Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Lois Smaltz, Judge, Los Angeles County Super. Ct. No. YC050825
Law Offices of Neil C. Newson and Neil C. Newson for Plaintiffs and Appellants.
Beam, Brobeck, West, Borges & Rosa, Fredrick M. Borges, John E. West and Glen A. Stebens for Defendant and Respondent.
EPSTEIN, P. J.
Dr. Sachiko Terajima and her husband, Yoshio Terajima, appeal from an adverse judgment in their action for medical malpractice and loss of consortium. They argue the trial court erred in denying their motion for new trial brought on the grounds of insufficiency of the evidence to support the defense verdict, and newly discovered evidence. They also contend the trial court erred in denying their motion for judgment notwithstanding the verdict on the ground of insufficiency of the evidence.
We conclude that the trial court properly denied the motions for new trial and judgment notwithstanding the verdict on the ground of sufficiency of the evidence. The record reflects substantial evidence that the treatment provided Dr. Terajima at the relevant time was within the standard of care. In addition, we find no error in denial of the motion for new trial on the ground of newly discovered evidence. Finally, we reject plaintiffs’ argument that the new evidence would have supported a negligence per se theory which would have shifted the burden of proof at trial to defendant.
FACTUAL AND PROCEDURAL SUMMARY
Sachiko Terajima, a physician, underwent a mastectomy for breast cancer at Torrance Memorial Medical Center (defendant) on February 3, 2004. She contends that her blood pressure was not adequately monitored and recorded following surgery in violation of the medical center’s policies and community standards of care. As a result, she claims that she suffered brain damage. Dr. Terajima sued the medical center and Dr. Schenley Co for negligence, claiming personal injury, loss of wages, and loss of earning capacity. Her husband, Yoshio Terajima, claimed damages for loss of consortium. A jury trial resulted in a defense verdict. A defense judgment was entered.
Dr. Co entered into a settlement with plaintiffs and is not a part of this appeal.
Plaintiffs moved for judgment notwithstanding the verdict on the ground that the evidence was insufficient to support the verdict because expert testimony established a breach of the standard of care for charting. They also sought a new trial on the grounds that the jury committed misconduct by failing to follow the court’s instructions. Their theory was that the jury ignored what they characterized as uncontradicted expert testimony that certified nursing assistant Evelyn Villoria breached the standards for charting patient vital signs. They contended that this expert testimony compelled a verdict in their favor, citing deposition testimony by two expert witnesses. Plaintiffs also sought a new trial on the basis of new evidence that the County of Los Angeles Department of Health Services had issued a citation to defendant for failing to properly monitor Dr. Terajima’s vital signs and for improperly charting the vital signs by overwriting chart notations. The new evidence was in the form of a declaration by Dr. Terajima repeating the content of a telephone message left on her answering machine by a representative of the County of Los Angeles Department of Health Services.
Defendant objected to Dr. Terajima’s declaration, and the deposition testimony of the expert witnesses on the ground of hearsay. It argued that the weight of evidence supported the jury’s verdict and that the purported new evidence did not require a new trial. In reply, plaintiff submitted documents from the County of Los Angeles Department of Health Services regarding its findings after investigating Dr. Terajima’s complaint against defendant.
The trial court denied plaintiffs’ motions for judgment notwithstanding the verdict and new trial. This timely appeal followed.
DISCUSSION
I
Both plaintiffs’ motion for judgment notwithstanding the verdict and motion for new trial were based in part on their claim that uncontradicted expert testimony compelled a verdict for plaintiffs. Their reasoning is as follows: (1) Defense witnesses acknowledged that mistakes were made in monitoring and charting Dr. Terajima’s vital signs; (2) mistake equals negligence; (3) the defense verdict finding no negligence is inconsistent with this evidence. As we explain, there are both factual and legal problems with plaintiffs’ analysis: the legal standard of care does not simply equate mistake with negligence, and there was defense evidence that the standard of care was not violated despite the errors.
In their opening brief, plaintiffs argued that the jury committed misconduct by failing to find negligence as defined in the jury instructions. This argument was withdrawn in plaintiffs’ reply brief because it was based on misreading a reported decision.
The focus of the appeal is on the standard of care because the jury reached only the first question on the special verdict form: “1. Was TORRANCE MEMORIAL MEDICAL CENTER negligent in the medical treatment of SACHIKO TERAJIMA?” It answered this question in the negative, and hence did not reach the remaining questions as to causation and damages.
Our discussion is guided by established standards of review. ““‘A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom in support of the verdict, the motion should be denied. [Citation.] [Citation.] The same standard of review applies to the appellate court in reviewing the trial court’s granting [or denying] of the motion. [Citations.] Accordingly, the evidence . . . must be viewed in the light most favorable to the jury’s verdict, resolving all conflicts and drawing all inferences in favor of that verdict.” [Citation.]’ (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 258-259.)” (Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 49.)
