Hoyt v. ColonialAcresMobileHomePark

Filed 1/6/10 Hoyt v. Colonial Acres Mobile Home Park 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Plaintiff Robert Hoyt appeals from the order dismissing his personal injury suit against defendants Colonial Acres Mobile Home Park and Burton Busk after defendants motion for a nonsuit was granted. Plaintiff alleged that defendants were liable for injuries he suffered as a result of a fire at a mobile home park. The nonsuit was granted on the ground that plaintiff could not prove the cause of the fire without expert testimony, and he was barred from introducing such testimony because of his failure to disclose experts. Plaintiff contends on appeal that the court erred in excluding evidence that would have shown without expert testimony how the fire was caused, and in denying his motions to continue the date of trial. We conclude that these arguments lack merit and affirm the judgment.

I. BACKGROUND

We take the facts from plaintiffs opening statement at trial, the statement of case plaintiff filed before the trial, and evidence presented on defendants motion for summary judgment.

Busk owns Colonial Acres Mobile Home Park, where plaintiff was living in his mothers mobile home. A fire broke out at approximately 3:00 a.m. on April 29, 2005, in an adjacent mobile home, which was occupied by Darrell and Susan Hayter. Plaintiff and his mother rushed outside when they heard an explosion at the Hayter home. Plaintiff injured his legs and back falling on stairs leading out of his residence, and hurt his feet stepping without shoes on shards of glass strewn by the explosion. Plaintiff alleged that the fire was caused by Darrell Hayters discarded cigarette which detonated his oxygen tanks. He alleged that defendants knew Mr. Hayter smoked and used oxygen, and had a duty to prevent him from doing so.

The complaint asserted causes of action for negligence and premises liability. Defendants moved for summary judgment, arguing among other things that they had no duty to prevent the fire. They presented a declaration from fire investigator Donald J. Perkins, which disputed plaintiffs theory as to the cause of the fire. In Perkinss opinion, the fire was not caused by Mr. Hayters oxygen canisters; he thought it more likely than not that there were no . . . contributing factors to the cause of the fire other than the discarded smoking materials that caused ignition of bedding materials. The motion for summary judgment was denied.[1]

The court denied plaintiffs ex parte application for order to shorten time to file notice of motion and motion to vacate trial [etc.], and his ex parte application for an order shortening time to vacate trial date/continue trial to permit further discovery [etc.]. The court granted defendants motions in limine to exclude expert testimony based on plaintiffs failure to disclose expert witnesses, and to exclude an Alameda County Fire Department fire incident report on hearsay grounds.[2] The court granted the nonsuit after plaintiff made his opening statement.

II. DISCUSSION

A. Evidentiary Issues

(1) Fire Investigation Report

Plaintiff identified an Alameda County Fire Department fire investigation report signed by Deputy Fire Marshal Scott McMillan as an exhibit they intended to introduce at trial. The report was dated March 9, 2006, five days before trial, and was not produced to the defense until after the trial began.

The report stated in part: Darrell Hayter was interviewed by Sergeant Don Buchanan on May 5, 2005. Darrell reported he was lying on his bed smoking a cigarette. Hed taken off his oxygen mask and set it on the floor next to his bed. He dropped his lit cigarette and it landed in the mask. Flames started immediately and caught his bedding on fire as well as the carpeting. He saw a bluish colored flame traversing inside the oxygen tubing towards the oxygen generator to which it was attached. He got up and got to the oxygen generator that was located near the back door/hallway area. He pulled the tubing out of the machine, but it didnt turn off. . . . By that time he said the back bedroom was fully engulfed in flameshis estimate was the room went within 1 1/2 minutes to full involvement. About that time the generator machine blew up. . . . He confirmed that he also had three small oxygen cylinders (filled) that were in his bedroom.

Plaintiff submits that Hayters statements were sufficient to show the cause of the fire, and thus that he did not need expert testimony on that issue. He contends that the court erroneously prevented McMillan from authenticating the report. In his opening brief, plaintiff argues that Hayters statements were admissible as a party admission. In his reply brief, he contends that the statements were admissible as a [d]ying [d]eclaration or as [s]tatements against [i]nterest. Plaintiff characterizes his eleventh hour discovery of the report as excusable neglect under Code of Civil Procedure section 473, but otherwise cites no law in these sections of the briefs.

Plaintiffs arguments for admission of Hayters statements fail for a number of reasons. First, he has effectively waived those arguments by failing to identify any legal authority that would support them. We are not bound to develop appellants arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) Second, as plaintiff conceded below, the report in which the statements appear is itself hearsay, making the statements hearsay within hearsay. Double hearsay is admissible if each level falls within an exception to the hearsay rule. (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 680.) Thus, even if plaintiff is correct in claiming that the statements were party admissions, they were inadmissible hearsay unless the report itself was admissible, a point plaintiff fails to address. Plaintiff contends that the court should have permitted the document to be authenticated, but a document is not admissible merely because it is genuine. Third, the statements were not party admissions because Hayters estate was dismissed as a party prior to trial. Fourth, the dying declaration argument is improperly advanced for the first time in plaintiffs reply brief (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764), and was not supported by an adequate offer of proof at trial (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial,  402, pp. 491-492, and cases cited). On the latter point, plaintiff made no showing that Hayters statement to Buchanan was made . . . under a sense of immediately impending death. (Evid. Code,  1242.)

