Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court Nos. PC035934 & PC039347 of Los Angeles County, Howard L. Schwab and Melvin D. Sandvig, Judges.
Francis E. Isaman, Virginia A. Isaman and Scott A. Isaman, in pro. per., for Plaintiffs and Appellants.
Steinberg & Spencer and Steven Hilst for Defendants and Respondents
KLEIN, P. J.
Francis Isaman, Virginia Isaman and Scott Isaman appeal the judgments entered following the dismissal of their respective causes of action against attorneys Peter Steinberg and Steven Spencer. We previously have ordered Scott’s appeal in case No. B200544 consolidated with the appeal of his parents, Francis and Virginia, in this case. We reject the Isamans’ claims of error and affirm the judgments.
We refer to the Isamans by their first names for convenience and clarity. No familiarity or disrespect is intended. (See Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)
FACTUAL AND PROCEDURAL BACKGROUND
1. The underlying incident.
On December 22, 2001, 68-year-old Virginia tripped and fell on a section of uplifted sidewalk in front of the apartment building where she resided. Virginia suffered personal injury and was in a long leg cast until February 8, 2002. Virginia and her husband, 73-year-old Francis, retained attorney Peter Steinberg to represent them. Steinberg assigned the representation of the Isamans to Steven Spencer, one of Steinberg’s associates. Spencer sued the owner of the apartment building, the City of Los Angeles and the County of Los Angeles on behalf of Virginia and Francis for personal injury and loss of consortium arising out of premises liability and negligence. Spencer settled the case after the Mandatory Settlement Conference for $16,500 and filed a dismissal with prejudice. The Isamans refused to sign the settlement papers and claimed Spencer settled the case without their consent.
On September 17, 2003, Spencer advised Francis and Virginia they had three options, let the case remain dismissed with no money changing hands, move to set aside the dismissal or settle for the prior offer of $16,500. Francis and Virginia wished to set aside the dismissal. Spencer filed a motion to set aside the dismissal but it was denied.
2. The malpractice action.
Francis and Virginia, and their 42-year-old dependent son, Scott, sued Steinberg and Spencer for legal malpractice, negligence and fraud. Francis and Virginia alleged Steinberg settled the case without their consent. The complaint sought damages related to care for Virginia and Scott, pain and suffering for Virginia, and loss of their business, TechnoMerix, and its income, resulting in financial destitution. Francis and Virginia assert Steinberg and Spencer knew, based on the trial brief Spencer filed in the personal injury case that, as a result of the accident the Isamans lost their business and that Virginia no longer was able to care for Scott.
The plaintiffs’ trial brief in the personal injury lawsuit indicated Virginia suffered aggravation of pre-existing osteoporosis and arthritis and would require physiotherapy for six to eight weeks. Francis, “had his life turned upside down by the accident involving his wife.” Francis owned a business, had no foreseeable plans to retire and Virginia was a “key part of the business. All of a sudden, his wife not only could not do any work around the house due to her injuries, but she could not help in the business. Moreover, she stopped driving as a result of her injuries and she has not yet resumed operating a motor vehicle. The Isamans have a disabled middle aged son who lives with them. Needless to say, the responsibility for shuttling him around and other care has fallen on Mr. Isaman.” The brief noted the family, including Scott, operated TechnoMerix, a business that had been in existence since 1965. When Virginia could no longer assist Francis, he had to close the business.
Scott alleged Steinberg and Spencer negligently failed to include in the personal injury action his claim for damages arising out of the injury to Virginia, specifically, the loss of her care and the loss of the family business, TechnoMerix, which Scott would have inherited. Scott alleged that as a result of the defendants’ intentional tort, Scott’s life threatening seizures that had been under control for 17 years suddenly returned.
