Nava v. Power Chevrolet El Monte

Filed 3/12/08 Nava v. Power Chevrolet El Monte CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert A. Dukes, Judge. Affirmed.

Jessie Prieto Nava, in pro per; Law Offices of Gina Genatempo and Gina Genatempo for Plaintiff and Appellant.

Law Offices of Kolar & Associates, Inc., Elizabeth L. Kolar and Jeanne L. Tollison for Defendant and Respondent.

INTRODUCTION

Plaintiff and appellant Jessie Prieto Nava (Nava) brought an action against defendant and respondent Power Chevrolet El Monte (Power Chevrolet)[1]for injuries she allegedly sustained when she slipped on water and fell on Power Chevrolets premises. A jury returned a verdict in favor of Power Chevrolet. On appeal, Nava contends the trial court erred when it permitted Power Chevrolet to amend its witness list on the eve of trial, when it refused to continue the trial after allowing the amendment to the witness list, when it refused to order Power Chevrolet to disclose the identity of the employee who was misting or afterwashing Power Chevrolets cars, and when it refused to impose an issue sanction for Power Chevrolets refusal to identify which of its employees were on the premises when Nava was injured.[2] We affirm.

BACKGROUND

On June 26, 2003, Nava went to Power Chevrolet to inquire about obtaining an extended warranty for her car. She had not previously been to Power Chevrolet. Nava entered the dealership by walking up a handicap ramp. The cement was not wet.

Nava spoke to a salesman about purchasing a warranty. Nava decided not to purchase a warranty, telling the salesman that the additional cost would be like buying a new car. The salesman asked Nava if she would be interested in looking at a new car. Nava responded that she would if the dealership was offering rebates on new cars. Another salesman and Nava went outside, where Nava slipped and fell after taking two steps. Nava testified that the cement was wet. Nava injured her knee and was taken by ambulance to the hospital. An x-ray revealed that Navas knee was fractured.

Ranier Ruano was employed as a salesman at Power Chevrolet. Ruano was near Nava when she slipped and fell, but did not see her fall. Ruano testified that cars were being cleaned with a mister machine in the general area where Nava fell. There was an orange cone nearby to warn people that cars were being misted and of the presence of water so that they would not fall. Ruano testified that there was no water on the cement in the area where Nava fell.

DISCUSSION

I. Ruanos Testimony

Nava contends that the trial court abused its discretion when it permitted Power Chevrolet to amend its witness list to add Ruano, thereby permitting Ruano to testify at trial, and when it refused to continue the trial based on the amendment. The trial court did not err.

A. Procedural History

In the course of the litigation, Nava propounded form and special interrogatories to Power Chevrolet including special interrogatories seeking the identity of Power Chevrolets general manager on June 26, 2003, and the identify of all of Power Chevrolets salesmen who were present at Power Chevrolets premises on June 23, 2003,[3]between 7:30 a.m. and 11:00 a.m. Nava deemed Power Chevrolets responses to the interrogatories to be inadequate. On February 14, 2006, Nava filed a motion to compel further responses and for sanctions. On March 6, 2006, as relevant here, the trial court granted the motion to compel further responses to the special interrogatories. On March 31, 2006, Power Chevrolet served on Nava Further Responses to Special Interrogatories that identified Matt Oberly and Ray Ruano as witnesses and provided their addresses and telephone numbers.[4]

On August 21, 2006, the date set for trial, Power Chevrolet moved to amend the joint witness list which had been filed on April 18, 2006 to add Oberly and Ruano as witnesses. According to defense counsel, Oberly was Power Chevrolets former general manager who would testify concerning the dealerships custom and practice regarding the washing of vehicles and Ruano was the salesperson who was walking with Nava when she allegedly slipped and fell. Power Chevrolet asserted that the witnesses were disclosed in discovery and the failure to identify them on the witness list was inadvertent. Navas counsel objected that the proposed amendment was not timely, noting that the date set for trial to commence had been continued from the prior week and that he only learned of the proposed amended during that week.

