Opinion
F078937
06-08-2021
MARIA MOSQUEDA, Plaintiff and Appellant, v. LARRY DELGADO et al., Defendants and Respondents.
Maria Mosqueda, in pro. per., for Plaintiff and Appellant. Clark Hill, Dean A. Olson and Tiffany B. Hunter for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BCV-17-101099 Thomas S. Clark, Judge.
Maria Mosqueda, in pro. per., for Plaintiff and Appellant.
Clark Hill, Dean A. Olson and Tiffany B. Hunter for Defendants and Respondents.
OPINION
THE COURT [*]
Plaintiff Maria Mosqueda appeals from a judgment entered after the trial court granted defendants' motion for nonsuit. She contends the trial court impermissibly weighed the evidence in reaching the conclusion that she had not identified the driver of the tow truck that caused her personal injuries. She argues the jury could easily deduce from her testimony that defendant Larry Delgado was the driver of the truck. As explained below, we conclude the trial court did not err when it granted the motion for nonsuit.
We therefore affirm the judgment.
BACKGROUND
In May 2017, plaintiff filed a complaint for damages alleging a single cause of action for negligence. The defendants named in the complaint were Larry Delgado, Wessels Enterprises, Inc., and A-1 Recovery, a business entity of an unknown form (collectively, defendants).
The complaint alleged that on May 28, 2015, the parties were at a location on Kearney Avenue in Lamont and defendants negligently drove a grey 2008 Dodge Ram causing it to collide with plaintiff. The complaint alleged plaintiff sustained severe bodily injuries and, as a result, incurred hospital and medical expenses and suffered lost wages and a loss of earning capacity.
In July 2017, Larry Delgado and Wessels Enterprises, Inc., doing business as A-1 Recovery, answered the complaint with a general denial and a variety of affirmative defenses. Defendants' answer also demanded a trial by jury.
The register of actions shows that on September 5, 2018, the parties filed motions in limine, a joint witness list, a joint exhibit list, and a joint statement of the case. These documents are not included in the clerk's transcript and are not otherwise part of the appellate record.
On October 11, 2018, the trial court held its final case management conference before the jury trial. The court advised counsel it would read the joint statement of the case to the jurors. The court also ruled on the parties' motions in limine.
On October 17, 2018, jury selection began and the trial court preinstructed the prospective jurors. Plaintiff, her attorney and two interpreters were present. Two attorneys representing the defendants were present along with Rhonda Wessels as the representative of Wessels Enterprises, Inc. The court minutes and reporter's transcript for that day do not mention Larry Delgado's presence in court.
On October 18, 2018, plaintiff, plaintiff's counsel, two interpreters, two defense attorneys and Rhonda Wessels were present. Voir dire of prospective jurors was completed and a panel of 12 jurors and two alternate jurors were sworn. Before the noon break, the trial court preinstructed the jury. The afternoon session began with counsel making their opening statements.
Plaintiff was called as the first witness, was sworn, and testified through an interpreter. Plaintiff stated that on the morning of May 28, 2018, she had collected trash from her yard and put the trash bags in her car. While she was bent over in her driveway dealing with a rock that she uses to keep her gate from moving, she heard a noise that she could not identify. Plaintiff stated, “I couldn't see but I did hear something.” She did not have time to process the noise before she felt something hit her leg. She stated, “I felt the strike and I jumped and something pushed me over and I yelled.” Counsel asked if she saw “this tow truck at any time before it hit you?” Plaintiff answered, “No.” Later, plaintiff was asked if she remembered seeing the tow truck. She answered: “No, no. That's the truth. I didn't see it either before or after.”
Plaintiff testified that, after the incident in her driveway, a law enforcement officer “asked me if I had seen it and I said no, because I hadn't seen anything. I hadn't seen any tow truck.” The following exchange occurred next:
“Q. Did you ever talk to the other driver of the tow truck, Mr. Delgado?
“A. I think it was him that was saying that the ambulance was coming.
“Q. Do you remember anything else you discussed with Mr. Delgado at the scene?
“A. He said-he said something. He said, ‘What did you do, ma'am?' He was trying to put the blame on me.”
Plaintiff's subsequent testimony described being taken to the hospital by ambulance, her injuries, the medical treatment received, and the impact of the injuries on her life. After plaintiff finished her testimony, the proceedings were adjourned for the day.