Substantial evidence, either contradicted or uncontradicted, will compel denial of a motion for judgment notwithstanding the verdict. (Ajaxo Inc. v. E*Trade Group Inc., supra, 135 Cal.App.4th at p. 49.) We start “‘“with the presumption that the record contains evidence to sustain every finding of fact.” [Citations.]’ (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)” (Ajaxo Inc. v. E*Trade Group Inc., supra, 135 Cal.App.4th at pp. 49-50.)
The standard of review on denial of a motion for new trial is settled: “[as] stated by our Supreme Court in City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872: ‘[A] trial judge is accorded a wide discretion in ruling on a motion for new trial and . . . the exercise of this discretion is given great deference on appeal. [Citations.] However, we are also mindful of the rule that on an appeal from the judgment it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party [citation], including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial.’ (Original italics.) Prejudice is required: ‘[T]he trial court is bound by the rule of California Constitution, article VI, section 13, that prejudicial error is the basis for a new trial, and there is no discretion to grant a new trial for harmless error.’ [Citation.]” (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161.) “When the court has denied a motion for a new trial, however, we must determine whether the court abused its discretion by examining the entire record and making an independent assessment of whether there were grounds for granting the motion. (Sherman v. Kinetic Concepts, Inc.[,supra, ] 67 Cal.App.4th 1152, 1160-1161.)” (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.) With these standards in mind, we have reviewed the entire record on appeal.
Plaintiffs characterize evidence of charting errors as defense admissions of mistakes, which are sufficient in themselves to support a finding of negligence. They point to evidence that the certified nursing assistant, Evelyn Villoria, failed to monitor the blood pressure at the intervals required by hospital policy and the standard of care; made errors in charting the blood pressures she did take by overwriting entries on the chart and failing to initial them in violation of the standard of care; and did not know what was abnormal for the patient, so failed to report the readings to the registered nurse when necessary. They also contend that Dr. Terajima’s blood pressure was not properly monitored so that when it dropped, this was not brought to the attention of the registered nurse for treatment.
Plaintiffs cite the testimony of their standard of care expert, Genevieve De Couto, R.N. Ms. De Couto testified that in her opinion, vital signs were not taken often enough, in violation of the standard of care. She said that the standard of care requires the vital signs to be recorded on the chart at the intervals required. Here, there was evidence, for example, that vital signs should have been taken and charted every half hour for the first two hours that Dr. Terajima was on the surgical ward. This was not done.
Three blood pressure entries made by Villoria had been written over. According to Ms. De Couto, if an error in charting is made, the standard of care requires that the incorrect entry be crossed out and initialed, and the correct figure be entered on a separate line or right next to the erroneous figure. Here, there were overwrites rather than cross-outs, and they were not initialed. She also testified that the standard of care was breached when no documentation was given for any interventions taken when Dr. Terajima’s blood pressure dropped.
Plaintiffs argue, without citation to authority, that the Judicial Council of California Civil Jury Instructions, CACI, created a new definition of negligence. Instead of the traditional four elements of duty, breach, causation and damages, plaintiffs contend that CACI No. 504 creates a new standard. They assert: “While the mistake(s) may or may not rise to the level of causation, one and only one mistake equals negligence.”
Instruction No. 504 sets out the standard of care for nursing negligence: “A [insert type of nurse] is negligent if [he/she] fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful [insert type of nurses] would use in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as ‘the standard of care.’ [¶] [You must determine the level of skill, knowledge, and care that other reasonably careful [insert type of nurses] would use in similar circumstances based only on the testimony of the expert witnesses [including [name of defendant]] who have testified in this case.]” (CACI No. 504 (Spring ed. 2007) p. 324.)
We find no support for plaintiffs’ position that the new Judicial Council jury instructions changed the definition of negligence to equate mistake with negligence. The new instructions follow the long-established definition of negligence. CACI instruction No. 500 sets out the essential factual elements of medical negligence. (CACI No. 500 (Spring ed. 2007) p. 315.) Instead of providing text for this instruction, the user is directed: “Please see Instruction 400, Essential Factual Elements (Negligence).” (Ibid.) The Directions for Use state: “In medical malpractice . . . cases, the word ‘medical’ . . . should be added before the word ‘negligence’ in the first paragraph of Instruction 400.”
