Filed 3/26/20 Kaplan v. Del Amo Hospital, Inc. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

JAYNE TERRY KAPLAN,

Plaintiff and Appellant,

v.

DEL AMO HOSPITAL, INC.,

Defendant and Respondent.

B296107, B297898

(Los Angeles County

Super. Ct. No. BC546394)

APPEALS from a judgment and an order of the Superior Court of Los Angeles, Mark V. Mooney, Judge. Affirmed.

Jayne Terry Kaplan, in pro per, for Plaintiff and Appellant.

Dummit, Buchholz & Trapp, Scott D. Buchholz and Moira S. Brennan for Defendant and Respondent.

____________________________

Pro per appellant Jayne Terry Kaplan (Kaplan) filed suit against respondent Del Amo Hospital, Inc. (Del Amo) for false imprisonment. Kaplan alleged Del Amo detained her for several days without adhering to the requirements of Welfare and Institutions Code section 5150. At the conclusion of a five-day trial, a jury found that Del Amo had the right to detain Kaplan under section 5150 for a 72-hour hold period in order to determine whether she was a danger to herself. The trial court later entered judgment in favor of Del Amo and against Kaplan in accordance with the jury’s verdict.

Prior to trial, Del Amo had served a written settlement offer on Kaplan pursuant to Code of Civil Procedure section 998. As pertinent here, Del Amo offered to waive its right to collect costs if Kaplan dismissed the action with prejudice and executed a general release that “[would] include a waiver of Civil Code section 1542” and “[would] serve as a release of all claims in the . . . civil action by [Kaplan] against [Del Amo], including its respective officers, directors, shareholders, partners, employees, agents, parent entities, affiliates, and subsidiaries.” Kaplan did not accept the offer.

After judgment was entered in its favor, Del Amo sought to recover certain costs, including expert witness fees. Kaplan filed a motion to tax costs, arguing, inter alia, that Del Amo was not entitled to the expert witness fees because its settlement offer was invalid. Specifically, Kaplan contended that the offer required a Civil Code section 1542 waiver that was not limited to the false imprisonment claim, and that the offer called for the release of nonparties. The trial court denied the motion because it found the offer was valid, and it awarded Del Amo the bulk of its requested costs, including most of its expert witness fees.

Kaplan appeals the judgment and the order awarding costs. Kaplan claims that the judgment must be reversed because Del Amo violated section 5150, and because a jury instruction misstated elements of the tort of false imprisonment. These claims of error fail because Kaplan does not provide us with a record adequate to address them. We also reject Kaplan’s challenge to the costs award because she fails to establish that Del Amo’s settlement offer was invalid. Accordingly, we affirm the judgment and the order awarding costs.

FACTUAL AND PROCEDURAL BACKGROUND

On May 21, 2014, Kaplan filed a pro per complaint against Del Amo and 10 other defendants who are not parties to this appeal. In the complaint, Kaplan averred that on May 24, 2013, one of her neighbors falsely reported to the police that Kaplan had threatened to commit suicide. Police officers thereafter allegedly “handcuffed Kaplan and transported her to Kaiser Permanente [(an entity that provides health care services)] on an involuntary basis.”

Kaplan further claimed that Kaiser Permanente personnel “did not interview [her] to determine if she was a danger to herself [or] others, but[ ]immediately had her placed in restraints by six security guards and administered drugs to her on an involuntary basis.” She alleged that Kaiser Permanente subsequently “shipped” Kaplan to Del Amo’s facility, and that Del Amo “conducted no interview to determine if [she] was a danger to herself or others and held her against her will for 96 hours.” Kaplan also averred in the complaint that she “wa[s] threatened that if she failed to sign voluntary commitment papers she would be placed on an involuntary . . . hold.”

Although Kaplan asserted nine causes of action in the complaint, the only claim that Kaplan averred against Del Amo was her ninth cause of action for false imprisonment.

