Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC372162 Joanne B. O’Donnell, Judge.
Alison Minet Adams for Plaintiff and Appellant.
Wood, Smith, Henning & Berman, Daniel A. Berman, Stacy L. Douglas and Nicholas M. Gedo for Defendants and Respondents.
ASHMANN-GERST, J.
Plaintiff and appellant Michael Anvar (Anvar) appeals from the judgment entered against him and in favor of defendants and respondents Element L.A., LLC (Element), and the Paja Group, following a jury trial on Anvar’s complaint for personal injury arising out of an accident that occurred at respondents’ nightclub. He contends: (1) Reversal is required because the trial court denied some of his challenges for cause to certain potential jurors. (2) Substantial evidence does not support the jury verdict. (3) The trial court erroneously gave the jury CACI No. 1004 (Obviously Unsafe Conditions). (4) The trial court abused its discretion in denying his motion for a new trial.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Incident
This litigation arises out of an August 27, 2006, incident that occurred in a nightclub owned by respondents. Anvar stood on a couch, fell off of it, and went through an opening in a wall and into a sound booth. The parties dispute how Anvar fell. Anvar allegedly suffered substantial back injuries as a result of the fall.
Anvar Initiates this Action
On June 4, 2007, Anvar filed a complaint alleging negligence against respondents. Respondents answered. Following jury selection, the matter proceeded to trial.
Facts regarding jury selection are discussed below.
Trial Evidence Regarding the Location of the Incident
James Sinclair (Sinclair), one of respondents’ principals, testified that the opening was not covered with a black curtain or sheet on a regular night when the club was open to the public. The club only covered it on rare occasions when the stage was not open to the public or when respondents were displaying video footage against the club’s back wall, such as during movie premieres. No one else had ever fallen through the opening.
Former employee Brenda Lee (Lee) claimed that the opening was covered with a curtain on the night when the subject accident occurred.
Anvar testified that he had never seen the opening before his accident. But, he also testified that he had been to the club about 15 to 20 times before the date of his accident. Sinclair confirmed that Anvar, who was an investor in the club’s parent company, had been to the club during nonoperating hours on a number of occasions.
Remodel of the Club and Club Policies
Sinclair testified that as part of a major remodel of the club, respondents had retained a company to install a state of the art lighting system to eliminate “dead areas,” namely dark corners or nooks in the club.
After the club’s remodel, respondents bought expensive leather couches for the club. It tried to institute a policy of preventing people from standing on the furniture. At first, respondents only tried to require women to remove their high heels before standing on the furniture, but their security manager later recommended that no one be allowed to stand on the furniture at all. Unfortunately, the policy proved difficult to enforce and was not altogether successful.
Anvar’s Status as an Investor
During trial, Anvar admitted that he was a 1 percent investor in the Paja Group, the parent company of Element. He also stated that before his accident, he had threatened to sue the Paja Group regarding various disputes over his investment. He claimed, however, that his prior disputes with the Paja Group had nothing to do with the instant lawsuit.
Anvar’s Conflicting Testimony Regarding His Fall
On the night of Anvar’s accident, Anvar testified that he and a friend, Scott Rappaport (Rappaport), went to the club. He saw a group of friends on the stage area and went up to see them. As Rappaport left the stage area, Anvar stepped backwards up onto a couch to look for him. What happened next is unclear. At trial, Anvar testified that “I was just standing and leaned back just slowly, and the next thing—it was pretty quick. The next thing I knew, I was in mid-air.” He sensed that the couch was backed up against the wall behind it and it was sturdy; he would not have leaned back if he knew there was a hole in the wall. He took responsibility for what happened, although he believed that respondents also bore some of the fault.
While Anvar testified at trial that he did not believe that he had stepped onto the backrest portion of the couch, his deposition testimony was different. At his deposition, Anvar admitted that he eventually did get up onto “the top part” of the couch. When impeached with his conflicting testimony, Anvar attempted to explain the differences in his testimony.
Anvar’s deposition and trial testimonies also differed from one of his verified interrogatory responses. There he stated that he fell because he was jostled by another club patron. At trial, Anvar claimed that he did not recall being jostled.
Anvar’s Expert Testimony
During trial, Anvar called Dr. Mark Sanders, a human factors expert, to testify. Based upon photographic evidence of the club, he opined that the opening was a dangerous condition when the stage was in use and people congregated on it. The factors that made the condition dangerous included the position of the couch in front of the opening, the opening not being conspicuous, the relatively dark and distracting strobe/colored lighting in the club, the presence of other people, and the loud music. Dr. Sanders also testified that he believed that Anvar was standing on the seat cushion when he fell, not on the backrest. Finally, Dr. Sanders testified that respondents should have foreseen that customers would stand on the couch and fall. He also admitted, however, that it was foreseeable to Anvar that he could fall from the couch if he stood on it.
Judgment and Appeal
After a multi-day jury trial, the jury returned a verdict for respondents. Anvar’s motion for new trial was denied. Judgment was entered, and this timely appeal ensued.
DISCUSSION
I. Jury Selection
Anvar first argues that the judgment should be reversed because he was denied a right to trial by jury when the trial court improperly denied his challenges for cause.
A. Applicable Law and Standard of Review
“A juror is disqualified and thus subject to challenge for cause (Code Civ. Proc., § 227, subd. (c)) on the basis of ‘[a]ctual bias—the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party.’ (Code Civ. Proc., § 225, subd. (b)(1)(C).)” (People v. Holt (1997) 15 Cal.4th 619, 655.) But, “‘[j]urors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses; it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a weakness, however, must be tolerated. “[I]t is an impossible standard to require... [the jury] to be a laboratory, completely sterilized and freed from any external factors.” [Citation.]’” (People v. Danks (2004) 32 Cal.4th 269, 302–303.)
A seated juror should not be excused unless his or her inability to perform a juror’s functions has been shown by the record to be a “‘demonstrable reality.’” (People v. Holt, supra, 15 Cal.4th at p. 659.) In other words, a challenge for cause should be granted only where a prospective juror’s views are so inflexible that they would “‘prevent or substantially impair the performance of his [or her] duties as a juror in accordance with his [or her] instructions and his [or her] oath.’” (People v. Waidla (2000) 22 Cal.4th 690, 715.)
The trial court’s assessment of a juror’s credibility is entitled to deferential treatment. (See In re Carpenter (1995) 9 Cal.4th 634, 658.) Thus, we review a trial court’s refusal to excuse a seated juror for an abuse of discretion. (People v. Cleveland (2001) 25 Cal.4th 466, 474; Code Civ. Proc., § 233; see also Patton v. Yount (1984) 467 U.S. 1025, 1031 [findings of a trial judge on the issue of juror impartiality should be upheld absent “‘manifest error’”].)