The trial court did not permit Power Chevrolet to add Oberly to its witness list, but permitted it to add Ruano, apparently because he was a percipient witness. The trial court stated that Navas counsel could depose Ruano that night, or the next day the day jury selection was to commence. In the course of the hearing, Navas counsel noted that the trial court said there would be no continuances last time, but did not request a continuance of the trial based on the addition of Ruano to the witness list. Earlier, plaintiff had rejected defendants request for a continuance because plaintiff wanted the trial during the summer, as plaintiff was a teacher and was off work for the summer. By the time Ruano testified on August 23, 2006, he had been deposed. Navas counsel had a transcript of the deposition at the time Ruano testified.

B. Standards of Review

We review a trial courts admission of testimony for an abuse of discretion. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1528.) We review a trial courts denial of a motion to continue the trial for an abuse of discretion. (Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249.) A trial court abuses its discretion when it exceeds the bounds of reason by making a determination that is arbitrary, capricious, or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

C. The Amended Witness List

As set forth above, Nava propounded special interrogatories to Power Chevrolet seeking the identity of all of Power Chevrolets salesmen who were present at Power Chevrolet when Nava slipped and fell. On March 31, 2006, in response to Navas successful motion to compel further responses, Power Chevrolet identified Ruano as a witness and provided Nava with his address and telephone number. Thereafter, Nava chose not to depose Ruano. The original witness list that did not include Ruano was filed on April 18, 2006.

On August 21, 2006, Power Chevrolet moved the trial court to allow it to amend its witness list to include Ruano. Power Chevrolet argued that Ruano had been disclosed in discovery and that the failure to include him on the witness list was inadvertent. The trial court granted the motion, apparently because Ruano was a percipient witness.

In her opening brief, filed in pro per, Nava contends that the trial court abused its discretion in allowing Power Chevrolet to amend its witness list because Power Chevrolet had failed to identify Ruano in discovery and because the trial court failed to consider whether Power Chevrolet had disclosed Ruanos name in discovery in a manner that placed her on notice that he was a supposedly knowledgeable informant who could testify. (Italics omitted.) Nava further contends, in her opening brief, that there is no discussion in the record about whether or not [she] ought to have known that witness Ruano had any knowledge about the incident of the lawsuit. In Navas reply brief, filed in pro per, Nava concedes that she knew that Ruano was disclosed during discovery as a person who was an employee of [Power Chevrolet] who was on duty at the time of the incident. At oral argument of Navas appeal, Navas substituted counsel argued that Ruano was, in fact, not disclosed in discovery.

The argument that Ruano was not disclosed in discovery appears to be based on a misreading of the record that confuses two Power Chevrolet employees Randel Reyes and Ranier Ruano. On April 18, 2006, the original date set for trial, the trial court considered Navas Motion in Limine No. 2 that sought to exclude the testimony of any employee of Power Chevrolet concerning the layout of the dealership. The motion argues that Power Chevrolet had designated Lorenzo Serrano, who was not employed by Power Chevrolet at the time of the incident, as its person most knowledgeable, but its witness list identified Reyes, a porter, as a witness. Reyes, the motion asserts, had never been identified in discovery. Power Chevrolet did not dispute the assertion that it had not identified Reyes in discovery. The trial court granted the motion, and excluded Reyess testimony. Later, in support of its August 21, 2006, motion to amend the April 18, 2006, witness list, Power Chevrolet asserted that it had disclosed Ruano, a salesman, as a witness on March 31, 2006, but had inadvertently failed to include him on its April 18, 2006, witness list. Nava did not dispute this assertion. Indeed, in opposing the motion to amend the witness list, Navas counsel expressly conceded that Ruano had been identified in discovery. Moreover, because Nava claims she was prejudiced by allowing Ruano to testify, she has the burden of showing that he was not identified in discovery. She has not satisfied that burden. The record on appeal demonstrates that Power Chevrolet identified Ruano in discovery.

Nava cites no authority for the apparent proposition that Power Chevrolet was under an obligation to identify Ruano in its discovery responses in a way that alerted Nava to Ruanos potential significance as a witness. We note, however, that Ruanos significance and the desirability of deposing him would seem apparent as he was a salesman Power Chevrolet identified in response to Navas successful motion to compel. Moreover, as part of the trial courts ruling permitting the amendment to Power Chevrolets witness list, the trial court permitted Nava to depose Ruano prior to the commencement of trial. Under these circumstances, the trial courts ruling permitting the amendment to the witness list was not arbitrary, capricious, or patently absurd. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

D. Continuance of the Trial

Nava contends that the trial court abused its discretion by refusing to continue the trial to allow her to investigate and review Ruanos deposition testimony. Navas contention fails because her counsel did not ask for a continuance. Although Navas counsel noted during the hearing of Power Chevrolets motion to amend its witness list that the trial court said there would be no continuances last time, he did not request a continuance of the trial based on the addition of Ruano to the witness list. Because Nava did not request to continue the trial, the trial court did not abuse its discretion in failing to grant a continuance. (See Lazarus v. Titmus, supra, 64 Cal.App.4th at p. 1249.)