On October 22, 2018, plaintiff resumed presenting her evidence. Again, plaintiff, plaintiff's counsel, two interpreters, two defense attorneys and Rhonda Wessels were present. Larry Delgado was not present. Plaintiff called Dr. Michael Eagan and he testified about her injuries. His testimony is not relevant to the issues raised in this appeal. After Dr. Eagan finished his testimony, plaintiff rested.
Defense counsel then made a motion for nonsuit under Code of Civil Procedure section 581c. Counsel argued plaintiff testified that she did not know what hit her, she did not see a tow truck, and she did not know whether she spoke to Delgado at the scene. Counsel also argued that, even if Delgado was the person driving the tow truck, there was no evidence that he was acting within the course or scope of his employment with Wessels Enterprises, Inc.
The trial court addressed the motion by describing photographs of the tow truck at the scene, which showed, among other things, the hook-up apparatus extending from the rear of the truck. The court stated that there was sufficient circumstantial evidence for the jury to find the plaintiff's “injury was caused by either backing up or the extension of the tow truck and the tow truck equipment.” The court then asked counsel to address whether there was a sufficient showing as to who was operating the truck, who owned the truck, and whether there was a connection shown between the truck and the named defendants. After hearing from counsel, which included their analysis of plaintiff's testimony, the court stated its tentative was “to grant the motion on the basis of identity” because there was (1) no evidence Delgado was the person who was operating the tow truck and (2) no evidence Wessels Enterprises, Inc. owned the tow truck. The court informed counsel that before it made a final ruling, “we'll take about a ten-minute recess and counsel might reflect on what other steps they might consider.”
In subsequent arguments, plaintiff's counsel stated the identity of Delgado was established early in the case when the defense attorneys identified their clients, which included identifying Delgado as the driver. The court stated it sounded like plaintiff was arguing that because defense counsel identified their clients as the owner and operator of the vehicle in opening statements and during voir dire, counsel should be estopped from arguing in the nonsuit motion that there was no evidence their clients were the owner and driver of the vehicle. After taking a recess to research how equitable and judicial estoppel applied to opening statements, the court stated: “Before I got to that issue, I looked into the statements to see if they qualify as admissions by a party[, ] but statements made by the attorneys in opening statement are not evidence. And … I've already advised the jury on that on multiple occasions. [¶] As a result, I don't believe that I can conclude that statements made in opening statements are admission[s] for evidentiary purposes.” The court also explained its determination that equitable estoppel and judicial estoppel did not preclude defendants from moving for nonsuit. The court described judicial estoppel as a doctrine that “prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding.”
Plaintiff did not mention anything set forth in the joint statement of the case presented to the court. The joint statement is not part of the record and, therefore, we are unable to determine if it contains concessions about the driver of the tow truck and who owned it.
Ultimately, the court adopted its tentative ruling and granted the motion for nonsuit as to both defendants. The court concluded the references to Delgado in the questions asked by plaintiff's counsel, which references were incorporated into the answers of plaintiff, were not sufficient to establish that the person mentioned was the same person as defendant Larry Delgado. After stating its final ruling on the motion, the court asked defense counsel if there was anything they wanted to put on the record. Defense counsel had nothing to add. Then the court asked plaintiff's counsel if he had anything he wanted to put on the record. Plaintiff's counsel stated, “No.” In March 2019, plaintiff filed a notice of appeal challenging the grant of nonsuit.
As described earlier, Delgado did not attend the trial and was not present in court when the questions were asked.
DISCUSSION
I. LEGAL PRINCIPLES
A. Nonsuit
A motion for judgment of nonsuit may be made after the plaintiff's opening statement, or after the presentation of plaintiff's evidence. (Code Civ. Proc., § 581c, subd. (a).) If made after plaintiff's evidence is presented, the motion concedes the truth of the facts shown by the evidence, but claims those facts fail as a matter of law to support the plaintiff's cause of action. (Gray v. Kircher (1987) 193 Cal.App.3d 1069, 1071.)
When the motion is made after the plaintiff's presentation of evidence, the standards for granting it are the same as the standards for granting a motion for a directed verdict or for reversing a judgment on appeal based on a lack of substantial evidence:
“It has become the established law of this state that the power of the court to direct a verdict is absolutely the same as the power of the court to grant a nonsuit. A nonsuit or a directed verdict may be granted ‘only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.' [Citations.] Unless it can be said as a matter of law, that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury. [Citation.] … In other words, the function of the trial court on a motion for a directed verdict [or nonsuit] is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict. Although the trial court may weigh the evidence and judge of the credibility of the witnesses on a motion for a new trial, it may not do so on a motion for a directed verdict [or nonsuit].” (In re Estate of Lances (1932) 216 Cal. 397, 400-401; see Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838-839.)
