Opinion
D070188
02-06-2018
SUSAN REESE, Plaintiff and Appellant, v. CHRISTOPHER ARNICAR, Defendant and Respondent.
Simpson Law Group, Sean Simpson and Jayme Simpson for Plaintiff and Appellant. Horton, Oberrecht, Kirkpatrick & Martha and Michael D. Marchesini for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00005206-CU-PO-CTL) APPEAL from a judgment and order of the Superior Court of San Diego County, Kevin A. Enright, Judge. Affirmed. Simpson Law Group, Sean Simpson and Jayme Simpson for Plaintiff and Appellant. Horton, Oberrecht, Kirkpatrick & Martha and Michael D. Marchesini for Defendant and Respondent.
Plaintiff and appellant Susan Reese sued defendant and respondent Christopher Arnicar for personal injuries, after she was hit by a branch of a tree falling from his property. Arnicar cross-complained against a worker on his property that day, Stevin Delao and his sole proprietorship 4S Ranch Handyman, seeking equitable indemnity and other relief. The matter went to jury trial on those two pleadings, while Delao's own cross-complaint raising separate contractual indemnity issues was severed for later trial.
The jury returned a special verdict that found Reese had incurred $96,167 in economic damages and $245,000 in noneconomic damages. On comparative fault issues, the special verdict decided that Arnicar was 75 percent responsible for Reese's harm, while Delao, "as property manager associate for Russ Eskilson Real Estate," was 25 percent responsible for her injuries. The judgment against Arnicar was adjusted accordingly, and he was held liable for a total of $324,154.93.
As a posttrial motion, Reese requested that the court allow her leave to amend her complaint to name Russ Eskilson Real Estate (RERE) as a Doe defendant or, alternatively, enter an order on indemnity or discovery sanctions grounds that would permit her to collect, from Arnicar, an amount equivalent to the 25 percent of her noneconomic damages that Arnicar did not have to pay, because of the jury's comparative fault finding. (E.g., Code Civ. Proc., § 2023.010, subd. (f) ["Making an evasive response to discovery" may constitute a misuse of the discovery process.].) She argued Arnicar had provided incomplete or misleading discovery responses on the topic of potentially responsible or liable parties, when he did not include RERE as one of them.
All statutory references are to this code unless noted.
The trial court denied Reese's motion and she appeals, contending that these posttrial rulings amounted to abuses of discretion in denying her leave to amend or monetary relief. (§§ 474 [Doe amendment procedure]), 576 [amendments to pleadings or pretrial conference orders].). According to Reese, the record does not contain any express order dismissing all Doe defendants pursuant to normal trial readiness procedures, but even if it did, the trial court should have granted relief from it. She reasons that RERE, a property management business with which Arnicar and Delao had contractual relations, had agreed to an indemnity clause in its contract with Arnicar. Since Arnicar's discovery responses had failed to attribute potential responsibility to that party, she argues she was thereby prevented from properly preparing for trial by naming RERE as a Doe defendant, which caused her prejudice.
Although Reese's appeal focuses on the posttrial denial of her formal motion for leave to amend and for discovery sanctions, those discretionary rulings must be evaluated in light of the entire sequence of events during trial that led up to them. (§ 576 [amendments may be allowed "in the furtherance of justice, and upon such terms as may be proper"].) Under the applicable abuse of discretion standard, we conclude the trial court was justified in denying the posttrial motion requests, which were procedurally infirm and substantively unwarranted. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Pretrial Proceedings
Reese's complaint was filed February 28, 2014, alleging premises liability and negligence claims against Arnicar alone. The accident occurred after a storm brought down part of a tree on his property, and five people who knew each other were at the premises at different times, deciding what to do about the tree. These included the three individual parties, and two witnesses, one a former plaintiff who had settled his case (Joseph Battaglia), and another witness (David Don). As explained in the joint trial readiness conference report, Delao, who had his own business 4S Ranch Handyman, was removing another portion of the tree when Reese was injured.
Once Arnicar filed his cross-complaint against Delao and his sole proprietorship 4S Ranch Handyman, Delao started representing himself in propria persona. Reese and Arnicar designated property management expert witnesses. A case management conference was held August 22, 2014, and the court indicated that any remaining Doe defendants would be dismissed at the trial readiness conference set for March 6, 2015. The minute order from the readiness conference attaches the advance trial review order, which does not specify that Doe defendants were dismissed. However, at a trial call hearing on April 17, 2015, and later on April 22, 2015, the court indicated its belief that the Doe defendants had already been dismissed. Again on April 23, 2015, the trial court referred to previous orders in which the Doe defendants were presumably dismissed.
