Filed 1/21/20 Montoya v. Kinney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MANUEL RUBEN MONTOYA,

Plaintiff and Appellant,

v.

STEVEN KINNEY,

Defendant and Respondent.

D074644

(Super. Ct. No. 37-2016-00031181- CU-PA-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed.

Manuel R. Montoya, in pro. per., for Plaintiff and Appellant.

Farmer Case & Fedor and Michele M. Messenger, for Defendant and Respondent.

Plaintiff Manuel Ruben Montoya (Plaintiff) appeals from a judgment in favor of defendant Steven Kinney (Defendant) following the grant of Defendant’s motion for nonsuit at the end of Plaintiff’s case-in-chief. Because the record on appeal from the trial does not contain any evidence of damages—a necessary element in Plaintiff’s two causes of action for negligence (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618 (Regents) [negligence requires proof of “duty, breach, causation, and damages” (italics added)])—the trial court did not err in granting Defendant’s motion for nonsuit. Because Plaintiff did not meet his burden of establishing reversible error—in the nonsuit, or in any other, ruling—we will affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because this is an appeal following the grant of a nonsuit, we present the facts in a light most favorable to Plaintiff. (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 347 (O’Neil).)

On September 9, 2014, Steven Stanich and Plaintiff were in Stanich’s truck; Stanich was driving, and Plaintiff was a passenger. Defendant clipped the rear bumper of Stanich’s truck, but did not stop. Once Stanich could proceed, he followed the direction of Defendant’s vehicle, ultimately locating Defendant approximately five minutes later as he came out of a nearby bank. Stanich and Defendant exchanged contact and insurance information. Plaintiff believed that Defendant “broke [the] law” by “not stopping immediately” after the contact, by “leaving that scene,” by “fleeing the scene,” and by “not providing the [required] information” to Stanich and Plaintiff.

Plaintiff sued Defendant for negligence—one cause of action for general negligence, and one cause of action for motor vehicle negligence. Defendant admitted liability, and more than three years after the accident, the case went to trial on the issue of causation and damages.

In May 2018, the trial court ruled on five defense motions in limine and presided over a jury trial. Following opening statements, Plaintiff called as witnesses Stanich and himself. Plaintiff did not seek to introduce into evidence any exhibits.

At the conclusion of Plaintiff’s case-in-chief—after the court confirmed with Plaintiff that he did not have exhibits or any other testimony to offer—Defendant orally moved for a nonsuit on the basis that Plaintiff did not present evidence of causation or damages. When the court stated that it had not heard any evidence of damages, Plaintiff responded that he “assumed” he could explain to the jury during his closing argument the damages and harm he suffered. The court first corrected Plaintiff’s misunderstanding—”It is your burden to present evidence that supports your claim, and you have not done so” —and then offered Plaintiff the opportunity to say or ask “anything else” he wanted. Plaintiff declined, stating, “I think I have made myself quite clear up to this point.”

The court took a break to reflect on Defendant’s motion and, after the proceedings resumed, granted Defendant’s motion for nonsuit on the basis that Plaintiff had not presented any evidence of damages. Consistent with its oral ruling, the court’s written ruling granted Defendant’s motion for nonsuit at the end of Plaintiff’s case-in-chief and entered judgment in favor of Defendant. Plaintiff timely appealed.

II. DISCUSSION

The trial court’s judgment is presumed correct, and Plaintiff, as the appellant, has the burden to demonstrate reversible error. (Jameson, supra, 5 Cal.5th at p. 609.) Trial court error alone, however, does not entitle an appellant to relief on appeal. For an error to result in a reversal, the appellant must also establish prejudice (Code Civ. Proc., § 475 ) that resulted in a “miscarriage of justice” (Cal. Const., art. VI, § 13 ). (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069 (Pool).) A “miscarriage of justice” may be found on appeal ” ‘ “only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” ‘ ” (Ibid.; accord, Code Civ. Proc., § 475.) In this context, “reasonably probable” means “more than an abstract possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, italics omitted.) Prejudice is not presumed (Code Civ. Proc., § 475), and the appellant bears the burden of establishing prejudice by explaining specifically how the error caused a miscarriage of justice—i.e., how it is reasonably probable that, but for the error, the appellant would have received a more favorable result (Denham v. Superior Court (1970) 2 Cal.3d 557, 566).

