Filed 9/27/19 Hendrix v. Jamestown Property etc. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

ROCIO HENDRIX,

Plaintiff and Respondent,

v.

JAMESTOWN PROPERTY MANAGEMENT, LLC AND JAMESTOWN PREMIER GHRSQ, LP DBA GHIRADELLI SQUARE,

Defendants and Appellants.

A153069

(San Francisco City & County

Super. Ct. No. CGC-15-549294)

Defendants Jamestown Property Management, LLC dba Ghirardelli Square and Jamestown Premier GHRSQ, LP appeal a jury verdict for plaintiff Rocio Hendrix after the jury found that plaintiff injured herself on property that Jamestown Premier GHRSQ, LP negligently maintained. Defendants argue that the trial court erred by: 1) denying their request on the eve of trial to continue the trial after the attorney handling their case resigned from the law firm that served as their counsel of record; 2) affording plaintiff relief from her waiver of the right to jury trial under Code of Civil Procedure section 631, subdivision (g); and 3) allowing plaintiff to testify regarding the adoption of her Kazakhstani daughter. We find no prejudicial abuse of discretion and affirm.

BACKGROUND

Plaintiff tripped on broken, uneven sidewalk grates outside Ghirardelli Square in San Francisco, injuring her ankle and wrist. She sued defendants and the City and County of San Francisco for negligence. The Law Offices of Thomas J. Burns represented defendants.

Without holding an initial case management conference, and at the parties’ requests, the trial court set the matter for a jury trial in April 2017. In March 2017, the parties stipulated to continue the trial because defendants’ counsel took over representation of the City and County of San Francisco, and trial was set for July 17, 2017.

On July 14, 2017, defendants filed an ex parte application to continue the trial. Defendants submitted a declaration from their new trial counsel, Brian Bonney from the Law Offices of Thomas J. Burns, stating that defendants’ prior trial counsel, Thomas Yen, tendered his resignation on July 12, 2017, effective immediately, and Mr. Bonney needed additional time to prepare for trial. The court denied the ex parte request, and the case went out for a jury trial as scheduled.

After trial, the jury returned a verdict for plaintiff awarding her $32,552 in past economic damages, $200,000 in past noneconomic damages, $345,000 in future economic damages, and $250,000 in future noneconomic damages. Defendants’ motion for a new trial was denied by operation of law, and defendants timely appealed.

DISCUSSION

The issues raised in this appeal are governed by an abuse of discretion standard. (Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249 [the decision to grant or deny a continuance is committed to the sound discretion of the trial court]; see Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638–639 (Tesoro) [in the event of a jury trial waiver, the trial court retains discretion to allow a trial by jury]; People v. Wall (2017) 3 Cal.5th 1048, 1069 [“A trial court’s decision to admit or exclude evidence is reviewed for abuse of discretion”].) The appellant bears the burden of establishing an abuse of discretion. (Cf. Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) In general, a trial court’s discretionary ruling will be disturbed on appeal only upon a showing of a clear case of abuse. (Ibid.)

Moreover, even where the trial court abuses its discretion, the error does not warrant reversal unless it resulted in a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) This occurs when “there is a reasonable probability that in absence of the error, a result more favorable to the appealing party would have been reached.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) If the error is harmless, we will not reverse. (Garcia v. Rehrig International, Inc. (2002) 99 Cal.App.4th 869, 874–875.)

I. The Ex Parte Application to Continue the Trial
II.
Defendants contend that the trial court committed reversible error by denying them a continuance after the attorney responsible for handling their case resigned from the law firm serving as their counsel of record. This contention lacks merit.

On appeal, we presume the judgment to be correct and indulge all intendments and presumptions to support it regarding matters as to which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “Error is never presumed and appellant has the burden to show error.” (People v. Nitschmann (1995) 35 Cal.App.4th 677, 684.) Further, an appellant bears the burden of overcoming the presumption of correctness by providing an adequate record that affirmatively demonstrates error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140–1141 (Ketchum).)

When a trial date is set, the date is considered firm and continuances are disfavored. (Cal. Rules of Court, rule 3.1332(a), (c).) A continuance may be granted only upon a showing of good cause. (Rule 3.1332(c).) Substitution of trial counsel, the purported ground upon which defendants brought their request, is a circumstance that may indicate good cause where there is an affirmative showing that the substitution is required in the interests of justice. (Rule 3.1332(c)(4).) In ruling upon a request for a continuance, however, the trial court “must consider all the facts and circumstances that are relevant to the determination,” including, among other circumstances, the proximity of the trial date and whether there were previous continuances. (Rule 3.1332(d)(1), (2).)

