Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment and orders of the Superior Court of Los Angeles County, Helen I. Bendix, Judge, Los Angeles County Super. Ct. No. BC 326929.
Danny Barnes, in pro. per., for Plaintiff and Appellant.
Wesierski & Zurek, Frank J. D’Oro, and Paul J. Lipman for Defendants and Respondents.
FLIER, J.
Danny Barnes appeals from a judgment entered in favor of Ralph s Grocery Company (Ralphs) after a jury found a Ralphs employee did not publish to others a claimed defamatory statement, “You did not pay for that.” The parties stipulated that a negative answer to that question would preclude appellant’s recovery for defamation and intentional infliction of emotional distress. We find the trial court properly entered a defense judgment and did not abuse its discretion in rulings complained of or committed misconduct. We therefore affirm.
Appellant has moved for production of additional evidence on appeal, which we have reviewed. Although an appellate court is authorized to make findings of fact on appeal (Code Civ. Proc., § 909; Cal. Rules of Court, rule 8.252(b)), this authority should be exercised sparingly and such findings should be made only in exceptional circumstances. (Tyrone v. Kelley (1973) 9 Cal.3d 1, 13.) We find no such exceptional circumstances in this case and therefore deny appellant’s motion.
On August 15, 2004, Lorena Felipe, a Ralphs deli clerk, sold appellant and his 15-year-old son two sandwiches and two soft drinks. Appellant paid Felipe for those items at the service deli counter of the market. Felipe wrapped the sandwiches and put them in a plastic bag before handing them to appellant. She also gave appellant a receipt for the sandwiches and soft drinks.
After appellant and his son left the deli counter, Felipe saw appellant’s son pick up a container of cut-up pineapple from the “Chef Express” self-serve area of the deli department. Felipe saw appellant walk from the deli department through an empty check stand toward the exit with the unpaid for pineapple. Appellant could have paid for the pineapple at the deli counter or stood in line to pay at an active check stand but did neither. Felipe went to the customer service desk at the front of the market. She notified manager Judith Osorio that the pineapple was not paid for.
Felipe heard Osorio ask appellant in a normal tone of voice, “Excuse me, sir. Did you pay for that pineapple?” and asked to see his receipt. Appellant loudly responded, “Are you harassing me or what? Are you accusing me of stealing this?” He angrily left the store, refusing to show his receipt. Osorio did not challenge or detain appellant.
Later, appellant called the store manager, Kenny Cox, to complain of the incident. Cox testified appellant said the issue was whether he had paid for the soda, and appellant did not mention any pineapple. Cox told appellant he would investigate and apologize if appellant was correct. Cox located appellant’s receipt showing appellant paid for the sandwiches and soda. He then checked the market’s video monitoring system to see if it had recorded any part of the incident. He next spoke with Osorio and learned the issue was pineapple not a soda. Cox reviewed the videos again, and they showed appellant going through a closed check stand holding a bag and a square plastic container that appeared to contain pineapple. Cox called appellant and left a message saying he had done some investigation and discovered the issue was pineapple, not the soda, and he could not give appellant a written apology.
According to appellant, Osorio accused him loudly of taking things, rather than asking him softly if he had paid for the pineapple. He testified Osorio yelled out, “Hey, you. Hey, you . . . [¶] . . . You didn’t pay for those items.” Osorio first accused him of not paying for the sandwich and then of not paying for the soda. Appellant could not identify any customer who heard the exchange. He testified his son was already out at the car and did not hear Osorio’s statement. Appellant denied there was any pineapple involved and at trial refused to admit or deny it was he in the video. Appellant testified he had a loud exchange with Osorio and then demanded her name. When Osorio refused to give it, appellant went out to his car briefly. He returned without the items and with a pen and paper. He talked to other store personnel before leaving. Appellant testified that Cox orally apologized at a meeting several days later but refused to put the apology in writing. Cox called him immediately afterwards and retracted the apology, saying he had reviewed more pictures and saw something yellow in appellant’s hand.
Appellant made no attempt to subpoena Osorio as a witness, and she did not testify at trial.
Appellant’s counsel conceded during closing argument that the moving parts of the video showed appellant walking through the check stand, pausing at a display at the front of the market and then turning around and holding up items in his hands before leaving.
PROCEDURAL HISTORY
In January 2005, acting as his own counsel, appellant brought an action for defamation and intentional infliction of emotional distress, naming Ralphs, Cox and Osorio as defendants. The complaint was assigned to a judge for all purposes under fast track rules and procedures.
