Lujan v. Tustin Unif. School Dist.
Filed 8/14/08 Lujan v. Tustin Unif. School Dist. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
DEENA LUJAN, Plaintiff and Respondent, v. TUSTIN UNIFIED SCHOOL DISTRICT, Defendant and Appellant; FIRST STUDENT, INC. Intervener and Respondent. | G038990 (Super. Ct. No. 04CC06989) O P I N I O N |
Appeal from a judgment and an order of the Superior Court of Orange County, Daniel J. Didier, Judge. Affirmed.
Lynberg & Watkins, Ric C. Ottaiano, Courtney L. Hylton, Keith R. Dobyns and Jeanette E. Laba for Defendant and Appellant.
Manning & Marder Kass, Ellrod, Ramirez, James J. Perkins and David J. Wilson for Intervener and Respondent.
* * *
Appellant contends the court erred when it did not instruct the jury on its theory of comparative negligence. The record on appeal does not demonstrate the errors claimed. We affirm.
I
FACTS
Deena Lujan was employed as a bus driver with First Student. She transported children attending Tustin schools. On February 5, 2004, she fell on the property where the school buses were kept. Her left foot got caught on a piece of buried fence that was sticking up from the ground. She was injured in the fall, and underwent surgery on her cervical spine.
The director of maintenance operations for Tustin Unified School District (TUSD), Peter Burns, testified his supervisor told him to go to the area of the accident and get rid of some chain link fence. He proceeded directly to the bus yard and removed the fence. The fencing was four to five feet wide and a tree was growing up through the fencing. It was partially overgrown with dirt and weeds that were growing around it.
The appellants appendix on appeal reflects that TUSD requested CACI No. 405,[1], and that it was refused. Apparently the instructions were discussed outside the court reporters record. At the conclusion of the off-the-record discussion, the court stated: Were on the record. The court has spent some time with counsel regarding the instructions. There have been compromises regarding the instructions. The court has marked certain instructions as withdrawn and refused. That will be part of the record.
During this brief discussion TUSDs lawyer said: Your honor, did the court rule this morning that I would not be able to raise an argument of any negligence on behalf of First Student; is that did I understand the court directly this morning? [] I know we were talking about the plaintiffs contributory negligence, and the court said no. And am I also precluded from raising the issue of any negligence on the part of First Student for not noticing, reporting any kind of condition on the property they would have at least been using each and every day? The court responded: I think it certainly can be argued that, that not only the school district, but Ms. Lujan and First Student certainly had access to the area. But what the court is saying is, I am not providing a line item in the verdict form for any instructions with regard to any contributory negligence of Ms. Lujan, as well as the First Student. Counsel and the court then proceeded to discuss the next witness.
The special verdict form does not mention negligence with regard to either Lujan or First Student. The jury found in favor of Lujan and against TUSD. The verdict totaled $672,900. TUSD appeals.
II
DISCUSSION
TUSD contends the judgment should be reversed and the matter remanded for retrial for a comparative fault assessment, arguing the trial court did not allow the jury to assess the comparative fault of either plaintiff or First Student. It argues it was entitled to a comparative negligence instruction and having the issue listed on the verdict form, claiming the courts alleged error affected workers compensation reimbursement and credit issues to its detriment.
The existence of instructional error alone is insufficient to overturn a jury verdict. An appellant must also show that the error was prejudicial (Code Civ. Proc., 475) and resulted in a miscarriage of justice. No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (Cal. Const., art. VI, 13).
Therefore, an appeal based on an erroneous jury instruction must contain a sufficient record to permit the appellate court to evaluate such issues. While the record does show a request for, and the courts refusal of, an instruction regarding Deena Lujans negligence, the record does not reflect TUSD requested a contributory negligence instruction regarding First Student. When an argument is unsupported by citations to the record, it is deemed waived. (Warfield v. Summerville Senior Living, Inc. (2007) 158 Cal.App.4th 443, 448.) Nor does the record reflect what, if any, argument TUSD made to the court regarding why CACI No. 405 should have been given as it related to either First Student or Lujan.
A court is not required to give an instruction not supported by the evidence. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1094.) If a proffered instruction conflicts with the special verdict form, or is argumentative or confusing, the court is not required to give it. (Id. at p. 1095.) When deciding whether or not there was instructional error, the reviewing court should take into account the effect of counsel's arguments. (Levin v. United Air Lines, Inc. (2008) 158 Cal.App.4th 1002, 1016.)
While we recognize the possibility appellant argued mightily to the trial court about the state of the evidence to support a negligence instruction regarding First Student or Lujan, and to support a line item on the special verdict form on the issue of comparative negligence, it is not apparent in the record on appeal. Here, the record reflects the issue of jury instructions was argued outside the court reporters record. When the court went back on the record and informed counsel of its decision regarding the verdict form, counsel did not argue the point.
The record does not reflect appellants arguments, and TUSD has not shown it was prejudiced by any ruling of the trial court. Under the circumstances in this record, we cannot conclude there was a miscarriage of justice.
III
DISPOSITION
The judgment and order are affirmed. Respondent shall recover their costs incurred on appeal.
MOORE, J.
WE CONCUR:
SILLS, P. J.
IKOLA, J.
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[1] CACI No. 405 as requested and refused states: Tustin Unified School District claims that Deena Lujans harm was caused in whole or in part by Deena Lujans own negligence. To succeed on this claim, Tustin Unified School District must prove both of the following: [] 1. That Deena Lujan was negligent; and [] 2. That Deena Lujans negligence was a substantial factor in causing her harm. [] If Tustin Unified School District proves the above, Deena Lujans damages are reduced by your determination of the percentage of Deena Lujans responsibility. I will calculate the actual reduction.
