Harris v. Proano

• Decision Date: 27 July 2021
• Docket Number: B305480
• Citation: Harris v. Proano, B305480 (Cal. App. Jul 27, 2021)
• Court: California Court of Appeals
• Parties: BERNADINE HARRIS, Plaintiff and Appellant, v. FABIAN PROANO, as Trustee, etc., et al., Defendants and Respondents.

BERNADINE HARRIS, Plaintiff and Appellant, v. FABIAN PROANO, as Trustee, etc., et al., Defendants and Respondents.

B305480

California Court of Appeals, Second District, Third Division

July 27, 2021

NOT TO BE PUBLISHED

APPEAL from judgments of the Superior Court of Los Angeles CountyNo. BC700417, Malcolm H. Mackey, Judge.

Law Office of Jonathan D. Winters and Jonathan D. Winters for Plaintiff and Appellant.

The Safarian Firm, Harry A. Safarian, Christina S. Karayan and Pierro H. Babaian for Defendants and RespondentsFabian Proano, as Trustee of the Proano Family Trust, Melissa Barlow, and EPLA Property Management, Inc.

MacDonald & Cody, Richard S. Gower and Christian X Przybylowski for Defendant and RespondentDeborah Wright.

LAVIN J.

INTRODUCTION

PlaintiffBernadine Harris(plaintiff) was injured when she fell in the garage of her rental home.She subsequently sued the owners and managers of the property, Fabian Proano, ^[1]Trustee of the Proano Family Trust, EPLA Property Management, and Melissa Barlow, an employee of EPLA Property Management (the landlord defendants).Plaintiff also sued Deborah Wright, a fellow tenant with whom she shared the garage.The matter proceeded to trial and, after plaintiff rested, the court granted the landlord defendants' motion for nonsuit and/or directed verdict.A jury then found Wright was not liable on plaintiff's causes of action.

Plaintiff contends the court improperly directed a verdict in favor of the landlord defendants.We are unable to address this issue on the merits, however, because plaintiff failed to provide a complete transcript of the trial or an appropriate substitute.Plaintiff also argues the court erred in striking two verified requests to disqualify the trial judge under Code of Civil Procedure section 170.3.^[2]We have no jurisdiction to consider that argument because an order on a disqualification motion is not appealable.We also reject plaintiff's claim that the trial judge displayed judicial bias against her and deprived her of a fair trial.Accordingly, we affirm the judgments in favor of the landlord defendants and Wright.

FACTS AND PROCEDURAL BACKGROUND^[3]

In April 2018, plaintiff filed a complaint asserting numerous causes of action arising from an incident which occurred in the garage attached to her apartment.Plaintiff shared the garage with Wright, a neighboring tenant in the apartment building.Plaintiff generally alleged that she left her wheelchair in the garage while she left the premises and when she returned, the wheelchair had been moved by Wright.Plaintiff fell in the garage while trying to access her wheelchair.She named as defendants Wright, the property owner (Proano, as Trustee of the Proano Family Trust), the property management company EPLA Property Management, and Melissa Barlow, an employee of EPLA Property Management.Plaintiff claimed, among other things, that the landlord defendants owed her a duty of care to maintain the property in a safe condition and failed to do so, resulting in her injury.She also alleged that Wright intentionally interfered with plaintiff's use and possession of the wheelchair, causing her injury.

The court set a mandatory settlement conference and final status conference for August 22, 2019.On August 19, 2019, plaintiff filed a verified statement requesting that the trial judge disqualify himself for cause, i.e., prejudicial bias, under section 170.3.On August 20, 2019, the court struck the statement of disqualification on the ground that it failed to set forth legal grounds for disqualification.Plaintiff filed a second verified statement requesting that the trial judge disqualify himself for cause on August 22, 2019.The court struck the second disqualification request on August 26, 2019, again finding that it failed to set forth legal grounds for disqualification.

