Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07CC12426, Ronald L. Bauer, Judge.
Edward Ricks in pro. per.
Stafford & Associates, Timothy J. Stafford and Randal Scott Oakley for Respondents C & Y Rainbow Corp aba Rainbow Inn and Pi-Yu Tsai.
OPINION
O’LEARY, J.
Edward Ledell Ricks appeals from a civil judgment entered after a court trial. The trial court awarded Ricks over $150,000 in damages against William Lee Henderson for assault and battery. However, the court entered a defense verdict in favor of the remaining defendants, finding no liability for premises liability and general negligence. Ricks asserts the judgment must be reversed because the trial court was biased in favor of the defendants and joined a conspiracy with the “Orange County Government” to deprive him of a jury and to have him murdered. We found much of the briefing to be a jumbled, confusing, and unintelligible mixture of legalese and criminal accusations. We recognize Ricks is a self represented litigant on appeal, however, his status as a party appearing in propria persona does not provide a basis for preferential consideration. Our high court has made clear that, “mere self-representation is not a ground for exceptionally lenient treatment.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) We have done our best to decipher and address each of Ricks’s claims on appeal. Finding none have merit, we affirm the judgment.
I
The assault and battery occurred at the Rainbow Inn (the Inn), located in Anaheim, California. At that time, the Inn was owned by C & Y Rainbow Corporation (hereafter C & Y), and leased to Pi-Yu Tsai. The Inn was managed by Pi-Yu Tsai and her husband Mark Tsai, who lived in a unit above the manager’s office. Henderson was a long term resident of the Inn. He sometimes worked for the management and received cash compensation.
Police department records reflect from 2003 to 2005 many calls were made regarding criminal activity at the Inn. In his deposition, Henderson testified there were frequently fights on the premises.
On December 2, 2005, at 4:00 a.m., Ricks drove to the Inn with an unidentified male, whom he had met earlier that night at a club. Ricks intended to rent a room. When they arrived, Ricks and his companion parked and sat in the car listening to loud music.
Mark Tsai approached the vehicle and told the occupants he had called the police about their loud music. A DVD video surveillance tape showed Mark Tsai and Ricks become involved in an altercation. Mark Tasi pushed Ricks to the ground three times.
Meanwhile, several people came outside of their rooms. Ricks attempted to shake their hands. Ricks then had an altercation with his unidentified companion in the hotel parking lot about Ricks’s wallet. Ricks was seen holding a bottle of vodka and he appeared to be intoxicated. Henderson and several other tenants told Ricks to leave because the police had been called.
The unidentified male returned to his car and drove away with Ricks’s wallet and belongings. Ricks attempted to follow the vehicle on foot, yelling about his wallet. Approximately 50 yards from the Inn, Ricks was stopped by an Anaheim police officer and questioned. The officer smelled alcohol on Ricks’s breath but determined he could care for his own safety. The officer listened to Ricks’s story about why he was chasing the car. Ricks claimed the officer recommended he return to the Inn to see if anyone had written down the vehicle’s license plate number or had information about the wallet.
It was nearly 5 a.m. when Ricks returned to the Inn and began knocking on the tenants’ doors, including Henderson’s room. No one answered Ricks. However, Mark Tsai and Henderson eventually exited their rooms and approached Ricks standing in the parking lot. The video surveillance showed the men conversing. At some point, Ricks turned towards Henderson, who reacted by slicing Ricks’s neck with a box-cutter.
An ambulance and the police soon arrived at the scene. The officers questioned Henderson and took him into custody. He was later released without any charges being filed. Ricks received medical care to repair the seven inch cut on his neck, and he now suffers from a permanent scar.
In November 2007, Ricks filed a lawsuit against Henderson for assault and battery. He also sued C & Y for premises liability and general negligence. He later amended his complaint to name the premise’s lessee, Pi-Yu Tsai, as Doe 1. He alleged
C & Y and Pi-Yu Tsai breached their duty to employ private security guards at the Inn.
At trial, the defense called the deputy district attorney, Patti Sanchez, who had reviewed the incident reports and the video surveillance tape. She testified the reason she decided to not file criminal charges against Henderson was because the evidence did not support a finding of criminal activity beyond a reasonable doubt, and she believed Henderson was acting in self defense. Both sides presented expert testimony on the issue of the standard of care for hotel security. Henderson, Ricks, and the officer who prepared the police report also testified. The surveillance tape of the stabbing was admitted into evidence.
