Shaham v. Douglas
| Decision Date | 21 April 2022 |
| Docket Number | B303333 |
| Parties | FARAHNAZ SHAHAM, Plaintiff and Appellant, v. JUDITH DOUGLAS, Defendant and Respondent. |
| Court | California Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC644468, Cary H. Nishimoto, Judge. Affirmed.
Law Office of Estivi Ruiz and Estivi Ruiz for Plaintiff and Appellant.
Richardson, Fair & Cohen and Manuel Dominguez for Defendant and Respondent.
Appellant Farahnaz Shaham brought this action against respondent Judith Douglas for injuries allegedly caused by Douglas's dog during an incident in August 2016. After the case proceeded to trial on theories of negligence and strict liability, the jury returned a defense verdict, finding, inter alia, that Douglas's dog did not cause Shaham injury. On appeal from the judgment entered on the verdict, Shaham contends: (1) the superior court (Judge Jon R. Takasugi) abused its discretion in denying her ex parte application to reopen discovery after the discovery cut-off date; (2) the trial court (Judge Cary H. Nishimoto) erred in excluding the proffered testimony of her expert and treating physician about his most recent midtrial examination of Shaham, on the ground that the testimony exceeded the scope of his deposition testimony; (3) the court erred in failing to deliver strict liability instructions premised on Civil Code section 3342 and Beverly Hills Municipal Code section 5-2-111; (4) the court committed misconduct in various forms throughout the trial; (5) Douglas's counsel committed misconduct in closing arguments; and (6) Shaham was prejudiced by the cumulative effect of the asserted errors. We conclude Shaham has forfeited many of her contentions, and to the extent she has preserved others, she has failed to show any prejudicial error. Accordingly, we affirm.
In December 2016, Shaham filed her complaint, containing causes of action against Douglas for negligence and strict liability; in support of the latter, Shaham alleged that Douglas's dog had an abnormally dangerous tendency. Trial was initially scheduled to begin June 20, 2018. Between the initial trial date and January 2019, the superior court (Judge Marc D. Gross) continued trial four times, at least twice at Shaham's request. At the time of the second continuance, the court ordered the discovery cut-off date to be calculated from the continued trial date. (See Code Civ Proc., § 2024.020, subd. (a) [].)[1] The record does not reflect whether the court similarly ordered an extension of the cutoff date when it continued trial for a third and fourth time. Assuming the court ordered the cut-off date to be calculated from the continued trial date of February 19, 2019, discovery closed in January 2019.
On the February 2019 trial date, the court (Judge Takasugi) continued trial for a fifth time, again at Shaham's request. Rather than set a new trial date, the court scheduled a "Trial Setting Conference" for April 10, 2019. The record does not reveal what, if anything, was discussed regarding the discovery cut-off date. However, the minute order stated, "All discovery and motion cut-off dates are to be continued."
In March 2019, Shaham filed a notice of substitution of attorney, discharging her former attorneys and electing to represent herself. At the April 2019 trial-setting conference, the court granted Shaham's oral motion to continue the conference in order to allow her additional time to obtain new counsel.
On the continued conference date of July 1, 2019, the court scheduled trial to begin on October 16, 2019. The minute order states: On the October 2019 trial date, after Shaham had retained her trial counsel (J. Owen Murrin), the court deemed the parties ready for trial, and the case was transferred to the trial court (Judge Nishimoto).
In this section, we summarize not only the evidence admitted at trial, but also the trial court's comments and evidentiary rulings that Shaham characterizes as judicial misconduct. We note that many of the court's other evidentiary rulings were in Shaham's favor; the court sustained numerous evidentiary objections made by Shaham's counsel, and overruled objections made by opposing counsel.
At the time of the August 2016 incident, Shaham lived in Beverly Hills with her dog Tyson. Douglas lived nearby with her dog Truffle.
Truffle, a former racing greyhound, was seven years old and weighed 55 to 60 pounds at the time of the August 2016 incident during which he allegedly caused Shaham injury.[3] Over Shaham's counsel's objections, the court admitted into evidence several photos of Truffle, including a photo in which he was wearing a costume featuring green toy antlers. With respect to the costume photo, Shaham's counsel objected, "The horns [sic] are not natural to the dog, so I think it's defective and misleading." Implicitly overruling the objection, the court joked, "Well, maybe the dog grew those."[4]
Douglas testified that she had seen Shaham's dog, Tyson, unleashed in their neighborhood on several occasions, including once in a grassy area in front of Shaham's house, separated from the house by the sidewalk. When Shaham's counsel asked Douglas to confirm that the grassy area was Shaham's private property, the court sustained an objection, commenting that even a homeowner's property rights do not extend to the middle of the street or the middle of the adjacent alley. After a recess, the court informed the jury that it wanted to correct an implication made by Shaham's counsel's in opening statements, when counsel "drew a diagram on the board and said that the defendant's dog ran down plaintiff's property through the alley [beside her house], and the incident occurred on plaintiff's property." The court informed the jury that the alley beside Shaham's house was public property. Shaham's counsel did not object.[5]
Douglas called animal control officer Carlos Alarcon, who authenticated records concerning Shaham's dog Tyson. During cross-examination, the court took its lunch recess. After the recess, outside the presence of the jury, Douglas's counsel and Alarcon informed the court that Alarcon had been confronted in the hallway by Shaham's mother (a witness for Shaham). The court and Shaham's counsel questioned Shaham's mother, who admitted approaching and speaking to Alarcon during the recess, but denied confronting him. After the jury was brought in, the court permitted Douglas's counsel to elicit Alarcon's testimony that Shaham's mother approached him in the hallway "talking about God and only God knows and to watch out," and that he walked away from her. Shaham's counsel did not object.[6]
Shaham testified that on August 18, 2016, she exited the back gate of her house, took several steps down the adjacent alley to the sidewalk, and then noticed her unleashed dog Tyson behind her. She grabbed Tyson by his collar. After hearing a noise, she looked up and saw Douglas's dog Truffle coming toward her, trailing a leash that had been dropped by Ivonn Gomez (Douglas's dogwalker). Gomez called out a warning to be careful, causing Shaham to believe Truffle was "going to do something" to her. Shaham considered whether she should run back through the nearby gate to her house, but decided to stand still, holding Tyson. As Truffle approached, Shaham began jumping to avoid him. Shaham acknowledged that Truffle did not bite or even touch her.
While jumping, Shaham soon felt a shooting pain in her left leg, after which she continued jumping on her right leg. She claimed it took three or four minutes for Gomez to reach her and take hold of Truffle's leash. Shaham informed Gomez that she was injured, and asked for Gomez's contact information. She later learned she had torn a muscle in her left calf, which she attributed to Truffle's "attacking" her. She testified that her calf injury had caused her a bunion and ongoing pain in her foot, knee, and hip.
Gomez testified that she inadvertently dropped Truffle's leash when she stepped out of Douglas's house to walk Truffle (along with another dog). She followed Truffle, but each time she attempted to take hold of his leash, he walked away. When she saw Shaham and her unleashed dog Tyson on the sidewalk she called out, asking Shaham to hold Tyson. Shaham did so at first, but let go of Tyson and started jumping when Truffle approached Tyson. Both dogs sniffed each other, but were calm. Quickly following Truffle, Gomez reached Shaham in 10 to 20 seconds, and took up Truffle's leash. Shaham told Gomez that she was hurt and that Gomez would pay. After asking for Gomez's contact information, Shaham said she was going to call the police. Shaham told...
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