Opinion
B161462.
10-31-2003
VIRGINIA DORSEY, Plaintiff and Respondent, v. 99 CENTS ONLY STORES, INC., Defendant and Appellant.
Manning & Marder, Kass, Ellrod, Ramirez, John M. Ribarich and Sylvia Havens for Defendant and Appellant. Younger & Associates, Timothy M. Younger and Melissa M. Wise for Plaintiff and Respondent.
INTRODUCTION
Virginia Dorsey tripped and fell over a step inside a store owned and operated by defendant 99 Cents Only Stores, Inc. Dorsey sued for negligence and premises liability. Following a jury trial, judgment was entered in favor of Dorsey. On appeal defendant asserts that the six-inch step constituted an open and obvious condition or was at least a trivial condition, as a matter of law. We find that it was neither. We additionally reject defendants contention that the judgment should be reversed based upon the doctrine of primary assumption of the risk. Defendant also makes various assertions of error regarding the admission of certain photographs, the testimony of plaintiffs expert witness, and the display of a sample step. None of defendants overruled evidentiary objections had merit. Defendant also contends jury misconduct, but it failed to provide an adequate record demonstrating the purported error. Finally, defendant asserts the damages were excessive as they were purportedly based on an improper estimate of plaintiffs economic damages. Defendants attorney however consented to the introduction of the estimated amount into evidence. In summary, we disagree with all of defendants arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The 99 Cents Only Store opened in Whittier on June 24, 1999. The store is required to keep hourly safety inspection reports on file. The stores policy is to keep all areas free of potential hazards and to rectify any safety hazards at once.
The Whittier store has four westerly facing displays such as the one where plaintiff tripped and fell. Each display is approximately 12 feet tall and 10 feet wide, with three walls of full windows. The stores policy is to stack goods from the floor of the display until midway to the ceiling. The floor tile in front of each display is white with blue diagonal stripes. There is a six-inch step in front of each display. The pattern of the floor tile on top of the step also contains blue diagonal lines. Defendants building supervisor testified when the store first opened he placed yellow duct tape on all of the steps inside the store. He stretched the tape across the entire length of the top of each step and folded it over the side a little. He inspected the Whittier store monthly. It was his responsibility to replace any worn tape. He did not do so between when the store opened on June 24, 1999, and September 30, 1999, the date of plaintiffs fall.
Plaintiff, Virginia Dorsey, went shopping for paper towels at the Whittier 99 Cents Only Store in the late afternoon of September 30, 1999. She took a shopping cart and walked up and down the aisles until she spotted the paper towels on a table within a display window to her left. She testified that, although sheet-like cloths were hanging from the windows, some sunlight still came in through the windows. Plaintiff turned toward the paper towel display, took one step toward it, and fell face down. She did not see the step before falling. As she was helped up by others, she saw the step. Plaintiff testified that a photograph identified as exhibit one accurately depicted the condition of the step. She testified the rubber on the step was torn as depicted in the photograph. She remembered seeing something yellow on the side of the step. "[I]t was hanging. It was, like, tape." According to plaintiff, aside from the sunlight coming in from the windows there was no other lighting in that area.
Defendants district manager and building supervisor testified that the paper towels were not on any display table and there were no sheets covering the windows.
Defendants district manager and building supervisor disputed this.
Plaintiff remained in the store for two and one-half hours until she was transported away by ambulance. She sustained a fractured femur bone and underwent hip replacement surgery and physical therapy as a result of the fall. According to plaintiff, an infection later developed in her hip area. At the time of trial, or over two years after the accident, plaintiff still was not able to walk as she did before her fall. Her hip would "lock up."
Plaintiffs medical expert clarified that plaintiff actually developed ossification or the development of bone in muscle tissue and not an infection.