On appeal, Plaintiff presents a number of discrete issues that he contends entitle him to a reversal. For each, either the trial court did not err or Plaintiff has not shown the requisite prejudice. As a result, Plaintiff did not meet his burden of establishing reversible error based on any of the issues he raises in his appeal.

A. Nonsuit

Plaintiff argues that the trial court erred in granting Defendant’s motion for nonsuit at the close of Plaintiff’s case-in-chief. For the reasons explained, we disagree.

The procedure Defendant invoked during trial is statutory: “[A]fter the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit.” (Code Civ. Proc., § 581c, subd. (a); see Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838 [motion for nonsuit allows a defendant to challenge the sufficiency of the plaintiff’s evidence at an early stage of trial without waiving the right to present a defense if the motion is denied].) “A nonsuit in a jury case . . . may be granted only when disregarding conflicting evidence, giving to the plaintiffs’ evidence all the value to which it is legally entitled, and indulging every legitimate inference that may be drawn from the evidence in the plaintiffs’ favor, it can be said that there is no evidence to support a jury verdict in their favor.” (Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583; accord, Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1328.) In bringing the motion, the defendant in effect “concedes the truth of the facts proved and contends that those facts are not sufficient as a matter of law to sustain the plaintiff’s case.” (Alpert, at p. 1328.)

Here, Defendant moved for a nonsuit on the basis that Plaintiff had not presented evidence of either causation or damages—each a necessary element in both of Plaintiff’s causes of action based on negligence (Regents, supra, 4 Cal.5th at p. 618). The court granted the motion, ruling that Plaintiff had not presented any evidence of damages.

We review de novo the trial court’s grant of a motion for nonsuit, essentially applying the same standard that governs the trial court. (Hernandezcueva v. E.F. Brady Co., Inc. (2015) 243 Cal.App.4th 249, 257.) Thus, “[i]n reviewing a judgment of nonsuit, ‘we must view the facts in the light most favorable to the plaintiff. “[C]ourts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendant’s motion for nonsuit if plaintiff’s evidence would support a jury verdict in plaintiff’s favor. [Citations.] [¶] In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give ‘to the plaintiff[‘s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff[‘s] favor[.]’ ” ‘ ” (O’Neil, supra, 53 Cal.4th at p. 347.)

Having reviewed the entire reporter’s transcript of the trial court proceedings in a light most favorable to Plaintiff, we agree with the trial court. Plaintiff did not present any evidence—or inferences from evidence—that he suffered any damages. This is despite the court’s guidance to Plaintiff, as they waited for prospective jurors, that, since Defendant had stipulated to liability—i.e., breach of the duty of due care—”when all is said and done, it’s going to be about the harm, if any, that you can prove you sustained[.]”

Plaintiff tells us that, after Defendant made his nonsuit motion, he (Plaintiff) “was ignored by the judge” (capitalization omitted), who did not allow him (Plaintiff) to object immediately. The reporter’s transcript does not support Plaintiff’s statement. Moreover, after the court orally granted Defendant’s nonsuit motion but before the court filed its written order, Plaintiff filed written objections. We thus reject Plaintiff’s appellate argument that the trial court did not allow Plaintiff to object or otherwise to oppose Defendant’s motion.

Substantively, Plaintiff tells us that “there were reasonable infer[e]nces made in the case that were not addressed before [the] granting of nonsuit.” (Capitalization omitted.) However, Plaintiff does not tell us what he contends those “reasonable inferences” to have been, and we will not speculate. (See Cox v. Griffin (2019) 34 Cal.App.5th 440, 447 (Cox) [appellate court does not make arguments for the parties].)