Ralphs and Cox were timely served, but Osorio, who was no longer employed at Ralphs, was not. The court held four order to show cause hearings with respect to appellant’s failure to serve all defendants. Hearings were held on April 28, 2005, June 9, 2005, July 27, 2005, and August 4, 2005. The court ultimately dismissed Osorio as an individual defendant without prejudice on August 4, 2005, and the clerk gave appellant notice of entry of the order on the same date. On August 4, appellant obtained counsel.
In his reply brief, appellant admits he became aware of Osorio’s home address immediately after a case management hearing on July 5, 2005.
In December 2005, appellant’s counsel moved to vacate Osorio’s dismissal. The court denied the motion.
Three weeks later, a jury trial commenced against Ralphs and Cox. At trial, the jury was shown the video and still photographs from the videotape, all of which were admitted into evidence.
All exhibits offered by both sides were admitted by stipulation of counsel. After trial, all exhibits were returned to the parties. This court granted appellant’s motion to augment the record with a DVD of the videos that was admitted as an exhibit, but appellant never furnished the DVD to this court.
After appellant’s case-in-chief, Cox moved for a nonsuit. Appellant’s counsel stipulated to a nonsuit as to Cox on the defamation cause of action. On the intentional infliction of emotional distress cause of action, appellant’s counsel at first contended Cox should be held to trial but ultimately stipulated that Cox should be dismissed from that claim as well.
The case as to Ralphs went to the jury on stipulated jury instructions and a stipulated special verdict form. The parties stipulated that if the jury answered “no” to question No. 1 on the verdict form, there would be no liability for Ralphs on both causes of action. Question No. 1 asked the jury: “Did Judith Osorio make the following statement to persons other than Danny Barnes? [¶] ‘You did not pay for that[.]’ [¶] . . . [¶] If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.” (Capitalization omitted.)
While deliberating, the jury asked to view the videotape again and for deli clerk Felipe’s testimony to be read back to them in its entirety. The court granted both requests with both counsel’s consent. The jury also asked: “[D]oes ‘make the following statement to persons other than Danny Barnes’ mean: [¶] (1) other people could hear the statement [¶] or [¶] (2) the statement was directed to a person other than Danny Barnes?” After conferring with counsel and obtaining their agreement, the court instructed the jury that they should answer “Yes” to question 1 if they found either to be the case.
The jury returned the special verdict, answering question No. 1 in the negative. Since the parties had stipulated that a negative answer to question No. 1 would mean no liability, the verdict form was signed and returned by the jury as directed. Appellant filed a notice of appeal, and the court then entered a defense judgment on the verdict.
Insofar as the notice of appeal purports to appeal from the August 4, 2005 order dismissing Osorio, the appeal filed on February 3, 2006, is untimely and should be dismissed. (Cal. Rules of Court, rules 8.104(a), (b) & (f).) However, construing the notice of appeal liberally, as we must, we will interpret the notice of appeal to include an appeal from the December 22, 2005 order denying the motion to vacate the order of dismissal, the order granting a nonsuit to Cox and the subsequently entered judgment. (See Cal. Rules of Court, rules 8.100(a)(2) [liberal construction] & 8.104(e) [premature notice of appeal].)
DISCUSSION
1. The Court Did Not Abuse Its Discretion Regarding Osorio’s Dismissal
Appellant contends the trial court abused its discretion with respect to the dismissal of Osorio. We disagree.
The court’s order denying appellant’s motion to vacate Osorio’s dismissal set forth the factual circumstances which, except as to the matters noted below, appellant appears not to dispute.
On March 17, 2005, the court issued a notice of an order to show cause for the pro. per. appellant’s failure to file a proof of service for all defendants. On March 21, appellant filed a document with the court entitled “Plaintiff notifying court of serving summons and complaint on Ralphs Grocery et al.” The document stated appellant had “properly” served “Defendants Ralphs . . . and combined Judith Osario, [sic] Kenny, at their perspective [sic] place of business on January 7, 2005.” Attached was another document, entitled “Proof of Services, ” that indicated Osorio had been served.
However, at the first order to show cause hearing on April 28, appellant represented to the court that Osorio had not been served. On May 29, appellant filed a case management statement again stating that Osorio had not been served. At a continued order to show cause hearing on June 9, appellant represented yet again that Osorio had not been served, and the court continued the order to show cause hearing once more, to July 27, so appellant could serve Osorio.
On July 27, appellant informed the court that Osorio had been served under a “fictitious name” and that he had obtained counsel. However, no substitution of counsel or proof of service appeared in the court file. Appellant asked the court for another continuance so that a substitution of counsel and proof of service could be filed. The court continued the order to show cause hearing to August 4.