Here, the trial court determined that these jurors had the proper state of mind to impartially decide this case based exclusively on the law and the evidence. Anvar has not shown that the trial court’s findings are not supported by the record. (People v. Cunningham (2001) 25 Cal.4th 926, 975.)
B. Trial Court’s Denial of Challenges for Cause to Prospective Jurors that Were Excused by Anvar’s Peremptory Challenges
Anvar argues that the trial court erred in denying his challenges for cause to the following prospective jurors: Ms. Gemigniani, Ms. Stroupe, Ms. Bhavnani, Ms. De Mers, and Mr. Bennett. Although these jurors were ultimately excused following Anvar’s peremptory challenges to them, Anvar contends that he should not have been required to use his peremptory challenges to these five jurors. After all, if these jurors had been excused for cause, he would have had five peremptory challenges to use to dismiss jurors Mr. Angulo, Mr. Murphy, Mr. Stoker, Mr. Milan, and Mr. Burnett.
Ample evidence supports the trial court’s findings that these prospective jurors were fit and not biased. Thus, the trial court did not abuse its discretion in denying Anvar’s challenges for cause to them.
1. Prospective Juror Gemigniani
The following dialogue occurred involving Ms. Gemigniani:
“[The Court]: Do any of you have any beliefs or feelings towards any of the parties or the attorneys or the witnesses that might be regarded as a bias or a prejudice for or against any of them?
“[Prospective Juror Gemigniani]: In general these kinds of suits, I think, are kind of bogus. That’s all.
“[The Court]: But you don’t know anything about this suit other than the one-sentence description that I gave you.
“[Prospective Juror Gemigniani]: Correct.
“[The Court]: So would you be willing to sort of put that reservation on the back burner and listen to the evidence in this case and decide this case based only on the evidence... ?
“[Prospective Juror Gemigniani]: I will definitely try.”
Later, Anvar’s counsel followed up with Ms. Gemigniani regarding her comments.
“[Anvar’s counsel]: You said you think cases like this are bogus....
“[Prospective Juror Gemigniani]: I think it’s in general. It’s something that gets abused. It’s—I’m really old school. I work really hard for anything I have and it just—you know, there are, of course—I think it’s abused.
“[Anvar’s counsel]: Now, in the sense that you were saying you think it gets abused, do you think it gets abused because people are taking advantage of the system....
“[Prospective Juror Gemigniani]: Yeah.
“[Anvar’s counsel]: In other words, they’re inflating things or they’re exaggerating things or is it just the fact that they are taking advantage of the system, in other words, ‘I have an injury, I’m entitled to this, I’m going to go for it.’ Do you think that is wrong or do you think the exaggeration or the inflation
“[Prospective Juror Gemigniani]: Yeah, the exaggeration. Of course people should have to take care of themselves. But I just think so often it’s blown way out of proportion and it’s an opportunistic kind of thing.
“[Anvar’s counsel]: Is there anything in particular that you have experienced that makes you think that?
“[Prospective Juror Gemigniani]: No. No personal experience.”
Later, counsel addressed the issue of damages with the prospective jurors. Ms. Gemigniani stated that she believed that damage awards are “so over-exercised. [¶]... Just in general, if someone is—they’re up, they’re about, they’re fine, they’re healthy, they’ve gotten their medical needs taken care of, I can’t imagine ever asking that from someone else personally. So I just have a hesitancy. I just don’t get it, that’s all.”
“[Anvar’s counsel]: How would you compensate someone for—do you consider that a loss, if someone has lost the enjoyment of their time through pain or suffering or some other kind of bad experience?
“[Prospective Juror Gemigniani]: Bad experience to me is not a catastrophic experience.
“[Anvar’s counsel]: For you it needs to be catastrophic.
“[Prospective Juror Gemigniani]: It would have to be extreme. I just don’t relate to it.
“[Anvar’s counsel]: And even if the law—if the court instructs you otherwise, you would have a tough time following that?
“[Prospective Juror Gemigniani]: I probably would. I just don’t—I just don’t relate to it at all. It does not make sense to me.”
In spite of Ms. Gemigniani’s hesitation mentioned above, she notably did not respond when the entire jury panel was asked: “Now there’s been lots of comments about people having problems with general damages. People feeling like lawsuits are bogus. Is there anyone here who is refusing to follow the court’s instructions at the end of this case?” She also did not answer when the jury panel was asked: “Is there anyone here who feels an absolute inability to try and put aside any personal experiences or thoughts about this case before they hear all the evidence?” And, she did not answer when defense counsel posed the following question: “Is there anyone on the jury panel who feels as though, based upon comments made by their other jurors seated here, that they’re unable to take a fresh look themselves at the evidence based upon maybe some of their colleagues[’] feelings involved?”
Thereafter, Anvar’s counsel moved to challenge Ms. Gemigniani for cause on the grounds that she “would have a hard time and would be biased.” The trial court denied his request, finding “no reason to excuse [her] for cause.” We conclude that the trial court’s order was not an abuse of discretion.
At best, Ms. Gemigniani’s testimony was inconsistent. But, even with the inconsistencies, there is substantial evidence to support the trial court’s order. While she said that she “probably would” have a “tough time” following the trial court’s instructions on damages, she never stated that she would refuse to do so. She also did not indicate that she would be unable to put aside her personal experiences or thoughts before hearing all of the evidence. Under these circumstances, we cannot conclude that the trial court abused its discretion in denying Anvar’s challenge for cause to Ms. Gemigniani. (People v. Hillhouse (2002) 27 Cal.4th 469, 488 [“On review of a trial court’s ruling, if the prospective juror’s statements are equivocal or conflicting, that court’s determination of the person’s state of mind is binding. If there is no inconsistency, the reviewing court will uphold the court’s ruling if substantial evidence supports it”].)
2. Prospective Juror Stroupe
The following conversations took place involving Ms. Stroupe.
“[The Court]: Have any of you or any member of your immediate family or close acquaintance ever been injured in an accident that was caused by another person’s negligence?... [¶]... [¶]
“[Prospective Juror Stroupe]: Yes. [¶]... [¶]
“I was in a traffic accident in my twenties. A person ran a red light. The car was paid for and medical damages were paid for.
“[The Court]: You were injured?
“[Prospective Juror Stroupe]: I was injured.
“[The Court]: Is there anything about that experience that is going to impact your ability to be a fair and impartial juror in this case?
“[Prospective Juror Stroupe]: No.”