In preparation for trial, the parties took Delao's deposition on December 10, 2014. Delao testified that he had his own business license and that he hung it at the RERE place of business, and they had drafted a contract together for him to do property management for Arnicar. RERE was operated by Russ Eskilson, a broker, and Delao worked under him when carrying out such property management functions for Arnicar. At his deposition, Delao brought along a copy of the "Property Management Agreement" (the agreement) between Arnicar and RERE, and it was attached to his deposition as an exhibit, and later admitted into evidence at trial (trial exhibit 11). This agreement had an indemnity clause under which Arnicar agreed to indemnify RERE and its employees for expenses and liabilities and claims arising out of injury, related to property management. Delao and 4S Ranch Handyman were mentioned in the agreement as parties that could receive compensation.
It was not until the trial call hearing on April 17, 2015 that Delao requested leave to file his own cross-complaint for contractual indemnity against Arnicar. At that time, Arnicar opposed the request, but Reese did not. Reese's counsel did not think it would really involve her in any way. Although the trial court allowed Delao's cross-complaint to be filed, those contractual indemnity issues were severed from the upcoming trial on the complaint and Arnicar's cross-complaint (equitable indemnity).
B. Proceedings During Trial on Identity of Parties
Jury selection began on April 21, 2015 and motions in limine were litigated on other topics. During those efforts, Reese told the court that she wanted to file a Doe amendment to identify Delao as a defendant. However, as to RERE, her request was initially limited, because although she thought RERE might be a proper defendant, "nobody's named him and I don't suggest it because I think that would potentially cause prejudice and I don't want to delay this trial, but I don't think discovery or anything would have changed with us having named Stevin Delao."
Although the opening brief suggests that Reese filed a written motion to amend during trial, the citation she makes is to her posttrial motion. The initial amendment requests during trial were orally argued.
Counsel for Arnicar objected that Reese had not previously mentioned filing any such proposed Doe amendment, and her attorney said, "I just realized it this weekend when I read the depositions." Over the past few weeks, Reese's attorney had been reviewing the evidence, including the deposition of the defense expert on property management, and possibly also Delao's deposition. He said Arnicar's "evidence in the last four to six weeks is all pointed at Stevin Delao as a manager for Russ Eskilson." He explained that the agreement between Arnicar and RERE clearly seemed to provide for Arnicar to indemnify Delao, so it was only a formality whether Reese should be suing Delao, although the court would have to address the issue eventually.
On the second day of trial, Reese's attorney said he had just obtained a copy of a prelitigation letter dated September 16, 2013, from Arnicar's insurer Capital Insurance Group (CIG) to Russ Eskilson and to Delao, when Russ Eskilson faxed it to him. Reese contended this letter conclusively showed that Arnicar, through his insurer, knew that RERE, Russ Eskilson, Delao and 4S Ranch Handyman were all going to be pursued in some way to pay for Reese's claimed injuries, but Arnicar kept that information concealed. The court and counsel continued to discuss the issues of whether RERE had to be served as a party, in terms of the proposed Doe amendment and the format of the special verdict, as well as the recent filing and severance of Delao's own cross-complaint. Reese again explained that deposition testimony from Arnicar had been unclear about the role that Delao played in maintaining the property, but recently, at the deposition of the defense property management expert, Reese learned that the expert's view was that the only role Delao could have been fulfilling in working on the tree was pursuant to the RERE maintenance agreement. Reese started blaming the defense for blowing the whole trial apart or sandbagging, due to their previous discovery responses that had not identified RERE as a potentially responsible party.
Reese nevertheless argued that it was not necessary to name RERE as a party, because the verdict form could simply name Delao as an individual and as a property manager, and then the court could later rule as a matter of law that the RERE indemnity agreement applied. The defense objected that the request to bring in a new party at the outset of trial was untimely and prejudicial, and the court put the issue off while hearing jury voir dire.