Plaintiffs expert witness, Page Travis Eskridge, a registered safety engineer, testified that the situation in the store was hazardous, given the single riser in this type of store, the inadequate lighting for visual acuity, the confusing floor tile pattern, the lack of marking on the riser itself, and the condition of the yellow tape. He based his opinions on the deposition testimony of plaintiff and defendants expert witness, photographs of the area, and plaintiffs medical records. Eskridge subsequently testified that he inspected the store. Some but not all of his opinions were based on the photographs.
Plaintiffs counsel asked Eskridge to assume that certain photographs accurately depicted the store conditions when the accident occurred. Eskridge opined that the worn yellow tape was confusing, as was the similar color of the black riser and the blue diagonal stripes on the floor tile. It did not give a "good visual cue," or draw a persons attention to the necessity of stepping up onto the step. According to Eskridge, unlike a department store or office, a step is rarely found in a supermarket or drugstore. Thus, a person would not reasonably expect the step to be there in defendants store. A six-inch step can therefore be hazardous in and of itself. It should therefore be adequately marked so that it can be easily seen and will draw a customers attention. Assuming that the photographs accurately depicted the situation within the store, Eskridge testified that plaintiff did not notice the change in elevation and therefore tripped on the step. He further testified that the step was inadequately maintained. He recommended removing the entire step or at least painting the entire riser bright "safety yellow."
The court requested, received, and reviewed the color photographs of the floor admitted into evidence (exhibits 1, 2, and 3).
Defendants expert witness, Mack Quan, a mechanical engineer, testified that the area was safe, well lit, and well designed. It was also clear, obvious, and well marked. According to Quan, there were adequate visual cues and the step was not a trip hazard. He concluded the accident resulted from plaintiffs "inattention" or "misstep." Quan used a prepared diagram of a "bird eyes view" of the store to illustrate some of his testimony.
The jury was given the jury instructions for a negligence and premises liability case, as well as other standard instructions. In particular, they were told to base their decision on the evidence presented at trial and that statements of counsel do not constitute evidence.
Sometime during the deliberations juror number two revealed to the court and counsel that she worked for a collections agency and as part of her work she contacted defendant on a monthly basis to collect on overdue bills. She shared this with the other jurors. The court denied defendants motion to excuse this juror.
The jury returned a verdict in favor of plaintiff and awarded her $41,739.23 in economic damages and $210,000 in noneconomic damages for a total of $251,739.23. It found defendant was 90 percent at fault and plaintiff was 10 percent responsible. The jurors voted nine to three that defendant was negligent and caused plaintiffs injury. Juror number two voted in favor of defendant on all of the questions except for the amount of economic damages.
The court reduced the amount of economic damages to $2,962.49, the actual amount paid by plaintiff.
Defendant unsuccessfully moved for a mistrial based upon juror number twos discussion of her relationship with defendant with the other jurors and the courts decision to permit deliberations to proceed without an admonishment.
Defendant moved for a new trial on various grounds. The court ruled that it would grant a new trial on the issue of damages unless plaintiff agreed to a remittitur of $60,000 less than the original verdict. Plaintiff accepted the remittitur and a revised judgment was filed.
DISCUSSION
I.
Open and Obvious Danger
"Every one is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property . . . except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself." (Civ. Code, § 1714, subd. (a). See Rowland v. Christian (1968) 69 Cal.2d 108, 118-119.) A possessor of land has a duty to exercise reasonable care for the safety of those who come onto the land, and that duty requires him to inspect the premises in order to uncover dangerous conditions. (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121, 124.) The duty to warn extends to conditions he knows to be dangerous, as well as conditions that an exercise of ordinary care will reveal to be dangerous. (Chance v. Lawrys, Inc. (1962) 58 Cal.2d 368, 373.)
Defendant here contends the dangerous condition of the step was so obvious that plaintiff could reasonably be expected to see it, and, thus, defendant had no duty to warn plaintiff about the condition, as a matter of law.