For the foregoing reasons, Plaintiff did not meet his burden of establishing error in the granting of Defendant’s motion for nonsuit.

B. Defendant’s Motion in Limine No. 1

Plaintiff claims that the trial court erred in granting Defendant’s motion in limine No. 1—pursuant to which Plaintiff was precluded from introducing evidence, testimony, or argument regarding punitive or exemplary damages against Defendant. However, even if we assume, without deciding, that the court erred as argued by Plaintiff, Plaintiff is unable to establish the requisite prejudice.

We begin with the understanding that, in California, “actual damages are an absolute predicate for an award of exemplary or punitive damages.” (Kizer v. County of San Mateo (1991) 53 Cal.3d 139, 147.) Indeed, the statute that allows a party like Plaintiff to recover punitive damages, expressly provides that they are available only “in addition to the actual damages.” (Civ. Code, § 3294, subd. (a), italics added.) Thus, even if the trial court erred in precluding Plaintiff from introducing evidence to support a claim for punitive or exemplary damages, Plaintiff was not prejudiced. Because Plaintiff did not present any evidence of actual damages (see pt. II.A., ante), as a matter of law, Plaintiff was not entitled to punitive or exemplary damages, regardless of Defendant’s motion in limine No. 1 or the court’s ruling on the motion.

In any event, based on California substantive law, the court did not err in granting Defendant’s motion in limine No. 1. Plaintiff alleged only claims for negligence against Defendant, and “[n]egligence, even if gross or reckless, cannot justify punitive damages.” (Lee v. Bank of America (1990) 218 Cal.App.3d 914, 920.)

C. Defendant’s Motion in Limine No. 2

Plaintiff next argues that the trial court erred in granting Defendant’s motion in limine No. 2—pursuant to which Plaintiff was precluded from introducing evidence, testimony, or argument regarding any ” ‘hit and run’ ” reference. Again, even if the court erred in precluding mention of a ” ‘hit and run’ ” accident, Plaintiff cannot establish that, had he been able to present such evidence and argument, ” ‘ “it is reasonably probable” ‘ ” that he would have received a more favorable result. (See Pool, supra, 42 Cal.3d at p. 1069; Code Civ. Proc., § 475.)

According to Plaintiff’s opening brief on appeal, after Defendant rear-ended the vehicle in which Plaintiff was riding, Defendant “imm[ediately] put his vehic[le] in reverse, changed lanes, went around [Plaintiff’s vehicle] as quickly as possible, to leave the scene while [Plaintiff’s vehicle] was still gridlocked, without mak[]ing any attempt to slow down, or pull over, and with comple[]te disreg[]ard for the damage, injury or the circumstances created by his collision.” (Capitalization omitted.) Without considering the merits of Plaintiff’s argument, we again conclude that Plaintiff was not prejudiced by the court’s ruling on motion in limine No. 2. Since Plaintiff did not present evidence of any actual damages, the result—i.e., a defense judgment—would have been no different even if Plaintiff had not been precluded from presenting evidence of, or arguing about, Defendant having left the scene of the accident.

In any event, as a matter of substantive law, whether Defendant left the scene of the accident is irrelevant to the issue of causation or damages. Since Defendant had conceded liability—i.e., Defendant had admitted breach of the duty of due care—the only issues for trial were causation and damages. (See Regents, supra, 4 Cal.5th at p. 618 [elements of cause of action for negligence “duty, breach, causation, and damages”].)

D. Defendant’s Motion in Limine No. 5

Plaintiff suggests that the trial court erred in granting Defendant’s motion in limine No. 5—pursuant to which Plaintiff was precluded from introducing documents not produced or witnesses not identified during discovery.

