Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard Wolf, Judge. Los Angeles County Super. Ct. No. LC059430. Affirmed.
Law Office Jonathan D. Winters and Jonathan D. Winters for Plaintiff and Appellant.
Stroock & Stroock & Lavan, Lisa M. Simonetti and Michael J. Niborski for Defendant and Respondent.
KLEIN, P. J.
Diane Harman appeals a judgment entered in favor of defendant Citibank (West), FSB, successor in interest to California Federal Bank, (hereafter, the bank) following a defense verdict after a jury trial on Harman’s allegations the bank improperly honored forged checks and withdrawal slips, thereby causing monetary damages and various manner of physical and emotional injury. We reject Harman’s claims of error and affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. Overview of Harman’s case.
Harman’s dispute with the bank is based on her allegation that from 1997 through February of 2001, the bank honored forged checks and withdrawal slips, causing Harman to loose approximately $350,000 from her accounts. Harman claimed she was unable to determine the amount of the loss with precision because the bank failed to produce legible copies of her bank items. Harman claimed she was mentally incompetent during the time the forgeries occurred and, when Harman reported the forgeries to the bank, its employees treated her in a callous and hostile manner and discriminated against her. The bank did not place a freeze on her accounts when it should have, thereby permitting the forgeries to continue and caused Harman undue stress by requiring her to file a police report against her daughter. Harman claimed the bank’s conduct reduced her life expectancy, destroyed her relationship with her daughter, ruined her credit, caused her to suffer from diabetes and to delay following up on a mammogram, thereby resulting in a more serious form of breast cancer than she otherwise would have had.
Harman’s complaint sought damages based on various forms of fraud and deceit, conversion, intentional infliction of emotional distress, violation of the Americans with Disabilities Act, the Unruh Civil Rights Act, the California Consumer Legal Remedies Act and the California Unfair Business Practices Act, unauthorized payment on a forged signature or endorsement, negligence, negligent infliction of emotional distress, negligent hiring and supervision, breach of contract, breach of warranty, breach of the covenant of good faith and fair dealing, promissory estoppel and unjust enrichment.
2. Trial.
a. Harman’s testimony.
Harman testified she was released from Pine Grove Mental Hospital on June 7, 2000, and on June 8 became aware that money was missing from her bank accounts. She went to the bank and indicated she had been the victim of forgery and wanted her money back. Harman spoke to bank employees Sheri Ramsey and Lisa Hartfield who told her she could not get her money back because the 30-day limit on reporting such losses had elapsed. Harman complained she had been hospitalized and asked if there were any way she could recover the lost funds. Ramsey told Harman she would have to file a criminal complaint against her daughter, then said, “What [kind of] mother would press charges against her daughter?” At the time of the problem with the bank, Harman lived with her 16-year-old daughter, Saundra Putzinger, and Saundra’s boyfriend, Brad Cates, who was a few years older than Saundra. When Ramsey told Harman the only way to get her money back was to press charges against her daughter, Harman experienced severe stress.
Harman left the bank to consider her options. On June 20, 2000, Harman filed a police report naming her daughter as the suspect in the forgeries. As a result of the police report, Harman’s relationship with Saundra deteriorated and Saundra moved from Harman’s house.
On July 5, 2000, Harman went to the bank and advised them she had done as they requested. On July 5 and 7, Lisa Hartfield helped Harman prepare forgery affidavits at the bank. Harman requested a full accounting and asked that her accounts be closed to prevent further forgeries. Hartfield said the bank would close the accounts. However, the signature cards for the accounts reflect that one was closed on June 20, 2001, and another was closed on September 18, 2001. When Harman returned home after completing the forgery affidavits, she remembered that Ramsey previously told her that her daughter and Brad Cates had tried to access her account.