The trial court sustained a demurrer to Scott’s claims. Rather than appeal the dismissal, Scott filed a new lawsuit against Steinberg and Spencer, but it too was dismissed. Scott appealed that dismissal in case No. B200544. At the request of Francis and Virginia in their appeal and Scott in his appeal, we have ordered Scott’s appeal consolidated with the appeal of his parents.
3. Trial of the malpractice action.
Both sides announced ready for trial on October 23, 2006. At the outset of the proceedings, Francis conceded the plaintiffs had not posted jury fees but requested a jury trial as a matter of right. The trial court denied the request.
Defense counsel then asked the trial court to rule, in limine, that Francis could not produce evidence related to his loss of income because he did not witness Virginia’s accident. The trial court granted the motion over an objection by Francis that the defendants knew the Isamans could not continue the business after Virginia’s injury. Further, although Francis was not personally injured, Virginia was an owner of the company. The trial court granted the motion because Francis admitted he did not witness the accident and he suffered no physical injury.
Defense counsel then noted Francis was not claiming loss of consortium and, based on the trial court’s ruling, he was not entitled to damages for lost income. Thus, Francis had admitted he had no damages. The trial court agreed and granted a defense motion to dismiss Francis’s lawsuit. The matter proceeded to trial on Virginia’s causes of action.
The trial court granted a defense request to exclude witnesses but made an exception for Francis and permitted him to sit with Virginia at the counsel table during trial. The trial court granted a motion to bifurcate the issue of punitive damages from the issue of liability and granted a motion to exclude expert witnesses because the Isamans failed to respond to a request to designate experts.
Virginia then made an opening statement and testified her injury was complicated and it included damage to her spine. Also, the injury had an impact on the members of her family.
Scott testified his mother was in a full leg cast for six weeks. On the day the cast was removed, Scott suffered a seizure.
Francis testified they attempted to keep the family business going as long as they could but Francis could not apply himself because he had to take Scott to the hospital for emergencies, each of which lasted about six hours. After Scott’s seizure, Francis had to care for Virginia. Francis continues to transport Virginia and Scott wherever they have to go. Francis testified Spencer never discussed the settlement with them, they never signed releases and the settlement had no provision for future medical expenses. Francis denied he ever told Spencer that Virginia had agreed to settle.
At the close of Virginia’s evidence, the defense made a motion for judgment. The trial court indicated it had heard no evidence of legal malpractice, fraud or deceit and granted the motion.
CONTENTIONS
The Isamans contend the trial court violated their right to jury trial, the trial court erroneously granted the motion in limine to exclude lost business income as to Francis, the trial court erred in bifurcating the punitive damages phase of the trial, the trial court erroneously granted the motion in limine related to the testimony of experts, the trial court erroneously dismissed Francis, Virginia and Scott’s claims, Virginia had a right to have Francis represent her at trial and the trial court dismissed the matter without any evidence the plaintiffs’ case lacked merit.
DISCUSSION
1. Jury trial.
The Isamans contend the trial court violated their right to jury trial. They note they executed an in forma pauperis declaration which entitled them to a waiver of jury fees and they deposited jury fees in the amount of $150 by check dated October 13, 2006. The Isamans also claim Francis waived jury trial under duress based on the trial court’s threat it would dismiss the case unless the plaintiffs waived jury. The Isamans contend the trial court should have granted their request for a jury trial under Code of Civil Procedure section 631, subdivision (e), which permits a trial court, in its discretion upon just terms, to allow trial by jury even though there may have been a waiver of jury trial. Francis and Virginia further contend they were prepared to satisfy whatever requirements the trial court would have imposed with respect to a jury trial.
A plaintiff appearing in forma pauperis is entitled to prosecute a pending civil action without prepayment of jury fees. (Isrin v. Superior Court (1965) 63 Cal.2d 153.) However, the in forma pauperis declaration relied upon by Francis and Virginia was not filed by them in this lawsuit. Rather, it was filed by Scott in the separate lawsuit he brought against Steinberg and Spencer. Consequently, the Isrin rule does not assist Francis and Virginia.