A customer, however, "is not obliged to make a critical examination of the surroundings he is about to enter, but on the contrary has the right to assume that those in charge have exercised due care in the matter of inspection, and have taken proper precautions for the safety of the patrons, and will use reasonable care in guarding him against injury." (Chance v. Lawrys, Inc., supra, 58 Cal.2d at pp. 373-374.) Where the plaintiff is shopping inside a store, he may give his attention to the goods displayed and does not need to watch the floor. (Moise v. Fairfax Markets, Inc. (1951) 106 Cal.App.2d 798, 803-804.) "`The fact that the attention of persons who visit public markets is attracted by the display of the wares offered for sale and more or less absorbed by the transactions which they have in mind would seem to increase the necessity of exercising care to the end that the floor spaces and aisles allotted to the use of customers should be made safe and kept fit for such purpose." (Id. at p. 803.) Here, plaintiff testified she entered the store to purchase paper towels and was looking at the paper towel display when she tripped over the step. Because her attention was fixed upon the store display, she did not necessarily also have to look at the floor and see the step.
The question of whether the step was open and obvious is at least a jury question. "Under Rowland v. Christian, supra, we are impelled to conclude that the obvious nature of the risk, danger or defect . . . can no longer be said per se to abridge the invitation given by the possessor of land, or to derogate his duty of care, so as to make his liability solely a matter of law to be determined on a nonsuit. By that decision, this matter of law for the court is transmuted to a question of fact for the jury; namely, whether a possessor of land even in respect to the obvious risk has acted reasonably in respect to the probability of injury to an invitee; and whether or not the invitee used the property reasonably in full knowledge of any obvious risk entering into a subsequent injurious incident." (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 33.) Where a plaintiff struck her head on a projecting ceiling board in plain view while ascending the steps of a restaurant because she was distracted by people coming down the stairs, the issue of whether the danger was sufficiently obvious was a jury question. (Neel v. Mannings, Inc. (1942) 19 Cal.2d 647, 656.) Likewise in Chance v. Lawrys, Inc., supra, 58 Cal.2d at pages 372-373, the Supreme Court rejected Lawrys argument that the planter box located in the foyer at the entrance to defendants restaurant "was so obvious that it [defendant] could reasonably anticipate that patrons would see and apprehend the danger [of losing their balance and falling into the planter box as did plaintiff]." (Id. at p. 374.) The court stated: "Whether the danger created by the open planter box was sufficiently obvious to relieve Lawrys of its duty to warn [the plaintiff] of its existence was peculiarly a question of fact to be determined by the jury." (Ibid.)
The same reasoning applies here. Although defendant believes the step is obvious, plaintiff, her expert, and the jury felt otherwise. Plaintiffs expert testified that the store lighting was inadequate for visual acuity, the color and the pattern of the floor tile was busy and confusing, the yellow warning tape was not stretched all the way across the length of the step, and a person would not expect there to be a step inside that type of establishment. Defendants expert disagreed, testifying that the step was not a hazard and in any event it was obvious. Whether the danger of the step was so obvious that plaintiff should have seen it is a question of fact for the jury to resolve. We therefore decline to find the condition within the store was open and obvious and defendant had no duty as a matter of law to warn about it.
II.
Trivial Defect
Defendant contends if the defect is not open and obvious, the condition is trivial as a matter of law. When a property defect is determined to be trivial, no liability for the condition attaches. The "trivial defect defense" is defined in Government Code section 830.2 as follows: "A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used." The rule originally arose in the context of government tort liability, but has been extended to protect private defendants sued for premises liability. (Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d 394, 398.)
"[T]he correct approach in cases of this nature is to determine first if the claimed defect is too trivial, as a matter of law, to be dangerous. An inquiry into this issue is a logical preliminary step before reaching the larger question of whether the nature of the defect, along with other circumstances, is sufficient to raise a jury question concerning notice. This initial inquiry into the question of `dangerousness would involve consideration of such matters as the size and location of the defect with respect to the surrounding area and lighting conditions and whether it has been the cause of other accidents." (Barone v. City of San Jose (1978) 79 Cal.App.3d 284, 290-291.)