Harman returned to the bank in August of 2000 and received reimbursement in the amount of $729.87 for one of the checks she claimed had been forged. When Harman complained she was not receiving full reimbursement even though she had filed charges against her daughter as the bank requested, Ramsey said Harman failed to report the other forgeries within 30 days and nothing could be done. Ramsey told Harman she no longer was welcome at the bank and should take her banking elsewhere. Harman was embarrassed and humiliated. On another occasion when Harman went to the bank and cried while standing in line, Ramsey told Harman to conduct her banking at the ATM machine.
Harman claimed only her name was on the signature cards of her accounts and that $350,000 improperly had been removed from her accounts. Harman testified she was unable to determine the exact amount of the loss because the bank gave her illegible copies of her bank records. Had Harman been provided legible copies and a complete accounting, she would have listed more items on the forgery affidavits. Harman denied that she received all of her bank account statements. Citibank reported Harman to Chexsystems and, as a result, Harman was unable to open checking accounts at other banks or apply for a loan.
Harman claimed that, because of the stress associated with the forgeries and the bank’s handling of them, Harman was diagnosed with Type II diabetes in June of 2001. Also, after a benign lump on her breast was detected in September of 2000, Harman delayed getting a recommended follow-up mammogram until March 5, 2002. Harman testified, “I felt bad about all of this and I just didn’t do it.” Harman’s cancer treatment has involved two operations, chemotherapy and radiation.
In February of 2001, Harman returned to work at the Los Angeles Unified School District, where she had worked since 1978 as a physical education instructor and an English teacher. However, she missed many days.
On cross-examination, the bank established that the police report Harman filed indicated Harman believed her daughter was not involved in the forgeries but that Brad Cates was responsible. On the same day that Harman filed the police report about the forgeries, she returned to the police station at 11:00 p.m. and filed another report about a burglary. Further, on June 13, 2000, Harman had her daughter and Brad Cates removed from her home by the police, saying they took $10 from her and were drug addicts. Harman went to her daughter’s school on June 16, 2000 and accused her of taking drugs. Harman returned to the school three days later. On June 23, 2000, Harman’s daughter filed for a restraining order against Harman, which Harman did not contest.
Harman ceased treatment with her psychiatrist, Dr. Steinberg, in January of 2001 because Dr. Steinberg wanted to return Harman to a locked facility.
On June 27, 2000, Harman opened a new account at the bank. The next day, the bank issued Harman an ATM card.
Harman was sued in a civil case arising out of a traffic accident. The case was set for trial on September 18, 2000, but settled.
Harman opened accounts at the bank in February and May of 2001. Harman met her future husband in April of 2001 and they married on September 22, 2001. Harman filed this case against the bank in January of 2002.
On May 31, 2002, Harman sought restraining orders against two fellow teachers. In the supporting affidavit, Harman asserted she feared for her life as a result of confrontations with the teachers and that their harassing conduct had started approximately one year earlier. Harman dismissed these petitions one month later.
In 2003, Harman submitted a forgery affidavit to the State with respect to California State Teachers Retirement Fund (CSTRF) checks.
b. Harman’s expert witnesses.
(1) Thomas Mintz, M.D.
Thomas Mintz, M.D., testified Harman had a serious psychiatric disorder which began following a hysterectomy in 1997. Harman refused or was unable to take a hormone supplement and her mental condition gradually deteriorated thereafter. She had a number of hospitalizations in 1998 and 1999, and was unable to teach for a long period of time. At the time of her discharge from Pine Grove in June of 2000, Harman was diagnosed with bipolar disorder, mixed type, with psychotic features. Because of this diagnosis, Harman was more prone to emotional distress than most individuals. Mintz opined that loss of $350,000, exclusion from the bank and being instructed to file criminal charges against her daughter exacerbated Harman’s preexisting severe depression. Mintz further opined the stress related to Harman’s dealings with the bank probably “facilitated the development of the diabetes.” Also, the way in which the bank dealt with Harman could have resulted in her failing to have her breast cancer evaluated and treated.
(2) Thomas Tartar.
