Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Ventura County No. 231855. Ken W. Riley, Judge.
Arthur F. Munoz, in pro. per., for Appellant.
Bohl & Associates; Bohl, Nixon & Schoneman, Thomas M. Bohl and Anthony B. Nixon for Respondent.
PERREN, J.
Plaintiff Arthur F. Munoz appeals the judgment in his personal injury action entered after a jury verdict in favor of defendant Jose Z. Fernandez. He claims insufficient evidence to support the judgment, instructional error, and error in denying post-trial motions regarding misconduct by the jury, defense counsel and his own trial counsel. We affirm.
FACTS AND PROCEDURAL HISTORY
Munoz was riding a bicycle on Channel Islands Boulevard in Oxnard, California, approaching its intersection with Manzanita Drive. Defendant Fernandez was driving an 18,000 pound Peterbilt tractor truck on Manzanita Drive and had stopped at a stop sign at the intersection in preparation for making a left turn onto Channel Islands Boulevard. Munoz rode his bicycle into the intersection and collided with Fernandez's vehicle. It was dark at the time of the accident.
Munoz testified that he was riding his bicycle westbound on Channel Islands Boulevard and that, when he rode through the intersection, the truck started moving and rode over his legs and back. Fernandez testified that he did not see Munoz or perceive any sign of an impact and was unaware that there had been an accident at the time. Several witnesses testified inconsistently about the accident or its immediate aftermath. Brandi Brown "caught the accident out of the corner of [her] eye." At one point, she testified that she saw the truck roll over Munoz while, at another point, she testified that she did not see Munoz at the intersection or riding a bicycle. Cassandra Granados testified that Munoz was riding eastward against traffic and may have been riding on the sidewalk. She testified that she could not see the accident very well but believed the truck rode over Munoz. Two other witnesses testified that they did not see the accident itself, but saw the bicycle and the truck.
Medical records showed that Munoz suffered abrasions and lacerations. Based on x-rays taken of his ankle, legs and back shortly after the accident, Munoz suffered no broken bones or dislocations or other bone damage. In addition, the record contains references to evidence of extensive drug use by Munoz.
On February 17, 2006, the jury returned a verdict in favor of Fernandez finding no negligence. On March 9, 2006, Munoz filed a motion to obtain the names and addresses of the jurors to assist in the preparation of a motion for new trial and later filed a motion for new trial. The juror information motion and the motion for new trial were heard concurrently, and denied by the court on May 1, 2006.
DISCUSSION
Appellant Provided Insufficient Record on Appeal
An appellate court presumes that the trial court's judgment and orders are correct and supported by the facts of the case, and any error must be affirmatively demonstrated. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As a corollary to this rule of appellate review, an appellant is obligated to furnish a complete and adequate record for review.
To challenge the sufficiency of the evidence, the appellant must provide a reporter's transcript and summarize both the favorable and unfavorable evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881-882; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) To challenge rulings during trial, the appellant must provide a record of the relevant rulings with citations to the record and legal authority. (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.) When the record is inadequate to assess the errors raised, the claims are deemed to have been forfeited and must be rejected. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1140-1141; Rancho Santa Fe Ass'n v. Dolan-King (2004) 115 Cal.App.4th 28, 46.)
The record provided by Munoz in this case is fatally deficient. It includes a clerk's transcript and a partial reporter's transcript of the testimony of some, but not all, of the witnesses at trial. The record does not include any of the evidence offered by Fernandez, or the transcript of hearings concerning jury instructions and post-trial motions, or the closing arguments of counsel. From the record, we cannot determine what oral arguments were made to the trial court, what concessions or stipulations were made, or what matters were the subject of objections by counsel.
Furthermore, much of Munoz's argument consists of broad attacks on the integrity and competence of his own and opposing trial counsel and the court and is unsupported by legal authority or citations to the record. Although Munoz was represented by counsel during trial, he represented himself in post-trial motions and represents himself on appeal. It may be difficult for a litigant proceeding in propria persona to navigate the rules on appeal or present a reasonable legal argument, but such litigants are not entitled to preferential treatment. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.)