On February 2, 2018, Del Amo served on Kaplan an offer of compromise pursuant to Code of Civil Procedure section 998 (“section 998 settlement offer”). Del Amo offered to waive its rights to (a) collect costs against Kaplan and (b) pursue a malicious prosecution action against her. In exchange, the offer required Kaplan to, inter alia, enter a request for dismissal with prejudice in favor of Del Amo and “execut[e] and transmit[ ] . . . a general release . . . in favor of [Del Amo] in a standard form used in this legal community to be provided by [Del Amo], which will include a waiver of Civil Code section 1542, will provide that the release is not to be construed as an admission of liability by [Del Amo], that [Del Amo] has denied and will continue to deny any liability to [Kaplan], and will serve as a release of all claims in the above-captioned civil action by [Kaplan] against [Del Amo], including its respective officers, directors, shareholders, partners, employees, agents, parent entities, affiliates, and subsidiaries.” Kaplan did not accept Del Amo’s section 998 settlement offer.

On February 13, 2018, Kaplan filed a first amended complaint, and Del Amo filed an answer thereto on February 22, 2018. Neither filing is in the record.

A five-day jury trial commenced on October 24, 2018. Kaplan proceeded against Del Amo only on her claim for false imprisonment. Although Kaplan appeared at trial on her own behalf, she also retained an attorney to assist her during those proceedings.

The limited appellate record before us does not reveal whether the entirety of the jury trial was transcribed. On October 24, 2018, the trial court entered an order appointing a court reporter as an official reporter pro tempore, and the trial court entered another order approving a different court reporter as an official reporter pro tempore on October 29, 2018. Yet, the record does not include a reporter’s transcript.

Only one minute order from the trial appears in the record. The order shows that a court reporter transcribed the second day of the trial, at which the parties delivered opening statements, two witnesses testified, and several exhibits were admitted into evidence. The record does not contain the transcript of the proceedings held on October 25, 2018, nor does it contain a record of any of the other oral proceedings before the trial court.

On October 31, 2018, the jury returned a special verdict. The jury found that “Del Amo . . . ha[d] the right to detain . . . Kaplan for a 72 hour hold period for evaluation for purposes of determining whether she was a danger to herself pursuant to . . . section 5150.” The jury also found that “Kaplan knowingly or voluntarily consent[ed] to treatment on a voluntary basis at Del Amo Hospital during her hospitalization.” On January 2, 2019, the trial court entered judgment in favor of Del Amo and against Kaplan in accordance with the jury’s verdict.

On January 8, 2019, Del Amo filed a memorandum of costs. Del Amo sought a total of $36,316.94 in costs, including $14,229.50 in expert witness fees.

On January 28, 2019, Kaplan filed a motion to tax costs. Among other things, Kaplan argued that Del Amo could not recover expert witness fees because the section 998 settlement offer was invalid. On April 3, 2019, the trial court held a hearing on Kaplan’s motion. The court denied the motion in pertinent part, finding the section 998 settlement offer to be valid, and ordered Kaplan to pay Del Amo a reduced cost award of $35,240.80.

Kaplan timely appealed the judgment and the order awarding costs to Del Amo. We consolidated Kaplan’s two appeals on September 5, 2019.

DISCUSSION

We observe that Kaplan’s briefing is disjointed, mostly devoid of record citations, and somewhat unclear. We nonetheless discern she contends we should reverse: (1) The judgment in favor of Del Amo on Kaplan’s claim of false imprisonment because two trial exhibits establish Del Amo’s detention of Kaplan was not privileged under section 5150, and the trial court gave a defective jury instruction on false imprisonment; and (2) the order awarding expert witness fees to Del Amo because the section 998 settlement offer was invalid.

For the reasons discussed below, we reject these claims of error. Kaplan’s challenges to the judgment fail because she has not provided an adequate record to evaluate them. We also conclude that Del Amo’s section 998 settlement offer was valid. We thus affirm the judgment and the order awarding costs to Del Amo.