Defendants rely primarily on Vann v. Shilleh (1975) 54 Cal.App.3d 192 (Vann), to support their argument that the trial court abused its discretion in denying a continuance, but this reliance is misplaced. In Vann, the trial court refused to continue a trial after granting defense counsel’s motion to withdraw on the Friday before the Monday set for trial. The trial court permitted counsel to withdraw because the defendant was dilatory in withdrawing from a settlement agreement that the parties’ counsel worked out. (Id. at p. 195.) The trial court then rejected the parties’ requests for a continuance because it operated under a strict policy of no continuances. (Id. at pp. 195–196.)

In reversing, the appellate court concluded that the trial judge did not exercise informed judgment, but instead denied the continuance “based solely on a policy against continuances, without considering whether the case before it justified a departure from that salutary policy.” (Vann, supra, 54 Cal.App.3d at p. 199.) While a party is not entitled to a continuance as a matter of right when it seeks to change counsel on the eve of trial, “a necessary substitution of counsel just prior to trial may justify the granting of a continuance, in some cases.” (Id. at p. 196.) The court also faulted defense counsel for unethically abandoning his client on the eve of trial. (Id. at p. 197.) Further, although the judge was aware of these facts, he did nothing to protect the defendant from his counsel’s “improper abandonment,” instead granting the motion to withdraw and requiring the individual defendant to represent himself and his corporation. (Id. at pp. 194, 197.)

Where, as here, the ex parte proceedings regarding the trial continuance were unreported, we do not presume that the trial court denied the continuance on an improper basis and instead presume that it based its decision on a proper assessment of the facts—which differ from those in Vann. First, the trial court did not grant an attorney’s motion to withdraw right before trial and then deny the parties’ joint request to continue the trial. No motion to withdraw occurred in this case because the firm that served as defendants’ counsel of record remained counsel of record, and counsel of record did not abandon its clients. Further, while defendants argue on appeal that the failure to grant a continuance prevented them from adequately preparing for trial and retaining experts, the evidence submitted in response to defendants’ motion for a new trial strongly suggests that it was defendants’ initial trial counsel’s lack of preparation, including his failure to hire experts and conduct depositions, that caused the issues that defendants complain of on appeal.

Next, the declaration defendants submitted in support of their request for a continuance states only that prior trial counsel “tendered his resignation on July 12, 2017 effective immediately.” Defendants provided no information in this declaration to discern whether this resignation was a surprise, whether it was voluntary, or whether defendants had prior knowledge thereof, and there is conflicting evidence in the record on defendants’ new trial motion as to whether Mr. Yen’s employer asked him to resign.

Finally, the case had been pending for approximately a year and seven months, a prior continuance had been granted at defendants’ counsel request, and plaintiff refused to stipulate to a further continuance. In these circumstances, we cannot say the trial court’s refusal to grant a continuance was arbitrary, capricious, or patently absurd.

III. Relief from Jury Trial Waiver
IV.
The parties agree that plaintiff waived her right to a jury trial by failing to timely post jury fees, and defendants argue that the trial court erred in affording plaintiff relief from her waiver on the day of trial. The trial court did not abuse its discretion in granting plaintiff relief.

A party may waive the right to a jury trial by, among other things, failing to timely pay jury fees. (§ 631, subd. (f)(5).) Nevertheless, the trial court has the discretion to permit a jury trial despite a party’s failure to timely post fees. (§ 631, subd. (g).) A trial court should grant a motion to be relieved of a jury waiver “unless, and except, where granting such a motion would work serious hardship to the objecting party.” (Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 809.) When there is doubt concerning the propriety of granting relief from a waiver, the doubt should be resolved in favor of the party seeking a trial by jury. (Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 956.) The court abuses its discretion if it denies relief when there has been no prejudice to the other party or the court from an inadvertent waiver. (Tesoro, supra, 200 Cal.App.4th at p. 638.)

Defendants failed to carry their burden to show that the trial court erred by allowing this case to be tried by a jury. Aside from the court minutes reflecting that the court allowed plaintiff to post jury fees on the day of trial, defendants did not provide this court with a reporter’s transcript or a settled statement showing the trial court’s reasons for proceeding with a jury trial. As a basic tenet of appellate review, the lower court’s order enjoys the presumption of correctness, and it is the appellant’s burden to procure a record to show otherwise. (Ketchum, supra, 24 Cal.4th at pp. 1140–1141.) The court minutes do not even expressly show that defendants objected to plaintiff’s demand for a jury trial after they waived their demand, and defendants have cited nothing in the record establishing that they made a showing of prejudice to the trial court. In the absence of a record demonstrating an abuse of discretion, we presume the court had and articulated sound reasons for its decision. (See Id. at pp. 1140–1141.)

