Filed 9/3/26 Pitcher v. Trinidad CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
RYAN PITCHER, B345176
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 22STCV10266)
DANILO SOLIS TRINIDAD et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Gregory W. Alarcon, Judge. Appeal
dismissed.
ORIGINAL PROCEEDING in mandate. Petition denied.
Law Office of Stanley D. Bowman and Stanley D. Bowman
for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Corinne C. Bertsche,
Daniel R. Velladao; Law Offices of Scott C. Stratman and
Varduhi R. Petrosyan for Defendants and Respondents.
______________________________
Ryan Pitcher (Pitcher) sued his landlords, Danilo Solis
Trinidad and Lydia Flores Trinidad (the Trinidads), after he fell
on a set of stairs. The trial court granted the Trinidads’ motions
in limine to: (1) exclude testimony from Pitcher’s treating
physicians based upon his failure to designate them as expert
witnesses; and (2) exclude Pitcher’s medical bills for lack of
foundation. Instead of proceeding to trial, Pitcher requested
dismissal of his complaint without prejudice, which the court
granted. Pitcher filed a notice of appeal.
Because Pitcher “voluntarily dismiss[ed] [his] action before
the [trial] court ha[d] reached a final resolution regarding any of
the claims pleaded in the complaint, the effect of the dismissal
[wa]s to terminate the action entirely, thus forfeiting the right to
appeal.” (Maniago v. Desert Cardiology Consultants’ Medical
Group, Inc. (2026) 20 Cal.5th 91, 96 (Maniago).) Accordingly, we
dismiss Pitcher’s appeal for lack of jurisdiction. Exercising our
discretion to treat the purported appeal as a petition for writ of
mandate challenging the trial court’s rulings on the motions in
limine, we deny the petition.
BACKGROUND
Pitcher filed a complaint in March 2022, asserting a single
cause of action against the Trinidads for premises liability.
Pitcher alleged that, in April 2020, he “suffered traumatic
injuries while walking up stairs to his residence.” The stairs,
2
which the Trinidads constructed in February 2020, allegedly
were built without obtaining permits and did not conform to
applicable building codes. Pitcher alleged that, “[a]s a result of
the fall, [he] injured his lower back and has become permanently
disabled.”
In April 2023, the Trinidads served discovery requests
seeking, among other things, witnesses and documents
supporting Pitcher’s contentions and damages. Pitcher served
(untimely) discovery responses in July 2023. Pitcher did not
respond to Form Interrogatory No. 6.4, which required him to
disclose whether he “receive[d] any consultation or examination
(except from expert witnesses covered by Code of Civil Procedure
sections 2034.210–2034.310) or treatment” from a healthcare
provider for any injury from the incident and, if so, to identify the
provider, the type of consultation/examination/treatment, and the
dates/charges. Then, in January 2024, Pitcher served
supplemental discovery responses, but only identified “Dr. Astrid
Pineda,” “Dr. Yoshida,” and “Dr[.] Fleming” by name in response
to Form Interrogatory No. 6.4.
The Trinidads served a demand for expert witness
disclosures under Code of Civil Procedure section 2034.270 et seq.
Pitcher did not designate any expert witnesses. Then, in April
2024, when the parties were preparing a joint witness list,
Pitcher’s counsel identified the following witnesses as “ ‘non-
retained medical treaters’ ”: (1) Vibha Agrawal; (2) Dr. John
Fleming; (3) Gregory M. Yoshida Harbor; (4) Dr. Marc Rothschild;
and (5) John Gardiner (Gardiner).1
1 Gardiner was actually a licensed biomechanical engineer
who acted as a consulting expert in Pitcher’s wife’s prior trip-and-
fall case against the Trinidads.
3
The Trinidads filed several motions in limine, including
motions to: (1) exclude testimony from Pitcher’s treating
physicians based upon his failure to designate them as expert
witnesses; and (2) exclude Pitcher’s medical bills for lack of
foundation. Pitcher did not file written oppositions to these
motions. Following a hearing on January 2, 2025, the trial court
granted the motions in limine. Pitcher did not seek leave to
designate late expert witnesses.
