) when
his pain had not improved. The MRI showed Estevez had a cyst in his
thoracic spine. Dr. Brizzie diagnosed him with sprain and strain type
injuries in his back as well as facet syndrome. He treated these injuries with
trigger point injections to relax the muscles and physical therapy.
Bringas reported neck pain radiating into her shoulders and
headaches. Dr. Brizzie recommended that she continue using the
medications provided by the emergency room and start physical therapy. He
treated her a total of three times. Although Dr. Brizzie also ordered an MRI
for Bringas, he noted that the results did not show any specific damage.
II.
Lawsuit, Trial, and Posttrial Motions
Plaintiffs eventually sued Adams. Adams admitted liability and the
only issues for trial were: (1) whether Adams’s negligence was a substantial
factor in causing harm to Plaintiffs, and (2) if so, what damages Plaintiffs
were entitled to as a result.
Prior to trial, Plaintiffs submit that they filed five motions in limine,
but they did not include the motions or the trial court’s order on the same in
the record on appeal. Plaintiffs also reference an October 7, 2021 order
3
regarding allegedly improper discovery responses. This order and the
underlying briefing also are not contained in the record.
At trial, Estevez and Bringas testified regarding the accident, their
injuries, and their treatment. Plaintiffs then called Dr. Brizzie as a witness.
Dr. Brizzie opined that the accident caused all of Plaintiffs’ symptoms. In so
doing, he acknowledged that he had not reviewed medical records for either
of them from before the accident, so he relied upon his examinations and
their subjective statements that they did not have any pain or injuries prior
to the accident. He further opined that, although Estevez’s cyst likely was
present prior to the accident, it was “more probable than not” that the cyst
was aggravated in some way by the accident.
Plaintiffs then called Paul Jain, M.D., as a witness regarding the
reasonableness and necessity of Plaintiffs’ treatments and the anticipated
cost, should Estevez require future spinal surgery to remove the cyst.
Adams testified and then relied on testimony from orthopedic surgeon
Larry Dodge, M.D., to respond to Plaintiffs’ experts’ testimony.
The jury returned a special verdict finding that Adams’s negligence was
not a substantial factor in causing harm to Estevez or Bringas. As a result,
they did not award any damages. Plaintiffs filed what the trial court
characterized as a motion for judgment notwithstanding the verdict (JNOV)
or, alternatively, a new trial.2 By minute order dated February 18, 2022, the
trial court denied both motions. Plaintiffs subsequently appealed.
DISCUSSION
I.
2 Plaintiffs did not include the motion or motions in the appellate record
and the register of actions included in the record only reflects the filing of a
motion for JNOV. Thus, we rely on the trial court’s description of the
motions in its minute order ruling on them.
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This Court Lacks Jurisdiction to Review Plaintiffs’ Challenge to the Order
Denying Their Motion for JNOV
Plaintiffs argue the trial court abused its discretion when it denied
their motion for JNOV. Adams submits that Plaintiffs forfeited this claim by
failing to separately appeal the JNOV order. Plaintiffs do not challenge this
forfeiture argument in their reply brief.
An order denying a party’s motion for JNOV is separately appealable.
(Code Civ. Proc., § 904.1, subd. (a)(4).) Here, the trial court entered its
judgment on the special verdict on January 4, 2022. Plaintiffs’ motion for
JNOV or, alternatively, a new trial was denied on February 18, 2022, and the
court directed Adams’s counsel to give notice. The register of actions reflects
that Adams filed a notice of ruling on February 22, 2022. Plaintiffs then filed
their appeal on March 1, 2022. Accordingly, Plaintiffs were aware of the
outcome of the JNOV when they appealed. Yet their notice of appeal does not
indicate that they wished to appeal the JNOV.
While a notice of appeal must be liberally construed, it is not sufficient
unless “it identifies the particular judgment or order being appealed.” (Cal.