Generally the question if a condition creates a substantial risk of injury as opposed to being a trivial risk, is a question of fact unless reasonable minds can come to only one conclusion. Whether a condition is dangerous is generally a question of fact that may be resolved as a question of law only "`"if reasonable minds can come to but one conclusion." [Citations.]" (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.) Here, reasonable minds could, and based upon the testimony of the experts and the votes of the jurors did, differ as to whether the step was a trivial condition. The expert witnesses contradicted each other as to whether the visual cues were clear, the lighting was adequate, the color and pattern of the floor tile was confusing, and the yellow cautionary tape was inadequate. Contrary to defendants argument, we cannot conclude as a matter of law that the danger was trivial.
III.
Assumption of the Risk
Defendant contends according to the doctrine of primary assumption of the risk, it owed no duty to plaintiff as a matter of law. Plaintiff argues defendant owed her a duty to maintain its store in a safe condition and warn about hazards. She contends it breached this duty because it failed to correct or warn about a hazardous condition, the single step in front of the paper towel display. The Supreme Court addressed the application of the doctrine of primary assumption of the risk given the system of comparative fault in Knight v. Jewett (1992) 3 Cal.4th 296, 299-300. (Gordon v. Havasu Palms, Inc. (2001) 93 Cal.App.4th 244, 250.) According to the doctrine of primary assumption of risk, "by virtue of the nature of the activity and the parties relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury." (Knight , supra, 3 Cal.4th at p. 314.) As such, the doctrine completely bars plaintiffs recovery. According to the doctrine of secondary assumption of risk, "the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendants breach of duty[, and] the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties." (Id. at p. 315.)
Consequently, "[t]he question of whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm turns on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport." (Gordon v. Havasu Palms, Inc., supra, 93 Cal.App.4th at p. 250, citing Knight v. Jewett, supra, 3 Cal.4th at 308, 313-315.) In Knight the Supreme Court affirmed the summary judgment in favor of the defendant, holding that the plaintiff could not sue in tort for risks which were inherent in the activity in which she was engaged, a game of coed touch football. (3 Cal.4th at pp. 318, 320-321.) Knight is inapposite. The activity and the risks arising from playing football cannot be equated with the activity and the risks arising from shopping in a retail store.
We conclude plaintiff was not injured as a result of a risk inherent in the activity in which she was engaged, shopping for paper towels at defendants store. The doctrine of primary assumption of the risk does not apply to this case.
IV.
Admission of Photographic Evidence
Defendant contends the trial court erroneously admitted photographs of the store into evidence as a proper foundation was lacking, and they were more prejudicial than probative. We disagree. Writings can constitute evidence when offered to prove the existence or nonexistence of a disputed fact. (Evid. Code, § 140.) A photograph is one type of writing. (Evid. Code, § 250; People v. Jones (1970) 7 Cal.App.3d 48, 53.) According to Evidence Code section 1401, before a writing is admitted into evidence it must be demonstrated to be authentic, or must be a depiction of what it purports to be. (See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512.) Authentication is made when evidence sufficient to sustain a finding that the writing is what it purports to be is introduced, or when such facts are established by other legal means. (Evid. Code, § 1400; Jacobson v. Gourley (2000) 83 Cal.App.4th 1331, 1334.) In the case of photographs, "[t]estimony that a photograph is a correct representation of the object sought to be shown is a sufficient foundation of its admission. Such testimony need not necessarily be given by the photographer who took or finished the photograph but may be given by any witness having sufficient knowledge of the object to say that the photograph is a faithful representation thereof." (Berkovitz v. American River Gravel Co. (1923) 191 Cal. 195, 201-202.) Even if there is no testimony regarding the exact place depicted within a photograph, it may still be admissible where the plaintiff testified that the picture depicted conditions similar to those in his work environment. (Smith v. ACandS, Inc. (1994) 31 Cal.App.4th 77.)
