Opinion
B322707
08-13-2024
QUANTE ADGER, Plaintiff and Appellant, v. LOYOLA MARYMOUNT UNIVERSITY et al., Defendants and Respondents
Quante Adger, in pro per., for Plaintiff and Appellant. Wilson Elser Moskowitz Edelman &Dickerson, David R. Hunt for Defendant and Respondent Loyola Marymount University. Murchison & Cumming, Gina E. Och; Skane Mills, Heather L. Mills for Defendant and Respondent Los Angeles Cable Television Access Corporation.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC638290, Douglas W. Stern, Judge. Affirmed.
Quante Adger, in pro per., for Plaintiff and Appellant.
Wilson Elser Moskowitz Edelman &Dickerson, David R. Hunt for Defendant and Respondent Loyola Marymount University.
Murchison & Cumming, Gina E. Och; Skane Mills, Heather L. Mills for Defendant and Respondent Los Angeles Cable Television Access Corporation.
WILEY, J.
Quante Adger sued Loyola Marymount University and Los Angeles Television Access Corporation (Access) after a portable photography light owned by Access fell on him at a University lecture. Adger asserted two theories of liability against the University and Access: premises liability and negligence.
After a bench trial, the trial court found the University was not liable to Adger under either theory, but ruled Access was negligent and awarded Adger $22,834 in damages. This judgment was less than the settlement offer under Code of Civil Procedure section 998 that the University and Access had previously made to Adger. The court thus amended the judgment to account for the memoranda of costs filed by each party. (All undesignated code citations are to the Code of Civil Procedure.)
The section 998 calculus tipped both judgments against Adger. The University's judgment was $30,319.03 against Adger, while Access's judgment was $61,720.98 against him.
We affirm. Adger's appeal attempts to re-litigate a case the trial court properly resolved.
I
The facts are simple-a light fell on Adger-but the procedural history spans five years. Adger cycled through four lawyers at the trial court and is representing himself on appeal.
Adger was a student at the University from 2013 to 2015. In the spring semester of 2015, Adger enrolled in Dr. Fernando Guerra's course, which included programs presented in the Ahmanson Auditorium on campus. The auditorium seats about 100 people and has a slight slope in the floor towards the stage.
On March 17, 2015, around 5:00 p.m., Guerra scheduled a panel discussion at Ahmanson Auditorium.
The University arranged for Access to record this seminar. Two Access employees, Larry Savala and Aldo Lara, set up the video equipment and lighting. Both were experienced in this work.
Access used a movable production light on a tripod base called a FloLight. It was a rectangular box measuring about 18 inches by 24 inches and containing fluorescent tubes. The FloLight weighed about 12 pounds. Its adjustable height could extend to about six feet.
Lara and Savala arrived at Ahmanson Auditorium at around 4:00 p.m. By around 4:15 p.m., students began arriving to attend the lecture. Before 5:00 p.m., Adger entered the auditorium and seated himself in the third seat from the right aisle, in the third row.
Savala had placed a FloLight in the third row in front of the first seat next to the right aisle. He turned the FloLight on and went for a sandbag to improve its stability.
Before Savala sandbagged the FloLight, it fell and hit Adger. The seminar went forward as scheduled. Adger stayed until the program ended. He drove himself home.
Over the next few months, Adger sought medical care from several different providers for pain he claimed from the incident, incurring over $107,000 in medical charges. The record does not state what, if any, sums Adger paid out of pocket.
Adger saw Dr. Daniel Hyslop, the doctor managing the University's clinic, three times, and obtained a second opinion from Kaiser within weeks of the injury. He also went to a chiropractor and then visited an orthopedic surgeon, Dr. Arthur Kreitenberg, for additional medical assistance. Adger sought a reconstructive surgery evaluation for a burn the FloLight allegedly caused. In January of 2016, Adger obtained pain treatment from Dr. Jayson Hymes, whom he continued to see through July 29, 2021.
On February 8, 2016, Adger received epidural injections from Beverly Hills Regional Surgery Center. He received additional epidural injections on May 9, 2016, and from December 17, 2020 through February 18, 2021.
On October 24, 2016, Adger, through his first attorney, filed suit against the University. He amended his complaint to add Access on February 24, 2017. On that same day, Adger began to seek mental health treatment from psychiatrist Dr. David Rudnick.
Trial was set for April 2019. On March 29, 2019, Adger, through his second attorney, moved ex parte to continue the trial.