Thomas Tarter testified it is rare that a bank will be unable to produce a signature card for an account because it designates the individuals who are authorized to sign on an account. Tarter indicated banks normally reimburse customers who have been the victims of forgery. If a bank became aware of unauthorized access to one of a customer’s several accounts, it would be expected that all of the customer’s accounts would be frozen. If a person came into a bank under suspicious circumstances, the fraud department would be notified.
(3) Jess Dines.
Jess Dines, a document examiner, testified it was highly probable the 90 questioned documents he examined were not written by Harman based on five exemplars of Harman’s signature he was provided.
c. Bank employees called by Harman during her case in chief.
(1) Sherry Ramsey.
Sherry Ramsey, the operations manager at the Woodland Hills branch of the bank at the time of the alleged forgeries, testified that in June of 2000, Brad Cates attempted to cash a check on Harman’s account. Ramsey telephoned Harman to see if she had issued the check but Harman was not available. Ramsey made a notation on the account so that Cates could not cash the check until Harman had been notified. The signature was similar to the one on the signature card but did not match exactly. Harman returned Ramsey’s call, said she had not authorized the check and Ramsey referred the call to her manager.
On another occasion, Harman came to the bank crying. Harman told Ramsey that entering the bank caused Harman to become upset. Ramsey suggested Harman conduct her business by night drop deposits. Ramsey issued Harman an ATM card and believed she had been helpful to Harman.
(2) Beverly Dumas.
Beverly Dumas, a supervisor at the bank, suspected Harman’s missing signature card had been misfiled. If a signature card were lost or misfiled, the customer would be notified to come to the bank and sign another one. Dumas testified the bank sent Harman all of her bank account statements, which included her cancelled checks as enclosures.
d. Defense evidence.
(1) James High, M.D.
James High, M.D., testified Harman had numerous sources of stress in her life in 2000 and 2001 other than the problems with the bank. With respect to Harman’s claim stress had caused her diabetes, High noted that some of the psychiatric medications Harman took are known to cause diabetes. Also, Harman consistently has been overweight. Thus, it is unlikely that stress caused Harman’s diabetes, let alone the stress related to her dealings with the bank. With respect to Harman’s cancer, Harman first had an abnormal mammogram in 1997. Harman failed to follow up on that mammogram and there was evidence that Harman was non-compliant with medical treatment recommendations in other areas. Although Harman has had medical problems, there has been no downward trajectory of her life. On the contrary, after the year 2000, “her life has in fact come together. [¶] So she looks like she is better than she was, not worse.” During the period at issue, Harman went from medically disabled to a classroom teacher, from single to married and from psychiatrically hospitalized to discharging her psychiatrist and refusing medication after January 2001.
(2) Edward Potter.
Edward Potter, a banking expert, testified Ramsey was correct in not calling the police when Cates tried to cash the check. Potter’s review of Harman’s bank account records indicated the bank returned Harman’s original cancelled checks to her as enclosures with her monthly account statements. Once a bank returns a negotiated check to a customer, it is the customer’s responsibility to maintain the returned check as a record. In addition to returning Harman’s checks, the bank kept microfilm copies of the checks and provided Harman copies of the checks from the microfilm. Harman filed forgery affidavits as to two of her accounts. The first account was opened on July 15, 1999 and closed on July 7, 2000. The other account was opened on April 29, 1996 and was closed on January 11, 1999, a year and a half before any of the alleged forgeries. Harman’s bank records showed that Harman had a third account that was opened on January 11, 1999 and closed on August 20, 1999. A fourth account was opened June 27, 2000 and remains open. A fifth account was opened February 23, 2001. A sixth account was opened May 4, 2001 and was closed sometime in 2001. All of the checks and withdrawals that Harman claimed were fraudulent totaled $90,246.64, not $350,000.