The trial court must make a preliminary determination of whether there is sufficient evidence to sustain a finding of authenticity. (Evid. Code, § 403; Fakhoury v. Magner (1972) 25 Cal.App.3d 58, 65.) When there are conflicting inferences as to whether a writing is an accurate depiction, this goes to the weight, and not to the admissibility, of the evidence. (People v. Garcia (1988) 201 Cal.App.3d 324, 329.) Thus, it ultimately becomes a jury question.
Contrary to defendants assertion here, there was no lack of sufficient foundation. Plaintiff, the only percipient witness who testified at trial, testified that the photos were similar to the step in question. Defendant takes issue with the fact that plaintiff did not testify the tape was torn or not stretched completely across the step. Plaintiff stated she saw something yellow, presumably yellow tape, on the side of the step. She further testified "[I]t was hanging." The testimony is unclear whether the tape was hanging over the side of the step or torn and hanging off the step. The building supervisor testified that he attached the tape all the way across the step three months before plaintiffs accident. The district manager testified that the yellow tape was new and did not match the condition of the tape in the photographs. Given the conflicting inferences regarding the accuracy of the photographs, we find the trial court properly overruled defendants objections to the photographs based upon lack of foundation.
"Generally, appellate courts apply the abuse of discretion standard of review to any trial court ruling on the admissibility of evidence." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 1989) ¶ 8:96.1, p. 8-41 (rev. #1, 2002), citing Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) We find the court did not abuse its discretion when it overruled defendants objections to the same photographs on the ground that they are more prejudicial than probative. (Evid. Code, § 352.) The photographs were a reasonably accurate depiction of the condition of the step on the date of the accident, and would have been helpful to the jury. They certainly were more helpful than prejudicial.
Defendant also contends the trial court erroneously failed to admit the store diagram used by defendants expert witness, Quan, into evidence. Although defendant asserted the trial court refused to admit this diagram because it believed Quan was "just kind of writing down what [he was] saying," the record does not indicate whether the court was even referring to Quans preprinted diagram of the store. In any event, defense counsel failed to ask that the diagram be marked for identification and he failed to request that the diagram be received into evidence. Thus, no error was demonstrated.
V.
Opinion Testimony
Defendant argued the opinions of Eskridge, plaintiffs expert witness, lacked evidentiary value since they were speculative and unsupported by the evidence.
Defendant relies on authorities that are inapposite to the present matter. (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, In re Marriage of Hewitson (1983) 142 Cal.App.3d 874, and In re Marriage of Rives (1982) 130 Cal.App.3d 138.)
In Pacific Gas, an eminent domain action to quiet title to injected gas, at issue was the value of storage rights in a certain parcel of property. The court found that the expert did not consider more comparable transactions, relying instead on an adjustment of a remote transaction to reflect modern values. He also rejected the valuation of storage rights approved by the California Public Utilities Commission, disregarded accepted inflationary factors, and based his calculations on the acreage of the parcel instead of the volume of the storage area. The trial court accepted the experts conclusion "without any critical assessment of the reasoning employed and the assumptions relied upon." (Pacific Gas, supra, 189 Cal.App.3d at p. 1136.)
In Hewitson, supra, a marital dissolution proceeding, the expert tried to determine the value of a closely held corporation by comparing it with the selling price/book value ratio of a publicly traded corporation. (142 Cal.App.3d at pp. 885-886.) Given the inherent differences in the two types of corporations, the court held that the experts testimony was not supported by substantial evidence.
In Rives, supra, another marital dissolution proceeding, the expert who determined the value of a queen bee business relied upon false assumptions and improper factors and failed to consider all of the relevant factors for establishing value. The expert included a substantial amount for the goodwill value of the business, based upon the potential income for the business, inflated historical production and income figures, and a comparison to a factually inapplicable hypothetical business. (130 Cal.App.3d at 149-152.) He failed to take into account the husbands age and desire to retire, the fact that his future efforts could not be community property, and the fact that the husbands skill and reputation were not community assets. Accordingly, there was no factual basis for the experts opinion.