CACI No. 400 provides: “[Name of plaintiff] claims that [he/she] was harmed by [name of defendant]’s negligence. To establish this claim, [name of plaintiff] must prove all of the following: [¶] 1. That [name of defendant] was negligent; [¶] 2. That [name of plaintiff] was harmed; and [¶] 3. That [name of defendant]’s negligence was a substantial factor in causing [name of plaintiff]’s harm.” (CACI No. 400 (Spring ed. 2007) p. 201.) Under “Sources and Authority” the instruction recites the basic elements of negligence (duty, breach, causation, and damages), citing Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 and Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) (Ibid.)
We find nothing in the jury instructions supporting plaintiffs’ attempt to equate the defense acknowledgment that mistakes were made in charting with an admission of negligence. While evidence of mistake is clearly relevant to the determination of whether a breach in the standard of care occurred, the plaintiffs must prove that any of the mistakes was so significant as to breach the standard of care. The standard of perfection urged by plaintiffs is too high.
In Williamson v. Prida (1999) 75 Cal.App.4th 1417, a medical malpractice case, the Court of Appeal explained the difference between standard of care and perfect treatment: “Moreover, ‘proof of lack of proper care and skill in a given treatment or failure to treat in a certain way is not sufficient to establish a case of malpractice on the part of a physician. The law does not require that the advice, instruction[s], and treatment given by a physician to a patient shall be at all events proper, or that his treatment should be such as to attain an approximate perfect result. It requires only, first, that he shall have the degree of learning and skill ordinarily possessed by physicians of good standing practicing in that locality, and, second, that he shall exercise reasonable and ordinary care and diligence in treating the patient and in applying such learning and skill to the case. Proper treatment implies that no error shall be committed thereby, that an approximate perfect result will be produced, and that such result is guaranteed, whereas the law only demands that the physician use reasonable care to attain such approximate perfection.’ (Rasmussen v. Shickle (1935) 4 Cal.App.2d 426, 429, italics in the original.)” (Id. at pp. 1426-1427.)
Similarly, in a legal malpractice case, the Court of Appeal concluded that evidence that an attorney had made a mistake in the legal description of a hotel did not equal evidence of negligence. (Fergus v. Songer (2007) 150 Cal.App.4th 552, 578.) The court observed: “[R]espondent has failed to refer us to testimony establishing that [the attorney’s] performance fell below the standard of care and skill of members of his profession.” (Ibid.)
There was substantial evidence from which the jury could conclude that defendant did not breach the standard of care despite the errors in monitoring and charting Dr. Terajima’s vital signs.
Defense nursing expert, Patricia Waldron, R.N., acknowledged that Villoria erred by writing over chart entries for blood pressure on three occasions. Ms. Waldron also addressed the significance of the intervals at which vital signs should have been taken. She testified that vital signs should have been taken at 1:20 a.m., but were not. She observed that nurse Andrate was in plaintiff’s room at 2:00 a.m. (administering antibiotic) and said in his deposition that he the hit the button for the automatic blood pressure and it was the same as it had been. She testified: “Did the nurse’s aide fall below the standard in not recording a 1:20 vital sign? Yes. Did it impact the overall care of the patient? I don’t see it. It would have been better if she had done that 1:20. [¶] But when you look at the set of vital signs continuously during her stay there, . . . she [Dr. Terajima] runs historically . . . low. Even at 6 o’clock the following afternoon, she runs 94 over 56. She’s not a high blood pressure person, looking at her overall picture. [¶] So in response to your [question], according to my standards . . . they met it all except that 1:20 vital sign.”
Plaintiffs also rely on the testimony of one of the treating neurologists, Dr. Schenley Co. In the cited passage, Dr. Co was asked whether the fact that Dr. Terajima had low blood pressure for six hours before it started going up was an indication that intervention should have taken place. Dr. Co testified: “Well, one does not want a blood pressure persistently in the 80’s.” They also cite Dr. Co’s testimony that the charting was improper because it needs to be clear. He testified that the drop in blood pressure Dr. Terajima experienced when brought from the post-anesthesia care unit (PACU) to the surgical unit was significant. He also said that a patient who suffers from reduced blood pressure for a six-hour period is prone to brain injury which can cause injury to the nervous system or endocrine system, or even death. This testimony is more relevant to issues of causation than the standard of care.
In Ms. Waldron’s expert opinion, Dr. Terajima’s postoperative nursing care was within the standard of care. She explained: “Well, there’s one area in which the nurse’s aide didn’t do the right thing by writing over a blood pressure. But the registered nurse monitored the patient, provided medication to the patient at two different points during the night, monitored the vital signs as well, contacted the physician when there was a problem with Dr. Terajima voiding in the early morning hours, made sure that they . . . documented that interaction with the physician, what the physician was told, and what the responses were as far as writing the orders and then carrying that out. [¶] So I felt that they took care of the patient rather well.”
