Opinion
B191651
4-19-2007
CARLOS SANCHEZ, Plaintiff and Respondent, v. RENATO VILLASENOR et al., Defendants and Appellants.
NOT TO BE PUBLISHED
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
Our opinion, filed March 22, 2007, is modified by adding the following discussion on page 4 of the typed opinion:
III.
The verdict is not included in the record on appeal and the judgment (which is in the record) suggests the jury returned a general verdict (by quoting only the amount of damages awarded and the allocation of fault). Those were the facts as we knew them when we filed our opinion on March 22, 2007.
In a petition for rehearing filed on April 5, 2007, the Villasenors informed us there was a special verdict and, for the first time, provided a copy of the special verdict form, in which the jury found (1) that Sanchez was lawfully on the Villasenors property, (2) that the Villasenors owned, kept, or controlled a pit bull dog, (3) that their dog caused physical injuries to Sanchez, (4) that Sanchezs own negligence contributed to his harm, and (5) that the Villasenors were 80 percent responsible for Sanchezs injuries, with Sanchez 20 percent at fault. The Villasenors contend in their petition that this verdict is somehow inconsistent with a general verdict on the negligence cause of action, and that the judgment against Rosario Villasenor cannot stand because (as noted in Part I of our opinion) there is no evidence proving that she owned Chencho. There are three problems with this new argument.
First, it was waived by the Villasenors failure to present an adequate record on appeal (there being no explanation at all for the failure to designate the special verdict form for inclusion in the clerks transcript). (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1092 [new documents and arguments cannot be presented for the first time in a petition for rehearing].)
Second, the jurys special verdicts are entirely consistent with a finding of negligence. It is only where the jurys responses to special interrogatories disclose different amounts or (in this context) are otherwise inconsistent with a finding of negligence that the" general verdict rule" does not apply. (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1157.) Whether viewed as a special verdict or as special interrogatories, there is nothing ambiguous about the verdict in this case — the jury found the Villasenors liable to Sanchez on both causes of action.
Third, the Villasenors assertion that the case was submitted to the jury on only the dog bite statute is neither supported by a record reference nor borne out by the record (because the reporters transcript contains only the witnesses testimony, and the jury instructions actually given are not included in either the clerks or reporters transcripts).
This modification does not affect the judgment.
The petition for rehearing is denied.
VOGEL, J.
MALLANO, Acting P.J.
JACKSON, J. --------------- Notes: Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.