In contrast, Eskridges opinion is supported by the evidence. He based his opinion on matters upon which a safety expert may reasonably rely. This included plaintiffs deposition testimony, Quans deposition testimony, photographs of the area (which may or may not have been the same photographs used during trial), and plaintiffs medical records. (Gordon v. Havasu Palms, Inc. (2001) 93 Cal.App.4th 244, 254-255.) He also inspected the store. Eskridge testified that, since the step was a single riser in this type of store, the lighting was inadequate for visual acuity, the pattern of the tile flooring was confusing, there was no marking on the riser itself, and given the condition of the yellow tape, the step was a hazardous condition. His opinion was supported by the record and it was not speculative. The trial court properly overruled defense counsels objections on the ground of improper speculation.
Defendants contention that Eskridges opinion lacked evidentiary value because it lacked a proper foundation is unmeritorious. According to defendant, Eskridge was asked to assume the condition of the yellow tape was as depicted in plaintiffs photographs although no testimony purportedly established such a condition existed. Defendant contended the photographs were of a different step and were taken a few months after the accident. As explained above, plaintiffs testimony sufficiently established that the condition of the tape on the photographs was similar to the condition of the tape on the date of the accident. Even assuming arguendo that plaintiff failed to establish the condition of the tape on the photographs was similar to the condition of the tape on the date of the accident, Eskridge was merely asked "a classic expert question" at trial. He was asked to assume that the photograph was an accurate depiction, and comment on the hazardous condition. He was not asked to testify that the photograph was an accurate depiction of the step in question. The trial court properly permitted Eskridge to testify accordingly.
VI.
Attorney Misconduct
Defendant maintains plaintiffs counsel committed misconduct by displaying a sample step on counsel table without including it within his exhibit list or attempting to introduce it into evidence. Even assuming arguendo that counsels actions were improper, they do not warrant reversal of the judgment. According to defendant, the display of the sample step was a form of nonverbal communication to the jury regarding the condition of the step. Courts have dealt with this issue when attorneys have made improper express comments to juries. "The ultimate determination of this issue rests upon this courts `view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judges control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances. [Citation.]" (Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 351.) Given "the trial courts unique ability to determine whether a verdict resulted in whole or in part from the alleged misconduct, its decision to deny a motion for new trial should not be disturbed unless plainly wrong." (Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 305.) The Nishihama court found, given the context of the case as a whole and the parties arguments, counsels comments that the jury should "send a message" to defendant although punitive damages were not recoverable in that case "were not particularly egregious." (Ibid.) The court also concluded the attorneys other comments did not rise to the level of putting irrelevant and inflammatory evidence before the jury and then making improper comments based upon that evidence. Finally, the court stated while counsel should not have referred to the jurors families and children, these references did not likely impact the verdict.
Here, plaintiffs counsel placed a plain black piece of wood with no yellow tape on the counsel table. As defendant maintains, counsel "never sought to introduce it into evidence [and] never sought to present it to the jury." Defendant asserts this object caused improper speculation, juror confusion over the condition of the step in question, and led to the jurors erroneous belief that defendant was somehow hiding evidence or that plaintiffs counsel would have explained the significance of the piece of wood if defendant had allowed it to do so. This is not a situation where he displayed the step and then sought to capitalize on the situation by arguing that the step was similar to the one in question. Plaintiffs counsel made no reference to the wooden step during trial. The jury was instructed to make its determinations based upon the evidence received at trial and that statements by counsel are not evidence. Taking into account the context of the case as a whole, we do not believe the display of the wooden step had any effect on the verdict. Any error here was harmless. Thus, contrary to defendants assertions, the trial court had no discretion to grant a new trial motion. (Nishihama, supra, 93 Cal.App.4th at p. 306.)
VII.