The case was transferred to a different trial court, which
held a hearing on February 6, 2025. The court adopted the prior
rulings on the Trinidads’ motions in limine. Purportedly to
facilitate an immediate appeal, Pitcher’s counsel made an oral
request to dismiss the complaint without prejudice. The
Trinidads’ counsel had no objection, and the court granted the
request.
Pitcher filed a notice of appeal from the trial court’s
February 6, 2025, order. The court subsequently entered
judgment in favor of the Trinidads and against Pitcher.
While this appeal was pending, the California Supreme
Court issued its opinion in Maniago, supra, 20 Cal.5th 91. The
Court held that when “plaintiffs voluntarily dismiss their action
before the court has reached a final resolution regarding any of
the claims pleaded in the complaint, the effect of the dismissal is
to terminate the action entirely, thus forfeiting the right to
appeal.” (Id. at p. 96.) Pursuant to Government Code section
68081, we invited the parties to file supplemental briefs
addressing whether this appeal should be dismissed for lack of
jurisdiction in light of Maniago. Each party submitted a timely
supplemental brief.
4
DISCUSSION
I. Appealability
“The right to appeal is wholly statutory, and a judgment or
order is not appealable unless expressly made so by statute.
[Citations.]” (Department of Water Resources Cases (2026)
119 Cal.App.5th 602, 618.) “The existence of an appealable order
or judgment is a jurisdictional prerequisite to an appeal.
[Citation.] Accordingly, if the order or judgment is not
appealable, the appeal must be dismissed. [Citation.]”
(Canandaigua Wine Co., Inc. v. County of Madera (2009)
177 Cal.App.4th 298, 302 (Canandaigua); see also In re Javier G.
(2005) 130 Cal.App.4th 1195, 1201 (Javier G.) [“A reviewing court
lacks jurisdiction to consider appeals from a nonappealable order,
and has the duty to dismiss such appeals”].)
Here, Pitcher voluntarily dismissed the complaint without
prejudice following adverse rulings granting the Trinidads’
motions in limine to exclude testimony from Pitcher’s treating
physicians and evidence of his medical bills. Although these
“ruling[s] may have made it more difficult for [Pitcher] to prove
his claim [for premises liability], [they] did not legally foreclose
the claim.” (Maniago, supra, 20 Cal.5th at p. 106.) Rulings on
motions in limine are not appealable orders. (Sheehy v. Chicago
Title Ins. Co. (2025) 108 Cal.App.5th 178, 182 [“orders on
evidentiary matters, including motions in limine, are not
themselves appealable”].) Voluntarily dismissing the action
without prejudice “ ‘did not transform the nonappealable interim
orders into an appealable judgment.’ [Citation.]” (Maniago,
supra, 20 Cal.5th at p. 103; see also Sherman v. Standard Mines
Co. (1913) 166 Cal. 524, 525 [“An attempt to appeal from a
nonappealable order does not give this court jurisdiction or
5
authority to review it”].) “Rather, the voluntary dismissal
operated to terminate” the entire action, “thus forfeiting the right
to challenge any orders the [trial] court issued prior to the entry
of dismissal. [Citation.]” (Maniago, supra, 20 Cal.5th at p. 100,
fn. omitted.)
Resisting this conclusion, Pitcher contends that Maniago
should not be applied “retroactively” to divest this court of
jurisdiction. “The general rule that judicial decisions are given
retroactive effect is basic in our legal tradition.” (Newman v.
Emerson Radio Corp. (1989) 48 Cal.3d 973, 978.) Although
“[t]his general rule extends fully to decisions . . . that resolve
Court of Appeal conflicts or establish the meaning of a statutory
enactment” (Burris v. Superior Court (2005) 34 Cal.4th 1012,
1023), “[c]ourts sometimes make an exception . . . when the
decision changed a settled rule on which the parties had relied.”
(Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 318.)