After a court trial, the trial judge determined Henderson was liable for assault and battery and awarded Ricks $147,815.72 ($47,815.72 non-economic damages and $100,000 economic damages) plus costs. The court entered a defense verdict in favor of C & Y and Pi-Yu Tsai.
II
A. The Right to a Jury Trial
On appeal, Ricks’s first argument is the trial court improperly deprived him of his constitutional right to a trial by jury. However, the record reflects Ricks failed to post jury fees 25 days before the trial date as required by Code of Civil Procedure section 631, subdivision (b). On the first day of trial, the defendants expressly waived their right to a jury. Ricks’s counsel stated he desired a jury. When questioned by the court’s clerk, Ricks’s counsel admitted Ricks had not posted the jury fees. Ricks was under the impression the defendants wanted a jury trial and would have paid the fees. The trial court determined the failure to post fees amounted to a waiver and the laws had changed regarding a non-posting party’s ability to “pick up” a jury after his opponent decides to proceed without a jury. Ricks did not request relief from the waiver. The trial judge proceeded by holding a court trial. Ricks participated in the proceedings.
“The California Constitution, article I, section 16, provides in pertinent part: ‘Trial by jury is an inviolate right and shall be secured to all.... In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.’ Jury trial is a ‘basic and fundamental part of our system of jurisprudence.’ [Citation.]” (Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 810 (Johnson-Stovall).)
Code of Civil Procedure section 631, subdivision (b), provides that “[e]ach party demanding a jury trial shall deposit advance jury fees with the clerk or judge.... The deposit shall be made at least 25 calendar days before the date initially set for trial.” Subdivision (a) of the statute provides the “right to a trial by jury, as declared by [s]ection 16 of Article I of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (d).” Subdivision (d)(5) provides that a party may waive a jury trial by “failing to deposit with the clerk, or judge, advance jury fees as provided in subdivision (b).”
After a party waives the right to a jury trial, the court has “discretion upon just terms” to allow a jury trial. (Code Civ. Proc., § 631, subd. (e).) “And, it is well established in cases involving the failure to make a request or post fees that there must be prejudice to the party opposing jury trial.” (Johnson-Stovall, supra, 17 Cal.App.4th at p. 810.) “‘Where the right to jury trial is threatened, the crucial focus is whether any prejudice will be suffered by any party or the court if a motion for relief from waiver is granted. [Citations.] A trial court abuses its discretion as a matter of law when “relief has been denied where there has been no prejudice to the other party or to the court from an inadvertent waiver. [Citations.]”’” (Id. at p. 811.) “The mere fact that trial will be by jury is not prejudice per se.” (Ibid.)
Given this well-established legal authority on the issue of jury trials, we would have expected Ricks to assert on appeal there was no prejudice to the other parties or the court if he was permitted a jury trial. He does not. Instead Ricks devotes a large portion of his appellate brief to a rambling and conversational type of argument accusing the trial court of denying him a jury trial due to its extreme bias and participation in a conspiracy. We gather from the briefs Ricks believed the court was aware of a scheme to present falsified material evidence at trial and the court conspired with the defendants to exclude the jury so nobody could question the evidence or the fairness of the trial. Ricks maintaines the trial court deprived him of a jury due to a “corrupt motive to assist defendants in a conspiracy to” hide evidence from the jury. He concludes the trial court “knowingly and willingly contrived to deprive [him] of trial by jury” and is “civilly liable” for its misconduct under the Civil Rights Act of 1871 (42 U.S.C.A. § 1983).
Before delving into Ricks’s conspiracy and bias theories, we first conclude there was a rational and reasonable legal basis for the court’s ruling denying a trial by jury. Ricks did not preserve any objection to proceeding without a jury. “A party must preserve his record. Thus, it is well established that ‘... a party cannot without objection try his case before a court without a jury, lose it and then complain that it was not tried by jury. [Citation.]’ [Citations.] As stated in... Tyler [v. Norton (1973) 34 Cal.App.3d 717, 722], wherein defendants proceeded to try the case before a judge without objecting to the absence of a jury, ‘[d]efendants cannot play “Heads I win. Tails you lose” with the trial court.’” (Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893, 900 (Taylor).) In Taylor, the court noted “that plaintiffs at no time informed the trial court that they believed they still retained a right to jury trial. Rather they acquiesced in the court’s interpretation of events. The bare request by plaintiffs’ counsel to confer with clients... did not constitute either a demand for jury trial or an objection to the trial court’s ruling.” (Idid.)