Rules of Court,3 rule 8.100(a)(2); Morton v. Wagner (2007) 156 Cal.App.4th
963, 967.) “Rule 8.100(a)(2)’s liberal construction requirement reflects the
long-standing ‘ “law of this state that notices of appeal are to be liberally
construed so as to protect the right of appeal if it is reasonably clear what
[the] appellant was trying to appeal from, and where the respondent could
not possibly have been misled or prejudiced.” ’ ” (K.J. v. Los Angeles Unified
School Dist. (2020) 8 Cal.5th 875, 882.) “Once a notice of appeal is timely
filed, the liberal construction requirement compels a reviewing court to
evaluate whether the notice, despite any technical defect, nonetheless served
3 All further references to rules are to the California Rules of Court.
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its basic function—to provide notice of who is seeking review of what order or
judgment—so as to properly invoke appellate jurisdiction.” (Id. at p. 883.)
In this case, there was no ambiguity as to which decision Plaintiffs
were appealing. Plaintiffs checked the box for “Judgment after jury trial” on
their notice of appeal and listed only January 4, 2022, as the date of the
judgment or order being appealed. Under the appealability section on their
civil case information statement, they also did not indicate an intent to
appeal any other order aside from the judgment after jury trial.4 Notably,
Plaintiffs do not even list a separate basis for appealing the JNOV in their
opening brief’s statement of appealability, stating only: “This appeal is from
the judgment of the San Diego County Superior Court and is authorized by
the Code of Civil Procedure section 904.1, subdivision (a)(1).”
“[W]here several judgments and/or orders occurring close in time are
separately appealable (e.g., judgment and order awarding attorney fees), each
appealable judgment and order must be expressly specified—in either a
single notice of appeal or multiple notices of appeal—in order to be
reviewable on appeal.” ’ ” (Colony Hill v. Ghamaty (2006) 143 Cal.App.4th
1156, 1171.) “The policy of liberally construing a notice of appeal in favor of
its sufficiency (rule 8.100(a)(2)) does not apply if the notice is so specific it
cannot be read as reaching a judgment or order not mentioned at all.”
(Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.) Were we to hold
otherwise, a party would never have to file a separate appeal from a JNOV,
or arguably any other postjudgment order, as Code of Civil Procedure
section 904.1, subdivisions (a)(2) and (4) specifically require. We thus
conclude Plaintiffs forfeited their appeal of the order denying their JNOV
4 Under the section addressing the timeliness of the appeal, Plaintiffs
checked a box indicating that a postjudgment motion was filed, but did not
indicate what kind of motion, the date of filing, or the date of service.
6
motion. As a result, we lack jurisdiction to consider this claim. (Colony Hill,
at p. 1171 [concluding that the reviewing court lacked jurisdiction to consider
an appeal to a postjudgment order awarding attorney fees because the
appellant did not separately appeal the order].)
II.
Plaintiffs Forfeited Their Claims of Error Regarding Adams’s Testimony and
Dr. Dodge’s Testimony
Plaintiffs assert two claims of error based largely on the trial court’s
purported failure to abide by its own pretrial rulings on motions in limine.
First, Plaintiffs contend the trial court abused its discretion by allowing
Adams to offer what they submit was expert causation testimony by proxy.
According to Plaintiffs, the court’s pretrial ruling on a motion in limine
prohibited Adams from offering testimony on causation. As a result, Adams
could not call her expert, Dr. Eugene Vanderpol, to present evidence
regarding causation or the mechanism of impact resulting in injury. To
circumvent this prohibition, Plaintiffs contend Adams spoke with Dr.
Vanderpol before trial and then offered his causation testimony as her own.
In overruling Plaintiffs’ counsel’s objection to Adams’s testimony on the
grounds that Adams was just stating “her understanding,” Plaintiffs contend
the court abused its discretion.
Second, Plaintiffs argue that the trial court abused its discretion when
it allowed Adams’s expert, Dr. Dodge, to provide case-specific opinions based
solely upon hearsay documentation. Plaintiffs assert that Dr. Dodge’s
testimony was based entirely upon his out of court review of Plaintiffs’
medical records, which Plaintiffs contend violated the trial court’s pretrial
orders on motions in limine and People v. Sanchez (2016) 63 Cal.4th 665(Sanchez), upon which at least one of the motions was based.
