Opinion
E067972
08-07-2018
GARRY MILBURN, Plaintiff and Respondent, v. JAMES D. BILBREY, Defendant and Appellant.
James D. Bilbrey, in pro. per., for Defendant and Appellant. Maynes & O'Hair Law and Mitchell J. O'Hair for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1508676) OPINION APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge. Affirmed. James D. Bilbrey, in pro. per., for Defendant and Appellant. Maynes & O'Hair Law and Mitchell J. O'Hair for Plaintiff and Respondent.
I. INTRODUCTION
In this action, plaintiff and respondent, Garry Milburn, sued defendant and appellant, James D. Bilbrey, for personal injuries Milburn suffered after falling from a forklift operated by Bilbrey. Following a court trial, the court entered judgment in favor of Milburn for $38,391.10, including costs.
To conform to proof at trial, the court allowed Milburn to amend his complaint to allege that the forklift accident occurred on October 5, 2013, rather than on August 5, 2013, as the complaint alleged. In this appeal, Bilbrey claims the trial court abused its discretion in allowing the amendment because it prejudiced his ability to defend Milburn's claims at trial. We find no abuse of discretion and affirm the judgment.
II. FACTS AND PROCEDURE
A. Milburn's Complaint
On July 23, 2015, Milburn filed his operative complaint against Bilbrey, alleging causes of action for general negligence and premises liability, and claiming he suffered damages as a result of falling from a forklift operated by Bilbrey. The complaint incorrectly alleged that the accident occurred on August 5, 2013, rather than on October 5, 2013. B. Milburn's Evidence at Trial
In 2013, Milburn was employed by Bilbrey's hot air balloon company, Aeronaut Adventures, Inc. On Saturday, October 5, 2013, Bilbrey instructed Milburn to clear some space on the top shelf of a "pallet rack" in Bilbrey's Lake Elsinore shop, in order to make room for hot air balloon equipment. At Bilbrey's direction, Milburn stood on a wooden pallet, atop a forklift, while Bilbrey operated the forklift and raised Milburn to the top shelf of the pallet rack. While stepping from the forklift to the pallet rack, Milburn fell approximately 12 feet to the concrete floor below and broke his foot. Bilbrey was not licensed to operate the forklift and did not provide Milburn with any safety strap or other safety device to use on the forklift.
Bilbrey's office manager, Dawn Ortiz, shared a house with Milburn. Ortiz learned about the accident from Milburn on Sunday, October 6, 2013, after Ortiz returned home from a weekend camping trip. Later that week, Ortiz discussed the accident with Bilbrey, and Bilbrey did not deny that the accident occurred. But at trial, Bilbrey claimed he had no knowledge of the accident, denied he was present during the accident, and claimed he did not even own a forklift on October 5, 2013. Milburn received his last paycheck from Aeronaut Adventures, Inc. on October 4, 2013, but Bilbrey made some cash payments to Milburn after that date.
Milburn testified that Bilbrey's 14-year-old son, a man named Jose, and Bilbrey were present when the accident occurred. Jose took Milburn to urgent care on the date of the accident. Milburn initially testified he believed the accident occurred on August 5, 2013, but he also said he was "confused" about whether the accident occurred in August or October 2013. Milburn was certain the accident occurred on a Saturday. A doctor's report, which stated that the accident occurred October 5, 2013, refreshed Milburn's recollection that the accident occurred on Saturday, October 5, 2013. Before trial, Milburn signed form interrogatory responses, stating he worked for Aeronaut Adventures, Inc. until August 5, 2013, but at trial he did not recall reading his interrogatory responses, although he acknowledged he signed a form verifying the responses. C. Milburn's Motion to Conform to Proof at Trial
Neither Bilbrey's son nor Jose testified at trial.
After Milburn presented his case-in-chief, the court allowed Milburn to amend his complaint to allege that the accident occurred on October 5 rather than on August 5, 2013. Milburn's counsel told the court that the August 5 date was a typographical error in the complaint, and argued Milburn was simply confused about the accident date. Bilbrey's counsel objected to the amendment.
In allowing the amendment, the court noted that both counsel had been "working off" the October 5 date, "as far as preparing [for trial] and such"; that Milburn was not moving to add any new causes of action; and that "overwhelming evidence" showed the accident occurred on October 5, despite Milburn's confusion. This overwhelming evidence included Ortiz's testimony, the evidence that Milburn was paid for working after August 5, and medical records indicating that Milburn was injured on October 5. The court also noted that Bilbrey was not claiming the accident occurred August 5; he was claiming the accident did not occur at all. D. Bilbrey's Defense Evidence
Bilbrey called three witnesses who testified they were working as part of Bilbrey's balloon crew on October 5, 2013, and that Bilbrey was with them during most of the day on October 5—during the time Milburn claimed the accident occurred. But one of these witnesses, Ryan Fernandez, testified that, on October 6, 2013, Bilbrey told Fernandez that Milburn had hurt his foot on the previous day.