Later, prospective juror Stroupe responded to questions from Anvar’s counsel, stating: “I don’t have any personal experience [regarding compensation for injuries]. It’s just I guess I have a little bit of a bias would be towards individual responsibility and put more attention on that. I don’t think it’s a huge issue. But I—you know, in general I kind of think that sometimes cases are brought where kind of the idea of the individual—the individual’s responsibility is kind of put on the side.”
“[Anvar’s Counsel]: Now do you get that feeling just because of your upbringing or something in the media or any kind of outside influence other than your own personal morals or upbringing? Is there anything from the media that has influenced that kind of thinking on your part?
“[Prospective Juror Stroupe]: No. But if I had a little bit of that bias—I’ve said I was on a jury in the past. It was a civil suit. I just—I feel a lot of times like a person’s individual responsibility. I mean if your hands are coming back from putting them in a solution every day bleeding, then I think you don’t put them back in the solution.
“[Anvar’s Counsel]: That makes sense to me. I think I can agree with that one.”
Later, Ms. Stroupe indicated that she felt “the same way that [Ms. Gemigniani] does. It would be hard for me. It’s not something that I would really do.” Then, she engaged in a further conversation with Anvar’s trial counsel.
“[Anvar’s Counsel]: How would you compensate someone for those losses, however, if not with numbers? What would you do for someone, hey, you had this bad experience, we got your medical bills paid, we got your loss of earnings paid, but you had that bad experience? Would you leave them holding the bag on that or what else would you come up with?
“[Prospective Juror Stroupe]: I think that people have bad experiences a lot of the time. I don’t know that they’re compensated for that. [¶]
“[Prospective Juror Stroupe]: I see people every day in my job that have bad experiences.
“[Anvar’s Counsel]: Sure, we all have bad experiences.
“[Prospective Juror Stroupe]: Who’s compensating them?
“[Anvar’s Counsel]: Okay. Again, if the court told you you should make an award for those kinds of losses if you found in favor of the plaintiff, could you do that or would you be naturally hesitant and resistant?
“[Prospective Juror Stroupe]: I would hope I could do that. But I have to say, I think I would have a bias. I do have a bias. Hopefully, I can put the bias aside and do what I’m instructed to do. But I do think I have a natural bias.”
Later, in response to Anvar’s counsel’s question, Ms. Stroupe indicated that she did not have a problem in terms of finding fault against a party vis-à-vis the burden of proof in this kind of case.
Finally, as with Ms. Gemigniani, Ms. Stroupe did not respond when the entire jury panel was asked: “Now there’s been lots of comments about people having problems with general damages. People feeling like lawsuits are bogus. Is there anyone here who is refusing to follow the court’s instructions at the end of this case?” She also did not answer when the jury panel was asked: “Is there anyone here who feels an absolute inability to try and put aside any personal experiences or thoughts about this case before they hear all the evidence?” And, she did not answer when defense counsel posed the following question: “Is there anyone on the jury panel who feels as though, based upon comments made by their other jurors seated here, that they’re unable to take a fresh look themselves at the evidence based upon maybe some of their colleagues[’] feelings involved?”
Following the questions, counsel met with the trial court at sidebar. Anvar challenged Ms. Stroupe for cause because she “indicated that she would have a hard time awarding general damages even if that was the law.” Respondents’ counsel replied: “Ms Stroupe indicated that she would follow the court’s instructions, that she would set aside her personal experiences in order to follow the law provided in the case.” Ultimately, the trial court denied Anvar’s motion, finding “no reason to excuse [Ms. Stroupe] for cause.”
For the same reasons discussed above, we conclude that the trial court did not abuse its discretion in denying Anvar’s challenge for cause to Ms. Stroupe. Again, while she did indicate some bias in favor of personal responsibility and some hesitation in compensating a plaintiff for personal injuries, she did not indicate that she could not or would not follow the trial court’s instructions. Under these circumstances, we find no reversible error. (People v. Hillhouse, supra, 27 Cal.4th at pp. 488–489 [“the trial court could reasonably conclude the juror was trying to be honest in admitting [her] preconceptions but was also sincerely willing and able to listen to the evidence and instructions and render an impartial verdict based on that evidence and those instructions. Indeed, a juror like this one, who candidly states [her] preconceptions and expresses concerns about them, but also indicates a determination to be impartial, may be preferable to one who categorically denies any prejudgment but may be disingenuous in doing so. A reviewing court must allow the trial court to make this sort of determination. The trial court is present and able to observe the juror itself. It can judge the person’s sincerity and actual state of mind far more reliably than an appellate court reviewing only a cold transcript”].)
3. Prospective Juror Bhavnani
Ms. Bhavnani indicated that she “was in a car accident about five and a half years ago when [she] was six months pregnant. [She] was rear-ended and slammed into the car in front of [her] on the freeway.” Although she “was injured[, she] didn’t ask for any medical damages. Just for the car to be replaced.”
The trial court followed up: “Is there anything about that experience that would impact your ability to be fair and impartial if you’re chosen as a juror?
“[Prospective Juror Bhavnani]: I don’t think so.”
Later, Ms. Bhavnani responded to questions posed by Anvar’s counsel.
“[Anvar’s Counsel]: Could you award damages to a person who at least was to some extent responsible for their own injuries?
“[Prospective Juror Bhavnani]: It would depend on the facts.”
Later, Anvar’s counsel and Ms. Bhavnani engaged in the following dialogue:
“[Anvar’s Counsel]: Anybody have that feeling that you feel bad for these companies who have to field lawsuits to the point where you might be predisposed against the plaintiff? Do you feel that way, Ms. Bhavnani?
“[Prospective Juror Bhavnani]: My father’s corporation. We’re dealing daily with bogus lawsuits, whether it’s for negligence or sexual harassment or workers’ compensation. I’ve seen my fair share of them.
“[Anvar’s Counsel]: You’re an attorney.
“[Prospective Juror Bhavnani]: I’m an attorney. I practice immigration law.
“[Anvar’s Counsel]: Do you ever help [your father] out with his lawsuits?
“[Prospective Juror Bhavnani]: Occasionally.
“[Anvar’s Counsel]: What kind of company does he do?
“[Prospective Juror Bhavnani]: Importer/exporter. They’ve got locations all over the world.
“[Anvar’s Counsel]: In your experience, have any of the suits been meritorious?
“[Prospective Juror Bhavnani]: To date, no.
“[Anvar’s Counsel]: So none of them have been meritorious?
“[Prospective Juror Bhavnani]: No.
“[Anvar’s Counsel]: If you were presented with facts and evidence that you felt were meritorious, could you follow the law and the evidence and make an award of damages or do you think you’d be so predisposed against that, kind of in the back of your mind doing a disservice to your dad in a way?