The court next approached the matter by asking Reese what the proposed remedy should be, in terms of adjusting the format of the special verdict or continuing the trial to bring in RERE as a new party. Reese's counsel did not want to have the trial continued, and acknowledged that case law would permit the special verdict form to include nonparties who were at fault, and the court agreed. Reese continued to argue that she should be allowed to name additional defendants, including Delao and 4S Ranch Handyman as responsible individuals. She also requested that the court reinstate the dismissed Doe defendants and thus allow the property management company RERE to be named as a defendant, with any legal issues about indemnity to be resolved later. She claimed that the defense was hiding the ball during its previous discovery responses and was now unfairly springing new issues on plaintiff. Arnicar's attorney responded that he was not required to share information about trial strategy. The court said the RERE matter would be further addressed after the jury heard the opening statements and the beginning of testimony.
The jury was sworn in, opening statements were made and pre-instructions given. In Delao's opening statement on his own behalf, he explained to the jury, "the evidence will show that Mr. Arnicar entered into a property management agreement with [RERE]," and at the time of the incident, "I was the property manager for Mr. Arnicar as an agent for [RERE], and I also owned and operate a small business and I still own and operate a small business called 4S Ranch Handyman, I do small jobs." Delao immediately began to testify as part of Reese's case. Reese obtained testimony from Delao that clarified that Delao basically had two hats or capacities when helping Arnicar at his property, one for 4S Ranch Handyman, and one in his position as an agent for RERE.
Outside the presence of the jury, Reese continued to contend that Arnicar's earlier discovery answers had failed to point to RERE as a potentially responsible party, even though he already knew about the CIG letter. Arnicar again responded that he did not have to do Reese's attorney's job for him. The court inquired what Reese's own property management expert had said on the issue, and Reese explained he had focused solely on Arnicar's role. At that point, Arnicar was seeking equitable indemnity from Delao and his business, but any contractual indemnity issues were apparently being deferred, until Delao filed his own cross-complaint and it was severed for later trial. The court then brought in the jury to hear more of Delao's testimony.
Returning to Reese's amendment request, the court acknowledged that there were overlapping issues between that request to make a Doe amendment, and the problem of what the special verdict form would say about which parties could be held liable. Since it appeared that the Doe defendants had been routinely dismissed at the trial readiness conference on March 6, 2015, the court questioned whether it retained jurisdiction to reinstate them, and asked the clerk to check on the order. The court asked why Reese had not brought such a motion after taking the depositions of Arnicar or his property management expert, or as a law and motion matter, or at trial call. Both sides had an opportunity to explore Delao's functions at the property. The court planned to have the parties talk more about the issue, since "it will come up in the special verdict form."
After further considering the request to file a Doe amendment, the court outlined several reasons for denying leave to amend. If the request was actually to add RERE as a defendant, as opposed to Delao, the trial date would have to be continued. As to either request, the court said Reese's counsel must have known there were issues concerning property management during the deposition phase and at trial call. However, impeachment would still be available when examining witnesses, including Arnicar, about the completeness of their responses to discovery. The amendment request was deemed untimely. The court said Reese would be allowed to submit further briefing on the overlapping special verdict issues, when they arose.
Throughout trial, the parties and the court discussed how Delao had not only been acting as an individual when performing his work at the property that day, but was also wearing different hats for his own business and for RERE. During Arnicar's trial testimony, he said he had signed a contract with Delao to be his property manager. He agreed that he was aware at the time that Delao would have different capacities or hats while acting as a property manager.
After extensive testimony from numerous witnesses about liability and damages issues, the defense submitted a special verdict form and the parties again discussed the various capacities that Delao had been serving in at the time of the accident. Ultimately, the trial court told the parties to meet and confer and prepare a special verdict form on which they could agree. The version of the special verdict form that the jury received required it to decide the percentage of responsibility for Reese's harm among the different participants, including Delao (a) as an individual, (b) as having a business called 4S Ranch Handyman, and (c) "as property manager associate" for RERE. It also requested the jury to decide whether David Don had been negligent at the time of the accident.
In closing argument, Reese's counsel argued that four of the friends who had been at the accident site testified consistently about what happened (Reese, Battaglia, Delao, and Don.) However, he contended the fifth one, Arnicar, had not given consistent testimony and his credibility was suspect. In response, Arnicar's attorney told the jury to focus on the decisions that were made about the tree damage that day, which had not resulted in hiring a professional arborist as Arnicar wanted to do. The way the work was done had led to another branch falling down, and he blamed Delao, Don, and Reese for the harm that Reese had suffered.