Under Code of Civil Procedure section 631, subd. (d)(5), a “party waives trial by jury . . . [b]y failing to deposit with the clerk, or judge, advanced jury fees as provided by subdivision (b).” Subdivision (b) of section 631, requires deposit of jury fees 25 days before the date initially set for trial. Here, the Isamans admitted at trial they had not posted jury fees. Further, the check proffered for the first time on appeal is dated 10 days before the trial date, not 25 days before trial as required. Although Code of Civil Procedure section 631, subdivision (e), permitted the trial court to allow the Isamans to proceed by jury trial despite their waiver, no abuse of the trial court’s discretion appears in the order denying their request.
Finally, contrary to the Isamans’ assertion, the trial court did not threaten to dismiss the case unless the plaintiffs waived jury trial. Rather, after the trial court denied the request for a jury trial, the Isamans indicated they were not prepared to proceed. Only then did the trial court indicate the matter would have to be dismissed unless the plaintiffs went forward with their evidence. The trial court was well within the bounds of its authority to so rule.
2. Bifurcation of punitive damages phase.
The Isamans contend the trial court erred in bifurcating the punitive damages phase of the trial. They argue the trial court should have heard evidence related to the filing of a fraudulent Notice of Settlement in the personal injury case. Francis and Virginia argue punitive damages were recoverable in the underlying personal injury action because the municipality defendants failed to inspect the sidewalk for more than 30 years. These punitive damages in the underlying action became compensatory damages in the malpractice case and trial of that matter should not have been bifurcated.
Contrary to the Isamans’ apparent construction of the trial court’s bifurcation order, the trial court did not preclude evidence of fraud or negligence in the mishandling of the underlying personal injury lawsuit. Thus, there was no ruling that prevented the Isamans from presenting whatever evidence they had at their disposal that addressed their claims of fraud or legal malpractice. Rather, the bifurcation order related to evidence of the financial condition of the defendants. (Civ. Code, § 3295.) No error appears.
3. Exclusion of expert testimony.
The Isamans contend the trial court erroneously granted the motion in limine to exclude expert testimony. They assert expert testimony was necessary to explain how external injury to Virginia’s right side had resulted in internal injuries to her left side. Francis and Virginia Isaman assert the defendants were negligent in the underlying action based on their failure to investigate the disparity between the right side external injury and the left side internal injury. Francis, a physicist, had concluded Virginia’s injuries could be explained to a jury and he should have been permitted to appear as an expert witness in this case. Francis asserts that, as a pro per litigant, he had a right to testify in this case. The trial court therefore erred in granting the motion in limine to prevent Francis from explaining how Virginia could have suffered permanent and debilitating injuries in the fall.
Initially, we note the trial court correctly precluded the plaintiffs from calling expert witnesses. Code of Civil Procedure section 2034.300 provides that, upon objection of any party who has made a complete and timely exchange of expert witness information, “the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to” disclose the expert, submit an expert witness declaration or make the expert available for a deposition. (Italics added.) (See Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1723.)
With respect to the Isamans’ specific claim the trial court improperly excluded Francis’s testimony, we note Virginia never questioned Francis about the dynamics of her injury at trial. Without at least offering Francis’s testimony at trial, the Isamans cannot claim it was error to exclude it.
4. Dismissal of Francis’s claim and the exclusion of evidence of lost income.
Francis contends the trial court erroneously granted the motion in limine to exclude evidence of his lost business income. Francis asserts both he and Virginia owned TechnoMerix and any recovery would have been community property. Thus, it was not necessary for Francis to suffer physical injury in order for him to suffer loss of the business and both Francis and Virginia should have been permitted to sue for loss of the business entity. Francis notes the care he provided Virginia made it impossible to operate the business and, as a result, they lost TechnoMerix. Francis and Virginia contend they did not seek lost income or compensation for loss of earnings. Rather, they sought restoration of the business that was devastated as a result of the accident.
