Collins v. San Mateo County Transit Dist.

Filed 5/14/07 Collins v. San Mateo County Transit Dist. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Janie Collins appeals from a defense verdict and judgment in her personal injury lawsuit against the San Mateo County Transit District (SMCTD). Because Collins has failed to produce an adequate record on any of the issues raised in her appeal, we affirm the judgment.

I. BACKGROUND

Collins elected to proceed without a reporters transcript of the trial.[1] Accordingly, the following conflicting versions of the events giving rise to this lawsuit are drawn from Collinss opening brief on appeal and SMCTDs trial brief:

A. Collinss Account

On October 13, 2003, Collins walked with a crutch toward the front of a bus operated by SMCTD, which was parked at a bus terminal located at First and Mission Streets in San Francisco. The bus operator was Mirabel Rivera. Collins eventually reached the buss open door and turned to face the door. Collins could see the operator look in her direction. When Collins attempted to board the bus, Rivera refused to lower the buss wheelchair lift for her. As Collins was stepping onto the bus, Rivera closed the doors, striking and injuring Collins before she could finish boarding, pay her fare, or sit down in the area designated for the handicapped. Also, during the boarding process, the bus sped off. Upon Collinss demand that Rivera stop the bus, it came to a sudden stop, which caused Collins to fall against an iron railing inside of the bus and sustain further injuries.

Paramedics were called and attended to Collins, but left at her request. Later, Collins sought additional treatment at a hospital emergency room.

B. SMCTDs Account

On October 13, 2003, Collins attempted to board a SMCTD bus at the Transbay Terminal in San Francisco. According to Collins, just as she arrived at the open door of the bus and started to step on, the bus driver closed the door and drove forward approximately 10 feet. Collins claims that her right arm and right leg were caught in the bus door and she was dragged forward as she was screaming at the driver.

According to the driver, Mirabel Rivera, she was stopped at the terminal when she saw a bus in front of her pull away. Although Rivera was preparing to move up, Collins tried to get on the bus through the open door. As Rivera closed the door, Collins stuck her arm in the door. The bus never moved and Rivera immediately reopened the door. She got off the bus to check on Collins when Collins claimed to be injured. Due to the injury claim, an ambulance was called. Although Collins demanded to be taken to the hospital, the paramedics refused to transport her because they did not believe she was injured. She took a cab to the hospital. Collinss hospital records show a voluminous history of injury complaints over a wide time frame, making it difficult to determine what medical bills, if any, are attributable to the injuries Collins claims to have incurred in this incident.

C. Trial, Verdict, and Appeal

A jury trial began on May 8, 2006. On May 11, the jury found by special verdict that SMCTD was not negligent. The court entered judgment in favor of SMCTD pursuant to the jurys verdict and awarded SMCTD its costs of suit. After judgment was entered, Collins moved unsuccessfully for judgment notwithstanding the verdict, for an order vacating and setting aside the judgment, and for a new trial.

Collins timely appealed from the judgment.

II. DISCUSSION

Collinss precise contentions on appeal are somewhat murky. Insofar as this court can determine, Collins raises four principal arguments:

First, she maintains that the trial court erred in failing to treat as a binding admission of liability the following factual assertion made by SMCTD in a pretrial submission to the court: Ms. Rivera acknowledges that Ms. Collins attempted to board the bus as she was closing the doors, but contends she caught Ms. Collins only momentarily, then reopened the doors.[2] Based on this alleged admission, Collins claims that the trial court should have removed liability as an issue in the case before the jury was impaneled, and should have excluded any further evidence offered on the subject.

Second, Collins argues that Rivera did not give sufficient information to warrant a proper lookout. Apparently, Collins means by this phrasing that there was no evidence that Rivera exhibited due care by properly looking out to see if someone was boarding the bus before she closed the doors.

Third, Collins argues that Riveras alleged refusal to lower the wheel chair lift constituted negligence per se because it violated Government Code section 4500 requiring public transit operators to provide access to their facilities for persons with disabilities.

Fourth, the trial courts order awarding costs of suit to SMCTD was unlawful because SMCTDs pretrial offer pursuant to Code of Civil Procedure section 998 was unreasonably low.

Our resolution of this case is dictated by fundamental principles of appellate law: A judgment or verdict rendered in the trial court is presumed correct. (Bardis v. Oates (2004) 119 Cal.App.4th 1, 10.) 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.) The party appealing not only has the burden of proving error, but must also demonstrate that the asserted error was prejudicial. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) For this purpose, the appellant must provide an adequate appellate record demonstrating the alleged prejudicial error. Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 12951296.) Further, an appellate court will not reverse for procedural defects or erroneous rulings that could have been, but were not, challenged in the trial court. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 546.)