The record shows Ricks’s counsel did nothing more than comment he had planned on having a jury and he also admitted Ricks failed to post the required jury fees. When the court concluded this failure was a waiver, Ricks failed to request relief from the waiver, offer to pay the fees, demand a jury trial, or otherwise object to the court’s ruling that it would proceed without a jury. Indeed, the record clearly reflects Ricks never asked the court to exercise its discretion for any relief from his waiver of a jury trial. He presented his case to the court, acquiescing to the ruling. It would be unfair to the court and the defendants to take advantage of an alleged abuse of discretion the court could have easily corrected given a sufficient objection or request. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.)
B. The Remaining Arguments
As briefly described above, Ricks’s remaining arguments on appeal all tangentially relate to the jury issue, but he presented them in a confusing manner, tangled together like an intricate Gordian Knot. After carefully reading the briefs several times we have determined there are essentially five main threads of discontentment: (1) the trial court here knew the district attorney wrongly failed to criminally charge Henderson; (2) the court permitted and considered false and forged testimony from the district attorney responsible for bringing criminal charges against Henderson; (3) the court failed to address prosecutorial misconduct; (4) the court suppressed impeachment evidence (the surveillance video); and (5) the court participated in a conspiracy to protect C & Y. He concluded these errors cumulatively created a miscarriage of justice and therefore the court should have disqualified itself from the case. The relief Ricks desires on appeal is stated for the first time in his reply brief: He suggests this court could remedy the problems at trial by reversing the judgment, finding C & Y liable, and awarding damages. We will address each contention separately below.
(1) No Criminal Prosecution by the District Attorney’s Office.
We found this first contention most clearly conveyed in the briefing. Ricks repetitively and ardently expresses his disappointment and dismay the district attorney’s office failed to charge Henderson with any crime. He seeks to address this perceived injustice via his civil tort action. Many of his arguments are based on the faulty premise the two actions (the civil tort case and Henderson’s criminal cases) should be treated as being connected. For example, Ricks cites to several criminal cases and he assumes the same rules and burdens apply in civil tort cases. He cannot understand how an unbiased trial judge, after viewing the video surveillance, would not agree with him that it unequivocally proved criminal and civil liability. He perceives the trial court’s failure to intervene on his behalf and dispense “justice” to the guilty parties as a clear sign of bias. We conclude Ricks misunderstands our role and the trial court’s duty in these civil proceedings.
“The distinction between civil and criminal actions is fundamental. A separate branch of the law covers crimes, the jurisdiction of courts over criminal proceedings, and criminal procedure. [Citations.] The nature of the action is determined under mutually exclusive statutory definitions. ‘A civil action is prosecuted by one party against another for the declaration, enforcement or protection of a right, or the redress or prevention of a wrong.’ ([Code Civ. Proc., §] 30.) ‘The proceeding by which a party charged with a public offense is accused and brought to trial and punishment, is known as a criminal action.’ ([Pen. Code, §] 683.) ‘A criminal action is prosecuted in the name of the people of the State of California, as a party, against the person charged with the offense.’ ([Pen. Code, §] 684.) [Citations.]” (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 68, p. 141.) Stated another way, civil and criminal actions are governed by different statutes, and some rules that apply in criminal actions do not apply in civil actions, and vice versa. We found no authority to support Ricks’s suggestion his civil action should be a continuation of the short-lived criminal action.
This court will not and cannot review the decision made by the district attorney’s office not to criminally prosecute Henderson. Simply stated, the notice of appeal is from a civil judgment and our scope of review is limited accordingly. Similarly, the trial court assigned to conduct the trial in Ricks’s civil tort case is without authority to review or comment on the prosecution or status of a criminal case. The trial court’s jurisdiction covered Ricks’s civil complaint that raised several specific tort causes of action. Under the most basic and general rules of law, Ricks alone had the burden of proving the required elements of those torts against the named defendants.