A. Kaplan Fails to Provide a Record Adequate to Assess Her Challenges to the Trial Court’s Judgment
B.
The tort of false imprisonment is defined as “ ‘the “ ‘nonconsensual, intentional confinement of a person, without lawful privilege, for an appreciable length of time, however short.’ ” [Citation.] That length of time can be as brief as 15 minutes. [Citation.] Restraint may be effectuated by means of physical force [citation], threat of force or of arrest [citation], confinement by physical barriers [citation], or by means of any other form of unreasonable duress.’ ” (Scofield v. Critical Air Medicine, Inc. (1996) 45 Cal.App.4th 990, 1001, italics omitted.)

Kaplan claims that “[t]he only defense available to Del Am[o] [on her false imprisonment cause of action] is its strict compliance with Welfare and Institutions Code [section] 5150.” During the timeframe in which Del Amo allegedly detained Kaplan, this statute provided in pertinent part: “When any person, as a result of mental disorder, is a danger to others, or to himself or herself, . . . a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, . . . or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Social Services as a facility for 72-hour treatment and evaluation. [¶] The facility shall require an application in writing stating the circumstances under which the person’s condition was called to the attention of the officer, member of the attending staff, or professional person, and stating that the officer, member of the attending staff, or professional person has probable cause to believe that the person is, as a result of mental disorder, a danger to others, or to himself or herself . . . .” (See Stats. 2012, ch. 34, § 79.)

Kaplan first argues that a purported discrepancy between two trial exhibits demonstrates that “Del Amo violate[d] [section] 5150 on its face.” Specifically, she asserts trial exhibit 57 shows that “the hold began on 5/24/13 at 18:30,” whereas “[trial e]xhibit 58, Del Amo’s Involuntary Patient Advisement, . . . states that the involuntary incarceration began [on] 5/25/13 at 8:55[,] more than fifteen hours after . . . the time stated on [trial exhibit 57].” (Bold omitted.) Kaplan apparently claims that because trial exhibit 58 “misstated the time that the 72[-hour] period began [under section 5150,] . . . [a]ny time period however short that Del Amo . . . held [Kaplan] was thus unlawful and constituted false imprisonment as a matter of law.” (Italics added.) Put differently, Kaplan argues that “[a]ny minute that Del Amo held [Kaplan] on the basis of [trial exhibit 58] was as a matter of law invalid . . . .”

Kaplan further contends that a jury instruction was defective. First, Kaplan claims that the instruction erroneously required her to prove that Del Amo deprived her of freedom of movement via fraud, deceit, and unreasonable duress. Second, she seems to argue that the instruction failed to inform the jury that Del Amo would be liable for false imprisonment if it had detained Kaplan without lawful privilege.

For the reasons discussed below, we conclude that we cannot address the merits of these challenges to the judgment because Kaplan has failed to provide us with a record adequate to assess her claims of error.

“On appeal, a judgment of the trial court is presumed to be correct. [Citation.] . . . All intendments and presumptions are made to support the judgment on matters as to which the record is silent.” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) “ ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ’ ” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 (Foust).) Regardless of the applicable standard of review, (see Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6), an appellant must rebut this presumption of correctness by “ ‘ “affirmatively” ’ ” showing that the lower court “committed reversible error.” (See Yu v. University of La Verne (2011) 196 Cal.App.4th 779, 787 (Yu).)

The only evidence before us that is pertinent to Kaplan’s first claim of error is trial exhibit 58 and a minute order showing that the lower court admitted this exhibit into evidence. Although Kaplan attached to her opening brief a document that she claims is trial exhibit 57, this document does not appear in the partial clerk’s transcript that Kaplan designated for the consolidated appeals. Thus, this purported trial exhibit is not properly before us.

Also, trial exhibit 58 does not assist Kaplan. This document, which is titled “Involuntary Patient Advisement,” states that “Del Amo Hospital” is the “[f]acility” at issue, identifies Kaplan as the patient, and recites that Kaplan’s “72 hour [detention] period” began at “0855 [on] 5/25/13.” Although it is possible that trial exhibit 58 was a form Del Amo used to document its detention of Kaplan, the record is devoid of any testimony or other evidence to that effect. (See also Evid. Code, § 1400 [“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law”].)