“[Prospective Juror Bhavnani]: No. I could follow the law.
“[Anvar’s Counsel]: Because sometimes we feel that way. You know, you have these feelings, like sometimes people feel that if they award damages in the case that it might affect their own pocketbook in a way. So indirectly somehow. Does anyone have that kind of—do you have that feeling?
“[Prospective Juror Bhavnani]: Am I bias[ed]? Possibly. Can I follow the law? Yes, I believe I can.
“[Anvar’s Counsel]: In what way would you be bias?
“[Prospective Juror Bhavnani]: Like I’ve said, I’ve seen day in and day out a number of lawsuits that were not—that were not meritorious.
“[Anvar’s Counsel]: So you might have a predisposition for the company.
“[Prospective Juror Bhavnani]: Yes.”
Then, respondents’ counsel asked general questions to the entire panel. As with the two prior prospective jurors, Ms. Bhavnani did not respond when asked: “Now there’s been lots of comments about people having problems with general damages. People feeling like lawsuits are bogus. Is there anyone here who is refusing to follow the court’s instructions at the end of this case?” She also did not answer when the jury panel was asked: “Is there anyone here who feels an absolute inability to try and put aside any personal experiences or thoughts about this case before they hear all the evidence?” And, she did not answer when defense counsel posed the following question: “Is there anyone on the jury panel who feels as though, based upon comments made by their other jurors seated here, that they’re unable to take a fresh look themselves at the evidence based upon maybe some of their colleagues[’] feelings involved?”
At sidebar, Anvar’s counsel challenged Ms. Bhavnani for cause, arguing that she “stated [that she] would have a hard time and would be biased” as a result of her helping her father defend lawsuits. Respondents counsel pointed out that Ms. Bhavnani is an attorney who indicated “a willingness to follow the law.” The trial court denied Anvar’s motion.
We find no error in the trial court’s order. Although she indicated prior experience with lawsuits that she did not believe were meritorious, she also stated at least twice that she could follow the law. She also stated that she could award damages, depending upon the facts presented. And, she did not respond to any of respondents’ counsel’s questions to the panel regarding her ability to fulfill her duties as a juror. Under these circumstances, we conclude that the trial court did not abuse its discretion in denying Anvar’s challenge for cause. (People v. Hillhouse, supra, 27 Cal.4th at pp. 488–489.)
4. Prospective Juror De Mers
In response to the trial court’s query, Ms. De Mers stated that her “brother and sister-in-law are both attorneys. One’s criminal and one’s personal injury.” Although she stated that she talks to them about their work, she also attested that if chosen as a juror in this case, she could commit to not discussing this case with either of them.
Later, Ms. De Mers spoke with Anvar’s counsel.
“[Anvar’s Counsel]: Could you award damages to a person who at least was to some extent responsible for their own injuries? [¶]... [¶]
“[Prospective Juror De Mers]: I’m not sure.
“[Anvar’s Counsel]: Okay. Can you explain why you’re not sure? Is it something you have to wrestle with?
“[Prospective Juror De Mers]: I go back to her—have some self-responsibility and have to take responsibility for your own actions.
“[Anvar’s Counsel]: What about companies or—do you think companies have responsibility for their actions too? Entities that are not people but that are run by people?
“[Prospective Juror De Mers]: Yes.”
Then, Anvar’s counsel followed up with Ms. De Mers regarding her husband’s experience in the real estate market.
“[Anvar’s Counsel]: So do you think you could put all that [knowledge of the mortgage business] aside and just listen to evidence on that issue [lost earnings] or you think you’d be too clouded by your own experiences to be focused in on just the evidence?
“[Prospective Juror De Mers]: Wasn’t there some correlation [between Anvar’s loss of earnings as a result of the market and his alleged loss of earnings as a result of his injuries]?
“[Anvar’s Counsel]: There might be. We don’t leave our common sense at the door. I think what both sides are looking for again are people that can leave—and not do any investigation on their own... not let their own personal experiences cloud the issues. But, of course, it’s hard to do sometimes.
“[Prospective Juror De Mers]: I think I could, yes.
“[Anvar’s Counsel]: You think you could do that.”
Thereafter, as mentioned above, respondents’ counsel had the opportunity to pose questions to the jury panel. Like the prior prospective jurors discussed, Ms. De Mers did not respond when the entire jury panel was asked: “Now there’s been lots of comments about people having problems with general damages. People feeling like lawsuits are bogus. Is there anyone here who is refusing to follow the court’s instructions at the end of this case?” She also did not answer when the jury panel was asked: “Is there anyone here who feels an absolute inability to try and put aside any personal experiences or thoughts about this case before they hear all the evidence?” And, she did not answer when defense counsel posed the following question: “Is there anyone on the jury panel who feels as though, based upon comments made by their other jurors seated here, that they’re unable to take a fresh look themselves at the evidence based upon maybe some of their colleagues[’] feelings involved?”
At sidebar, Anvar moved to excuse Ms. De Mers for cause. He argued: “I’m trying to remember now, your Honor, what—there were a few other comments by Ms. De Mers that indicated she just did not like this kind of case, did not like these kinds of plaintiffs and would have a hard time awarding damages even if the evidence justified it.” Respondents’ counsel replied: “Ms. De Mers, I don’t even—there’s no reason to believe that she would not follow the instructions. I think she appears to be even-handed.” The trial court denied Anvar’s request.
We conclude that the trial court did not err. While she stated that she believes in personal responsibility, she also indicated that that concept applies to companies as well as individuals. There is no indication that she could have been anything but an impartial juror. (People v. Horning (2004) 34 Cal.4th 871, 897.)
5. Prospective Juror Bennett
The following dialogue occurred involving Mr. Bennett.
“[Anvar’s Counsel]: Does everyone know what pain and suffering damages are? Does everybody know that—okay. Does anyone have—is anyone here that has a—some kind of moral or ethical resistance, if you will, to the awarding of money damages for one’s pain or suffering or inconvenience or other kinds of intangible losses?...
“[Prospective Juror Bennett]: I can kind of see it, but how do you quantify that. It just seems sort of a completely unquantifiable thing. I mean there’s plenty of people in life who have pain and suffering yet no money for it, and they have done nothing wrong.
“[Anvar’s Counsel]: That’s true. That’s true. But if you were told that someone [who is] injured through the fault of another is entitled to that kind of damage, could you follow the law or would you have a resistance to it?
“[Prospective Juror Bennett]: I might have a little resistance there. I feel like if—if they’ve been—if their medical expenses have been compensated, [their] missed time at work has been compensated, you know, I feel like going beyond that, it would really have to be something exceptional.