Pursuant to CACI No. 406, the jury was instructed on how to apportion responsibility among the various individuals named in the special verdict form, including not only the parties but also Delao as a property manager associate for RERE, and Don. Following their deliberations, the jury returned a verdict dated May 6, 2015, finding that Arnicar was 75 percent responsible for Reese's harm and that Delao "as property manager associate for Russ Eskilson Real Estate" was 25 percent responsible for the harm.
C. Posttrial Motion
After the special verdict was returned, Reese submitted her motion for leave to amend the complaint to add RERE as a Doe defendant.!CT 354-370)! She asserted that because the facts would remain essentially the same as at trial, Arnicar would not be prejudiced by such an amendment. She therefore claimed that the identity of RERE "was not made known to Plaintiff until the eve of trial" and she was "genuinely ignorant" of its "capacity and involvement in this matter."
Additionally, Reese requested declaratory relief that would equitably enforce the indemnity clause in the agreement between Arnicar and RERE. She claimed entitlement to discovery sanctions against Arnicar, for his incomplete responses, in the amount of the missing 25 percent of the verdict on noneconomic damages.
At the hearing, Reese's counsel notified the court and counsel that she had a new case authority to present, Gilmore v. Lick Fish & Poultry, Inc. (1968) 265 Cal.App.2d 106 (Gilmore) [interpreting § 576, amendment of pretrial conference orders, in context of Doe dismissals].) She explained to the court that she had sued Arnicar alone, because Arnicar gave verified responses in discovery leading her to believe that he did not consider RERE or Delao as a property management agent at fault. Counsel said the September 2013 CIG letter to Russ Eskilson and Delao showed that Arnicar already knew, before answering her interrogatories, that RERE and Delao should be held liable for their property management. Counsel explained his view that generally, a plaintiff's attorney will rely on the defendant's sworn estimate of who else should be responsible, because plaintiffs do not wish to be perceived as taking a shotgun or overbroad approach to the litigation. He also said plaintiffs' attorneys generally avoid incurring unnecessary costs in pursuing a defendant known to have empty pockets, such as Delao's own business.
In response, Arnicar objected to the admissibility of the September 2013 CIG letter, arguing Reese's arguments about it were all speculative because it was not possible to tell what the letter meant, without invading his attorney-client privilege. Arnicar's counsel denied any impropriety in discovery and said it was not his job to tell Reese whom to sue.
The court issued an order denying the motion to amend. The ruling explained that the motion was untimely in light of the effective dismissal of all Doe defendants at the trial readiness conference held March 6, 2015, since "there is no indication that the parties or the court did not intend to dismiss the DOE Defendants." The court questioned whether it had the jurisdiction to restore those dismissed parties to the action, and found the authorities relied on by Reese were distinguishable.
Next, the court determined that the proposed Doe amendment was time-barred. (§ 335.1 [two-year statute of limitations].) To the extent that Reese was relying on the September 16, 2013 CIG letter to Russ Eskilson and Delao, the court sustained Arnicar's evidentiary objections to the letter (hearsay and lack of foundation).
On the portion of Reese's motion characterized as a "Petition for Declaratory Relief" about the RERE-Arnicar agreement, the court found the request to be "procedurally improper in that Plaintiff has not filed a claim for declaratory relief in this action." As a nonparty to that agreement, Reese did not have standing to petition the court for declaratory relief under it. She has not argued those points on appeal. However, she challenges the court's evidentiary ruling that sustained Arnicar's objections to the September 2013 CIG letter, and says the court considered its contents despite the objections.
Finally, with respect to Reese's alternative discovery sanctions request, in the amount of the verdict attributable to Delao as property manager associate for RERE, the court determined that the record showed the role of RERE was revealed during discovery prior to trial. To award monetary sanctions against Arnicar "would be draconian."
Judgment was entered against Arnicar for the total amount of $324,154.93. The economic damage award was $96,167 (100 percent assessed to Arnicar). The noneconomic damage award (75 percent assessed to Arnicar) amounted to $183,750. Costs and prejudgment interest were included in the judgment. Reese appeals both the judgment and the postjudgment order denying her motion to amend to conform to proof at trial.