Substantial Evidence Supports Judgment
Munoz contends that there was insufficient evidence to support the jury's verdict. Under the applicable substantial evidence standard, we view the evidence in the light most favorable to the prevailing party, give it the benefit of every reasonable inference and resolve all conflicts in its favor. (Ninety Nine Investments, Ltd. v. Overseas Courier Service (Singapore) Private, Ltd. (2003) 113 Cal.App.4th 1118, 1127.) A judgment that is supported by substantial evidence will be affirmed even if the evidence could also have justified contrary findings. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)
Munoz has chosen to set forth his own version of the events and ignore contrary evidence. In particular, he omits from the record evidence concerning his impairment from drug use, whether he had a light on his bicycle at the time of the accident which occurred in the dark, the extent of his injuries, and whether his injuries were caused by the truck actually driving over him. The record provided by Munoz prevents us from assessing the evidence in its entirety, and we must presume that the omitted evidence would demonstrate the existence of substantial evidence in support of the judgment. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; In re Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
In any event, the incomplete record includes substantial evidence supporting the verdict. Fernandez's testimony regarding the care he used in checking for oncoming vehicular, bicycle, and pedestrian traffic before beginning his turn is in sharp contrast to Munoz's version of the events, and permitted a reasonable jury to find that Fernandez had not acted negligently. Also, a reasonable jury could disbelieve Munoz's testimony that a nine ton truck rolled over his legs without causing any broken bones or other serious injury.
No Error in Jury Instructions
Munoz contends that the trial court erred in instructing the jury with standard form jury instructions (CACI Nos. 212, 400, 405, 418, 420) which were not supported by the evidence. Munoz also contends that the court erroneously declined to give CACI Nos. 420B and 431, claiming that those instructions are supported by the evidence. We disagree.
A party is entitled upon request to correct non-argumentative instructions on every theory of the case advanced by him which is supported by substantial evidence and which correctly state the law. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572-574.) In reviewing a claim of instructional error, we interpret an instruction so as to support the judgment if possible, and reversal is warranted only when there is a reasonable probability that the appellant would have obtained a more favorable result without the error. (Id., at p. 580.)
Again, we are unable to conduct a complete review of Munoz's contentions because the record is inadequate. A February 14, 2006, minute order states that the "[c]ourt and counsel proceed to settle instructions," but there is no transcript of the proceedings to reveal objections by counsel, if any, or the reasoning of the court.
In any event, even the partial record on appeal demonstrates that the trial court reasonably ruled that the instructions were supported by the evidence. The instructions themselves were included in the record and show that the challenged instructions given by the court were requested by both Munoz and Fernandez, and that one instruction not given (CACI No. 431) was withdrawn by Munoz. Moreover, testimony by Fernandez that he could not see Munoz who may not have had a light on his bicycle, as well as references to evidence of Munoz's impairment from drug use, provide evidentiary support for instructions concerning negligence per se (CACI No. 420), contributory negligence by Munoz (CACI No. 405), and Munoz's unlawful conduct in bicycling while under the influence of drugs (CACI No. 418). Also, the trial court could reasonably conclude that pain does not excuse Munoz from bicycling under the influence of drugs as requested in CACI No. 418, and that an instruction on multiple causation (CACI No. 431) was unnecessary in light of other instructions. Munoz makes no cogent argument regarding CACI No. 212 or 400.
No Error in Denial of Motion for New Trial
1. Munoz's Contentions and Standard of Review
Munoz filed a motion for new trial which was heard and denied by the trial court on May 1, 2006, and many of the arguments in his appellate brief pertain to the same issues that were raised in his new trial motion. Although not expressly stated, it is clear that Munoz is contending that the trial court erred in denying the new trial motion. In substance, Munoz claims "irregularity in the proceedings" in the form of misconduct by defense counsel, "misconduct of the jury," and "errors in law." (Code Civ. Proc., § 657, subds. (1), (2), (7).) On appeal, when a new trial motion is denied, as opposed to granted, the appellate court must review the entire record, including the evidence, and make an independent determination of whether a miscarriage of justice occurred. (E.g., Ajaxo Inc. v. E*TRADE Group, Inc. (2005) 135 Cal.App.4th 21, 46-47; Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 969.)
2. Jury Misconduct Not Shown
Munoz contends that the jury improperly obtained information that was not part of the evidence, and that the trial court erred in denying both his motion to obtain the names and addresses of the jurors and his motion for new trial. We disagree.
