California Appeals Court Holds Personal Injury Plaintiff’s Appeal is Inadequate for Review

The plaintiff sued defendant Target for injuries due to the defendant’s negligence. The plaintiff claimed she was cut by a plastic price tag holder that was sticking out into the aisle. The jury returned a verdict in the defendant’s favor, finding there was no dangerous condition. Finding that the appellate record and the plaintiff’s briefs were inadequate for appellate review, the Second District Court of Appeal affirmed in this California premises liability case.At trial, the plaintiff’s husband testified that he and his wife were shopping at the Burbank Target in September 2010. As the plaintiff was pushing her cart through the shoe department, she cut her pinky finger on a price tag sign that was extending horizontally into the aisle. The plaintiff attempted to complete an incident report but was told by the defendant’s staff that there were no blank forms for her to complete. Her husband later called the store to report the incident and left a message, but his call was never returned.

The defendant’s employees testified that a guest would not be denied a guest incident report and that a report would have been completed by the defendant’s staff if an incident was reported and the guest did not wish to complete a form. There was no report completed by anyone for the alleged incident. They also testified to their procedures of sweeping for hazards in the store and stated that it was impossible for a price tag sign to extend horizontally into an aisle.

The defendant also produced a mechanical engineering expert, who testified that it was impossible for plastic signs to extend horizontally into the aisle and that they were not sharp enough to cause a laceration. A medical expert also testified that the plaintiff’s injuries were not consistent with her claims in this case.

The jury, in a special verdict form, found that the price tag holder was not a dangerous condition at the time of the incident. Judgment for the defendant was entered in August 2015. After the plaintiff’s motion for a new trial was denied, the plaintiff filed a notice of appeal.

On appeal, the plaintiff argued that the trial court improperly denied the plaintiff’s request for a trial continuance, denied the plaintiff’s peremptory challenge to the judge, placed time limitations on voir dire, allowed the defendant to submit a witness list that included more than 50 witnesses, chose the defendant’s jury instructions, statement of case, and special verdict form, testified and made objections on behalf of the defendant, allowed the defendant to rebut the plaintiff’s rebuttal closing argument, excused the plaintiff’s witness, and denied the plaintiff’s motion to tax costs. The plaintiff was represented by her husband on appeal.

The appeals court held that the appeal suffered from a number of deficiencies preventing appellate review. First, the plaintiff’s briefs did not include a statement of appealability, did not include sufficient citations to the record on appeal, did not summarize the procedural history of the case and facts adduced at trial, did not set forth the standards of review for the claimed errors, and contained almost no legal analysis. California law and court rules provide that an appellate court may disregard any claims when no appropriate reference to the record is furnished.

California law further provides that a judgment is presumed to be correct, and it is the appellant’s burden to establish prejudice. The plaintiff’s briefs, the appeals court held, failed to meet this burden, and therefore, the plaintiff waived any claim of error on appeal.

Moreover, the appeals court explained, the plaintiff’s briefs made repeated references to matters outside the record on appeal, and they included as exhibits a July 13, 2015 letter from the plaintiff’s treating neurologist, a proposed special verdict form, a declaration from appellate counsel purporting to substantiate many of the claims made on appeal, and a declaration from a “legal researcher,” purporting to establish that the trial judge was related to a party the plaintiff’s counsel was suing in another matter (for which the plaintiff claimed the judge was required to recuse herself). The plaintiff also separately requested that the appeals court take judicial notice of several documents, such as the proposed special verdict form, a joint witness list, the doctor’s note, and a discovery filing from an unrelated case.

The appeals court will not consider new evidence outside the appellate record, and it denied the plaintiff’s request that they judicially notice these documents, which are plainly not the proper subject of judicial notice, and which bear no file stamp or other notation indicating that any of them was filed or even lodged with the court.

The plaintiff claimed an error in voir dire, but only a portion of voir dire appeared in the record provided. Only some of the argument concerning the plaintiff’s request for a continuance appeared in the transcript provided. Moreover, transcripts were only provided for certain days of trial but not all. The plaintiff’s notice designating the record on appeal made clear that the designated proceedings did not include all of the testimony in the superior court. However, the notice did not specify the points to be raised on appeal. If the appellant designates less than all of the testimony, the notice must state the points to be raised on appeal; the appeal is then limited to those points unless, on motion, the reviewing court permits otherwise.

Moreover, the clerk’s transcript was missing many key documents, such as documents relating to the plaintiff’s July 2015 request for a continuance, the defendant’s witness list, and the trial court’s ruling on the plaintiff’s motion to tax costs. The plaintiff implied that documents were “missing” through no fault of the plaintiff, based on the declaration of the clerk attesting that various documents identified in the plaintiff’s designation of the record could not be located. However, it was clear that the plaintiff’s notice designating the record on appeal did not designate documents necessary for appellate review (such as the plaintiff’s July 2015 ex parte request for a continuance and the defendant’s witness list), and it did not adequately identify the documents the plaintiff sought to have included in the record (such as the plaintiff’s and the defendant’s special verdict forms). In some cases, the missing documents were never actually filed. The plaintiff did not cogently articulate which documents were omitted from the record, putting the burden on the court to determine which documents, if any, were properly designated by the plaintiff and were actually missing from the court’s file.

It was the plaintiff’s duty to present a complete record for appellate review. California law firmly provides that if the record is inadequate for a meaningful review, the appellant defaults, and the decision of the trial court should be affirmed.

For these reasons, the judgment was affirmed, and the defendant was awarded costs on appeal.

The premises liability lawyers at Neumann Law Group represent victims throughout the Los Angeles area. Call us at (213) 227-0001 for a free consultation.

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