Further, the record does not contain any evidence concerning the circumstances under which Del Amo detained Kaplan. We observe Kaplan chose to proceed on appeal without a record of any of the oral proceedings before the trial court. Thus, we cannot meaningfully review Kaplan’s claim that Del Amo detained her without complying with the requirements of section 5150. (Cf. Foust, supra, 198 Cal.App.4th at pp. 185–188 [rejecting an appellant’s claim that a trial court’s decision was “ ‘contrary to the law’ ” because, “[w]ithout a reporter’s transcript or the exhibits presented at trial,” the Court of Appeal could not “undertake a meaningful review” of that argument].)

Kaplan’s claim of instructional error fails for the same reason. “An appellant arguing instructional error must ensure that the appellate record includes the instructions given and refused and the court’s rulings on proposed instructions.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 678.) The instant record does not contain the jury instructions given by the trial court, the instructions requested by the parties, or the trial court’s rulings on the parties’ requested instructions. Thus, “[as] the record does not show which party requested [the supposedly] erroneous instruction, the reviewing court must presume that [Kaplan] requested the instruction and therefore cannot complain of error.” (See id. at p. 678.)

Lastly, we note that in an attachment to Kaplan’s notice designating the record for case no. B296107, Kaplan apparently did ask the trial court clerk to include trial exhibit 57 and the court’s jury instructions in the clerk’s transcript. It is unclear whether she identified these documents with sufficient specificity to enable the clerk to comply with these requests. She vaguely claimed that trial exhibit 57 was filed by “Defendant,” even though Kaplan initially brought suit against multiple defendants. Furthermore, Kaplan seems to have erroneously identified the jury instructions as a trial exhibit. If Kaplan believed that these documents were omitted in error, then she should have “serve[d] and file[d] a notice in superior court specifying the omitted portion [of the record]” and “serve[d] a copy of th[at] notice on” us. (See Cal. Rules of Court, rule 8.155(b).) Because there is no evidence that Kaplan complied with this procedure, she may not rely upon a purported trial exhibit and a jury instruction that are not in the record. (See Foust, supra, 198 Cal.App.4th at p. 187 [“ ‘[Appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant]’ ”].)

For these reasons, we reject Kaplan’s challenges to the trial court’s judgment.

C. Del Amo Made a Valid Offer Under Code of Civil Procedure Section 998
D.
Code of Civil Procedure section 998, subdivision (b) provides in relevant part: “Not less than 10 days prior to the commencement of trial[,] . . . any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time. The written offer shall include [(inter alia)] a statement of the offer, containing the terms and conditions of the judgment or award . . . .” (See Code Civ. Proc., § 998, subd. (b).) Code of Civil Procedure section 998, subdivision (c)(1) provides in relevant part: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, . . . the court[,] . . . in its discretion, may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial[,] . . . or during trial[,] . . . of the case by the defendant.” (See Code Civ. Proc., § 988, subd. (c)(1).)

“We independently review whether a section 998 settlement offer was valid.” (Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86 (Ignacio).) “It is well established that a purported section 998 offer ‘requiring the release of claims and parties not involved in the litigation is invalid.’ [Citation.] ‘That limitation exists because of the difficulty in calculating whether a jury award is more or less favorable than a settlement offer when the jury’s award encompasses claims that are not one and the same with those the offer covers.’ ” (Ignacio, at pp. 86–87.) Further, “ambiguity as to whether the offer encompasses claims beyond the current litigation is sufficient to render the offer invalid under section 998.” (See Ignacio, at pp. 87–88.) “The burden is on the offering party to demonstrate that the offer is valid under [Code of Civil Procedure] section 998. [Citation.] The offer must be strictly construed in favor of the party sought to be bound by it.” (Ignacio, at p. 86.)

As pertinent here, the instant section 998 settlement offer was “specifically conditioned upon” the following: “The execution and transmittal of a general release by [Kaplan] in favor of [Del Amo] in a standard form used in this legal community to be provided by [Del Amo], which will include a waiver of Civil Code section 1542,[ ] will provide that the release is not to be construed as an admission of liability by [Del Amo], that [Del Amo] has denied and will continue to deny any liability to [Kaplan], and will serve as a release of all claims in the above-captioned civil action by [Kaplan] against [Del Amo], including its respective officers, directors, shareholders, partners, employees, agents, parent entities, affiliates, and subsidiaries.” (Second italics added.)