Bilbrey testified he was not in his shop on October 5 when Milburn claimed the accident occurred, and also denied he had ever operated a forklift in his shop with Milburn on top of it. Bilbrey was impeached with his deposition testimony in which he testified he had a forklift on his property on October 5, and that he was the only person who operated the forklift. E. The Judgment
Following the close of the evidence, the court entered judgment for $36,905 in favor of Milburn on his general negligence claim against Bilbrey. The judgment included $7,505 for past medical expenses, $14,400 for past loss of wages, and $15,000 for pain and suffering. The judgment was amended to add $1,486.10 in court costs, for a total judgment of $38,391.10.
The court found Milburn's employer, Aeronaut Adventures, Inc., whose default had been entered, jointly and severally liable with Bilbrey on the judgment.
III. DISCUSSION
Bilbrey claims only that the trial court abused its discretion in allowing Milburn to amend his complaint during trial to allege that the accident occurred on October 5, 2013, rather than on August 5, 2013. We find no abuse of discretion. A. Standard of Review and Applicable Legal Principles
Code of Civil Procedure section 473 gives trial courts discretion to allow parties to amend their pleadings "in furtherance of justice," and section 576 states that such leave to amend may be granted even after the commencement of trial. (Garcia v. Roberts (2009) 173 Cal.App.4th 900, 909.) Former section 469, which was in effect at the time of trial and which specifically governs motions to amend to conform to proof at trial, provided, in relevant part, that: "No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits."
All further statutory references are to the Code of Civil Procedure. --------
The allowance of amendments to conform to proof rests largely in the discretion of the trial court, and its determination will not be disturbed on appeal unless it clearly appears the court abused its discretion. (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1378.) No abuse of discretion is shown unless, by permitting the amendment, new and substantially different issues are introduced which the adverse party had no opportunity to defend, or the rights of the adverse party are otherwise prejudiced. (Ibid.)
To be prejudicial, the amendment must have "'actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.'" (Duchrow v. Forrest, supra, 215 Cal.App.4th at p. 1378, quoting § 469.) Where no prejudice to the adverse party is shown, "'"[c]ourts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial . . . ."'" (Eng v. Brown (2018) 21 Cal.App.5th 675, 706.) The appellant has the burden of proving on appeal that the trial court abused its discretion in allowing the amendment. (Id. at p. 707.) B. The Trial Court Did Not Abuse Its Discretion in Allowing Milburn to Amend his Complaint During Trial to Allege That the Accident Occurred on October 5, 2013
Bilbrey claims the date amendment prejudiced his ability to defend against Milburn's claims at trial, given that "[t]he case involved a substantial issue as to" Bilbrey's "whereabouts" on the date of the accident. Bilbrey points out that Milburn's verified form interrogatory responses stated that the accident occurred on August 5, 2013, and at trial Milburn's counsel failed to offer any explanation for Milburn's delay in seeking the date amendment.
We find no merit to these claims. The record shows Bilbrey and his counsel were well aware before trial that Milburn was claiming the accident occurred on October 5, 2013, rather than on August 5, 2013. For example, during his pretrial deposition, Bilbrey was questioned about whether he owned a balloon company and a forklift on October 5, 2013. The record also shows that the date amendment did not adversely affect Bilbrey's trial preparations or defense. Bilbrey called three witnesses who testified that Bilbrey was with them during the morning of October 5 when Milburn was claiming the accident occurred. Additionally, the complaint was not amended to allege any new causes of action or to raise any new issues.
As the trial court pointed out in allowing the date amendment following Milburn's case-in-chief, the "overwhelming evidence" presented at that point in the trial showed the accident occurred on October 5, 2013, rather than on August 5, 2013. This evidence included the testimony of Milburn and Ortiz, the evidence that Aeronaut Adventures, Inc. paid Milburn through October 4, 2013—which indicated that Milburn was still working after August 5, 2013—and the medical report which stated, and refreshed Milburn's recollection, that the accident occurred on October 5. Thus, as Milburn's counsel argued to the trial court, it was unnecessary to move to amend the complaint before trial, given the overwhelming evidence, known to Bilbrey before trial, that the accident occurred on October 5.
Bilbrey's defense evidence only served to underscore that the accident occurred on October 5. Although Bilbrey denied knowledge of Milburn's injury prior to the lawsuit, he contradicted himself by admitting that, during the week following October 5, 2013, he heard from Milburn that Milburn had hurt his foot. In addition, Bilbrey's defense witness and balloon crew member, Ryan Fernandez, testified that on October 6, Bilbrey told Fernandez that Milburn had hurt his foot on the previous day, October 5.
Thus, Bilbrey has not met his burden of showing that the date amendment misled him "'to his prejudice in maintaining his action or defense upon the merits.'" (Duchrow v. Forrest, supra, 215 Cal.App.4th at p. 1378.) Specifically, Bilbrey has not shown he would have presented a different defense had Milburn alleged in his complaint that the accident occurred on October 5, 2013, rather than on August 5, 2013. Thus, we conclude that the trial court did not abuse its discretion in allowing the date amendment.
IV. DISPOSITION
The judgment is affirmed. Milburn shall recover his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: McKINSTER
Acting P. J. MILLER
J.