7
Adams responds that Plaintiffs have forfeited these claims on appeal by
(1) neglecting to set forth a fair and complete summary of the facts that
complies with the Rules of Court, (2) omitting citations in their briefs to the
relevant portions of the record, and (3) failing to designate any appellate
record of the motions in limine and the trial court’s ruling on those motions.
Plaintiffs notably do not dispute any of Adams’s forfeiture arguments in their
reply brief.
A. Applicable Legal Standards
It is a “cardinal rule of appellate review that a judgment or order of the
trial court is presumed correct and prejudicial error must be affirmatively
shown.” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th
181, 187 (Foust).) To overcome this presumption, the appellant bears the
burden of providing an adequate record to affirmatively demonstrate error.
(Ibid.; Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495,
498 [incomplete record is construed against appellant].) If the appellant
cannot show error in the record, the presumption of correctness requires us to
affirm the order. (Foust, at p. 187.)
To that end, an appellant is bound by many rules of appellate
procedure designed to facilitate our review of claims of reversible error. For
example, an appellant’s opening brief “must . . . [p]rovide a summary of the
significant facts limited to matters in the record” (rule 8.204(a)(2)(C)) and
must “[s]upport any reference to a matter in the record by a citation to the
volume and page number of the record where the matter appears” (id. at
rule 8.204(a)(1)(C); Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29 [“It is
axiomatic that an appellant must support all statements of fact in his briefs
with citations to the record . . . .”]). That is because “[i]t is neither practical
nor appropriate for us to comb the record on [Plaintiffs’] behalf.” (In re
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Marriage of Fink (1979) 25 Cal.3d 877, 888.) The appellant also has the
burden to provide an adequate record on appeal to allow the reviewing court
to assess the purported error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295
(Maria P.); 569 East County Boulevard LLC v. Backcountry Against the
Dump, Inc. (2016) 6 Cal.App.5th 426, 434 fn. 9.) “[A] record is inadequate,
and appellant defaults, if the appellant predicates error only on the part of
the record he provides the trial court, but ignores or does not present to the
appellate court portions of the proceedings below which may provide grounds
upon which the decision of the trial court could be affirmed.” (Uniroyal
Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 302
(Uniroyal Chemical).)
Further, it is the appellant’s responsibility “to support claims of error
with meaningful argument and citation to authority.” (Allen v. City of
Sacramento (2015) 234 Cal.App.4th 41, 52 (Allen); rule 8.204(a)(1)(B).)
“When legal argument with citation to authority is not furnished on a
particular point, we may treat the point as forfeited and pass it without
consideration.” (Allen, at p. 52.)
B. Analysis
We agree Plaintiffs forfeited these claims by not providing an adequate
record, minimally citing to the records that were provided, and declining to
support their claims of error with relevant citations of authority. Most
significantly, Plaintiffs insist the trial court failed to follow its own
evidentiary rulings, yet they did not include the referenced motions in limine
or the court’s ruling on the same in the record. On appellate review, we have
no ability to evaluate whether the trial court inappropriately admitted
evidence that should have been excluded per the pretrial order if the motions
and order are not before us in the record. Plaintiffs provided what appears to
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be a summary of five motions in limine and the corresponding rulings but did
not cite to where we may find the actual documents in the record. Once
again, it is incumbent upon the appellant to provide a record on appeal that
is sufficient to allow the reviewing court to assess the purported error.
(Maria P., supra, 43 Cal.3d at p. 1295.) When, as here, the record is
inadequate for meaningful review, we resolve the issue against the
appellants. (Foust, supra, 198 Cal.App.4th at p. 187.)