(2) Fire Incident Report

Plaintiff argues that the court erroneously excluded an Alameda County Fire Department fire incident report, which stated:  Cigarette best describes the heat source that caused the ignition. The cause of ignition was unintentional. The material first ignited was fabric, fiber, cotton, blends, rayon, wool. The use, or purpose of the material that was first ignited was mattress, pillow. [] Floor collapse was a factor in suppressing the fire. Elderly occupants was also a factor in suppressing the fire. Hazardous chemical, corrosive material, or oxidizer was also a factor in suppressing the fire.

Plaintiff maintains that the word oxidizer in this report refers to [Hayters] oxygen tanks and shows that they were an ignition factor that caused the fire. Plaintiff argues that the court should have permitted McMillan to authenticate the report. Unlike the fire investigation report previously discussed, defendants were aware of this fire incident report prior to trial, and had asked the court to take judicial notice of it in connection with pretrial motions.

Plaintiffs arguments concerning the fire incident report must also be rejected. Even assuming that the reports reference to an oxidizer meant oxygen tanks in the Hayters home, the report did not prove that the tanks were a cause of the fire. Because the report simply lists [1] [h]azardous chemical, [2] corrosive material, or [3] oxidizer as a factor in the fire (italics added), it is unclear which of the three factors was involved. Accordingly, any error in excluding the report was harmless. Moreover, the document is hearsay and plaintiff identifies no exception to the hearsay rule that would have permitted its admission. Plaintiff argues that the court could have taken judicial notice of the contents of the report as facts not reasonably subject to dispute. (Evid. Code,  452, subd. (h).) However, plaintiff waived this argument by failing to request judicial notice below, and the argument lacks merit in any event (see People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17, overruled on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [entries in police report were not subject to judicial notice under Evid. Code,  452, subd. (h)]). Nor does any authority support plaintiffs theory that the report became admissible at trial merely because defendant requested judicial notice of the report in connection with pretrial motions.

(3) Spontaneous Statement

Plaintiff contends that the court erred in preventing him from testifying that, to quote from his offers of proof below, right as the fire is raging, a firefighter told him Mr. Hayters oxygen slipped off, the cigarette fell into the oxygen mask, and ignited.

Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [] (a) Purports to narrate, describe, or explain an act, condition or event perceived by the declarant; and [] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception. (Evid. Code,  1240.) Since the firefighter did not personally witness the cigarette falling into the oxygen mask, this exception to the hearsay rule did not apply. (People v. Phillips (2000) 22 Cal.4th 226, 235 [declarant must have personally perceived the event].) Nor was the firefighter ever identified. Therefore, the firefighters statement was correctly excluded.

Plaintiff asserts on appeal that the firefighter saw the burned oxygen mask and tube attached to the blown up oxygen generator, the three burst oxygen canisters, and the burned remnants of a cigarette. However, plaintiff is bound by his more limited offers of proof below, which described a statement about an event the firefighter could not have personally perceived.

B. Applications for a Continuance

Plaintiff argues that the court abused its discretion in denying his applications to continue the trial date.

The first application was occasioned by plaintiffs inability to subpoena Shirley Baker for a deposition. Baker was a property manager at the mobile home park, who allegedly knew about the Hayters smoking and their use of oxygen tanks. Plaintiff was eventually able to arrange for Bakers deposition, and the court denied the application without prejudice to Plaintiff bringing a Motion to Continue the Trial, on shortened time, if good cause exists after [Bakers] deposition . . . . We fail to see how plaintiff was prejudiced by this ruling.

The second application was made on the ground that plaintiff needed time to depose mobile home park residents on their conversations with Baker about this litigation, the conduct of Darrell and Sue Hayter, their health and other critical facts. Plaintiff also wanted to depose personnel of the company that had supplied oxygen to Bakers husband. Plaintiff said that evidence of information the Bakers received from the company would go[] directly to Shirley Bakers knowledge of Darrell Hayters smoking with oxygen in that Bakers knowledge of why her long smoking, lung cancer afflicted husband required oxygen would likely have made her aware that long time smoker Darrell Hayter needed oxygen for similar reasons.

Plaintiff was not prejudiced by denial of this application, either. It is not apparent, and plaintiff does not argue, that any of the additional evidence he sought to elicit pertained to the cause of the fire. Without admissible evidence on that issue plaintiff had no case, regardless of whatever knowledge might have been imputed to defendants about the Hayters smoking and use of oxygen.

III. CONCLUSION

The judgment is affirmed. Defendants cross-appeal is dismissed as moot. Defendants shall recover their costs on plaintiffs appeal. The parties shall bear their own costs on the cross-appeal.

______________________

Marchiano, P.J.

We concur:

______________________

Margulies, J.

______________________

Dondero, J.

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[1] Defendants have filed a cross-appeal challenging the summary judgment ruling. Because we conclude that plaintiffs appeal lacks merit, we need not reach the arguments raised in the cross-appeal.

[2] Although the court initially deferred ruling on the motion with respect to the fire incident report, the courts statements during arguments on the nonsuit indicated it would not have allowed the reports admission.