“[Anvar’s Counsel]: How would you
“[Prospective Juror Bennett]: But then again—and even then, how do you quantify it.
“[Anvar’s Counsel]: Okay. Okay. What if it was just up to you to quantify it, could you do it?
“[Prospective Juror Bennett]: You mean if I was hurt and I had pain and suffering, I would want a million dollars.
“[Anvar’s Counsel]: But if it was left in your hands to quantify someone else’s pain and suffering through the fault or negligence of another, could you sit down and try to come up with a number?
“[Prospective Juror Bennett]: I don’t even know that I would be—I mean if someone said you have to come up with a number, I mean—but I think the issue whether that’s you know—what’s the word? —remunerative, I think. Is that the right word? If that’s even—should even be on the table.
“[Anvar’s Counsel]: So you have a problem with it even being on the table.
“[Prospective Juror Bennett]: Yeah.”
As with the four prospective jurors already discussed, Mr. Bennett did not respond when the entire jury panel was asked: “Now there’s been lots of comments about people having problems with general damages. People feeling like lawsuits are bogus. Is there anyone here who is refusing to follow the court’s instructions at the end of this case?” He also did not answer when the jury panel was asked: “Is there anyone here who feels an absolute inability to try and put aside any personal experiences or thoughts about this case before they hear all the evidence?” And, he did not answer when defense counsel posed the following question: “Is there anyone on the jury panel who feels as though, based upon comments made by their other jurors seated here, that they’re unable to take a fresh look themselves at the evidence based upon maybe some of their colleagues[’] feelings involved?”
Anvar challenged Mr. Bennett for cause, contending that Mr. Bennett indicated that he “would have a hard time awarding general damages even if that was the law.” Respondents’ counsel replied that “there simply has not been enough questioning in voir dire for him to establish that he would not be willing to follow the law.” The trial court denied Anvar’s challenge for cause.
We conclude that the trial court’s order was not erroneous. As with the prior prospective jurors, Mr. Bennett’s testimony was inconsistent. While he would struggle with an award of monetary damages for pain and suffering, he did not indicate that he would refuse to award such damages. And, he never indicated that would be unable to consider the evidence and follow the trial court’s instructions. Consequently, we find no abuse of discretion. (People v. Hillhouse, supra, 27 Cal.4th at pp. 488–489.)
C. Anvar’s Challenges for Cause to Jurors Who Remained on Jury Panel
Having concluded that the trial court did not abuse its discretion in denying Anvar’s challenges for cause to prospective jurors Ms. Gemigniani, Ms. Stroupe, Ms. Bhavnani, Ms. De Mers, and Mr. Bennett, our analysis could stop here. While he did not have to do so, Anvar elected to use five of his peremptory challenges to excuse those five prospective jurors, leaving him without peremptory challenges to excuse other prospective jurors he found objectionable. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1088.)
Nevertheless, for the sake of completeness, we will consider the merits of Anvar’s contention that the trial court erred in denying his challenges for cause to Jurors Mr. Angulo, Mr. Murphy, Mr. Stoker, Mr. Milan, and Mr. Burnett.
1. Juror Angulo
Mr. Angulo, a franchisee with Taco Bell, engaged in the following dialogue with Anvar’s counsel:
“[Anvar’s Counsel]: Is there anything in your mind, let me just broaden it up a little bit, that either predisposes you for or against Mr. Anvar in this case or for or against the defendants in this case?
“[Prospective Juror Angulo]: That’s a tough question in that I’ve got 15 stores. At any given time anywhere from 250 to 300 employees. Our company has been sued fraudulently a number of times. In some cases, we’ve lost when I thought there was no way we should have lost. I’m presently involved in a lawsuit from a company that we are leasing some space from. That’s the case going on right now.”
Anvar’s counsel then asked Mr. Angulo whether, given his experience with “probably close to 50 cases,” he “could be fair and impartial in this case or is this the wrong case for you?”
“[Prospective Juror Angulo]: I think it’s the wrong case for me. I’m presently involved in some litigation. I’ve had customers who fraudulently tried to sue us. Like I said, probably 50 cases in the last ten years. I think it would be—although I would like to say I could listen to the law and be fair, I might have some difficulty with that just given that, you know, our company has had to pay a lot of money for cases that I believe were truly fraudulent.
“[Anvar’s Counsel]: If the case that you were presented as a juror struck you as not being fraudulent but, in fact, meritorious, could you follow the law and award damages to that person?
“[Prospective Juror Angulo]: I think so. But, again, you know, being involved in 50 cases in the last 10 years where the company has paid a lot of money to fraudulent claims, and I believe they were fraudulent. So I’m not saying—I don’t know any particulars with this case, but I think it might be the wrong case for me.”
Later, Mr. Angulo spoke with respondents’ counsel. He stated that his company had “certainly seen an increase [in the filing of lawsuits].”
“[Respondents’ Counsel]: Do you think you could still put that aside and listen to the evidence in this case and determine—based upon the facts and the law provided by the judge, determine if the case is meritorious?
“[Prospective Juror Angulo]: That would be hard just because we’ve lost cases that – that I know were fraudulent. So it might be difficult for me.
“[Respondents’ Counsel]: Is this something that you are willing to do or try to do?
“[Prospective Juror Angulo]: Yes.
“[Respondents’ Counsel]: As you sit here today, are you willing to follow the judge’s instructions if you’re here at the end of the case and have heard all the evidence?
“[Prospective Juror Angulo]: Yes.”
Later, Anvar challenged “for cause Mr. Angulo due to the fact that he repeatedly stated that he would have a very tough time due to his own experiences being sued, being impartial.” Respondents’ counsel replied: “As far as David Angulo, he’s similar to the other individuals who said they may have a bias. But counsel for plaintiff specifically asked him if he would be willing to put aside those issues and consider this case, and he stated ‘yes.’ And he’s also stated he’s willing to follow the court’s orders and instructions.”
“[The Court]: Yes. He’s been very circumspect trying to get us to infer that he can’t be fair but refusing to say that himself because I think he can be fair.
“[Respondents’ Counsel]: And this is someone who wanted out of jury service earlier.
“[The Court]: Exactly. Who’s been trying to get out of this from the beginning.”
Ample evidence supports the trial court’s implicit denial of Anvar’s challenge for cause. While Mr. Angulo indicated that this case might be difficult for him, he also stated that he would be willing to listen to the evidence and decide whether the case was meritorious. He also stated that he would follow the trial court’s instructions. Under these circumstances, we find no abuse of discretion. (People v. Hillhouse, supra, 27 Cal.4th at pp. 488–489.)