With regard to both claims of error, Plaintiffs also neglected to provide
legal authority supporting their assertions that the trial court abused its
discretion. Plaintiffs argue the court erred by allowing Adams to testify, over
their objection, regarding relevant speed and Plaintiffs’ vehicle’s “black box”
because they contend these topics were within the province of expert
testimony. To support this claim, Plaintiffs direct us to Evidence Code
section 720, which sets forth the criteria for testifying as an expert.5 But
Adams was not presented as an expert. And while Plaintiffs could have
argued at trial pursuant to Evidence Code section 720 that Adams had to
demonstrate “special knowledge, skill, experience, training, or education”
before offering such testimony or, conversely, that her testimony should be
stricken, they did not raise either issue. Furthermore, on appeal, citation of
this authority alone does not demonstrate how Plaintiffs’ argument
overcomes the deferential abuse of discretion standard of review. (See Allen,
5 Evidence Code section 720 provides: “(a) A person is qualified to testify
as an expert if he has special knowledge, skill, experience, training, or
education sufficient to qualify him as an expert on the subject to which his
testimony relates. Against the objection of a party, such special knowledge,
skill, experience, training, or education must be shown before the witness
may testify as an expert. [¶] (b) A witness’ special knowledge, skill,
experience, training, or education may be shown by any otherwise admissible
evidence, including his own testimony.”
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supra, 234 Cal.App.4th at p. 52 [“[w]e are not required to examine
undeveloped claims or to supply arguments for the litigants”].) It also does
not suffice to defeat the presumption that the trial court’s decision was
correct. (Foust, supra, 198 Cal.App.4th at p. 187.)
Likewise, Plaintiffs assert that Dr. Dodge’s testimony was based
entirely upon his out of court review of Plaintiffs’ medical records, which
Plaintiffs contend violated Sanchez, supra, 63 Cal.4th 665. The Sanchez
court adopted the rule that “When any expert relates to the jury case-specific
out-of-court statements, and treats the content of those statements as true
and accurate to support the expert’s opinion, the statements are hearsay.”
(Sanchez, supra, 63 Cal.4th at p. 686.) The fundamental concern
underscoring this rule was that admission of expert testimony in state
prosecutions must comply with the Sixth Amendment’s confrontation clause,
“which provides that, ‘[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.’ ” (Sanchez, at
p. 679.) The confrontation clauses ensures that an opponent has the
opportunity to cross-examine witnesses, which is vital because “[c]ross-
examination is the principal means by which the believability of a witness
and the truth of his testimony are tested.” (Sanchez, at 679-680.)
In J.H. v. Superior Court (2018) 20 Cal.App.5th 530 (J.H.), the Second
District acknowledged that Sanchez has been applied outside of the criminal
context—specifically, “to proceedings under the Sexually Violent Predator Act
[citation], to conservatorship proceedings [citation], to the commitment of
mentally disordered offenders [citation], and to public nuisance actions
[citation]” (Id., at p. 533.) But that district concluded that “Sanchez’s
limitations do not render social service reports inadmissible in status review
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hearings held pursuant to the Welfare and Institutions Code.” (Ibid.) In
other words, Sanchez does not apply to all civil cases.
That is, in part, because “[a]lthough parties in civil proceedings have a
right to confrontation under the due process clause, ‘[t]he Sixth Amendment
and due process confrontation rights are not coextensive. [Citation.] Due
process in a civil proceeding “is not measured by the rights accorded a
defendant in criminal proceedings, but by the standard applicable to civil
proceedings.” [Citation.]’ ” (People v. Bona (2017) 15 Cal.App.5th 511, 520
(Bona).) In the civil context, due process does not require any particular
procedure, “ ‘only that the procedure adopted comport with fundamental
principles of fairness and decency.’ ” (Ibid.)
As previously noted, because the record offered by Plaintiffs is
deficient, we cannot evaluate how the trial court applied Sanchez to the facts
of this case in ruling on the applicable motion in limine. Further, in violation
of rule 8.204(a)(2)(C), Plaintiffs’ brief did not include a recitation of all
significant facts, including those supporting the judgment. (See Delta
Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1072 [concluding an
appellant forfeits its claim when it fails to summarize and discuss the record
that supports the challenged decision].) In particular, Plaintiffs omitted from
their factual summary the trial court’s lengthy, off the record discussion with
the parties. Therein, the court explained its view that Dr. Dodge could
respond to medical testimony Plaintiffs’ experts had already offered at trial
regarding their examinations, as documented in the medical records, even
though the records themselves had not been admitted. This omission is
significant because nowhere in Plaintiffs brief do they analyze this specific
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procedure under Sanchez.6 Nor do they offer authority supporting a
conclusion that the trial court abused its discretion in employing this
procedure. It is not this court’s responsibility to affirmatively develop legal
arguments for the parties (Supervalu, Inc. v. Wexford Underwriting
Managers, Inc. (2009) 175 Cal.App.4th 64, 80), and we decline to do so here.