We conclude that Maniago applies retroactively to this
case. Although prior to Maniago, “many courts . . . allowed
appeals by plaintiffs who dismissed their complaints after an
adverse ruling by the trial court, on the theory the dismissals
were not really voluntary, but only done to expedite an appeal”
(Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790,
793; see also Austin v. Valverde (2012) 211 Cal.App.4th 546, 550–
552, disapproved of by Maniago, supra, 20 Cal.5th at p. 106), this
practice was not universally accepted (see Yancey v. Fink (1991)
226 Cal.App.3d 1334, 1342–1343; Cook v. Stewart McKee & Co.
(1945) 68 Cal.App.2d 758, 760–761 [“A wilful dismissal
terminates the action for all time and affords the appellate court
no jurisdiction to review rulings on demurrers or motions made
prior to the dismissal”]). Maniago did not overrule Supreme
6
Court precedent or otherwise disturb a settled rule, and the
general rule of retroactivity applies.
Following Maniago, as we must (Auto Equity Sales, Inc. v.
Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455),
we dismiss Pitcher’s purported appeal for lack of jurisdiction.
(See Canandaigua, supra, 177 Cal.App.4th at p. 302; Javier G.,
supra, 130 Cal.App.4th at p. 1201.)
II. Writ Review
“An appellate court has discretion to treat a purported
appeal from a nonappealable order as a petition for writ of
mandate, but that power should be exercised only in unusual
circumstances. [Citation.]” (H.D. Arnaiz, Ltd. v. County of San
Joaquin (2002) 96 Cal.App.4th 1357, 1366–1367 (H.D. Arnaiz).)
Discretionary writ review is warranted here for several
reasons. First, when Pitcher voluntarily dismissed his action and
filed his notice of appeal, the Supreme Court had yet to grant
review in Maniago. Second, the Trinidads did not object in the
trial court to Pitcher’s voluntary dismissal of the complaint
expressly to expedite an appeal and did not raise any challenge to
appealability in their initial respondents’ brief. Third, the parties
fully briefed the merits of Pitcher’s purported appeal before the
Supreme Court issued its opinion in Maniago.
In light of these “unusual circumstances” (H.D. Arnaiz,
supra, 96 Cal.App.4th at p. 1367), we exercise our discretion to
treat the purported appeal as a petition for writ of mandate.
III. Standard of Review
“We apply the abuse of discretion standard when reviewing
the trial court’s rulings on evidentiary objections.” (Twenty-Nine
Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435,
1447; see also McMillin Companies, LLC v. American Safety
7
Indemnity Co. (2015) 233 Cal.App.4th 518, 529 [“Like many
evidentiary rulings, orders on motions in limine are generally
reviewed for abuse of discretion”].)
IV. Forfeiture
Pitcher did not file oppositions to the motions in limine.
Nor did Pitcher’s counsel orally oppose the motions or object to
the trial court’s rulings at the hearing. In fact, when the court
asked if there was anything else, Pitcher’s counsel said, “Nothing
further.” Therefore, Pitcher forfeited review of these issues. (See
Mangano v. Verity, Inc. (2009) 179 Cal.App.4th 217, 221 [party
who fails to oppose motion in limine to exclude evidence forfeits
his ability to argue that the evidence was improperly excluded];
Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602
[“Failure to register a proper and timely objection to a ruling or
proceeding in the trial court waives the issue”].)
V. The Trial Court Did Not Err in Excluding the Evidence
Forfeiture aside, we find that the trial court did not abuse
its discretion in excluding the witness testimony and documents.
Treating physicians who will also provide an expert opinion must
be listed as expert witnesses. (Kalaba v. Gray (2002)
95 Cal.App.4th 1416, 1421.) In the instant case, it is unclear
whether the treating physicians would opine as to the cause of
Pitcher’s injuries because Pitcher’s counsel did not make an offer
of proof as to their testimony. Similarly, Pitcher’s counsel did not
make an offer of proof as to how he would lay a foundation to
introduce the medical records. Therefore, we cannot conclude
that the trial court abused its discretion in excluding this
evidence. (Evid. Code, § 354; Shaw v. County of Santa Cruz
(2008) 170 Cal.App.4th 229, 282 [“[T]he failure to make an
adequate offer of proof in the court below ordinarily precludes
8
consideration on appeal of an allegedly erroneous exclusion of
evidence”].)
DISPOSITION
The appeal is dismissed. Deeming the purported appeal a
petition for writ of mandate, the petition is denied. Each party is
to bear its own costs on appeal and in connection with this writ
proceeding.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
GOORVITCH, J.
We concur:
CHAVEZ, Acting P. J.
RICHARDSON, J.
9