On the morning of August 4, neither appellant nor counsel for appellant appeared at the continued hearing and no substitution of attorney or proof of service was on file. The court therefore dismissed Osorio as an individual defendant without prejudice. The clerk served notice of the entry of the order of dismissal on appellant the same day. Later in the day, a substitution of attorney was filed for appellant, substituting counsel in his place.
In December 2005, counsel for appellant moved for relief from Osorio’s dismissal on the ground of his mistake, inadvertence, surprise or excusable neglect. He informed the court that he had only substituted in the case on August 4 and was unaware of that day’s hearing. Counsel declared Osorio had been served on May 13, 2005, and claimed she was a “necessary party” to the action. The court denied the motion to vacate. The court stated the dismissal had been based, not on appellant’s or his counsel’s failure to appear on August 4, but on “the pro per plaintiff’s failure to prosecute.” The court observed that Osorio had not yet appeared in the case and expressed doubt that Osorio in fact had ever been served. The court noted that on December 1 counsel had filed a proof of service signed by a third party, months after the purported service, representing Osorio had been served on May 13. However, in appellant’s declaration filed in support of the motion to vacate, appellant had represented that service did not actually occur until July 13, which the court found to be “another apparent misrepresentation to the court regarding service on Ms. Osorio.” The court found no evidence counsel was responsible for the false statements but placed the fault squarely on appellant himself, saying, “the procedural history demonstrates a history of the client’s misrepresentations[] to the court regarding the status of service on Ms. Osorio, including obtaining at least one false representation from the process server.” (Italics added.) The court concluded neither appellant nor his process server was credible, “as evidenced by the history of contradictions in the plaintiff’s filings with the court on this issue both when he was pro per -- for most of the time -- and when he was represented by [counsel].”
On appeal, appellant contends his counsel was incorrect and that appellant had informed counsel in July of both the August 4 hearing and the necessity of filing a proof of service for Osorio prior to the hearing.
In his opening brief, appellant concedes that he and the process server had “miscalculated” the service date when he “help[ed]” the process server fill out the proof of service.
On this record, we cannot say the trial court abused its discretion in denying the motion to vacate. Appellant failed to make any showing that his failure to timely serve Osorio was the result of mistake, inadvertence, surprise or excusable neglect. The procedural history established the original dismissal of Osorio stemmed from appellant’s personal lack of diligence rather than any mistake or inadvertence. Further, this is not a situation where mandatory relief obtains for counsel’s mistake, inadvertence, surprise or neglect. Code of Civil Procedure section 473, subdivision (b) provides that, whenever an application for relief from a judgment, dismissal, order, or other proceeding taken against a party is made within six months, is in proper form and is “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, ” the court “shall” vacate any resulting default judgment or dismissal entered against his or her client, “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” The court found the dismissal was not in fact caused by counsel’s conduct. The court’s determination of an attorney’s affidavit of fault is a factual determination that will not be reweighed on appeal. (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.)
Appellant argues that, under Government Code section 68600 et seq. a court may not dismiss an action for noncompliance with local rules if noncompliance is the responsibility of counsel, not of the litigant. He also argues that under Code of Civil Procedure section 575.2, subdivision (b), the Legislature has made clear an intent that a party’s cause of action should not be impaired or destroyed by the attorney’s procedural mistake. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 481.) However, there is no prohibition against dismissal of an action if the summons and complaint have not been served within the 60 days provided under fast track rules, if: (1) the failure to serve is the fault of the client rather than the attorney, and (2) less severe sanctions have been ineffective. (Tliche v. Van Quathem (1998) 66 Cal.App.4th 1054, 1063.) Given the facts here, dismissal of Osorio was appropriate since the court concluded the failure to timely serve her was the fault of appellant and not his counsel. The court gave appellant multiple opportunities to comply with fast track rules without effect. In view of appellant’s multiple failures to comply, the court was not obliged to impose lesser sanctions before ultimately dismissing Osorio.