For the foregoing reasons, we conclude Plaintiffs forfeited these
arguments on appeal.
III.
Plaintiffs Forfeited Their Contention Regarding Dr. Jain’s Testimony
Plaintiffs argue that the trial court abused its discretion in excluding
Dr. Jain, Plaintiffs’ causation expert, from presenting expert testimony
regarding causation on the grounds that his expected testimony would be
6 Although we do not decide Sanchez’s applicability to the case at hand,
we are not convinced it would bar the procedure authorized by the trial court.
Sanchez appears to acknowledge that hearsay testimony about case-specific
facts is not necessarily offered for its truth where “other evidence of the case-
specific facts” has been admitted (Sanchez, supra, 63 Cal.4th at p. 684), as it
was in this case via Dr. Brizzie and Dr. Jain. Further, to the extent Sanchez
is concerned about the right to cross-examine witnesses and challenge the
truth of the evidence and the credibility of the witness, Plaintiffs obviously
examined at trial their own medical experts—Dr. Brizzie and Dr. Jain—who
created the records. Finally, to the extent Sanchez can be read as requiring
that Dr. Dodge should only have been allowed to “assume [the] truth [of the
medical evidence offered by Dr. Brizzie and Dr. Jain] in a properly worded
hypothetical question in the traditional manner,” Plaintiffs forfeited this
argument by not objecting on this basis at trial. (See In re S.B. (2004) 32
Cal.4th 1287, 1293 [If an objection could have been made in the trial court,
but was not, the reviewing court will not ordinarily consider a challenge to
the trial court’s ruling]; People v. Davis (2008) 168 Cal.App.4th 617, 627
[timely and specific objection generally required]; Evid. Code, § 353,
subd. (a).) They also did not raise that argument on appeal. Thus, it is not
clear that the procedure employed by the trial court failed to “ ‘comport with
fundamental principles of fairness and decency.’ ” (Bona, supra, 15
Cal.App.5th at p. 520.)
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cumulative of Dr. Brizzie’s. As an initial matter, we are troubled that
Plaintiffs’ opening brief gives the impression that the trial court completely
precluded Dr. Jain from testifying, when in fact, the reporter’s transcript
included in the record contains 23 pages of testimony by Dr. Jain. They also
do not explain that they presented Dr. Jain as an independent medical expert
on the issue of the reasonableness and necessity of the medical treatment
provided, in addition to causation. Thus, Plaintiffs’ argument on this point is
once again misleading and lacking a sufficient factual foundation. It also is
totally devoid of legal argument or authority. For these reasons, we conclude
it too is forfeited.
Even if Plaintiffs’ assertion was not forfeited, Plaintiffs have not met
their burden of showing the trial court abused its discretion. Under Evidence
Code section 352, “[t]he court in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.” (Ibid.) “We review a trial court’s ruling under Evidence
Code section 352 for an abuse of discretion.” (People v. Clark (2011) 52
Cal.4th 856, 893; People v. Robinson (2020) 47 Cal.App.5th 1027, 1032.)
Plaintiffs submit that Dr. Jain’s testimony was not cumulative of
Dr. Brizzie’s because Dr. Jain was retained to provide forensic medical
testimony while Dr. Brizzie was a non-retained treating physician. On the
stand, Dr. Brizzie described the appointments he had with each Plaintiff, his
findings, and what tests or procedures he ordered as a result. He then
opined, “To my knowledge, [Estevez] was asymptomatic or was not having
pain prior to this accident. Upon my examination and from his history, it
appears everything was related to this accident.” Dr. Brizzie also said it was
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“more probable than not” that Estevez’s cyst was aggravated by the car
accident. With regard to Bringas, Dr. Brizzie said, “So the diagnoses I just
reviewed were all related to this accident. She did not report any history of
pain or injuries to these regions.”