DISCUSSION
I
DENIAL OF LEAVE TO AMEND
A. Applicable Standards
This case has a fairly complex factual, legal and procedural context, and on appeal, our analysis must accommodate the interplay of several different standards of review. Under section 576, a trial court has the discretion to allow amendment of a pleading or a pretrial conference order even after the commencement of trial, "in the furtherance of justice, and upon such terms as may be proper. . . . The same rules on amendments of pleadings apply to amendments of pretrial conference orders and the inquiry is whether the trial court abused its discretion in ruling on the amendment." (Godfrey v. Steinpress (1982) 128 Cal.App.3d 154, 170.) Where proper notice of a proposed amendment has been afforded, "the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: 'including the conduct of the moving party and the belated presentation of the amendment.' " (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613; italics omitted.)
A trial court is afforded substantial latitude when exercising judicial discretion, but " '[t]he scope of discretion always resides in the particular law being applied, i.e., in the "legal principles governing the subject of [the] action . . . ." ' " (Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 119, quoting City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) Here, the law being applied includes the trial court's application of the Doe amendment provisions, and its statutory interpretation and legal conclusions are reviewed on a de novo basis. (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1169.) "To the extent that the trial court made factual findings, we review them to determine if they are supported by substantial evidence." (Ibid.)
Reese's posttrial motion sought to have the trial court exercise its discretion to allow an amendment to the pleadings to conform to the proof that was presented by Arnicar, concerning the roles of RERE and Delao in allowing the injury to occur. The trial court had required the parties to meet and confer on the format of the special verdict, which was accordingly prepared as listing not only the parties but also Delao as a property management associate for RERE, and Don, as among the potentially responsible parties.
"Section 469 specifically governs motions to amend at trial to conform to proof . . . . [A]mendments at trial to conform to proof, 'if not prejudicial, are favored since their purpose is to do justice and avoid further useless litigation.' " (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909.) "[T]he allowance of amendments to conform to the proof rests largely in the discretion of the trial court and its determination will not be disturbed on appeal unless it clearly appears that such discretion has been abused. [Citations.] Such amendments have been allowed with great liberality 'and no abuse of discretion is shown unless by permitting the amendment new and substantially different issues are introduced in the case or the rights of the adverse party prejudiced.' " (Trafton v. Youngblood (1968) 69 Cal.2d 17, 31; italics omitted.) Unwarranted delay or a lack of diligence in seeking leave to amend may be considered by the court when ruling on such a motion for leave to amend. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280.)
Pursuant to section 624, the jury was requested to make findings of ultimate facts in its special verdict, as distinct from evidentiary fact findings. (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 346, p. 404.) It was left to the trial court to draw the resulting conclusions of law in issuing the judgment. (Id. at § 342, p. 398.) While trial is in session, counsel is normally held responsible for requesting any necessary corrections or clarifications in the form of the verdict, if objections have arisen. (Id. at § 376, p. 438.) "Failure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected." (Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 522.) Appellate issues about a special verdict can nevertheless be raised without prior objections, such as when the verdict itself is inconsistent or ambiguous and cannot be construed in such a manner as to uphold it. (Id. at p. 521, fn. 11; Woodcock v. Fontana Scaffolding & Equipment Co. (1968) 69 Cal.2d 452, 457.)
B. Scope of Issues Presented; Pretrial Dismissal of Doe Defendants
Section 474 provides in part: "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint . . . , and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly . . . ." The statute's purpose is to enable a plaintiff to avoid the bar of the statute of limitations when he or she is ignorant of the defendant's identity. (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 602; Davis v. Marin (2000) 80 Cal.App.4th 380, 386.)
"Naming a defendant by a fictitious name makes the defendant a party, but he or she will be bound by the judgment only if jurisdiction over his or her person is obtained. Normally jurisdiction will be obtained by service of process on the person intended by the fictitious designation, and the process, in conformity with the complaint, will carry the fictitious name." (4 Witkin, Cal. Procedure, supra, Pleading, § 488, p. 625; italics omitted.) --------
Admittedly, this record is unclear on whether the trial readiness conference actually resulted in a formal dismissal of all fictitious defendants. The parties were told at the earlier case management conference that this standard practice would be followed at the trial readiness stage. The trial management order does not include such a paragraph, but it is inferable that the parties expected it to occur, in the usual course of events. The trial court thought it had occurred, but asked the clerk to check on the order. The record does not reveal the result. We need not dwell on this problem, because it is not disputed that the trial court could have amended the Doe dismissal order under proper circumstances, pursuant to section 576. The actual issue on appeal is whether the trial court abused its discretion in finding Reese failed to make a sufficient showing of her reasons for adding RERE as a new defendant, at the posttrial stage.