Moreover, if there was error in dismissing Osorio or in denying the motion to vacate, it was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) Osorio’s dismissal was “without prejudice, ” leaving appellant free to pursue her had he chosen to do so. The court’s order also left open the possibility of seeking reconsideration upon appellant’s showing of good faith. Even when the court refused to vacate the dismissal four months later, it was still not too late. The court told appellant, “Go file a lawsuit against her. Serve her.” As respondent notes, the statute of limitations had not yet run as of the time of dismissal and denial of the motion to vacate. From this record, it appears appellant could have pursued an action against Osorio but chose not to do so. In any case, the court instructed the jury at trial that all Ralphs employees mentioned by name in the testimony acted in the course and scope of their employment in their dealings with appellant. The jury could not have found Ralphs liable unless it found that Osorio had published the claimed defamatory statement. The jury’s exoneration of Ralphs was also a vindication of Osorio, the only individual charged with uttering the statement. (Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1423; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1347.) There is no showing the result for appellant would have been any different had Osorio remained an individual defendant in the action. Indeed, Osorio’s absence would tend to aid appellant since she was not present to lend weight to Felipe’s testimony.
2. The Court Did Not Abuse Its Discretion in Granting Cox a Nonsuit
The court granted a nonsuit for Cox after appellant, through his attorney, stipulated to entry of the nonsuit. Appellant contends the court abused its discretion in doing so because Cox allegedly uttered a “false” statement before appellant’s son and two other witnesses, Louise Blue and Billy Rattler.
Appellant asserts Blue and Rattler had evidence that Cox apologized to appellant at a meeting with appellant. Blue testified as a witness for appellant at trial. She stated she was present at a meeting between appellant and Cox after the incident and heard Cox tell appellant, “I have already apologized to you . . . .” Rattler was not called as a trial witness, and his written statement is not part of the record on appeal. Appellant does not say in his brief what “false” statement was made before his son.
Regardless of such contentions, any purported error in granting the nonsuit was waived. When the defense moved for a nonsuit for Cox, appellant’s counsel at first agreed to Cox’s dismissal from the defamation action, conceding the cause of action for defamation was “based upon the words uttered by Ms. Os[o]rio.” However, he stated he wanted to keep Cox as a defendant for the intentional infliction of emotional distress claim on the theory that Cox’s conduct was “outrageous” and demonstrated a “reckless disregard” of appellant’s rights. Appellant’s counsel agreed that Cox “had nothing to do with the incident in the store” but contended that Cox should have conducted a more thorough investigation. The court went over the elements of intentional infliction of emotional distress with both counsel, then indicated it was inclined to agree with the defense but would consider the matter overnight. Moments later, in discussing which jury instructions would go to the jury, appellant’s counsel indicated he would agree to a nonsuit for Cox on both causes of action. The parties then signed a written stipulation requesting the court to “[p]lease read to [the] jury: Kenny Cox is dismissed by the court from this case as an individual defendant.”
When a party by his conduct induces the commission of error, he is estopped from claiming it is a ground for reversal. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, §§ 383-384, pp. 434-436; Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685 [“ ‘an appellant may waive his right to attack error by expressly or impliedly agreeing at trial to the ruling or procedure objected to on appeal’ ”].)
The record indicates appellant’s counsel made a tactical decision to remove Cox as an individual defendant. If the court erred in granting a nonsuit to Cox, therefore, it was invited error.
3. Appellant Stipulated to the Special Verdict Form
The doctrine of invited error also applies to the form of the special verdict that appellant stipulated to in the trial court. Appellant contends the special verdict form was incorrect and misleading to the jury, and the court should have modified the form or given the jury “proper” instructions because the video had no sound. We disagree.
Felipe testified that appellant walked from the deli section of the market through an empty check stand with unpaid for pineapple. Ralphs proffered the videotape that Cox put together from store monitors, together with stills from that video. Appellant denied there was any pineapple involved, but he refused to admit or deny it was he in the video. He categorically denied he was holding a container in his hand as he walked out of the check stand. If the jury believed the witnesses for Ralphs or if the jury found from viewing the video that it was more likely than not the video showed appellant holding pineapple in a square container (rather than a plastic bag as appellant claimed), under the evidence presented the jury was entitled to find that appellant was leaving the market with unpaid for pineapple. Both parties agreed this would be a defense to both causes of action.
The parties also agreed that truth would be an absolute defense to the claim for defamation. Both parties further stipulated to jury instructions on the “merchant’s privilege” under Penal Code section 490.5, subdivision (f). Under the merchant’s privilege, the jury was instructed that Ralphs would be entitled to a defense verdict if it had probable cause to believe that appellant was attempting to unlawfully take merchandise from the store.
The jury was instructed, “If you find that Ralphs acting through its employees had probable cause and acted reasonably in making its inquiries of plaintiff, then you must find for the defense because such probabl[e] cause is a complete defense to all of the plaintiff’s civil claims.”