The court continued the trial to October 31, 2019. The court stated all discovery and motion cut-off dates would be based on this new trial date.
Adger retained his third attorney.
On October 17, 2019, the trial court vacated the October 31, 2019 trial date and issued an order to show cause because of Adger's failure to comply with the court's standing order, noting that "it does not appear that Plaintiff has done anything necessary to prepare for trial." On October 31, 2019, the trial court continued the trial to December 3, 2019.
The trial court continued the trial several more times: from December 3, 2019 to January 24, 2020; then to April 10, 2020; and then to January 26, 2021. By this time, Adger had replaced his third attorney with his fourth attorney.
On December 31, 2020, Adger moved ex parte to augment his expert witness designation to include Dr. William Brandes, a neurologist. Adger claimed Brandes would testify about the traumatic brain injury Adger suffered from the falling FloLight. The University and Access opposed Adger's motion, noting discovery had closed over a year ago and arguing reopening discovery would cause them prejudice.
On January 6, 2021, the trial court denied Adger's motion.
A few weeks later, the court, on its own motion, continued the trial to October 2021 because of the COVID-19 pandemic. However, the discovery and motion cut-off dates remained tied to the previous trial date of October 31, 2019.
The trial court held a seven-day bench trial beginning on October 18, 2021. On the first day of trial, the court heard and denied Adger's renewed motion to designate Brandes as an expert.
After that, eighteen witnesses testified, including Adger, Savala, Guerra, Carla Carlini (Access's general manager) and four doctors who had provided treatment to Adger (Hyslop, Hymes, Kreitenberg, and Rudnick.) Kreitenberg testified that his office had not yet received any payment from Adger, but that they had a lien against Adger's potential recovery. Hymes testified that he did not know whether Adger had paid him or not, because he does not review patient billing records. Rudnick testified that Adger's former attorney paid his office $3,105, and that $5,785 remained outstanding.
On the fifth day of trial, Nancy Michalski, a registered nurse and experienced medical billing auditor, testified for the defense. Michalski stated that "[t]here's an anomaly in the healthcare industry where providers often charge more than they expect to be paid. So it's not like buying a dozen eggs or a gallon of milk from the grocery store and paying the cashier the sticker price. It's more like buying a car where the sticker price is negotiated. So I'm here to provide the reasonable market value of the health care services given that anomaly." Michalski reviewed Adger's medical records and estimated the reasonable value of Adger's medical services to be $38,676.
The trial court issued a 19-page tentative decision that became its final statement of decision.
On the premises liability claim, the court found neither the University nor Access were liable to Adger, noting that "[t]he premises were safe. Placing a FloLight in the auditorium did not present any meaningful risk. There was nothing in the evidence to suggest that either defendant acted, or failed to act, in a manner that gives rise to liability under the premises liability theory."
On the negligence claim, the trial court found Access negligently set up the FloLight because "lamps such as this type don't just fall over on their own ....[I]t is more likely than not that [Access] erred when it set up the FloLight in the Ahmanson Auditorium on March 17, 2015, and that this error is what led to the lamp falling." The trial court also found the University had no negligence liability because it was uninvolved with the FloLight.
On damages, the trial court found that Adger was "entitled to recover for the bruise to his straight arm and for the damages he suffered as a result of the strain/sprain." The court said these injuries were "relatively minor" and that the vast majority of the medical treatment Adger sought was unrelated to the FloLight injuries. The court rejected Adger's claim that the FloLight caused him to lose work opportunities in acting and music. The court concluded Adger's economic damages "in the way of properly compensable medical expenses total $18,834.00" and that "Adger suffered pain and suffering in the amount of $4,000.00", for a total award of $22,834.00 against Access.
In January 2022, the University filed a memorandum of costs in the amount of $30,319.03 and Access filed a memorandum of costs for $88,814.52.
Adger filed a memorandum of costs in the amount of $4,259.54. Access and the University filed motions to tax Adger's costs.
On March 7, 2022, the trial court entered a minute order denying the motions to tax costs, but finding as follows:
• Adger could not recover his costs from the University;
• Access was entitled to recover costs from Adger as a result of Adger's rejection of its settlement offer under section 998;
• Adger's failure to move to tax either Access's or the University's costs resulted in the University's and Access's entitlement to recover costs from him.
On June 8, 2022, the court entered an amended judgment awarding judgment in the University's favor in the amount of $30,319.03 for its costs, and judgment in favor of Access for $61,720.98 (its costs of suit less the damages the court previously awarded to Adger).
Adger appealed.