Moreover, the prejudice that must be shown from granting relief from waiver is prejudice from the granting of relief and not prejudice from the jury trial. (Tesoro, supra, 200 Cal.App.4th at p. 639.) Defendants urge us to accept their argument on appeal that allowing relief from waiver on the day of trial prejudiced them because jury trials require more preparation than bench trials. The problem with defendants’ argument is that, here, at each party’s request, the court ordered this case be tried by a jury in August 2016. The City and County of San Francisco posted jury fees, and the defendants did not waive their request for a jury trial until the day of trial. Thus, up until trial, all parties and the court anticipated a jury trial. In these circumstances, any alleged prejudice defendants claim to have suffered did not stem the trial court’s grant of relief from waiver, and the trial court did not abuse its discretion in granting this relief.

V. The Evidentiary Challenge
VI.
Without objection, plaintiff’s counsel stated briefly in opening statement that plaintiff had adopted a young girl from Kazakhstan with medical problems because plaintiff learned that if female Kazakhstani children are not adopted by age 5, they will not be adopted, and they are thrown out by 16 to a life that typically leads to prostitution. Plaintiff testified without objection that she had two sons and an adopted Kazakhstani daughter who was a teenager at the time of trial. Later, over a relevancy objection, the court allowed plaintiff’s counsel to ask plaintiff again if she had adopted a Kazakhstani girl. When plaintiff confirmed that she had, counsel asked why, and plaintiff testified that she adopted her daughter because she had medical problems and plaintiff learned that children in Kazakhstan were thrown out on the streets at 16. Defendants argue that the court erred in allowing plaintiff to introduce this irrelevant evidence and that the error is reversible. We disagree.

First, defendants waived their right to challenge the admission of plaintiff’s testimony that she had adopted a young Kazakhstani girl the second time the question was asked by failing to object when the question was first asked. (Evid. Code, § 353, subd. (a).) Defendants also waived the right to challenge plaintiff’s testimony regarding why she adopted her daughter because they did not specifically object to this testimony. (Ibid.) Defendants fail to convince us that it would have been futile to object to the question of why plaintiff adopted her daughter solely because the trial court had overruled a relevancy objection to the question of whether plaintiff had an adopted Kazakhstani daughter, when she had previously answered that question without objection.

Next, even assuming the court abused its discretion in admitting irrelevant evidence, defendants do not establish that admission of this evidence led to a miscarriage of justice. (Evid. Code, § 353, subd. (b).) To show reversible error, defendants point only to the disparity between plaintiff’s $32,552 award for past lost wages and medical expenses, on one hand, and her award of $200,000 for past noneconomic damages, $250,000 for future noneconomic damages, and $345,000 for future economic damages, on the other hand. The crux of defendants’ argument is that testimony regarding plaintiff’s adopted daughter inflamed the jury’s passions such that they rendered an inflated damages award. The record does not bear this out.

The evidence established that plaintiff fell and injured herself walking on metal grates on a sidewalk maintained by defendants. Defendants were aware that these grates were a tripping hazard and sometimes put out warning cones that were not present the day of the incident. Plaintiff had to have ankle surgery and physical therapy after her fall. Her expert, Dr. Kim, testified that her fall caused a wrist injury requiring ongoing cortisone injections and that plaintiff suffered the highest degree of ankle sprain with a complete tear of her ligaments. He opined that plaintiff suffered from likely permanent loss of motion in her ankle and swelling. He also opined that plaintiff would need physical therapy for ankle flare-ups four to six weeks a year for many years. Plaintiff testified that walking causes consistent swelling and pain in her ankle. The evidence also suggested that the fall aggravated a stress fracture in plaintiff’s back, causing back pain flare-ups and requiring epidural injections.

Plaintiff, who was 46, testified that she was a registered nurse, and, prior to the accident, she enjoyed her job as a clinic manager working 10- to 12-hour days, five days a week, plus on call hours. She had earned $90,000 to $92,000 a year. She stepped down as clinic manger after her injury because she could not physically maintain the work due to her ankle, and her supervisor testified that, prior to the accident, plaintiff and he shared the goal that plaintiff would become a clinic director. After resigning as clinic manager, plaintiff took a desk job at the clinic that she enjoys less, earning $73,000 a year. Plaintiff stated that she was unable to do many of the normal activities she enjoyed before the accident and had to decrease her financial support of her children’s college and living expenses. Ample evidence therefore supported the jury’s verdict.

In addition, as previously noted, at the beginning of trial plaintiff testified without objection that she adopted a young Kazakhstani girl, so the jury heard and could consider this testimony. The court also admonished the jury that bias, sympathy, prejudice or public opinion could not influence their decision and that argument was not evidence, and we presume the jurors followed the court’s instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) On this record, defendants have not established a reasonable probability that, absent introduction of the brief testimony at issue, they would have received a more favorable verdict.

DISPOSITION

The judgment is affirmed.

_________________________

BROWN, J.

WE CONCUR:

_________________________

POLLAK, P. J.

_________________________

TUCHER, J.

Hendrix v. Jamestown Property Management, LLC (A153069)