Loss of income is not a compensable element of Francis’s claim in either the underlying action or the malpractice case. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 409 [spouse may not recover for loss of earnings or earning capacity incurred as a result of caring for injured spouse].) Loss of income to a party who was not physically injured by the defendant’s conduct and did not witness the injury to another is outside the scope of permissible proximate causation. (See Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 835.) Consequently, the trial court committed no error in dismissing Francis’s claim for loss of income.
Although Francis had a viable claim for loss of consortium, he admitted at trial that he did not seek damages for loss of consortium. Because loss of consortium was his only viable claim, the trial court properly dismissed Francis from the lawsuit.
A claim for loss of consortium has four elements: “(1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; [¶] (2) a tortious injury to the plaintiff’s spouse; [¶] (3) loss of consortium suffered by the plaintiff; and [¶] (4) the loss was proximately caused by the defendant’s act.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746, fn. 2.)
5. Dismissal of Virginia.
Virginia contends the trial court erroneously dismissed her claim without any evidence it lacked merit. Virginia argues the accident resulted in the loss of the family business and the lawsuit by which the Isamans sought to recover for that loss was dismissed by Steinberg and Spencer, who remain liable for all tort damages in the underlying action. Virginia concludes the defendants are not entitled to judgment unless they can show both the underlying personal injury action and the malpractice action are without merit. Because both actions were meritorious, Virginia was entitled to have the matter heard by a jury.
The record reveals the trial court properly dismissed Virginia’s complaint because she failed to carry the plaintiff’s burden to present evidence of legal malpractice, negligence or fraud. Absent any showing of the elements of the torts alleged, the trial court properly granted judgment in favor of the defendants.
6. Virginia was not entitled to be represented by Francis.
Virginia argues that, after Francis was dismissed from the case, she had a substantive right to have Francis represent her. Virginia asserts she was unfamiliar with the details of the case because she had been injured in the accident and she remained at home in bed on the morning of the trial because Francis was prepared to select a jury. However, the trial court sent Scott and a friend of the Isaman family to bring Virginia to court. When Virginia arrived, the trial court insisted she make an opening statement, even though only Francis was prepared to appear on their behalf. Virginia contends the trial court compelled an emotionally unstable and physically impaired plaintiff to leave her sick bed and litigate the case without preparation. Under these circumstances, no meaningful testimony could have been elicited from the witnesses.
Virginia did not complain at trial that she was unable to represent herself. Moreover, even if she had complained, the trial court could not have permitted Francis to represent Virginia at trial in this case because Francis is not an attorney. The record indicates the trial court was solicitous of the Isamans’ situation in that it could have excluded witnesses, including Francis, from the courtroom during trial. However, the trial court permitted Francis to sit with Virginia at the counsel table during the trial. No error or abuse of the trial court’s discretion appears.
7. Scott properly dismissed.
On appeal, Scott contends his complaint alleged Steinberg and Spencer withheld the original complaint and other documents from him and he was unaware he had been omitted from the complaint until it had been dismissed with prejudice. Scott claims he had no contact with Spencer until the depositions of his parents. Because the defendants never discussed the case with the Isamans, they neglected to make themselves aware that Scott is a dependant adult. Scott asserts a demurrer challenges only the legal sufficiency of the complaint, not the truth of the allegations or the plaintiff’s ability to prove those allegations. (Ball v. GTE Mobilnet of California (2000) 81 Cal.App.4th 529, 534-535.) Scott asserts he has standing and capacity to sue. Therefore, his complaint must be reinstated.
This claim is meritless. Scott was not included in the underlying personal injury lawsuit because he is unable to state a cause of action for loss of consortium. (See fn. 2, supra.) Consequently, no error appears in the dismissal of Scott’s complaint.
DISPOSITION
The judgments are affirmed. The parties shall bear their own costs.
We concur: KITCHING, J. ALDRICH, J.