Kaplan contends that this portion of the offer contains two fatal ambiguities: (1) “The [Civil Code section] 1542 waiver is not by the language of the offer limited to the within cause of action and thus could encompass any action that Kaplan might have against Del Amo”; and (2) the offer purports to release nonparties who “might be the subject of different or additional liabilities.” Neither of these arguments is persuasive.

Notwithstanding Kaplan’s argument to the contrary, the instant offer is distinguishable from the one invalidated in Ignacio. In Ignacio, a section 998 offer sought the release of “ ‘any and all claims . . . including but without, in any respect, limiting the generality of the foregoing, any and all claims that were, or might, or could have been alleged in connection with [the] accident [that was] . . . the subject of the lawsuit . . . .’ ” (See Ignacio, supra, 2 Cal.App.5th at pp. 84, 89–90, italics added.) Ignacio held that this language called for an “unlimited release” that “goes well beyond the scope of the litigation.” (See id. at p. 89; see also Flanagan v. Flanagan (2002) 27 Cal.4th 766, 774 [“ ‘Includes’ is ‘ordinarily a term of enlargement rather than limitation’ ”].)

Del Amo’s 998 settlement offer did not contain any language requiring Kaplan to release claims that are outside the scope of this litigation. Instead, the offer stated that the “general release” to be executed “will include a waiver of Civil Code section 1542” and “will serve as a release of all claims in the above-captioned civil action by [Kaplan] against [Del Amo] . . . .” (Second italics added.) Because the offer’s scope is defined solely by reference to claims in Kaplan’s civil action, “the offer reasonably cannot be construed to apply to other litigation contemplated by [her].” (See Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 907; cf. id. at pp. 905, 907 [upholding a section 998 offer providing that, “ ‘[i]n full settlement of this action, [the defendant offers to pay a sum] in exchange for . . . [t]he execution and transmittal of a General Release by [the plaintiff] in favor of [the defendant,]’ ” italics added].)

The fact that the offer called for the execution of a Civil Code section 1542 waiver did not render it defective. Ignacio recognized that “a release of unknown claims arising only from the claim underlying the litigation itself does not invalidate the offer.” (See Ignacio, supra, 2 Cal.App.5th at p. 89.) The instant section 998 settlement offer required nothing more.

The offer’s release of nonparties also does not undermine its validity. “Boilerplate language identifying individuals and entities beyond the named parties in the case as releasors and releasees does not invalidate the offer, if the claims released relate only to the subject matter of the current litigation.” (Ignacio, supra, 2 Cal.App.5th at p. 88.) Typically, a defendant will include such language in an offer in order to “identify any persons and entities whose potential liability may derive from or depend on that of [the defendant] in th[e] action.” (See Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 767.) Consequently, the value of a plaintiff ’s claims against these other releasees usually will not differ from that of the claims being litigated against the defendant. (See ibid. [“Absent some indication of the existence of a valuable claim in favor of a related person or entity [to be released], independent of [the plaintiff ’s] actual and potential claims arising from the subject matter of th[e] action, that would be extinguished by the release, . . . the release is not overbroad or incapable of valuation”].) Because there is no indication in the record that Kaplan has any claims against the other releasees that are independent of her claim for false imprisonment against Del Amo, their inclusion in the release does not undermine the validity of the section 998 settlement offer.

In sum, Kaplan has not shown that the trial court erred in upholding the validity of Del Amo’s section 998 settlement offer. Accordingly, we affirm the lower court’s order awarding Del Amo its expert witness fees. (See Yu, supra, 196 Cal.App.4th at p. 787 [“It is [the appellant’s] burden to show that the trial court committed reversible error”].)

DISPOSITION

The trial court’s judgment and its order awarding costs to Del Amo are affirmed. We exercise our discretion to deny Del Amo’s motion for sanctions. Del Amo is awarded its costs on appeal.

NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

WHITE, J.*