Potter noted the Bank’s custodian of records indicated the Bank was unable to locate a signature card for account number 738-418691-7, which was closed in July of 2000, or for account number 738-418123-1, which was closed on August 20, 1999. Potter testified it is not unusual that a bank would not have a signature card two years after an account was closed.
With respect to Harman’s claim in 2003 that her CSTRF checks had been forged, the bank paid the amount of the claimed forgery to CSTRF, then learned that each of Harman’s CSTRF checks had been deposited to Harman’s account. When the bank determined the check had been deposited to Harman’s account, it sought to recover the funds it had paid to CSTRF but was unable to do so. As a result of this incident, the bank reported Harman to Chexsystem.
(3) Frank Hicks.
Frank Hicks, a document examiner, was skeptical that an opinion could be rendered based on only five exemplars as Harman’s expert had. Hicks used 49 examples. The great majority of the signatures Hicks examined agreed to some extent with the known signature. If the person writing the signature was on medication, the signature might appear to be a forgery.
3. The special verdict.
The matter went to the jury on a seven-part special verdict form. The theories of liability addressed in each part of the special verdict were: (1) California Consumer Legal Remedies Act; (2) conversion; (3) intentional misrepresentation; (4) false promise; (5) negligence per se based on various statutory violations; (6) intentional infliction of emotional distress; and, (7) common-law negligence. The jury ruled in favor of the bank on each cause of action. With respect to the cause of action for common law negligence, the jury voted 12-0 that the bank was negligent but found in favor of the bank 10-2 with regard to causation.
The cause of action for negligence per se was based on violations of Civil Code section 51, subdivision (b), Commercial Code sections 4401, subdivision (a), 4406, subdivisions (a) and (b), and title 31 United States Code section 5318, subdivision (g)(1).
CONTENTIONS
Harman contends the trial court erroneously denied her motion in limine by which she sought to shift the burden to the bank based on its failure to comply with a discovery order, the trial court improperly denied Harman’s motion for new trial on the issue of causation with respect to her cause of action for negligence, the trial court erroneously denied Harman’s pre-trial motion for summary adjudication of the bank’s duty of care, the trial court should have sanctioned the bank for spoliation of evidence, the trial court committed instructional error, one of the jurors committed misconduct by prejudging the case, and the bank’s counsel improperly inserted costs into the judgment in favor of the bank in the amount of $97,676.77 after the trial court signed it. Harman also raises various miscellaneous arguments in the course of her opening brief which we summarily address.
DISCUSSION
1. The trial court properly denied Harman’s motion in limine as well as her motions for summary adjudication and new trial.
a. Background.
Harman filed a motion in limine seeking issue and evidentiary sanctions and a jury instruction on spoliation of evidence. Harman claimed the bank failed to comply with an order issued on November 3, 2003, by discovery referee Hon. Thomas Schneider, which states: “With respect to documents that are unreadable when copied from film to paper, it is ordered that the defendant, at its own expense provide to plaintiff film copies (film to film) in a form allowing plaintiff to review these records.” Harman asserted the bank’s failure to produce her signature cards and legible copies of her banking items frustrated her ability to prove the bank’s liability. (Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1427-1428.)
Harman further asserted the bank suppressed evidence based on a memorandum dated July 6, 2000, which the bank produced during discovery. The memorandum bears Hartfield’s written notation, “Please see file that was sent out on 7-6-00. These are additional forgeries.”
Harman sought to apply the rule of Harris v. Irish Truck Lines, Inc. (1974) 11 Cal.3d 373, 378, that when a defendant is a wrongdoer and evidence is more accessible to the defendant than to the plaintiff, the burden may be placed on the defendant to demonstrate the cause of the harm. Harman argued the bank acted in bad faith by violating the discovery order and Commercial Code section 4406, which requires a bank either to return paid items to the customer or to maintain legible copies for seven years.