The trial began on October 7, 2019.The following day, a jury was empaneled, counsel delivered opening statements, and plaintiff presented testimony by Wright, Proano, and a neighbor who witnessed the incident.Trial resumed on October 9, 2019.Plaintiff presented additional evidence, including testimony by defendant Barlow and by plaintiff.Plaintiff rested and some discussion occurred outside the presence of the jury regarding defense motions for nonsuit and/or directed verdict.^[4]

On October 10, 2019, proceedings resumed outside the presence of the jury.The landlord defendants moved for nonsuit and/or directed verdict and the court granted the motion, finding that “disregarding conflicting evidence and indulging every legitimate inference that may be drawn from the evidence in favor of the plaintiff … there's no sufficient evidence to substantially support a verdict … as to these defendants Barlow, Proano[ ] Family Trust, EPLA Management.”Wright brought a similar motion for nonsuit and/or directed verdict, which the court denied.All parties rested and counsel presented closing arguments.

On October 11, 2019, trial resumed and the court instructed the jury.After brief deliberations, the jury found against plaintiff and in favor of Wright on all causes of action.

Judgment in favor of the landlord defendants was filed on November 4, 2019.It appears from the appellate record that no notice of entry was served.

Judgment in favor of Wright was signed and filed on January 29, 2020.Notice of entry of that judgment was served on February 14, 2020.

Plaintiff timely appeals.

DISCUSSION

Although plaintiff's briefs purport to address numerous issues, we limit our discussion to those issues adequately presented on appeal.As to those issues, we are not persuaded by plaintiff's arguments and analysis.Accordingly, we will affirm the judgments in favor of the landlord defendants and Wright.

1.The Appellant's Burden on Appeal

The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and “it is the appellant's burden to affirmatively demonstrate error.”(People v Sanghera(2006)139 Cal.App.4th 1567, 1573.)“ ‘All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.' ”(Denham v. Superior Court(1970)2 Cal.3d 557, 564.)

In addition, parties must provide citations to the appellate record directing the court to the supporting evidence for each factual assertion contained in that party's briefs.When an opening brief fails to make appropriate references to the record in connection with points urged on appeal, the appellate court may treat those points as waived or forfeited.(See, e.g., Lonely Maiden Productions, LLC v GoldenTree Asset Management, LP(2011)201 Cal.App.4th 368, 384;Dietz v. Meisenheimer & Herron(2009)177 Cal.App.4th 771, 779-801[several contentions on appeal “forfeited” because appellant failed to provide a single record citation demonstrating it raised those contentions at trial].)Further, “an appellant must present argument and authorities on each point to which error is asserted or else the issue is waived.”(Kurinij v. Hanna & Morton(1997)55 Cal.App.4th 853, 867.)Matters not properly raised or that lack adequate legal discussion will be deemed forfeited.(Keyes v. Bowen(2010)189 Cal.App.4th 647, 655-656.)

Plaintiff's opening brief references several arguments that are neither developed nor properly presented in the legal argument section of the brief.For example, in the section devoted to the standard of review, plaintiff intimates that the court erred by granting a defense motion in limine to preclude testimony by her property management expert.But no argument on that point, supported by record citations and legal authority on the admissibility of expert testimony, appears later in the brief.We disregard this issue (and others which are similarly devoid of support and analysis) because we conclude plaintiff failed to carry her burden on appeal to establish error.

2.Plaintiff failed to provide a sufficient record to review the court's directed verdict in favor of the landlord defendants.

Plaintiff contends the court erred in granting the landlord defendants' motion for nonsuit and/or directed verdict.We are unable to address the merits of this argument, however, because plaintiff did not include all the trial testimony in the appellate record.

Initially, plaintiff insists that the court erred in directing a verdict in favor of the landlord defendants when, in actuality, those defendants brought a motion for nonsuit rather than for a directed verdict.^[5] For our purposes, however, the distinction is not material because the scope and standard of review are the same.

“A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor.[Citation.]‘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.”'[Citation.]A mere ‘scintilla of evidence' does not create a conflict for the jury's resolution; ‘there must be substantial evidence to create the necessary conflict.' ”(Nally v. Grace Community Church(1988)47 Cal.3d 278, 291(Nally).)

“We review the grant of nonsuit de novo.[Citation.]‘In reviewing a grant of nonsuit, we are “guided by the same rule requiring evaluation of the evidence in the light most...