Prior to Dr. Jain’s testimony, counsel had a long discussion with the
court about the parameters for his testimony.7 Plaintiffs’ counsel made an
offer of proof that he would “give a helicopter’s perspective of the
reasonableness and . . . necessity of the treatment and the billing, and the
connection between the accident and the injury.” Adams’s counsel objected
that asking more questions about the Plaintiffs’ treatment, care, and MRI
results would be cumulative, but indicated she did not object to Dr. Jain
testifying regarding the reasonableness and necessity of the treatment. The
court agreed that it would be cumulative to hear more testimony that “goes
exactly over the treatment that Dr. Brizzie just did day by day.” Adams’s
counsel also expressed concern that Plaintiffs “already had an expert say the
accident caused these injuries, so it would be duplicative to have another
expert say the same thing” to which Plaintiffs’ counsel responded, “True.”
Ultimately, the court concluded, “We want to avoid cumulative
[evidence]. It sounds like the area of his expertise is reasonableness and
necessity. So that’s where we will keep Dr. Jain’s testimony, understanding
he is going to have to explain what he understands the medical issues to be.”
Plaintiffs’ counsel responded, “As long as he can do that, I’m fine with it.”
Dr. Jain then took the stand to opine that “[a]ll of the medical care
received was medically reasonable and indicated per the injuries sustained
for both of them.” He further opined that Estevez would need future surgery
7 Plaintiffs provide only a partial factual summary of this conference.
15
to relieve the spinal compression caused by the cyst and offered an estimate
of the cost of the procedure and follow-up care.
Plaintiffs have not made clear how the court abused its discretion.
Plaintiffs were afforded the opportunity to call Dr. Jain to offer testimony as
to the reasonableness and necessity of the treatment provided. Counsel
acknowledged that Dr. Brizzie had already opined that the accident caused
the injuries. And, after the court explained that it wished to avoid
cumulative evidence and would therefore limit Dr. Jain to testifying about
reasonableness and necessity, Plaintiffs’ counsel said he would be “fine with
it” because the court indicated Dr. Jain could also “explain what he
underst[ood] the medical issues to be.” Because Plaintiffs have not shown
that the trial court acted arbitrarily, capriciously, or in a patently absurd
manner, we conclude there is no basis for disturbing the trial court’s exercise
of its discretion. (People v. Williams (2008) 43 Cal.4th 584, 634-635.)
Furthermore, even assuming the court erred, Plaintiffs’ claims of
prejudice, without explanation of how they were prejudiced, do not suffice to
support reversal. (See Cal. Const., art. VI, § 13 [stating that, even where a
trial court improperly excludes evidence, the error does not require reversal
of the judgment unless the error resulted in a miscarriage of justice];
People v. Cahill (1993) 5 Cal.4th 478, 487-488 [confirming that article VI,
section 13, sets forth the prejudicial error standard under California law for
errors in excluding evidence].) Plaintiffs do not explain what other evidence
Dr. Jain would have offered as to causation. He acknowledged that, like
Dr. Brizzie, he did not review any objective medical evidence demonstrating
that Plaintiffs had any neck or back issues prior to the accident or showing
the pre-accident size of Estevez’s cyst. Both physicians relied on Plaintiffs’
subjective reports that their pain did not predate the accident. Thus, had Dr.
16
Jain opined as to causation, it would have been based on the same subjective
reports. “[E]vidence ‘ “identical in subject matter to other evidence should
not be excluded as “cumulative” when it has greater evidentiary weight or
probative value” ’ ” (People v. Nieves (2021) 11 Cal.5th 404, 470), but that is
not the case here. Given that Dr. Jain conducted fewer examinations of
Plaintiffs than Dr. Brizzie, the opposite is true—his opinion as to causation
would have been of less probative value. Accordingly, Plaintiffs have not
demonstrated prejudice.
IV.