Commercial Code section 4406, provides: “(a) A bank that sends or makes available to a customer a statement of account showing payment of items for the account shall either return or make available to the customer the items paid or provide information in the statement of account sufficient to allow the customer reasonably to identify the items paid. The statement of account provides sufficient information if the item is described by item number, amount, and date of payment. If the bank does not return the items, it shall provide in the statement of account the telephone number that the customer may call to request an item, a substitute check, or a legible copy thereof pursuant to subdivision (b). [¶] (b) If the items are not returned to the customer, the person retaining the items shall either retain the items or, if the items are destroyed, maintain the capacity to furnish legible copies of the items until the expiration of seven years after receipt of the items. A customer may request an item from the bank that paid the item, and that Bank shall provide in a reasonable time either the item or, if the item has been destroyed or is not otherwise obtainable, a legible copy of the item. If the paid item requested by the customer was presented as a substitute check, the bank shall provide, in a reasonable time, either the substitute check or, if the substitute check has been destroyed or is not otherwise obtainable, a legible copy of the substitute check. A bank shall provide, upon request, and without charge to the customer, at least two items, substitute checks, or legible copies thereof, with respect to each statement of account sent to the customer.”
The trial court denied the request for evidentiary sanctions. The trial court noted the bank claimed it had returned Harman’s cancelled checks and, if the jury believed the bank, the failure to provide additional copies of the checks did not constitute spoliation of evidence. The trial court indicated it would allow the jury to hear the testimony and determine whether the bank had breached its duty to Harman.
Harman also filed a motion for new trial on the issue of causation and a motion for summary adjudication of the issue of duty, which is a question of law. (Deglago v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.) Harman notes that, in order to prevail on a claim of forgery, the depositor need only show the bank paid on a forged or altered check. Harman asserts the burden is on the bank to show the depositor was negligent and the bank was free from negligence. (Sommer v. Bank of Italy etc. Assn. (1930) 109 Cal.App. 370, 376.) Harman argues it is well-settled that a bank pays a forged check at its peril. (Glassell Dev. Co. v. Citizens’ Nat. Bk. (1923) 191 Cal. 375, 379.)
Harman claims she would have prevailed on her cause of action for negligence had the trial court instructed the jury and/or shifted the burden to the bank as to these items because the jury unanimously found the bank was negligent but that its negligence was not a cause of her injury.
b. Resolution.
As the trial court noted in denying Harman’s motion in limine, the bank’s duty with respect to Harman’s cancelled checks depended on whether the bank returned the original checks to Harman with her monthly statements, thereby complying with Commercial Code section 4406, subdivision (a). Dumas, a bank supervisor, and Potter, the bank’s expert, both testified that trial exhibits 107 through 148, Harman’s bank statements, demonstrated that Harman was provided the original canceled checks with her monthly statements. Thereafter, the jury expressly found the bank did not violate Commercial Code section 4406, subdivisions (a) or (b). Because the bank returned Harman’s original checks each month, it had no obligation to retain legible copies. (Com. Code, § 4406, subd. (a).) Thus, the bank went beyond its statutory obligation by providing Harman copies of her checks from its microfilm files, a process that provides copies that are legible but are not clear enough to perform forensic handwriting analysis.
Based on the foregoing, it is clear the trial court did not err in denying Harman’s motion in limine. In any event, the record indicates the bank complied with the discovery order to the extent it was able. The referee’s report number five dated October 7, 2004, recommended sanctions against the bank in the amount of $1,000 based on the bank’s failure to object to the report dated November 3, 2003, until 10 months after the report had been issued, forcing Harman to seek sanctions. However, the discovery referee found the bank had “made some efforts to comply” with the recommendations in the referee’s report dated November 3, 2003. The discovery referee concluded, “[b]ased on the above evaluation of Citibank’s compliance with the Discovery Referee’s November 3rd, 2003 report, evidentiary, issue and/or terminating sanctions are not justified at this time.”
It follows that Harman has not demonstrated a basis for an evidentiary sanction or a jury instruction shifting the burden of proof to the bank. Because Harman’s claim of error in the denial of the motion for new trial was based on the foregoing unmeritorious assertions, no error appears in the denial of that motion.