Accordingly, Ricks’s suggestion the duty fell solely upon the trial court to evaluate the veracity of the witnesses before permitting them to testify, to control the timing of when impeachment evidence is admitted, or to otherwise control Ricks’s case is clearly wrong. Ricks forgets he was represented by counsel in this civil action, and his counsel was given ample opportunity to cross-examine the witnesses, challenge their credibility, and request admission of relevant evidence. Frustration with the lack of criminal charges does not give Ricks any legal grounds to expect a criminal-type of prosecution in his tort action. It is not surprising Ricks cannot cite to a single civil case to support his argument the judgment must be reversed due to prosecutorial misconduct. In short, there is no prosecutor in a civil action, there is only a plaintiff who has the burden of proving his or her case.
(2) Deputy District Attorney Sanchez’s Testimony
As for Sanchez’s testimony, we conclude it was properly admitted and there is no evidence suggesting the court unreasonably limited Ricks’s ability to cross-examine or impeach her testimony. Sanchez, an experienced district attorney, testified she viewed the videotape, and read the police report and other documents, before deciding Henderson likely acted in self defense and he should not be criminally prosecuted. Ricks argues Sanchez failed to protect him and she should be disbarred due to prosecutorial misconduct in dealing with the criminal action. He states the court should have recused itself after learning about the prosecutorial misconduct. As we have explained, these are civil proceedings and our review is limited to what happened in the civil trial. Ricks provides no authority holding a trial judge is automatically disqualified if he or she permits a witness to testify in a civil case simply because a litigant claims the witness committed prosecutorial misconduct in a separate criminal matter. What if the litigant is wrong? In civil cases it is well established the trier of fact has the task of weighing the evidence and determining the credibility of a witness. (See Evid. Code, § 780 [listing common factors bearing on credibility].)
Ricks also argues Sanchez should have been forbidden to testify after she falsified material evidence. He explains Sanchez’s testimony Henderson acted in self defense “conflicts” with the surveillance tape and is therefore false. He also believes Sanchez intentionally misstated the evidence about whether he made a threatening statement to Henderson. Sanchez stated she recalled Henderson heard Ricks threaten “I’m gonna kick your ass” and this was one of many factors she considered in deciding whether to criminally charge Henderson. Ricks asserts he made this threat to the unidentified driver, not Henderson, and thus Sanchez falsified this evidence.
If we presume for the sake of argument Sanchez intentionally misstated the evidence and her interpretation of the surveillance tape was flawed, we do not agree with Ricks’s argument her testimony automatically should have been excluded. There is no legal authority to support his argument. Typically, these kinds of credibility flaws can be exposed by trial counsel on cross-examination and evaluated by the trier of fact.
Likewise, we also find no basis for Ricks’s conclusion the court’s failure to help him discredit Sanchez and bring these purported flaws to light is evidence of bias or a conspiracy to help C & Y. To the contrary, if the court had assisted Ricks in this manner, it would be essentially acting as a party’s advocate or legal counsel, which is prohibited. Contrary to Ricks’s belief, there is no legal authority or logical reason supporting the notion it was the trial court’s duty to help Ricks win his tort case. As stated above, in a civil case it is the plaintiff’s burden to present evidence, prove each element of the tort, and if necessary seek to discredit the defendant’s witness.
We have carefully examined the record and find Ricks’s counsel effectively and aptly cross-examined Sanchez, questioning her about the documents she relied upon and her decision not to charge Henderson. He questioned her extensively about why she did not interview the victim (Ricks) or consider the Inn’s manager’s role in the incident. We recognize Ricks’s counsel did not seek to further impeach Sanchez with questions about whether she misstated the record regarding Ricks’s threats to kick someone’s “ass.” But this was a reasonable tactical decision as further questioning would unnecessarily highlight unfavorable evidence and undermine Ricks’s theory he was the victim and nonviolent that night. In light of all the above, we find no error in permitting Sanchez to testify, and there is no evidentiary support for court bias in admitting her testimony.