The substantial evidence needed to defeat the motion is evidence that is reasonable, credible and of solid value, from which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.)
B. Standard of Appellate Review
We review a judgment of nonsuit de novo, applying the same standards as the trial court. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291; Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1060.) Generally, only the grounds specified by the moving party in the trial court as the basis for its motion are considered by the appellate court in reviewing a judgment of nonsuit. (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 839.)
II. IDENTITY OF TRUCK'S OWNER
A. Contentions
Defendants' appellate brief contends there was no evidence establishing that Wessels Enterprises, Inc., doing business as A-1 Recovery, owned the tow truck. Defendants note that plaintiff did not call a representative of the corporation to testify on the issue of ownership and the photographs of the tow truck introduced into evidence did not depict any logos or signage from which a jury could infer Wessels Enterprises, Inc. owned the tow truck.
Plaintiff contends the trial court erred in granting nonsuit because defense counsel's opening statement identified the corporation as the owner of the tow truck business.
B. Analysis
We reject plaintiff's arguments about the effect of defense counsel's opening statement. As background, we note that California appellate courts begin their evaluation of an appeal by presuming the trial court's judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see Cal. Const., art. VI, § 13.) “[T]he burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) This allocation of the burden to appellants is a fundamental principle of appellate procedure and derived from the constitutional doctrine of reversible error. (Ibid.)
In this case, the copy of the certified reporter's transcript plaintiff filed with her motion to augment the record on appeal does not contain the opening statement of defense counsel. Immediately after plaintiff's opening statement, the reporter's transcript reads: “(Proceedings continued and are not transcribed herein.)” Immediately after that entry, the transcript shows the trial court directing plaintiff to call her first witness. As a result, we are unable to determine what defense counsel may or may not have conceded in an opening statement. (See Jameson, supra, 5 Cal.5th at pp. 608-609; Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [absence of a reporter's transcript or settled statement meant plaintiff failed to provide an adequate record and, thus, failed to carry the burden of showing prejudicial error].)
Responding to the motion for nonsuit, plaintiff's counsel stated to the trial court: “The identity of Mr. Larry Delgado was established early in this case by counsel who identified their clients as Ms. Wessels, owner and operator of A-1 Recovery Towing, and Larry Delgado, as the driver.” Plaintiff counsel's summary does not, for purposes of appellate review, establish what defense counsel actually said.
1. Judicial Admissions
First, we consider the principles of law that define judicial admissions. “A judicial admission is a party's unequivocal concession of the truth of a matter, and removes the matter as an issue in the case.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 48; see Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482 [“fragmentary and equivocal concessions” insufficient to constitute judicial admissions].) For example, an admission of fact in a pleading constitutes a judicial admission that is conclusive against the pleader. (Valerio v. Andrew Younquist Construction (2002) 103 Cal.App.4th 1264, 1272, 1274.) In addition, “[o]ral statements of counsel may be treated as judicial admissions if they were intended to be such or reasonably construed by the court or the other party as such.” (People v. Jackson (2005) 129 Cal.App.4th 129, 161.) Under this principle, the statements of a party's counsel during closing argument may constitute a judicial admission. (E.g., Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752 (Fassberg) [“an oral statement by counsel in the same action is a binding judicial admission if the statement was an unambiguous concession of a matter then at issue and was not made improvidently or unguardedly”]; see 29A Am.Jur.2d (2021) Evidence, § 768 [unambiguous statements made by counsel during an opening statement or closing argument can result in a judicial admission].)
Without a transcript of the defense counsel's opening statement, we must presume the trial court correctly determined that counsel's statement was not “an unambiguous concession of a matter then at issue” or, alternatively, was “made improvidently or unguardedly.” (Fassberg, supra, 152 Cal.App.4th at p. 752.) As a result, we cannot conclude a binding judicial admission was made in defense counsel's opening statement.
2. Evidentiary Admission
Second, we consider whether counsel's statements may have constituted evidentiary admissions. Judicial admissions and evidentiary admissions are not the same. (See Troche v. Daley (1990) 217 Cal.App.3d 403, 409 [judicial admission in not merely evidence, it concedes the matter, removing it from the issues].) “[E]videntiary admissions, which are exceptions to the hearsay rule, are statements made by a party or its agent, regardless of whether it is made out of court or in court, typically used to contradict or otherwise impeach the party's current assertion.” (Roman, “Your Honor What I Meant to State Was …”: A Comparative Analysis of the Judicial and Evidentiary Admission Doctrines as Applied to Counsel Statements in Pleadings, Open Court, and Memoranda of Law (1995) 22 Pepp. L.Rev. 981, 986.) An evidentiary admission, unlike a judicial admission, “may be rebutted with explanatory evidence from the party against whom the admission is offered.” (Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1425, fn. 21.)