Regarding her claim the bank engaged in spoliation of evidence, Harman relies on the bank’s failure to produce legible copies of her bank items and failure to produce the signature cards on four of her bank accounts. Harman asserts the trial court had an obligation to make orders that are just and appropriate to remedy spoliation of evidence. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 8-9.) Harman further asserts the bank’s destruction of evidence is demonstrated by Hartfield’s written notation on the memorandum of July 6, 2000.
Spoliation of evidence that warrants issue sanctions involves intentional destruction of evidence and egregious circumstances. Here, the bank complied with its statutory obligation by providing Harman the original checks she claimed were forged with her monthly account statements. Thus the bank’s failure to provide legible copies of these same checks cannot be seen as amounting to spoliation of evidence. The written notation on the July 6, 2000 memorandum does not suggest the bank destroyed evidence.
With respect to the signature cards, Harman argues the bank failed to produce signature cards for four of her accounts even though Commercial Code section 4406 required the bank to keep copies of her signature cards for seven years and to provide legible copies upon request. Harman claims the failure to produce the signature cards had an adverse affect on her ability to prove her cause of action for breach of contract.
Assuming for the sake of discussion that Commercial Code section 4406 applies to signature cards, Harman dismissed the breach-of-contract claim before the case was submitted to the jury, noting it duplicated her tort claims. Further, the bank produced evidence indicating it exercised due diligence in attempting to locate the missing signature cards and the trial court permitted Harman to argue spoliation of evidence to the jury but the jury rejected it.
Because no miscarriage of justice appears, reversal is unwarranted. (Cal. Const. art. VI, § 13 [“No judgment shall be set aside . . . unless, after examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”]; Evid. Code, § 354, subd. (a).)
2. No instructional error appears.
Harman notes the trial court instructed the jury that, “Ms. Harman claims she was mentally incompetent” “beginning in 1997 and continuing through 2001 . . . .” Based thereon, Harman asserts the jury expected evidence to support this claim. However, the trial court trifurcated the case and prevented Harman from presenting any evidence to establish her mental incompetence during the first phase of the trial. Further, although the trial court instructed the jury it would receive evidence of damages, the trial court ordered the issue of damages would be determined in a second phase of the trial. Harman asserts these rulings prejudiced her because the jury was unaware of the possibility of subsequent trial phases and expected Harman to present evidence of mental incompetence and damages at trial, thereby weakening her case in the eyes of the jury.
These claims are meritless. Initially, we note that Harman’s counsel stipulated to the jury instructions in this case. Further, prior to trial, the parties agreed the trial would be trifurcated with the first phase dealing with liability, causation and harm, the second phase addressing the statute of limitations, preclusion and mental competence, and the third phase dealing with punitive damages. Thus, Harman cannot now contend that either the jury instructions or the trifurcation of the trial caused her prejudice.
In its ruling on Harman’s motion for new trial and judgment notwithstanding the verdict, the trial court noted that, “[f]ollowing two days of discussion, counsel agreed . . . and stipulated that the trial . . . would be trifurcated. . . . Counsel agreed and stipulated that Phase I would involve the liability, causation and damages issues, but the amount of any damages would be reserved for Phase II assuming the plaintiff obtained a favorable verdict on any one or all of her tort causes of action. Phase II would involve the jury assessing the amount of damages awarded to plaintiff but only after a determination by the jury as to the plaintiff’s competence, as her competence related to issues pertaining to the statute of limitations and preclusion. . . . If the plaintiff prevailed with regard to Phase II of the trial, then the jury would proceed to Phase III of the trial involving the issue of punitive damages.” “At the outset of the trial . . ., again as per the stipulation and agreement between counsel, the jury was not advised as to the potential of a Phase II or Phase III of the trial proceedings.”