When a new defendant is identified as a fictitious Doe defendant already named in the original complaint, the amendment may be deemed timely. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176 (Woo).) Specifically, if a cause of action could be stated in the original complaint against the newly identified defendant, and if the requirements of section 474 are satisfied, "the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed." (Woo, supra, at p. 176.) This "relation-back" aspect of section 474 requires that the plaintiff be "genuinely ignorant" of the defendant's identity at the time he or she filed the original complaint. (Woo, supra, at p 177.) "The omission of the defendant's identity in the original complaint must be real and not merely a subterfuge for avoiding the requirements of section 474. [Citation.] . . . [I]f the identity ignorance requirement of section 474 is not met, a new defendant may not be added after the statute of limitations has expired even if the new defendant cannot establish prejudice resulting from the delay. [Citation.] However, if the plaintiff is actually ignorant of the defendant's identity, the section 474 relation-back doctrine applies even if that ignorance is the result of the plaintiff's negligence." (Woo, supra, at p. 177.)
In examining the challenged ruling as a whole, we decline to base our decision on limitations grounds, although that was part of the trial court's reasoning. (§ 335.1.) We find it more appropriate to assume, for purposes of discussion, that the relation-back doctrine may apply, as an exception to general limitations rules. We turn to the question of whether the trial court had an adequate basis to conclude that Reese failed to satisfy the requirements of section 474, in light of the discretion afforded to it under section 576.
C. Comparative Fault Context; Cognizable Appellate Issues
The question of whether Reese should have been allowed to identify RERE as a Doe defendant arose in the context of the evidence to be presented at trial about comparative fault, as raised in Arnicar's cross-complaint. It should be noted that neither appellant nor respondent has raised any dispute about the presence of nonparties in the special verdict form prepared, and no error is apparent on the record in allowing the jury to make a determination of that nature. Apportionment of noneconomic damages is a form of equitable indemnity in which a defendant may reduce its obligation to pay damages, by establishing others are also at fault for the plaintiff's injuries. Accordingly, the burden is on the defendant to prove fault as to those nonparty tortfeasors. (Wilson v. Ritto (2003) 105 Cal.App.4th 361, 369.) It is not necessary that all persons at fault be named as parties to a personal injury action. (Scott v. C.R. Bard, Inc. (2014) 231 Cal.App.4th 763, 785.) "Rather, a defendant may attempt to reduce its share of liability for noneconomic damages by seeking to add nonparty joint tortfeasors. Nevertheless, there must be substantial evidence that a nonparty is at fault before damages can be apportioned to that nonparty." (Ibid.)
The special verdict language was treated throughout trial as closely related to Reese's requests to identify Delao and/or RERE as Doe defendants. Reese has not directly challenged the rulings during trial that denied her the requested amendment. Nor has she clearly challenged the format of the special verdict, which was established after a meeting and conferring procedure toward the end of trial. She nevertheless strongly contends that early in trial, she raised an objection to the form of the special verdict that was sufficient to preserve all her arguments on appeal. She relies on the following precise language from the trial transcript, as identified at oral argument on this appeal: "But Stevin Delao, if they call him a property manager, he needs to be a party. And the Doe amendments were dismissed at the TRC a month ago, and this court has discretion to reinstate as an alternative to nonsuit the case. They can't play hide the ball and spring it on us a year later and say a-ha, I gotcha. That's not how it works."
We are unable to accept Reese's attorney's argument on appeal that in view of this reported objection, she may now be allowed to challenge the format of the special verdict with respect to identifying Delao as an agent for RERE. The trial court repeatedly addressed the issues presented to it, concerning the proposed Doe amendment and the special verdict language, and it ultimately and definitively made the effective determination that Reese had failed to show the necessary diligence to take advantage of that Doe defendant procedure. Further, she could not show her inactivity in naming additional defendants was attributable to the discovery responses she received rather than some kind of strategic decision on how to prepare for trial.