2. Juror Murphy
In response to the trial court’s inquiry, Mr. Murphy stated: “I’ve been in accidents before, and I have caused accidents. I’ve been sued before. I’m a landlord. I have rental property. I know many lawyers. I have lawyer friends. I work in an H.R. Department where I deal with all kinds of lawsuits and workers’ compensation claims many of which I feel to be erroneous, frivolous. [¶] I’ve been raised with the feeling—you know, my family’s always raised me to kind of believe that it’s a far too litigious society and there’s too many unnecessary lawsuits out there that is not good for society in general. And I’ve seen them.
“I’ve been sued before where I ran into somebody. I barely tap them. I can’t even call it a – ran into them. I barely tapped them. When I got out of my car and went to talk to him, I was just going to say, we need to pull over to the side of the road, and the guy was – his eyes were rolling in the back of his head, and his head was lolling all around from side to side. And I thought, ‘here we go.’ And that was just the beginning. And then his kids showed up and normally that would be a very sad thing, but they were all very happy like he’d won the lottery or something.
“So I’ve been through the mill with that before, twice. And I just feel like I have a natural bias against people being sued. My tooth is hurting me right now because I had a dentist that almost three years ago butchered a tooth, and it still hurts me but I’m not suing him as a matter of principle. You know, I’m not out any money because of it. I’ve had pain and suffering, but I’m not going to sue him. I’m just not going to. And so I’m just – you know, full disclosure. I’m just letting you know how I feel about it. That’s it.
“[The Court]: You haven’t had any exposure to the facts of this case other than the couple of sentences the court read to you; correct?
“[Prospective Juror Murphy]: No, your Honor.
“[The Court]: That’s correct.
“[Prospective Juror Murphy]: That’s correct.
“[The Court]: So you don’t know anything about what the facts of this case are going to show.
“[Prospective Juror Murphy]: That’s correct.
“[The Court]: And you are a fair person, are you not?
“[Prospective Juror Murphy]: I try to be, yes, I do.
“[The Court]: So can the court count on you to consider the evidence in this case and the law that the court is going to give to you at the end of the trial, and do your very best to decide these facts without reference to your own experiences?
“[Prospective Juror Murphy]: I think the operative words there are ‘do my very best.’ Yes, I can try to do my very best.”
Anvar’s counsel did not question Mr. Murphy because he passed.
Later, Anvar moved to excuse Mr. Murphy for cause on the grounds that he said that he “has a natural bias. When you put someone on the spot and say, can you follow the instructions, they’re going to say, yes. But when someone also says, I have a natural bias, that’s bias. He’s admitting it. He’s being forthcoming about it. He should be excused, in all fairness.” The trial court denied his challenge, stating: “With respect to Mr. Murphy, he specifically said he would try his hardest, which is all we can ask of anybody.”
The trial court did not abuse its discretion in denying Anvar’s challenge to Mr. Murphy. On the record presented, the trial court could reasonably conclude that Mr. Murphy was just being honest regarding his preconceptions, but that he also could follow directions and try his best in determining the evidence. (People v. Hillhouse, supra, 27 Cal.4th at pp. 488–489; People v. Horning, supra, 34 Cal.4th at p. 897.)
3. Juror Stoker
The trial court described Mr. Stoker as a “double-edge sword” because he is both an insurance adjuster and has had a lot of claims himself. At sidebar, Mr. Stoker explained: “[A] lot of the physicians that I know that I have seen in the reports—your Honor, you had asked me with some reluctancy and some reservation if I had something else to say or comment on. The only thing I have a problem with is I’m a little bit bias when it comes to some of the physicians and the reports because oftentimes we don’t find their reports credible. [¶] With that being said, I also provide security at a nightclub in Glendale called In Cahoots with a friend of mine and a colleague that still works with the city.”
The dialogue between Mr. Stoker and counsel then continued back in open court.
“[Anvar’s Counsel]: Mr. Stoker, let me rephrase it this way. [¶] Is there anything with respect to what you mentioned to us on sidebar that you feel predisposes you in favor of the defendants in this action and perhaps against Mr. Anvar?
“[Prospective Juror Stoker]: Not necessarily. I mean I can be, I guess, fair if presented evidence. At this time, I have some ongoing issues myself with claims that I have filed. And so I have a hard—I think it would be a difficult thing—with my past, some of my past, I would find it probably difficult to be fair and impartial. I don’t know the facts surrounding the case. I would have to see to know, again, what that would entail.”
Mr. Stoker further stated that he was an ex-army ranger, and that he had a “bad fall out of a helicopter.” Instead of opting for a medical discharge, he continued “to try to drive on as best” as he could and “get the honorable discharge.” So, “depending on the severity of the injuries, [he] may have a bias opinion on comparing to what [he has] accomplished and what [he has] overcome in [his] life.”
Anvar’s counsel then asked Mr. Stoker whether he would “have difficulty awarding damages [to Anvar] even though the evidence supported an award of damages?
“[Prospective Juror Stoker]: Probably so because, again, I haven’t been rewarded for something that I might think is much more catastrophic than what has occurred here that’s involved in this case.”
Anvar challenged Mr. Stoker for cause. Respondents’ counsel replied: “[T]here is just nothing that he says that leads me to believe that he can’t be objective. He has not only suffered his own injury which could make him a bit sympathetic to [Anvar], but he also is a claims adjuster, which I think balances out.”
The trial court found Anvar’s challenge not “viable,” stating to Anvar’s counsel: “With respect to... Mr. Stoker, you [went] to great lengths... to see if you could pry out of [him] an admission that [he] couldn’t be fair. [He] ran around in circles because [he] know[s] [he] can be fair. [He] just [does not] want to serve.”
The trial court acted well within its discretion in denying Anvar’s challenge for cause. Notwithstanding Anvar’s misrepresentation in his opening brief, Mr. Stoker never indicated that he could not be fair and impartial. Rather, his statements confirm that although it might be difficult, he could be fair when presented with the evidence. Pursuant to People v. Hillhouse, supra, 27 Cal.4th at pages 488–489, “[w]e see no basis on which to overturn the trial court’s determination that this juror could be impartial.” (Id. at p. 489.)
4. Juror Milan
The trial court asked Mr. Milan whether there was anything about any of his personal experiences that would impact his “ability to be a fair and impartial juror in this case.” He replied that it was “possible,” and then explained: “There’s some emotional responses. From listening throughout the day, I’ve had some emotional responses to some of the questions and the circumstances. And I didn’t think they’d be there, but they’re there.”
“[The Court]: Would you do your very best to put those emotional responses aside and consider the evidence and the law in this case only as you listen to the trial?