Initially, because Plaintiff does not present any authority or argument in support of his position, Plaintiff forfeited appellate review of this issue. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill) [when an appellate brief raises a point but fails to provide ” ‘ “reasoned argument and citations to authority, we treat the point as waived” ‘ “].) That is because rule 8.204(a)(1)(B) requires that an appellate brief “support each point by argument”; and “[a]n appellate court is not required to make arguments for parties” (Cox, supra, 34 Cal.App.5th at p. 447).

Moreover, because Plaintiff does not identify any document or witness that he wanted to present, but was precluded from presenting as a result of the in limine ruling, Plaintiff cannot establish prejudice. Stated differently, even if we assume the trial court’s ruling was wrong, without knowing what evidence Plaintiff wanted to present, we are unable to conclude that ” ‘ “it is reasonably probable” ‘ ” that Plaintiff would have received a more favorable result without the in limine ruling. (See Pool, supra, 42 Cal.3d at p. 1069; Code Civ. Proc., § 475.)

E. Defendant’s Motion in Limine No. 3

Plaintiff contends that the trial court erred in granting in part Defendant’s motion in limine No. 3—pursuant to which Plaintiff was precluded from introducing evidence, testimony, or argument regarding injuries or economic damages, in the absence of a health care expert. The court denied Defendant’s motion in part, expressly ruling that Plaintiff could testify as to noneconomic damages: “He can talk about what hurt. [¶] . . . [¶] Because that’s probative of his claim for noneconomic damages. [¶] Where though he will not be able to go to is if he wants to talk about . . . what the doctor told him was wrong. That’s where he’s not going to be allowed.”

We review the grant of a motion in limine for an abuse of discretion. (Cuevas v. Contra Costa County (2017) 11 Cal.App.5th 163, 171.) A trial court abuses its discretion in determining the admissibility of evidence if its ruling “is ‘so irrational or arbitrary that no reasonable person could agree with it’ ” or if it exceeds “the confines of the applicable legal principles.” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)

Here, the court’s ruling precluded Plaintiff from testifying as to medical diagnoses, opinions, or procedures—limiting any such evidence to testimony from an expert—while expressly allowing Plaintiff to testify as to his pain and suffering. This ruling is consistent with California law, which provides: A lay person (like Plaintiff) is precluded from providing opinion evidence unless “[r]ationally based on the perception of the witness” (Evid. Code, § 800, subd. (a)); whereas an expert’s opinion evidence is admissible on “a subject that is sufficiently beyond common experience” (Evid. Code, § 801, subd. (a)).

Based on the foregoing, Plaintiff did not meet his burden of establishing that the trial court abused its discretion in precluding Plaintiff from introducing evidence, testimony, or argument regarding injuries or damages, in the absence of expert testimony.

F. Defendant’s Motion in Limine No. 4

Plaintiff next argues that the trial court erred in granting Defendant’s motion in limine No. 4—pursuant to which Plaintiff was precluded from introducing evidence, testimony, or argument regarding medical or billing records. Although Plaintiff tells us that “this information was necessary [and] essenti[a]l to the case,” Plaintiff does not describe or identify which medical or billing records he was precluded from presenting, why they were necessary or essential to the case, or what legal authority establishes error.

Once again, therefore, Plaintiff forfeited appellate review of this issue. (Cahill, supra, 194 Cal.App.4th at p. 956; see rule 8.204(a)(1)(B) [an appellate brief must “support each point by argument”]; Cox, supra, 34 Cal.App.5th at p. 447 [“appellate court is not required to make arguments for parties”].)

Also once again, Plaintiff cannot establish prejudice. Even if we assume the trial court’s ruling was wrong, without knowing what evidence Plaintiff wanted to present, we are unable to conclude that ” ‘ “it is reasonably probable” ‘ ” that Plaintiff would have received a more favorable result without the in limine ruling. (See Pool, supra, 42 Cal.3d at p. 1069; Code Civ. Proc., § 475.)