As drafted by the parties, the special verdict form instructed the jury that if its answer to question No. 1 was “no, ” that answer would be conclusive of the intentional infliction of emotional distress claim as well. In colloquy with counsel, the trial court cautioned a negative answer to question No. 1 would “not necessarily” end the case and, if the parties agreed it did, they needed to “put it on the record so there is no appellate problem” with giving the jury such an instruction. Both counsel expressly agreed on the record to waive any argument that the giving of the instruction constituted error.
The doctrine of invited error applies “with particular force in the area of jury instructions. Whereas in criminal cases a court has strong sua sponte duties to instruct the jury on a wide variety of subjects, a court in a civil case has no parallel responsibilities. A civil litigant must propose complete instructions in accordance with his or her theory of the litigation and a trial court is not ‘obligated to seek out theories [a party] might have advanced, or to articulate for him that which he has left unspoken.’ [Citations.]” (Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1686 [jointly drafted special verdict form inviting inconsistent verdict]; see also Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1653 [erroneous instruction given by appellant’s request]; Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960, fn. 8 [failure to propose appropriate special verdict form].)
Appellant asserts the jury was confused about question No. 1 since they asked for a clarification of that question. There is no showing the jury was confused. As stipulated by the parties, the court informed the jury they should answer “yes” to question No. 1 if they found other people heard Osorio say “You did not pay for that” or if the statement was directed to a person other than appellant. During his closing argument, appellant’s counsel had told the jury that “addressing other persons does not mean [Osorio] was purposefully speaking to these people. . . . [W]e are not claiming that she was purposefully talking to other customers rather that she was definitely talking to [appellant], but that these other people in fact heard what she said.” Although the video had no sound, there was testimony regarding what Osorio said as appellant walked through the empty check stand. Felipe testified to what she heard Osorio say to appellant. Appellant disputed Felipe’s testimony and testified to what he claimed Osorio told him. It was for the jury to determine whose testimony was credible. The jury did not indicate it was confused after the court clarified the verdict form, and it returned a verdict without requesting any further clarification.
The court did not err in submitting the special verdict form to the jury.
4. There Was No Error Regarding Other Issues
Appellant raises other issues that are without substantive merit.
Appellant claims the court erred in not removing a juror and replacing her with an alternate when the juror complained of headaches during trial. Appellant states the juror was wearing sunglasses and had her head on a pillow during testimony. The record shows that, on the second day of trial, the juror had complained of headaches in a note to the court and stated she might need to close her eyes or use sunglasses. The court offered and gave the juror pillows from the judge’s chambers. In the afternoon the juror stated she felt “much better” when the judge inquired after her comfort. There is no indication in the record that the juror was not attentive to the testimony that day or did not properly deliberate when the case was submitted to the jury on the day following. A juror’s inability to perform the functions of a juror must appear in the record as a demonstrable reality. (People v. Collins (1976) 17 Cal.3d 687, 696.) The judge in this case was attentive and responsive to the jury’s needs and welfare during the course of the trial, and the record indicates she paid close attention to the demeanor of the jury. The court obviously did not feel it necessary to replace this juror, and we will not second guess the judge’s retention of the juror absent a clear demonstration of abuse. (People v. Seaton (2001) 26 Cal.4th 598, 676.) Moreover, appellant’s counsel never objected to the juror’s continued service or suggested that the juror was not able to serve on the jury. When a party or his counsel becomes aware of facts constituting misconduct or irregularity in the proceedings of the jury, he must promptly bring such matters to the attention of the court or the objection is waived. (See Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 103 [waiver of issue as ground for new trial].)
Appellant also claims the trial judge told appellant’s son, just before the son resumed his testimony at trial, “Now tell us what your father told you to tell us.” There is no evidence the trial judge ever made such a comment, nor does the record reflect the incident in fact occurred.
Finally, appellant claims Ralphs’ witnesses “perjure[d]” themselves during trial. Appellant cites matters not in the record, such as witness statements and declarations not filed with the court, purportedly in conflict with the testimony at trial. Such matters are outside the scope of our review. (See 9 Witkin, Cal. Procedure, supra, Appeal, § 328, pp. 369-370.) Our review of the record establishes substantial evidence supports the verdict. At trial, appellant had full opportunity to call whomever he wished and was allowed to cross-examine defense witnesses without limitation. The jury as trier of fact found the defense evidence credible and appellant’s evidence not worthy of belief. We will not second guess the jury. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.)
DISPOSITION
The appeal from the order dismissing Osorio is dismissed. The order granting a nonsuit to Cox and the judgment in favor of Ralphs are affirmed. Respondents are to recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: COOPER, P. J., BOLAND, J.