To the extent Reese now is indirectly attacking the special verdict to which she essentially stipulated, we decline to decide this case on the basis of such an unbriefed issue. (Gov. Code, § 68081 [precluding an appellate court from deciding an appeal based upon new issue unless an opportunity for supplemental briefing is afforded]; see People v. Neilson (2007) 154 Cal.App.4th 1529, 1532-1534 [statutory purpose is to prevent decisions based on issues never addressed by the parties].) This case must be decided in light of the applicable authorities on the issues properly preserved for appeal, which are the denial of the posttrial amendment motion and the discovery sanctions request. (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686 [even where trial attorney's strategic choices may go awry, "appellate courts generally are unwilling to second guess the tactical choices made by counsel during trial. Thus where a deliberate trial strategy results in an outcome disappointing to the advocate, the lawyer may not use that tactical decision as the basis to claim prejudicial error."].)
D. Analysis
The procedural context for the consideration of the posttrial motion to amend included Delao's requesting and receiving permission, at trial call, to file his own cross-complaint for indemnity against Arnicar, and the court's decision to sever those contractual indemnity issues from the current trial. Reese's counsel said at the time that it should not involve her in any way. A few days later, when trial began, Reese started to ask the court for leave to file a Doe amendment to bring in Delao as a defendant, although she admitted it would delay trial to add RERE, and at the time, she did not want that to happen. The jury had already been convened and the court was concerned about keeping them waiting, and it eventually denied the repeated amendment requests.
In hindsight, Reese now claims that when, at the outset of trial, she received from Russ Eskilson a copy of the September 2013 CIG letter, it was the equivalent of finding Arnicar's "smoking gun" that showed he should have notified her in discovery responses that he already suspected RERE might be a responsible party. Arnicar had only named Delao and his handyman business as cross-defendants, and Reese contends that he intentionally concealed RERE as a potential party, as part of a trial strategy to bring in RERE later. The record does not bear out this contention that Arnicar had exclusive knowledge that was concealed from or could have misled Reese.
First, in the case on which Reese largely relies, Gilmore, supra 265 Cal.App.2d 106, the court observed that "it is a plaintiff's, rather than a defendant's, privilege to designate whom he intends to sue . . . [in the related context of notice requirements at pretrial conferences]." (Id. at p. 112.) By the same token, Reese was equally, with Arnicar, in possession of knowledge as of the time that Delao was deposed, that Delao admitted to being affiliated with RERE, while he was carrying on property management duties on behalf of Arnicar, that led to the injuries to Reese.
In Gilmore, supra, 265 Cal.App.2d 106, 110-114, the appellate court found the trial court erred in failing to amend a pretrial conference order "in the furtherance of justice," pursuant to section 576. The issues there arose because the plaintiff's Does I and II had been dismissed before trial began, but at that time, plaintiff's counsel admitted he might have named the wrong employer-defendant in the complaint and he reserved the right to conduct discovery on that question. On appeal, it was held proper to order amendment of the previous dismissal order and thus to reinstate those Does, because of the showing made of excusable "oversight of the attorneys and the apparent inadvertence of the pretrial judge." (Gilmore, supra, at p. 111.) The rights of both sets of parties were properly considered in that discretionary decision. (Compare People v. Williams (1998) 17 Cal.4th 148, 159 [in criminal law context, statutory term "in furtherance of justice," requires consideration of both the rights of defendants and the interests of society as represented by the People].)
Reese's claim required litigation of facts and relationships that she knew were in dispute well before the start of trial. She admitted as much when initially seeking to add Delao as a Doe defendant, but not RERE. She knew that Delao had a relationship with RERE, which was confirmed at deposition and at trial call, when his own cross-complaint was filed. The parties understood it was severed from the main action because it raised contractual indemnity issues that would require further litigation. Regardless of the trial court's evidentiary ruling about the admissibility of the September 2013 CIG letter offered in support of Reese's motion, the court could reasonably have concluded from her arguments about the letter that it essentially confirmed knowledge that Reese's attorney already had, rather than amounting to new or concealed information.
As an explanation for suing Arnicar alone, Reese's counsel told the court in the posttrial motion proceedings that a successful plaintiff's strategy usually involved keeping a narrow focus on a few defendants, and avoiding a shotgun approach against many. He said a plaintiff's attorney acting on a contingency fee agreement has to keep costs down, and suing many defendants, or ones lacking resources, is not consistent with that type of practice. Those strategic considerations were not attributable to any acts of the defendant, Arnicar. Reese did not make any showing of excusable "oversight of the attorneys and the apparent inadvertence of the pretrial judge." (Gilmore, supra, 265 Cal.App.2d 106, 111.)