3. The record does not support Harman’s claim of jury misconduct.
At the close of the first day of deliberations, a Friday, the trial court asked the jury what time it would like to resume deliberations on the following Tuesday, indicating 8:30 a.m. would be the earliest. One of the jurors indicated ten o’clock and another stated, “Ten o’clock is good. I am a banker.” Harman contends this comment, the manner in which it was made and the way in which the juror looked at counsel indicated the juror had prejudged the case and would be ruling in favor of the bank. Harman claims a miscarriage of justice is obvious.
The trial court specifically rejected Harman’s claims of juror misconduct in its written ruling on Harman’s post trial motions. The trial court noted the comment by a juror that he adopted “banker’s hours” or was a “banker” did not suggest the juror had misled counsel during voir dire or that the juror had prejudged the case in favor of the bank prior to deliberations. “This comment was clearly understood by the Court to mean [the juror preferred] a starting time of 10:00 a.m. on the succeeding day. Indeed, the comment was discussed with counsel out of the presence of the jury and the comment was dismissed by both counsels and the Court. How this comment can now be transformed or elevated into the belief that this juror sided with the defense and did not discuss the issues or acted improperly during deliberations is without any support whatsoever.”
We adopt the trial court’s view of the matter.
Harman next contends the jury may have ruled against her because it was offended that Harman did not attend the entire trial. Harman claims the bank appealed to the jury’s prejudice by indicating a representative of the bank would be present throughout the trial.
Harman’s absence from trial did not give rise to juror misconduct.
Prior to opening statement, Juror No. 3 asked whether the plaintiff would be present during trial. The trial court responded it did not require the presence of either party, noting that, “in the last case the plaintiff came in on a couple of days and she wasn’t here for the rest of the time. That’s perfectly permissible. [¶] We don’t require that there be absolute attendance on behalf of the plaintiff or the defendant, and you are not to weigh that in as far as their feeling about the importance of the case . . . . [¶] They have court permission to come and go, and there is very good reason for that. They are represented by counsel. They have a right to be here if they choose to be, but it is not necessary as long as their counsel is here.” The juror then asked if the jury would “ever see [Harman]?” The trial court responded, “I understand that the plaintiff will be testifying in the case, yes, ma’am. But, . . . things change, and whether she is here or not here, whether she testifies or does not, the idea is that at the end of the case your evaluation of the evidence and which body of evidence you believe . . . is to be based upon the evidence that you hear from this witness stand regardless of who those witnesses are.”
At the start of the plaintiff’s opening statement, Harman’s counsel advised the jury, “Diane Harman is not here, but she will be testifying in this case. [¶] I wanted to answer the question from the juror. I wanted to spare [Harman] the pain of this trial.”
These excerpts from the record on appeal demonstrate the absence of merit in Harman’s claim the jury was prejudiced against her due to her absence from the trial. The trial court explained to the jury that Harman’s attendance at trial was not required and the jury was not to consider Harman’s presence or absence in its deliberations. Further, the matter of Harman’s attendance was completely within Harman’s control. As such, she cannot complain on appeal that her failure to attend trial caused her prejudice.
4. The record does not support Harman’s claim the jury disregarded the evidence and law.
Harman contends she presented independent evidence of forgery, consisting of evidence that checks were paid to Brad Cates and the memorandum dated July 6, 2000, that acknowledged the existence of forgeries. Harman notes the bank reimbursed her for one of the forgeries in the amount of $729.87, and the bank’s document examiner testified that 63 percent of the checks he reviewed either probably were written by another person or there was not enough information for a definite conclusion. Also, of all the withdrawal slips he reviewed, he could not offer a definite conclusion as to the author as to 52 percent of them.