Plaintiffs Forfeited Their Claim of Error Regarding the Trial Court’s Denial
of Their Motion for a New Trial
Adams states that Plaintiffs did not include any arguments of error as
to the ruling on Plaintiffs’ motion for a new trial but this is not entirely
accurate. Plaintiffs cite to Holmes v. Southern Cal. Edison Co. (1947) 78
Cal.App.2d 43, 51, Neal v. Farmers Ins. Exch. (1978) 21 Cal.3d 910, 933, and
Green v. Soule (1904) 145 Cal. 96, 102, in arguing that the trial court must sit
as a thirteenth juror when ruling on a motion for a new trial and evaluate the
evidence as a whole. Because Plaintiffs assert that experts for both parties
opined that it was reasonable for Plaintiffs to visit the emergency room and
follow up with a couple of doctor visits and some physical therapy sessions,
Plaintiffs argue that “[a] jury acting reasonably, and evaluating only the
evidence presented at trial could have reasonably found no way other than
that the accident was a substantial factor in causing some economic
damages.” Accordingly, Plaintiffs contend the trial court abused its
discretion in failing to act as a thirteenth juror and grant the motion for a
new trial.
As an initial matter, the cited portions of the cases relied upon by
Plaintiffs establish only the duty of the trial court in ruling on such a motion;
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they do not address the standard of review on appeal of an order denying a
motion for a new trial. As explained above, failure to support a point of error
with reasoned argument and citations to authority forfeits the point. (Allen,
supra, 234 Cal.App.4th at p. 52.)
It is further an appellant’s burden to provide an adequate record on
appeal (Maria P., supra, 43 Cal.3d at p. 1295), and Plaintiffs’ motion for a
new trial is not included in the record. While the trial court’s order on the
motion is included, it does not shed significant light on Plaintiffs’ arguments
because, after reciting the seven possible bases for seeking a new trial under
Code of Civil Procedure section 657, the court notes, “the motion is not
entirely clear which subsection of CCP [section] 657 Plaintiffs rely upon.”
Moreover, it bears repeating that Plaintiffs omitted from their opening
brief significant facts supporting the judgment, such as that all the doctors
were forced to rely solely on Plaintiffs’ subjective reports that they did not
have pain or injuries before the accident. Plaintiffs also did not mention that
they told Adams they were “fine” following the accident, that Estevez
testified that they went to the emergency room just to get their daughter
examined, or that neither Estevez nor Bringas saw a doctor until six days
after the accident after having met with an attorney. A jury deciding
whether an accident was the proximate cause of injuries is entitled to find a
party not credible, and these facts support the jury’s and the trial court’s
conclusions. Thus, we highlight again that providing only a one-sided record
warrants resolving the issue against Plaintiffs. (Uniroyal Chemical, supra,
203 Cal.App.3d at p. 302; Foust, supra, 198 Cal.App.4th at p. 187.)
We note a few final points. First, although Plaintiffs clearly find this
precedent a source of great consternation, “[s]tipulations of liability do not
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automatically entitle plaintiffs to damages.”8 (Christ v. Schwartz (2016)
2 Cal.App.5th 440, 453.) Second, Plaintiffs attempt to use Dr. Dodge as both
a sword and a shield. They claim he should not have been allowed to testify
regarding any case-specific facts in the record. But, having done so, they
attempt to use testimony they view as favorable to their position as a
justification warranting a new trial. Finally, having concluded that Plaintiffs
forfeited all their other arguments, we do not find it appropriate to
nonetheless engage in a review of the entire record in order to review the
trial court’s ruling on the motion for a new trial.
Accordingly, we conclude Plaintiffs forfeited this contention on appeal
as well.
DISPOSITION
The judgment is affirmed. Adams is entitled to her costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
BUCHANAN, J.
RUBIN, J.
8 Further, as the trial court aptly noted, “The court agrees with [Adams]
that Plaintiffs are conflating the issues of reasonableness and causation. The
issue for the jury was not whether it was reasonable for Plaintiffs to receive
medical care. Instead, the question was whether the accident necessitated
that medical treatment.”
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