“[Prospective Juror Milan]: I can only say that I would do my best, but I can’t guarantee that they would not be there.”
Later, Mr. Milan expounded his prior answer. “I’m going to be completely honest with you. Once emotions kick in, it’s hard. The rationality generally takes a back seat to emotions. And emotion that is most prevalent to me right now is anger. And it’s anger about some—with some specificity and some with the generalities of the situation. Okay. Again, these have surprised me. And, you know, I—the judge asked if I could do my best to control them. And obviously one would do one’s best, but like I said, rationality takes a back seat.”
Anvar challenged Mr. Milan for cause, and the trial court denied his motion for the same reasons as it denied Anvar’s challenge to Mr. Stoker. We conclude that the trial court’s order was not an abuse of discretion. Mr. Milan responded honestly and openly to counsel’s and the trial court’s questions, indicating that he would do his best to consider the evidence in the law in this case. (People v. Hillhouse, supra, 27 Cal.4th at pp. 488–489; People v. Horning, supra, 34 Cal.4th at p. 897.) Under these circumstances, we must defer to the trial court’s assessment that Mr. Milan could serve as a fair and impartial juror.
5. Juror Burnett
In response to the trial court’s questions, Mr. Burnett stated: “I used to work for a major corporation, a big restaurant chain, and I saw probably about five or six people fall in those restaurants. And a couple of those, I watched it happen[], and it was obvious that they could have been prevented. So I’ve seen what I believe to be fraudulent things happen like that before.”
The dialogue continued.
“[The Court]: You mean—when you say they could have been prevented, prevented by whom?
“[Prospective Juror Burnett]: It appeared that they were falling on purpose. Prevented by themselves.
“[The Court]: So is there anything about your experience working in nightclubs that is going to impact your ability to evaluate the evidence in this case alone and apply the law to it as it’s given to you by the court.
“[Prospective Juror Burnett]: No.”
Later, when asked whether it would be hard for him to be impartial under the circumstances in this case, Mr. Burnett replied: “I think that I would be able to listen to the facts and make a judgment based upon the facts.” He also affirmed that he could put his personal experiences with alleged fraudulent falls aside.
Anvar challenged Mr. Burnett for cause. Respondents’ counsel responded: “He just doesn’t want to be here. I don’t think he said anything really significant that would cause concern as far as his willingness to evaluate the evidence objectively.” The trial court denied Anvar’s challenge for cause, stating: “[T]here’s just no sign at all that he can’t be fair.”
We conclude that the trial court acted well-within its discretion. Although he stated that he had experience with fraudulent claims, he affirmed that he could leave those experiences “outside the courtroom door” and could evaluate the facts in this case to make a decision. In light of this evidence, Anvar did not demonstrate that the trial court’s order denying his challenge for cause affected his right to a fair and impartial jury. (People v. Horning, supra, 34 Cal.4th at pp. 896–897.)
D. Other Issues
Having concluded that the trial court did not abuse its discretion in denying Anvar’s challenges for cause to these 10 individuals, we need not address respondents’ argument that that Anvar waived his right to appeal his dissatisfaction with the empanelled jury because he failed to raise this issue (overall dissatisfaction with the jury as opposed to dissatisfaction with individual jurors) below.
II. Verdict Was Not Contrary to the Evidence
Second, Anvar argues that the judgment should be reversed because it does not comport with the evidence. Reviewing this issue for substantial evidence (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632), we cannot agree with Anvar’s position.
Anvar urges us to review this issue de novo on the grounds that the facts are undisputed. As set forth above, the facts are disputed. Thus, de novo review is inappropriate. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799; Veguez v. Governing Bd. of the Long Beach Unified School Dist. (2005) 127 Cal.App.4th 406, 414.)
The jury heard ample evidence regarding the nightclub and Anvar’s alleged injuries. Anvar himself gave three conflicting versions of the accident—(1) that he stepped up onto the couch’s backrest before he fell, (2) that he only stepped on the seat cushion and fell when he leaned against what he thought was the wall but was actually the subject opening, and (3) that he fell when somebody “jostled” him as he stood on the couch. Based upon his inconsistent account of what occurred, the jury was free to find that respondents were not negligent. The jury could have concluded that Anvar recklessly stepped backwards onto the couch’s backrest and lost his balance and fell. Or, the jury could have found that another patron “jostled” him, causing him to fall. Regardless, the jury’s finding is supported by the evidence.
Anvar’s argument is largely a challenge to the evidence. For example, he directs us to evidence that respondents camouflaged a hole near the couch where he fell and thus he reasonably assumed a wall was there, that respondents allowed for the custom of club patrons to stand on the backs of couches, and that respondents’ design of the stage and the light show contributed to his fall. What Anvar either deliberately ignores or neglects to inform us is that respondents offered contrary evidence. Respondents presented evidence at trial that the hole was not covered with a black curtain or other sheet on a regular night when the club was open to the public, and Anvar had been to the club on many prior occasions. Likewise, respondents offered evidence that they attempted to prohibit patrons from standing on the furniture. Respondents also presented evidence that, as part of a major remodeling of the club, they retained a company to install a state of the art lighting system to eliminate dark corners or nooks in the club.
We could have deemed Anvar’s failure to present unfavorable evidence a waiver of this issue on appeal. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
“Under [the substantial evidence] standard of review, our duty ‘begins and ends’ with assessing whether substantial evidence supports the verdict. [Citation.] ‘[The] reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’ [Citation.] We review the evidence in the light most favorable to the respondent, resolve all evidentiary conflicts in favor of the prevailing party and indulge all reasonable inferences possible to uphold the jury’s verdict. [Citation.]” (US Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 908.) “‘It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact,’ [Citation.]... [W]e do not evaluate the credibility of the witnesses or otherwise reweigh the evidence. [Citation.] Rather, ‘we defer to the trier of fact on issues of credibility. [Citation.]’” (Escamilla v. Department of Corrections & Rehabilitation (2006) 141 Cal.App.4th 498, 514–515.)
Applying this well-established standard of review, the jury verdict is supported by the evidence and not subject to reversal.
Anvar’s reliance upon Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179 is misplaced. In that slip-and-fall premises liability case, the court of appeal reversed a trial court’s order granting the property owner’s motion for summary judgment. (Id. at p. 1181.) The appellate court determined that factual issues precluded an award of summary judgment. (Id. at p. 1185.) In contrast, this case proceeded to trial. The jury heard all the evidence and determined that respondents were not negligent.
III. Jury Instructions
Third, Anvar argues that the trial court erroneously instructed the jury with CACI No. 1004 (obviously unsafe conditions).