As an initial matter, it is difficult to see how SMCTDs asserted factual admission constituted an admission of liability. However, setting aside the merits of the issue, the available record is entirely inadequate to overcome the presumption of correctness. Without a reporters transcript of the relevant proceedings, it is impossible to determine what pretrial arguments, if any, Collins made to the trial court regarding the preclusive effect of SMCTDs claimed admission that the bus driver closed the door on Collins, and what rulings, if any, the trial court made on that subject. There is also no record of what evidence was introduced, if any, that contradicted the alleged admission or of Collinss objections, if any, to that evidence. Without a record of these events, there is no basis for this court to determine whether Collins preserved or waived the issues she now raises for appellate review, nor is there any way to tell whether the trial court did or did not make erroneous rulings on these issues. On the record produced for this appeal, Collinss claim that the trial court erred in failing to recognize SMCTDs asserted admission of liability must therefore be decided against her.

Similarly, without a transcript of the trial, this court cannot determine either the sufficiency of the evidence on the issue of due care or the viability of Collinss negligence per se claim. As an initial matter, it was, of course, Collinss burden as the plaintiff to prove a lack of due care (or proper lookout) on Riveras part. Nevertheless, without regard to who carried the burden of proof on the issue at trial, this court is in no position to evaluate the state of the evidence without a reporters transcript of the trial testimony. Since it was Collinss burden to demonstrate error on this point, this claim must also be rejected.

The viability of Collinss negligence per se claim is vulnerable to challenge on multiple possible grounds. (See Evid. Code,  669 [violation of statute, if proven, may create a rebuttable presumption of negligence if certain additional conditions are satisfied].) But for present purposes, we need only note that the factual premise for the claimthat Rivera refused to lower the buss wheel chair liftwas evidently disputed at trial. Absent a reporters transcript, this court has no way to determine whether that premise was even established at trial as a matter of law, or whether substantial evidence supported the jurys finding of no negligence. Beyond that, the record is silent on the following additional matters that would all have to be affirmatively demonstrated for her to prevail on this appeal: (1) that Collins timely raised her current negligence per se claim at trial, (2) that her claim satisfied all of the conditions of section 669, (3) that the court ruled against her on the issue, (4) that SMCTD failed to rebut the presumption, and (5) that Collins otherwise proved the proximate causation or damages elements of her negligence per se claim. Again, Collins has completely failed to carry her appellate burden of demonstrating prejudicial error on this issue.

The basis for Collinss final claim of error regarding costs of suit is not clear. As the beneficiary of a defense verdict and judgment after trial, SMCTD was entitled as a matter of right to an award of its costs. (Code Civ. Proc., 1032, subds. (a)(4), (b).) Although the partial clerks transcript does not include any documents establishing the exact costs claimed by or awarded to SMCTD, Collins apparently objects to the potential inclusion of SMCTDs expert witness fees as an element of recoverable costs in this case. The clerks transcript does show that SMCTD made an offer to settle for $4,501, pursuant to Code of Civil Procedure section 998, which Collins did not accept. (See Code Civ. Proc.,  998, subd. (c)(1) [if an offer is made by the defendant and not accepted by the plaintiff, and the plaintiff fails to obtain a more favorable judgment at trial, trial court may award expert witness costs to the defendant].) Nothing in the record indicates that the trial court in fact awarded SMCTD its expert witness fees or that Collins timely challenged the award on the ground that SMCTDs section 998 offer was made in bad faith. In any event, the record provides no evidence or reason to believe that SMCTDs section 998 offer was improper or that SMCTD is not entitled to recover all costs allowed by section 1032 or authorized by section 998.

There is no basis in the record for upholding any of Collinss claims of error.

III. DISPOSITION

The judgment is affirmed.

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Margulies, J.

We concur:

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Marchiano, P.J.

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Stein, J.

[1] In her notice designating the record on appeal, Collins asserted that she was not requesting a reporters transcript because the court reporter refused to return her telephone messages and e-mail regarding the transcripts. We find no evidence in the record to substantiate that claim. Collinss opening brief on appeal included e-mail correspondence with the court reporter and related documents that are outside of the record on appeal. These documents also do not establish that it would have been impossible or impracticable for Collins to obtain a reporters transcript of the trial had she requested one in accordance with court rules.

[2] The sentence appears in a document captioned Defendants Statement of the Case that SMCTD filed on the first day of trial.