G. Plaintiff’s Right to a Jury Trial

Plaintiff complains that the trial court continuously attempted to deprive Plaintiff of his constitutional right to a jury trial. While the record does not contain evidence of such action by the trial court, even if it did, Plaintiff would not be entitled to relief on appeal, since he cannot establish the requisite prejudice. The court empaneled a jury, and Plaintiff presented his case-in-chief to the jury. Stated differently, Plaintiff cannot establish a miscarriage of justice by suggesting that the court attempted to deprive him of a jury trial, when in fact he had a jury trial on his complaint. Just because the court ruled that Plaintiff did not present sufficient evidence to allow the jury to decide his case does not mean, or suggest, that he was deprived of the right to a jury trial.

H. Plaintiff’s Right to Appointment of Expert Witnesses

Plaintiff argues that the trial court erred in denying his request to waive “[f]ees for court-appointed experts.” In his application, Plaintiff declared that he needed the services of an “orthopedic doctor” because they were “pertinent to verify the plaintiff[‘]s medical condition, as well as caus[]ation and other possible factors.” (Capitalization omitted.) The court denied the application.

Plaintiff misunderstands the purpose of the application he submitted. Plaintiff did not ask the court to appoint an expert under Evidence Code section 730, and the court did not deny an application to appoint an expert under section 730. Instead, Plaintiff asked the court to approve a fee waiver application under Government Code section 68634 and rule 3.52, and the court denied the application. Since there were no court-appointed experts, there were no fees for court-appointed experts; and since there were no fees for court-appointed experts, the trial court did not err in denying Plaintiff’s request for a waiver of such fees. Indeed, Plaintiff presents no argument or authority regarding error in denying an application to waive a fee (as opposed to an application to appoint an expert—which was not presented to the trial court).

For these reasons, Plaintiff did not meet his burden of establishing reversible error in the trial court’s denial of Plaintiff’s fee waiver request.

I. Judicial Bias

Plaintiff argues that the trial judge should have recused himself. According to Plaintiff, the trial judge could not be objective, as evidenced by: “past association [with a named partner in the firm representing Defendant at trial], as well as ex[ ]parte communication with [the] defen[s]e attorney without Plaintiff present, as well as the judge[‘]s background or exp[]eri[e]nce in his prior work as a lawyer, also, his rulings, conduct and[ ]comments[.]” (Capitalization omitted.)

Under Code of Civil Procedure section 170.1, subdivision (a), a trial judge may be disqualified or recused from hearing a case upon a showing of certain bias, prejudice, or other factors. However, where as here the claim is that the judge committed the alleged misconduct during the trial, the adversely affected party must promptly make a motion for a mistrial or forfeit the ability to challenge the misconduct. “[I]t is critical for a litigant who believes a trial court is engaging in such misconduct to object immediately, thereby putting the court on notice of the need to correct its behavior and creating a record of the problem for appellate review.” (Arave, supra, 19 Cal.App.5th at p. 543 [judicial misconduct].) An adversely affected party’s failure to “promptly bring such matters to the attention of the [trial] court . . . will be deemed to have waived the point[.]” (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 103.) The purpose of such a requirement is to prevent a party who has discovered misconduct during the course of the proceedings from “gambling on the outcome of the jury’s deliberations while secretly preserving the error” to be raised later in the event of an unfavorable outcome. (Ibid.)

In the present case, by failing to create a record of what he now suggests was judicial misconduct during the trial court proceedings, Plaintiff has failed to establish judicial bias of the trial judge. (Arave, supra, 19 Cal.App.5th at pp. 544-545.) In any event, we have independently reviewed the entire reporter’s transcript and find nothing to suggest either judicial bias or a lack of fairness in the trial court proceedings.

III. DISPOSITION

The judgment is affirmed. Defendant is entitled to his costs on appeal. (Rule 8.278(a)(2).)

IRION, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.