Navas contention also fails because no prejudice appears in the record from the lack of a continuance. Nava argues that she was prejudiced because [t]rial is an exhausting time, and it is not reasonable to contemplate that a solo trial attorney will have time, in the evening following a full day of trial, to critically review a deposition transcript, and then craft a written questionnaire for use during the cross-examination of that witness. The record demonstrates otherwise. Several times Navas counsel used excerpts from Ruanos deposition transcript to attempt to impeach Ruanos testimony. Such use of Ruanos deposition transcript shows that Navas counsel had sufficient time to review and digest the salient points from Ruanos deposition transcript so as to use the transcript appropriately at trial.

II. Navas Contentions Concerning The Trial Courts Failure To Order Power

Chevrolet To Comply With Discovery And Its Failure To Impose An Issue

Sanction

Nava contends that the trial court abused its discretion when it refused to order Power Chevrolet to disclose the identity of the employee who was misting or afterwashing Power Chevrolets cars, and when it refused to impose an issue sanction for Power Chevrolets refusal to identify which of its employees were on the premises when Nava was injured. Navas contentions are waived.

As a general rule, The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. [Citations.] It is the duty of counsel to refer the reviewing court to the portion of the record which supports appellants contentions on appeal. [Citation.] If no citation is furnished on a particular point, the court may treat it as waived. [Citation.] (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)

Nava does not cite any part of the record that shows that she propounded discovery to Power Chevrolet requesting the identity of the person who was misting or afterwashing Power Chevrolets cars, that Power Chevrolet failed to respond appropriately to such discovery, or that she moved to compel responses. As such, this argument is waived. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115.) Moreover, our review of the record does not disclose such discovery requests or orders.[5] Navas contention that the trial court abused its discretion when it failed to impose an issue sanction for Power Chevrolets refusal to identify which of its employees were on its premises when Nava was injured is likewise defective. Navas failure to include cites to the record that show that Nava propounded such discovery, that Power Chevrolet failed to respond appropriately to such discovery, or that she moved to compel responses waives this issue. (Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115.) Moreover, if this claim is intended to address the discovery dispute concerning Navas special interrogatory requesting the identity of all salesmen who were present at Power Chevrolet when Nava fell, we note that Navas counsel did not request an issue sanction.

Nava also seems to challenge the trial courts order denying the request that defendant produce a former employee for trial. The trial court was correct in its order.

(Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1398 [party does not have to produce former employees].)

DISPOSITION

The judgment is affirmed. Defendant is awarded its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] Nava filed a subsequent amendment to her complaint identifying a doe defendant as El Monte Motors, Inc. According to defense counsel, El Monte Motors, Inc. was the prior corporate name of Power Chevrolet El Monte. We grant Navas motion to augment the record on appeal with respect to Exhibits A and C. We deny her motion to augment the record with respect to Exhibits B and D.

[2] Navas notice of appeal was filed on October 17, 2006. The judgment was received by the superior court on October 18, 2006, and filed on November 3, 2006. We will treat Navas notice of appeal as filed immediately after entry of judgment. (Cal. Rules of Court, rule 8.104(e).)

[3] At trial, Nava testified that she sustained her injuries on June 26, 2003. Power Chevrolets response to the interrogatory does not object to the interrogatory concerning Power Chevrolets salesmen specifically based on the apparent mistaken date of June 23, 2003. Navas separate statement in support of her subsequent motion to compel a further response to the interrogatory states that the interrogatory seeks the name of salesmen who were working for Power Chevrolet on the date of the incident.

[4] Neither party made Power Chevrolets Further Responses to Special Interrogatories a part of the record on appeal. This information comes from Power Chevrolets motion to amend its witness list.

[5] It is said that in propria persona litigants are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure. [Citation.] They are, however, entitled to treatment equal to that of a represented party. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284; see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 (plurality opinion).)