Harman further claims that, although Ramsey testified she caught Brad Cates attempting to make an unauthorized withdrawal from Harman’s account on one occasion and attempting to access Harman’s accounts fraudulently on another, Ramsey failed to notify law enforcement and permitted Cates to leave the premise without contacting the police or asking the bank’s security guard to stop Cates. Thus, there was overwhelming evidence to support Harman’s allegation the bank violated banking policies and statutory requirements, specifically, title 31 United States Code section 5318(g)(3), which requires banks to report suspected criminal activity to law enforcement authorities. However, the jury unanimously found the Bank did not violate title 31 United States Code section 5318(g)(3).
Harman further argues the jury improperly disregarded uncontroverted expert testimony offered on matters solely within the knowledge of an expert. (Huber, Hunt & Nichols, Inc. v. Moore (1977) 67 Cal.App.3d 278, 313.) Specifically, the jury rejected: (1) the testimony of Dr. Mintz that Harman had been battling severe depression and was fragile after her discharge from the hospital and that Harman suffered harm; (2) the testimony of Richard Hornichter, M.D., that the bank’s conduct aggravated Harman’s pre-existing hyperglycemia; (3) the testimony of Harman’s banking expert that Harman was harmed as a result of the bank’s conduct and the partial reimbursement they offered her was below the bank’s standard of care; and, (4) Tartar’s testimony the bank’s failure to produce legible bank items and their loss of her signature cards was below the standard of care. Nonetheless, the jury found the bank did not cause Harman harm.
With respect to Harman’s claim the testimony of her experts was uncontradicted, Harman is clearly mistaken. For example, the bank’s medical expert, James High, M.D., testified some of the psychiatric medications Harman took are known to cause diabetes. Also, Harman consistently has been overweight. Thus, it was unlikely that stress caused Harman’s diabetes, let alone the stress related to her dealings with the bank. Additionally, the banking expert called by the defense, Potter, testified it would have been improper for Ramsey to notify the police regarding Cates’s conduct based on the facts Ramsey knew at the time.
In any event, these claims amount to an improper request to reweigh the evidence on appeal. “ ‘ “Where findings of fact are challenged on a civil appeal, we are bound by the ‘elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.” [Citation.]’ [Citations.]” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)
5. Harman fails to demonstrate malfeasance with respect to the judgment.
Harman contends defense counsel inserted costs of $97,676.77 into the judgment after the trial court signed it.
There is no indication Harman ever presented this assertion to the trial court. Having failed to seek a ruling on this issue in the trial court, Harman may not raise the matter for the first time on appeal.
6. Harman’s miscellaneous claims of error fail.
In the course of her opening brief, Harman raises numerous miscellaneous claims. In this category are Harman’s claims that: (1) the trial court refused to admit into evidence exhibit 70, a two-minute day in the life video showing how Harman had been harmed by the bank’s conduct; (2) the trial court inadvertently permitted the jury to take with it into the jury room defense counsel’s pre-marked special verdict form; (3) Harman suffered prejudice because the jury was able to see the special verdict form the bank’s counsel completed in the manner the bank requested the jury to answer the questions; and, (4) the bank improperly appealed to the jury’s prejudice by presenting irrelevant and inflammatory evidence including evidence that Harman sought a restraining order against co-workers, Harman’s daughter was involved in drug use, and Harman was involved in litigation over a car accident.
These claims lack merit. With respect to the completed verdict form, apparently it was placed on a blowup and the jury asked to keep a copy of the blowup in the jury room. The trial court granted the request but indicated it would have the blowup removed if Harman objected. There was no further discussion of the issue.
The evidence cited by Harman properly was admitted to refute Harman’s claim the only source of stress in her life during the time period at issue was the bank’s wrongdoing.
In sum, nomiscarriage of justice appears. (Cal. Const. art. VI, § 13; Evid. Code, § 354, subd. (a).) Indeed, at the close of the trial, Harman’s counsel thanked the trial court for a full and fair opportunity to present Harman’s case to the jury in an organized and fair manner.
DISPOSITION
The judgment is affirmed. Harman shall bear costs on appeal.
We concur: CROSKEY, J., KITCHING, J.