Code of Civil Procedure section 237 protects against unwarranted communications between parties and jurors while permitting disclosure on a good cause showing. (People v. Jefflo (1998) 63 Cal.App.4th 1314, 1319; see also Erickson v. Superior Court (1997) 55 Cal.App.4th 755, 758-759 [Code Civ. Proc., § 237 applies in civil as well as criminal cases].) Good cause requires a showing that jury misconduct may have occurred and that further information is necessary for the court to rule on a motion for new trial. (People v. Jones (1998) 17 Cal.4th 279, 317.)
Section 237 provides in relevant part: "(a)(1) The names of qualified jurors drawn from the qualified juror list for the superior court shall be made available to the public upon request unless the court determines that a compelling interest, as defined in subdivision (b), requires that this information should be kept confidential or its use limited in whole or in part. . . . [¶] (b) Any person may petition the court for access to these records. The petition shall be supported by a declaration that includes facts sufficient to establish good cause for the release of the juror's personal identifying information. The court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information . . . ."
When the trial court set a hearing on the juror information motion, the court also sent a letter to the jurors asking them to answer two questions. On May 1, 2006, after receipt of juror responses to its letter, the trial court held a hearing on the motion concurrently with its hearing on the new trial motion.
Again, the record on appeal is insufficient. A minute order in the record states that oral argument at the hearing consumed approximately 30 minutes, and that the jurors had answered "no" to the court's questions, but the record omits the transcript of the May 1, 2006, hearing and the court's letter to jurors, and otherwise fails to disclose the contents of the court's letter. Because of the insufficiency of the record, we must presume that the trial court acted reasonably in denying the juror information motion.
Moreover, the evidence in the record fails to demonstrate any juror misconduct, much less prejudice. Juror misconduct occurs when a juror obtains information about a party or the case that was not part of the evidence received at trial, even if the juror is exposed to the information involuntarily. (In re Hamilton (1999) 20 Cal.4th 273, 294-295; see also Krouse v. Graham (1977) 19 Cal.3d 59, 80; Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 506.) Where misconduct involves information received from an extraneous source, we will uphold a verdict unless there is substantial likelihood that the misconduct resulted in juror bias and prejudice. (People v. Danks (2004) 32 Cal.4th 269, 303-304.) Relevant factors in making this assessment include the strength of the evidence that misconduct occurred and the nature and seriousness of the misconduct. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417.)
Munoz submitted a declaration stating that he heard an elderly couple who knew defendant Fernandez state that someone had "been in prison for many years," uses different names, and "doesn't even own a home." Munoz declares that the statement was made in a courthouse hallway "full of people including members of the jury," it was "clear" that the couple was "talking about me and my past criminal record," and that it was "reasonable to believe" some jurors heard the conversation.
This declaration is inadequate to show juror misconduct. It indicates that the conversation by the elderly couple was not directed at any juror, and only speculates as to whether any juror overheard and understood the conversation or formed opinions about the case based on the information. As a general rule, self-serving declarations lack trustworthiness. (People v. Duarte (2000) 24 Cal.4th 603, 611.) Also no juror reported the incident to the court and it was not otherwise brought to the court's attention when it occurred. We decline to conclude that the mere fact that someone may have said something within earshot of jurors requires either disclosure of the identity of the jurors or a new trial based on jury misconduct.
3. No Prejudice from Defense Contact with Witness
Munoz contends that an employee of defense counsel contacted witness Cassandra Granados by telephone, told Granados that Munoz had a criminal conviction for a sex crime, and asked Granados to pass on the information to another witness, Brandi Brown. Munoz argues that this conduct affected Granados's trial testimony and resulted in denial of a fair trial. We agree that this is a serious accusation, but conclude that there was no prejudice from the communication.
Misconduct of counsel constitutes an irregularity in the trial proceedings and is a ground for new trial. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870.) To prevail on a claim of opposing counsel misconduct, there must be a showing that demonstrates improper behavior and prejudice. The omission of the transcript of the May 1, 2006, hearing from the record prevents us from assessing the arguments made to the court, the court's reasoning in making its ruling, or whether there is any probability of a more favorable result for Munoz without the offending conduct. (See Soule v. General Motors Corp., supra, 8 Cal.4th at p. 574.) Based on the record as is, it is reasonable to conclude that there was no prejudice based on the absence of any indication that the communication affected the trial testimony of any witness.