Juror Misconduct
An appealed order is presumed to be correct. (Eisenberg, supra, ¶ 8:15, p. 8-4 (rev. #1, 2002).) "`All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "Any ambiguity in the record is resolved in favor of the appealed judgment or order." (Eisenberg, supra, ¶ 8:16, p. 8-5 (rev. #1, 2002).) In order to overcome the presumption of correctness the appellant has the burden to provide an adequate record on appeal demonstrating the alleged error. (Id. at ¶ 8:17, p. 8-5.) Where an appellant fails to provide an adequate record, the issue will be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) In order to overcome this presumption of correctness the appellant should provide the reviewing court with an adequate record stating what was done by the trial court and demonstrating the error. (Eisenberg, supra, ¶ 8:19, p. 8-6 (rev. #1, 2002), citing Steuri v. Junkin (1938) 27 Cal.App.2d 758, 760.)
Here, defendant, as appellant, has the burden of demonstrating the trial court erred by denying defendants motion to excuse juror number two, denying defendants motion for a mistrial, and denying defendants new trial motion because juror number two committed misconduct by not disclosing during voir dire that she worked for a collection agency and contacted 99 Cents Only Stores on a monthly basis to collect outstanding debts.
While in many appeals it is unnecessary to include voir dire examination within the reporters transcript, voir dire should be transcribed and included within the record where the appeal raises an issue concerning jury selection. (Eisenberg, supra, ¶ 4:34, p. 4-7 (rev. #1, 2001).) Such an issue could be "something occurr[ing] during the voir dire process which itself was error, would establish the erroneous nature of some later ruling, or would help to show the prejudicial effect of a later error." (Id., ¶ 4:61, p. 4-13 (rev. #1, 2001).)
Here defendant claims something occurring during the voir dire process was error. It argues that juror number two wrongfully concealed she was working for a collections agency that did business with 99 Cents Only Store. The particular questions counsel asked this juror concerning her dealings with 99 Cents Only Store and her answers to these questions would establish the nature of the trial courts subsequent denial of defendants motion to excuse this juror, denial of defendants motion for a mistrial, and denial of defendants new trial motion. Since defendant failed to include the voir dire examination as part of the reporters transcript on appeal, we cannot tell the scope of what she was asked. In his declaration in support of defendants new trial motion defense counsel stated juror number two denied having "any prior experiences . . . with 99 [Cents] Only Stores." Without the voir dire transcript, however, we cannot ascertain what other questions she was asked.
Defendant could have made up for the failure to provide an adequate record in part by at least providing a transcript of the hearing where juror number two purportedly informed the trial court and counsel about her prior contact with defendant. But the record contains no transcription of this hearing. As such we cannot tell what she was asked and how she answered. We presume the trial court performed its official duty of interrogating juror number two and found she could make a fair and impartial decision in this case regardless of her prior contact with defendant.
Thus, from the outset, we cannot consider this issue on appeal. Defendants failure to procure an adequate record has left us with little choice but to defer to the general rule of presuming the trial courts denials of the motion to excuse the juror, the motion for a mistrial, and the new trial motion were correct.