II.
We affirm because the trial court did not err. Adger disagrees with the court's factual findings, but substantial evidence supports them all.
Adger disputes the trial court's factual findings, including the length of time the lights had been in place, the weight and height of the light, the slope of the ground, the extent of his injury, the nature of Adger's acting career, and the credibility of one of the University's witnesses. He also attaches evidence outside of the record to his opening brief. Citing section 909, Adger asks us to "make factual determinations contrary to or in addition to those made by the trial court."
Section 909 does authorize the reviewing court to "make factual determinations contrary to or in addition to those made by the trial court." But that "authority should be exercised sparingly.... Absent exceptional circumstances, no such findings should be made....There are no exceptional circumstances in the instant case. The request for findings is denied." (Tyrone v. Kelley (1973) 9 Cal.3d 1, 13.)
Adger has not demonstrated exceptional circumstances. He simply disagrees with the trial court's factual findings.
Adger asks that we reverse the trial court and find the University liable on the theory of premises liability. Adger does not meet his obligation to present argument, legal authority, and record citations showing the trial court erred. (See Lee v. Kim (2019) 41 Cal.App.5th 705, 721.)
Adger cites the California Constitution, as well as the testimony of Guerra and Carlini, to support the general proposition that California students have a right to be safe on school campuses. This general proposition is generally true, but it does not mean universities are strictly liable for every injury on campus.
Adger raises for the first time on appeal an argument that the University had a heightened duty of care to him with respect to both his premises liability and general negligence claims, citing the Restatement of Torts and Regents of the Univ. of Cal. v. Super. Ct. of L.A. County (2018) 4 Cal.5th 607. He believes that this heightened duty makes the University liable to him "as a matter of law." Adger forfeited this argument by failing to present it to the trial court. (E.g., Regency Midland Construction, Inc. v. Legendary Structures, Inc. (2019) 41 Cal.App.5th 994, 999.)
Adger incorrectly argues the trial court's exclusion of Brandes's evidence was a prejudicial error that affected the outcome of the case. Adger submits that Brandes would have substantiated his claim that the FloLight caused a traumatic brain injury.
We review the trial court's decision for abuse of discretion. (Burton v. Sanner (2012) 207 Cal.App.4th 12, 18.)
There was no abuse of discretion. Adger's trial counsel admitted that the discovery cutoff had lapsed in 2019, but argued that the passage of time allowed him to re-start the expert disclosure process. Counsel cited no legal authority for this argument. As the trial court correctly said when it denied Adger's motion:
"On this point, I am not going to allow Dr. Brandes to testify as a retained expert. I believe that the statute set forth the process and the timing, and supplemented by the fact that when you came in to augment, the Court ruled on January 6, 2021, you couldn't do it; and that is, in essence, the final word. [⁋] I don't believe the plaintiff was entitled to simply restart the clock by making a further demand for exchange of experts. You needed something from the court to, in essence, authorize that. I think that the defendants were entitled to rely upon the code, the prior designation, and then particularly, the denial of augmentation of January 6, 2021, and it would be unfair to force them to now have to deal with it, notwithstanding the fact that you did identify him belatedly, but you're not entitled to force them to deal with it when it's so out of compliance."
The trial court's ruling was a proper exercise of discretion.
Adger claims that the trial court's award of damages was erroneous. He asks that we modify the judgment to award him $495,000. Adger cites Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311 in support of his position. Bermudez stated that the amount of damages is a fact question that appellate courts will not disturb if substantial evidence supports it. (Id. at p. 1324.) Substantial evidence supports the trial court's determination. Adger's injuries were minor. Adger claims to have incurred more than $100,000 in medical expenses, but the trial court found little of this treatment related to the actual injuries. We defer to the trial court's statement that "it was [Adger]'s burden to prove that the claimed injuries were present and that they were caused by the March 17, 2015 incident. [Adger] failed to prove that most of the injuries claimed were caused by that event." Substantial evidence supports this ruling. For instance, Adger claimed to receive $52,820 worth of epidural injections. He also said that he was charged $10,015 for MRIs taken from 2015 through 2018.
In essence, the trial court found Adger was exaggerating his plight. We defer to this evaluation.
In his reply brief, Adger argues for the first time that the section 998 offer was invalid. Adger forfeited this argument by failing to raise it when the opposing parties would have had a fair opportunity to respond.
DISPOSITION
We affirm the judgment and award costs to respondents.
We concur: GRIMES, Acting P.J., VIRAMONTES, J.