(3) Prosecutorial Misconduct
Ricks asserts Sanchez committed prosecutorial misconduct when she testified she was under special assignment in truancy, which he claims proved she “neglected her work and her duty” to protect Ricks from being murdered. He is wrong. As mentioned, we found no authority holding prosecutorial misconduct is grounds for reversal of a civil judgment. Prosecutorial misconduct is a legal term used to describe when the district attorney in a criminal trial acts improperly, and we found no authority applying the term to describe a witness in a civil trial under any circumstances.
Finally, we are appalled by Ricks’s repeated and blatant misrepresentation of the record in making this argument. Ricks apparently did not anticipate this court would read the record. It plainly shows Sanchez was questioned on direct examination about her extensive experience working for the district attorney’s office. She listed all the units to which she had been assigned, including criminal filings in the felony unit. Sanchez also mentioned she was currently (as of the date of her testimony in 2009) assigned to the district attorney’s truancy unit. She did not testify she was assigned to truancy when she reviewed and decided not to charge Henderson in 2005. Her testimony reveals no evidence of prosecutorial misconduct. Ricks’s daring assertion the court should have disqualified itself when it realized the defense witness “exercised gross prosecutorial misconduct” in the criminal case borders on the frivolous.
Similarly, we find no merit in Ricks’s assertion he was denied a fair trial because the court allowed the defense to use Sanchez’s “perjured” testimony. This claim relates to his contention Sanchez’s interpretation of the videotape was different from his, and therefore she must be lying. Nonsense. Again Ricks confuses civil and criminal law. Perjury is a crime that occurs when a person willfully states as true a material fact “which he or she knows to be false.” (Pen. Code, § 118a). That Ricks disagrees with the opinion of a defendant’s witness is not evidence of perjury. Sanchez could have reasonably formed a different opinion about the contents of a videotape that lacked audio sound and did not capture all the interactions between the parties. It was for the trier of fact to decide whether to believe Sanchez’s interpretation or Ricks’s self-serving testimony regarding the events shown on the surveillance tape. Indeed, as a civil litigant it was his burden (not the trial court’s duty) to utilize cross-examination to impeach any witness he believed was testifying dishonestly. If a witness lies under oath, the matter can be brought to the attention of the district attorney’s office who will decide if criminal perjury charges may be filed.
(4) Suppression of Impeachment Evidence
Ricks is also outraged the trial court allowed the defense to admit into evidence the surveillance tape after Sanchez testified. This is much to do about nothing. The timing of when the tape was formally admitted into the record is irrelevant. Our record shows the contents of the tape were discussed extensively before it was admitted. Sanchez was questioned about whether she watched the tape and what she recalled seeing on it. Ricks was not precluded from asking Sanchez anything about it during her testimony. The record belies his claim the court “willfully withheld” the surveillance evidence until after Sanchez’s testimony as part of a conspiracy to aid C & Y.
(5) The Conspiracy
We now turn to the weakest of all of Ricks’s claims. In short, we found no evidence to support, or merit in, Ricks’s bold accusation the trial judge and Sanchez were part of a “planned conspiracy by member(s) of the Orange County Government to have [Ricks] ‘MURDERED.’ [B]ecause, if the stabbing would have been fatal the Orange County Government had already created and prepaired [sic]the [f]alsified ‘SELF-DEFENSE LIE’ to protect the defendant C & Y... and Henderson.” We remind Ricks the trial court found in his favor, and implicitly disagreed with Sanchez, when it entered a judgment finding Henderson liable for nearly $150,000 in damages. This fact alone wholly defeats any notion of a real conspiracy theory.
C. Conclusion
We conclude Ricks waived a jury trial and there is simply no evidence of court bias, an unfair trial due to evidentiary errors, or a conspiracy to murder Ricks. To the extent Ricks believes C & Y is civilly liable, he utterly failed to support the claim on appeal with a single line of legal argument concerning the dispositive issue for liability, i.e., did they have a legal duty to employ security guards at the Inn. “One of the essential rules of appellate law is that ‘[a] judgment... and presumptions are indulged in favor of its correctness. [Citation.]’ [Citation.]” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 865.) Thus, we must assume the court correctly determined the elements of premises liability and general negligence were unproven. And contrary to Ricks’s request, we will not independently review the surveillance tape and provide him a second court trial-there will be no proverbial second bite at the apple.
III
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.