CACI No. 1004, given to the jury, provides: “If an unsafe condition of the property is so obvious that a person could reasonably be expected to observe it, then the one who controls the property does not have to warn others about the dangerous condition.”
The trial court did not err by instructing the jury in accordance with CACI No. 1004. “A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) “‘“A reviewing court must review the evidence most favorable to the contention that the requested instruction is applicable since the parties are entitled to an instruction thereon if the evidence so viewed could establish the elements of the theory presented. [Citation.]” [Citation.]’” (Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1157.)
Ample evidence supports the trial court’s decision to give this instruction. As set forth above, there was evidence that Anvar elected to stand on the backrest of the couch, that Anvar had been to the club on numerous occasions and thus the jury could infer that he knew the club’s layout, and that respondents took steps to ensure that there were no dark corners of the club.
Even if the trial court had erred by giving this instruction, that hypothetical error would not warrant reversal of the judgment. “Alleged instructional error is reviewed under the prejudicial error standard. Under this standard, the judgment is affirmed unless the appellant can show an error that was so prejudicial a miscarriage of justice occurred.” (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 306.) “Thus, when the jury receives an improper instruction in a civil case, prejudice will generally be found only ‘“[w]here is seems probable that the jury’s verdict may have been based on the erroneous instruction.”’” (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 574.) When determining whether an error of instruction and/or instructional omission was prejudicial, the court must evaluate the state of the evidence, the effect of other instructions, the effect of counsel’s arguments, and any indications by the jury itself that it was misled. (Id. at pp. 580–581.)
Here, Anvar was not prejudiced by CACI No. 1004. First, Anvar was permitted to present his evidence regarding the incident. Second, other instructions aided Anvar’s theory of the case and ameliorated any prejudice that resulted from this one instruction. The jury was instructed regarding the elements of negligence and respondents’ duty to manage the property. The jurors were also told that respondents were “responsible for maintaining in a reasonable safe condition all areas he or she controls.” And, the trial court instructed the jury regarding respondents’ liability “for an injury caused by an unsafe concealed condition.” As in Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1040, the challenged instruction “only states that [respondents] had no duty to warn of obvious dangers, not that [respondents] could not be held liable for any injury which results from any obvious, dangerous condition under any theory. The jury was free to consider whether [respondents were] directly negligent in failing to correct any foreseeable, dangerous condition of the [club] which may have contributed to the cause of [Anvar’s] injuries.”
Third, Anvar’s counsel explained his theory of the case during closing argument. He set forth the issue as “whether [the] hole in the wall behind [the] couch set against the wall was a dangerous condition under the circumstances that confronted” Anvar on the night of the incident. He further described the alleged dangerous condition as the “gap in the wall with the lights substantially dimmer with [a] crowd condition.” In fact, in his closing argument, Anvar’s counsel detailed why a dangerous condition existed and how Anvar was injured as a result of that condition.
Finally, there is no indication that the jury was in anyway misled.
IV. Motion for New Trial
Finally, Anvar argues that the trial court erred when it denied his motion for a new trial. He claims that he is entitled to a new trial because the trial court improperly admitted inflammatory evidence, namely (1) evidence that he was a nominal investor in the Paja Group, and (2) e-mails that circulated among him and other Paja Group members, and improperly excluded a photograph of the scene of the incident.
Code of Civil Procedure section 657 provides, in relevant part: “The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶]... [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application.”
We review a denial of a motion for a new trial for abuse of discretion. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160–1161.) “Prejudice is required: ‘[T]he trial court is bound by the rule of California Constitution, article VI, section 13, that prejudicial error is the basis for a new trial, and there is no discretion to grant a new trial for harmless error.’” (Sherman v. Kinetic Concepts, Inc., supra, at p. 1161.)
Likewise, we defer to a trial court’s evidentiary rulings. “Broadly speaking, an appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion.” (People v. Alvarez (1996) 14 Cal.4th 155, 201.) “This standard of review applies to a trial court’s determination of the relevance of evidence, as well as to whether the evidence’s probative value is substantially outweighed by its prejudicial effect.” (People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639.)
A. Anvar’s Status as a Nominal Investor
Anvar asserts that his status as a nominal investor should not have been introduced at trial because it had nothing to do with the issues surrounding his fall and resulting injuries. We see no abuse of discretion.
Anvar testified that he owned less than 1 percent of the Paja Group. He also stated that while he had some disputes about his investment, those disputes had nothing to do with his claims in this lawsuit. However, the trial court acted well-within its discretion in allowing this evidence so that the jury could determine whether Anvar was biased or had some ulterior motive for pursuing this litigation. (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 344, p. 429 [“A witness may be asked on cross-examination whether he or she is biased, interested, [or] has a hostile feeling”].)
B. Anvar’s E-mails
Anvar argues that the trial court erred in denying his request to exclude certain hostile e-mails between himself and various Paja Group members. Notably, Anvar fails to cite to that portion of the appellate record wherein the trial court actually admitted the subject e-mails into evidence. And, respondents indicate that those e-mails and their contents were never admitted into evidence. Anvar’s failure to satisfy his burden on appeal requires that this issue be resolved against him. (Cal. Rules of Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [appellate court is not required to make an independent, unassisted search of the appellate record].)
C. Exclusion of Photograph
Finally, Anvar argues that the trial court abused its discretion in excluding a photograph of where the incident occurred. According to Anvar’s opening brief, the “photograph was relevant as it depicted the scene of the incident in a condition remarkably similar to what it would have been at the time of the incident.” Anvar sought to have the photograph admitted into evidence “in order to illustrate to the jury the lighting conditions of the Element Nightclub during the club’s operating hours, and in order to provide a general backdrop for the jurors to get a full understanding of what the club may have looked like on the night of the incident.” (Italics added.)
Anvar’s argument is unconvincing. First, he again neglects to provide us with any citation to the appellate record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) We are not told where to find a copy of the photograph, where he requested to have it admitted, or where and when the trial court denied his request to admit this evidence. Second, the photograph lacks foundation. As Anvar admitted in his motion for new trial, neither he nor his expert could “pinpoint the exact details of when the photograph was taken, who it was taken by, etc.” Third, Anvar himself implicitly concedes that the photograph holds little, if any, relevance. According to Anvar’s appellate brief, at best the photograph depicted only a similar scene, as it “may” have existed at the time Anvar was injured. Given Anvar’s other evidence regarding the club’s lighting conditions, including testimony from Anvar’s expert Dr. Sanders as well as other photographic evidence of the club, the trial court acted within its discretion in excluding this one photograph.
According to respondents’ brief, the subject photograph is not part of the appellate record.
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J