Here, the trial court concluded statements made by counsel during opening statements were not evidence and, therefore, could not be treated as an evidentiary admission. The court referred to the preinstructions given before the opening statements advising the jury that statements made by an attorney in opening statement were not evidence. The preinstructions are not part of the appellate record, but we presume the trial court gave CACI No. 106, or similar instruction. CACI No. 106 provides in part:
“What the attorneys say during the trial is not evidence. In their opening statements and closing arguments, the attorney will talk to you about the law and the evidence. What the lawyers say may help you understand the law and evidence, but their statements and arguments are not evidence. [¶] The attorneys' questions are not evidence. Only the witnesses' answers are evidence.”
Based on the instructions given the jury prior to opening statements, we conclude the trial court properly determined the statements of counsel in defendants' opening statement to the jury should not be treated as an evidentiary admission.
To summarize, plaintiff has not demonstrated there was a judicial or evidentiary admission about ownership of the tow truck. Based on the absence of any such admission and the lack of any testimony addressing ownership of the truck, we conclude the trial court correctly granted a judgment of nonsuit to Wessels Enterprises, Inc.
III. IDENTITY OF DRIVER
Defendants' appellate brief contends plaintiff failed to present sufficient evidence establishing that Delgado drove the tow truck. In analyzing defendants' motion for nonsuit, the trial court stated it had considered the three questions asked by plaintiff's counsel that referred to “Mr. Delgado” and then stated:
“And the plaintiff, as a witness, responded to all those questions. There were no objections posed, so the response to the question incorporates the reference to Mr. Delgado as the driver of the tow truck but we're not quite there in my analysis because what evidence is there that the Mr. Delgado being referred to in that testimony is the same Mr. Delgado that's a defendant in this case. [¶] And that's a very tough call for me, but I'm going to conclude that that is not evidence, that is not sufficient evidence, particularly, when I set aside any statement made in the opening statement.”
On appeal, plaintiff contends the trial court erred by weighing the evidence and determining her testimony about Delgado as the tow truck driver was insufficient. In plaintiff's view, the court determined her identification of Delgado was not credible and erroneously prevented the jury from making the connection that Delgado drove the tow truck that struck her. In addition, plaintiff asserts Delgado was identified as the tow truck driver in open court. This assertion appears to be based on her theory that a judicial or evidentiary admission occurred.
First, based on our independent review of the record on appeal, we reject the theory that defendants are bound by a judicial admission that Delgado was the driver of the tow truck. (See pt. II.B.1., ante.) In addition, the trial court properly determined counsel's statements were not an evidentiary admission. (See pt. II.B.2., ante.)
Second, we conclude a jury could not reasonably infer from the plaintiff's answers to the questions referring to “Mr. Delgado” that Delgado was, in fact, the driver. Plaintiff testified that she never saw the tow truck before or after being struck. It necessarily follows that she could not have seen Delgado operating the truck at the time of the incident or getting out of the truck immediately after the incident. Also, assuming her testimony about the statement Delgado made to her after she had been knocked down was, in fact, made by defendant Larry Delgado, the statement was not an admission by the man speaking to her that he drove the truck. Furthermore, plaintiff's answer does not reasonably support the inference that defendant Larry Delgado was the driver. In other words, the evidence presented would require the jury to speculate as to the identity of the driver. Accordingly, Delgado was entitled to a judgment of nonsuit on the ground that he had not been identified as the driver of the tow truck that struck plaintiff.
Finally, we note the trial court gave plaintiff the opportunity to reopen her case. After stating its tentative ruling on the motion for nonsuit, the court informed counsel that before it made a final ruling, “we'll take about a ten-minute recess and counsel might reflect on what other steps they might consider.” Similarly, after making its final ruling on the motion, the court asked plaintiff's counsel if there was anything he wanted to put on the record. Although the court did not explicitly mention reopening plaintiff's case to introduce further evidence, plaintiff's counsel was given at least two opportunities to make such a request. (See R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 340 [“failure to request a chance to reopen waives the right to do so”].)
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
[*] Before Franson, Acting P.J., Meehan, J. and Snauffer, J.