"Once suit has been filed, unreasonable delay in filing an amended pleading after discovering a Doe defendant's identity may bar a plaintiff from using the fictitious name device. To preclude relation back on this basis, however, the opposing party must show the plaintiff was dilatory and that the defendant was prejudiced by the delay." (Winding Creek v. McGlashan (1996) 44 Cal.App.4th 933, 942.) In this context, the trial court had to make a discretionary call on whether to allow Reese to amend her pleading to conform to the proof presented about the respective roles of the parties in causing the accident. The same basic cast of characters and liability issues had been known since the injury or at least the time that Delao gave his deposition. (See Trafton v. Youngblood, supra, 69 Cal.2d 17, 31.) However, Reese did not start to pursue the issue until after the trial call hearing and in the midst of jury selection, which were decisions apparently attributable to a desire to keep the case relatively simple. The same decisions could also be characterized as showing an unwarranted delay or lack of diligence in investigating the matter and reserving the right to decide whom to pursue as defendants. (Gilmore, supra, 265 Cal.App.2d at pp. 111-112; Falcon v. Long Beach Genetics, Inc., supra, 224 Cal.App.4th 1263, 1280.) Under the test for identifying a previously named Doe defendant, Reese had to show that she was "genuinely ignorant" of the defendant's identity at the time of filing the complaint. (Woo, supra, 75 Cal.App.4th at p. 177.) She could not do so and also could not show how the interests of justice required that the discretion afforded by section 576 be exercised in her favor.
We take this opportunity to express our dismay at the tone of Reese's briefs on appeal, which include ad hominem attacks on opposing counsel and comments questioning the perspicacity of the trial court. On this record, Reese cannot carry her burden of demonstrating that she incurred any prejudice that was attributable to the acts of the adverse party. Nor can she show that the trial court in any way failed to consider her arguments to make a measured and fair disposition of them. Instead, it is clear from the full procedural context from the outset of trial that the court was justified in finding that she had acted in a dilatory manner in bringing her amendment request, despite her possession of the facts necessary to make an informed decision on identifying Doe defendants, as early as the September 2014 deposition of Delao. We cannot conclude the court's decision to deny her posttrial request to amend the pleading, to add RERE as a defendant, was an abuse of discretion.
II
DENIAL OF DISCOVERY SANCTIONS
Reese next argues the trial court abused its discretion by denying an award of monetary sanctions against Arnicar for discovery abuse, or as the imposition of an equivalent, equitable adjustment of the liability determination. "Discovery sanctions are intended to remedy discovery abuse, not to punish the offending party. Accordingly, sanctions should be tailored to serve that remedial purpose, should not put the moving party in a better position than he would otherwise have been had he obtained the requested discovery, and should be proportionate to the offending party's misconduct." (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.)
Rulings on discovery sanctions are reviewed under an abuse of discretion standard, resolving all evidentiary conflicts most favorably to the trial court's ruling. (Williams v. Russ, supra, 167 Cal.App.4th at p. 1224.) "We will reverse only if the trial court's order was arbitrary, capricious, or whimsical. It is appellant's burden to affirmatively demonstrate error and where the evidence is in conflict, we will affirm the trial court's findings. [Citation.] We presume the trial court's order was correct and indulge all presumptions and intendments in its favor on matters as to which it is silent." (Ibid.)
Reese contends that the special verdict format impermissibly allowed a portion of her noneconomic damages recovery to become ineligible for collection from the true defendant, Arnicar. In her view, he should have remained responsible for the entire amount. This argument disregards her agreement to the format of the special verdict. It is premised on her claim that she can demonstrate he had wrongfully withheld facts in discovery that were unavailable to her, but we have rejected that claim above, along with any contention that she was entitled to disclosure of his litigation strategies. We need not address her related indemnification alternative based on declaratory relief, since those issues have been forfeited on appeal. (See fn. 3, ante.)
On the record before us, we are satisfied that the trial court's denial of Reese's entire postjudgment motion was not arbitrary, capricious, or whimsical. It represented a proper analysis of the record and the applicable law.
DISPOSITION
The judgment and order are affirmed. Costs on appeal to Arnicar.
HUFFMAN, Acting P. J. WE CONCUR: IRION, J. DATO, J.