The record includes two declarations submitted by Munoz. In his own declaration, Munoz states that he had a telephone conversation with witness Brandi Brown after the verdict during which she told him that she and fellow witness Cassandra Granados had been subjected to "pressure and threats" by defense counsel. Munoz declares that Brown told him that Granados told Brown that a secretary in defense counsel's office told Granados that Munoz was a child molester, had been in prison, and used aliases. Munoz also filed a declaration from Georgia Foster, a secretary to Munoz's trial counsel, who declared that witness Brown telephoned her immediately before trial and told her that Granados told Brown that a legal assistant in defense counsel's office told Granados that Munoz was a convicted sex offender. Foster also declares that Brown said she would rather be sanctioned by the court than testify on behalf of a convicted sex offender.
Both of these declarations are largely hearsay. Moreover, there is no declaration from either Brown or Granados, and no indication in the record of any disclosure to the court by Brown, Granados, or Munoz's trial attorney who presumably would have been informed by his secretary of any pre-trial telephone call from Brown. Generally, a reviewing court will not consider a claim of attorney misconduct without a timely objection in the trial court. (See Du Jardin v. City of Oxnard (1995) 38 Cal.App.4th 174, 178.)
There is also nothing in the Foster declaration that Brown claimed that there had been any intimidation or pressure on her or Granados to alter their trial testimony. (Cf. People v. Lucas (1995) 12 Cal.4th 415, 456-457.) In fact, both Brown and Granados did testify at trial in a manner that generally supported Munoz's version of the accident and, if anything, their testimony was more favorable to Munoz than earlier deposition testimony which was read into the record on cross-examination.
4. No Error Regarding Stipulation
Munoz contends that his trial counsel entered into a stipulation that he did not authorize, and that the action deprived him of a fair trial. We disagree. The stipulation in question was signed by counsel for Munoz and defense counsel and entered as an order by the trial court on December 9, 2005. The stipulation provides that Munoz would not assert at trial that the accident was a hit-and-run, and Fernandez would not assert at trial that Munoz had a criminal history. There is nothing in the record regarding the matter other than the stipulation and order, including no objection to the stipulation by Munoz or any other indication that he did not consent to his counsel's action and to the ensuing order of the court.
A client is bound by the acts of his or her attorney with the consent or ratification of the client or within the scope of the attorney's actual express or implied authority, or his apparent or ostensible authority. (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403.) The record in this case provides no basis for Munoz's claim that he did not consent to the stipulation or that there was any irregularity in the entry of the ensuing order by the trial court.
In addition, although a stipulation that impairs the substantial rights of the client requires client consent, an attorney is authorized by virtue of his employment to bind the client in procedural and tactical matters arising during the course of the action even if the client voices opposition in open court. (See Knabe v. Brister (2007) 154 Cal.App.4th 1316, 1324-1325, and cases cited therein.)
Here, the stipulation was a matter of trial tactics that did not impair Munoz's substantial rights. It did not effect a settlement or other resolution of the case or eliminate an essential defense. It was a compromise to avoid possible prejudice to both sides. (See Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1581-1582.) If anything, the stipulation was beneficial to Munoz. It prevented disclosure of his criminal record as impeachment evidence in return for not asserting that the accident was a "hit and run," but did not prevent admission of evidence that Fernandez drove on after the accident without stopping.
5. No Error Regarding Admonitions
Munoz contends that the trial court failed to admonish the jury "until after the fact" regarding the statements made in the courthouse hallway about his criminal history. Although his argument is unclear, Munoz is apparently arguing that the court failed to admonish the jury at the beginning of trial as required by Code of Civil Procedure section 611 which provides that, "[i]f the jury are permitted to separate, either during the trial or after the case is submitted to them, they shall be admonished by the Court that it is their duty not to converse with, or suffer themselves to be addressed by any other person, on any subject of the trial, and that it is their duty not to form or express an opinion thereon until the case is finally submitted to them." The argument has no merit. The record shows that the jury was admonished with the substance of that statute on the first day of trial and certain of the minute orders for subsequent trial days contain a reference to the jury being admonished.
6. Other Contentions are Without Merit
Munoz's motion for new trial also makes broad accusations of injustice, witness intimidation, a biased and prejudicial police investigation, a lengthy recitation of his version of the facts of the accident, and a lengthy list of matters to which his trial attorney failed to object. None of this vituperative language is supported by references to the record or legal authority and requires no discussion by the reviewing court. (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.)
The judgment is affirmed. Costs to respondent.
We concur: GILBERT, P.J., COFFEE, J.