Even assuming arguendo there was error, and consequently an automatic rebuttable presumption of prejudice, we find that this presumption has been rebutted. "In reviewing the denial of a motion for new trial based on jury misconduct, the appellate court `has a constitutional obligation . . . to review the entire record, including the evidence, and to determine independently whether the act of misconduct, if it occurred, prevented the complaining party from having a fair trial. (Iwekaogwu v. City of Los Angeles (1999) 75 [Cal.App.4th] 803, 818 . . . . [Citation.]" (Eisenberg, supra, ¶ 8:158.1, p. 8-91 (rev. #1, 2001).) "Absent an affirmative evidentiary showing that prejudice does not exist, the appellate court will independently examine the entire record to determine `whether there is a reasonable probability of actual harm to the complaining party resulting from misconduct. (Hasson v. Ford Motor Co. (1982) 32 [Cal.3d] 388, 415-417 . . . . [Citations.]" (Eisenberg, supra, ¶ 8:321, pp. 8-144 and 8-145 (rev. #1, 2002).) "`[W]e assume that in civil cases, where the court finds a substantial likelihood that enough jurors were impermissibly influenced by misconduct to have affected the verdict to the detriment of the complaining party, there is reasonable probability of actual harm to the complaining party resulting from the misconduct to warrant reversal. [Citation.]" (Id. at ¶ 8:322, pp. 8-145 & 8-146 (rev. # 1, 2002).) After reviewing the entire record, we find that there was no prejudice to defendant resulting from any juror misconduct. Notably, juror number two voted in favor of defendant on every question except for the amount of economic damages. Thus, it can be inferred that she was able to set aside any feelings for 99 Cents Store as a debtor from her obligation to make a fair and impartial decision based upon the evidence presented at trial. The record is devoid of any evidence of the effect of juror number twos statements on the votes of other jurors, except for the statements within plaintiffs counsels declaration in support of the opposition to the new trial motion. Counsel declared the jurors found plaintiffs expert witness to be more credible than defendants expert, they examined all of the evidence, and no juror commented to him that juror number twos relationship with defendant impacted the verdict. The jury was instructed to "decide all questions of fact in this case from the evidence received in [the] trial and from no other source." "`The jury must be presumed to have done its duty in reaching a verdict. [Citation.]" (Rather v. City & County of San Francisco (1947) 81 Cal.App.2d 625, 638.) We conclude, based on the record provided, the orders of the trial court were proper and based upon our review of the entire record there was no prejudice to defendant.
Defendants reliance on Code of Civil Procedure section 229, subdivision (b) is misplaced. Even if assuming arguendo that the juror in question was an agent for a creditor of the defendant and would have been subject to a challenge for implied bias, there is no evidence in the record to show that defendant was prejudiced. As explained above, juror number two voted in favor of defendant. Accordingly had juror number two been excused, defendant would have not gained an additional vote in order to defeat the nine-to-three vote against defendant on the question of liability. Moreover, as explained above, the record does not show what effect, if any, her presence and statements about her relationship with defendant had on the other jurors. Even assuming arguendo that defendants argument that the jurors may have wanted to punish it for being a "deadbeat" is valid, the trial court remedied the situation by remitting the amount of noneconomic damages by a substantial amount.
Defendant additionally contends on appeal that it was somehow prejudiced by another juror who tripped over the same step at the same store. This juror was promptly excused after this information was revealed sometime after opening statements. There is no showing that the other jurors knew about this similar accident. We find the trial court acted properly in excusing the juror and defendant was not prejudiced.
VIII.
Excessive Damages
Defendant asserts the trial court improperly permitted the jury to be told a larger amount of economic damages or the full amount covered by insurance instead of the actual damages actually paid by plaintiff. Defense counsel, however, agreed to the courts proposal that the jury be informed of the higher amount before trial. He also stipulated that the amount was incurred. Moreover, he failed to object to plaintiffs counsels closing argument that the economic damages were the higher amount and the noneconomic damages could be calculated by multiplying the higher amount by a certain multiple. Defendant has therefore waived its right to complain of the admission of this evidence and the purported resulting excessive damages. (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 1993) ¶ 8:3276, p. 8G-1 (rev. #1 2002).)
Even assuming arguendo the argument was not waived, we agree with the trial courts assessment that the higher amount is a more accurate indicator of the full nature of plaintiffs medical treatment.
The trial court subsequently reduced the amount of economic damages to the amount actually incurred by plaintiff pursuant to Nishihama v. City and County of San Francisco, supra, 93 Cal.App.4th 298.
Defendant also contends the trial court erroneously denied its motion to bifurcate the trial so the same jury would not hear evidence on liability as well as damages. A decision to bifurcate causes of action for trial is subject to the abuse of discretion standard of review. (Eisenberg, supra, ¶ 8:96.10, p. 8-42 (rev. #1, 2002).) We find the trial court did not abuse its discretion by denying defendants motion here. This case posed no unusual problems of judicial economy or prejudice compared to other personal injury actions.
DISPOSITION
The judgment is affirmed.
We concur: HASTINGS, J. and CURRY, J.