When Ms. Waldron was asked whether the standard of care required the nurses to call a doctor on the morning of February 4, given the information on the patient assessment intervention sheet, she said: “The patient assessment intervention flow sheet doesn’t just only show blood pressure, but it shows the heart rate and the pulse and also the pulse oximeter, which is the oxygen level of the patient. When you review all those factors when you’re looking at a patient, the blood pressure was in the 80’s over 50’s. But the heart rate, the respirations, and the oxygen level at 97 percent weren’t anything that a nurse in the same position would have called a physician on at that hour.”
Based on evidence that Dr. Terajima was given an intravenous antibiotic at 2:00 o’clock in the morning and a pain medication at 3:00 o’clock in the morning, Ms. Waldron testified that nurse Andrate was in the room at those times. Taking into account standard nursing procedures and Andrate’s deposition, Ms. Waldron testified that the nurse would assess the patient while administering these medications, including checking the automatic blood pressure cuff. She said this was charting by exception. She explained that for a period of 10 years, it had been “an accepted practice in the community that you do this full-on head-to-toe assessment when you come in for your shift. If there’s no change in the overall condition of the patient, you don’t need to document anything else [until] it gets close to the end of your shift, and you summarize. Now, if something happened during the course of your shift that would draw your attention to ‘I need to document,’ then you would. But it would have to be something that was different from your overall visual assessment of that patient at change of shift.” This was the standard for nursing care in southern California in 2004.
Similarly, nurse Andrate’s failure to prepare a chart note at 3:00 a.m. when pain medication was administered was within the standard of care because it was charting by exception. During the night in question, Dr. Terajima’s respiration, pulse and blood oxygen level remained normal while her blood pressure was on the low side. Ms. Waldron testified that since Dr. Terajima was asymptomatic, and everything was in the normal range except blood pressure, the standard of care did not require that a physician be called. There was no reason from a nursing standpoint to believe Dr. Terajima was hypoxic in light of the respirations and heart rate. At 6:00 a.m. Andrate noted that Dr. Terajima was drowsy, which was not unusual in light of the anesthesia, pain medication, and early hour.
At 6:30 a.m., Andrate documented that Dr. Terajima had no urinary output overnight. Ms. Waldron explained that it is usual to give a patient eight hours after surgery to void, and that a doctor is usually called if they do not. Anesthesia can make a bladder sluggish. Andrate performed a scan of Dr. Terajima’s bladder for the presence of urine before calling Dr. Campbell. Ms. Waldron said a physician would want that information in order to decide whether to order a catheter. The chart note reflects that Dr. Campbell ordered a catheter based on the scan. The chart note also states that Andrate told the physician that Dr. Terajima’s blood pressure had been a little low overnight but she was asymptomatic. Dr. Campbell ordered only the catheter, with directions to give normal saline depending on the output after the catheter was inserted.
When asked from a nursing perspective what she thought would have happened if Dr. Campbell had been called earlier that morning, Ms. Waldron said the physician would have been upset about being disturbed because Dr. Terajima had received intravenous fluids and had a normal heart rate, respirations and oxygen level.
Ms. Waldron found no violation of the standard of nursing care. She said there was a problem regarding documentation. Asked whether the certified nursing assistant violated the standard of care on documentation, she testified that when the nursing assistant realized she had written down the wrong blood pressure, she should have lined through it so the error was clear, and then written the correct blood pressure next to it. Here, according to Ms. Waldron, “the nurse’s aide, in transposing the blood pressure, transposed a wrong one and copied over the right one. And that’s not the way you’re supposed to do. You’re supposed to line through it.”
The aide testified that her practice was to record blood pressures on a separate sheet, then transfer them to the chart. According to Ms. Waldron, this was within the standard of care because often the necessary chart page would be in use by a registered nurse at the time blood pressure is taken. Ms. Waldron said that the nurse’s aide did not correct her error in the proper way.
Ms. Waldron testified that it was obvious from the documentation that the registered nurse, Andrate, was aware of what was going on with Dr. Terajima’s blood pressure over night. His care of the patient was very good and within the standard of care.
Based on this record, we find substantial evidence compelling denial of the motion for judgment notwithstanding the verdict and the motion for new trial.
II
Plaintiffs argue the trial court erred in denying their motion for new trial on the alternative ground of new evidence. In support of the motion, Dr Terajima submitted a declaration: “2. On August 23, 2006, I listened to a message on my telephone answering machine from [Edmond] Yee. He advised me as follows: [¶] A. The County of Los Angeles Health Department of Health Services had investigated my complaint against Torrance Memorial Medical Center, made in May, 2006; [¶] B. A ‘letter of citation’ had been issued to Torrance Memorial Medical Center. It was being cited for substandard care by reason of failing to properly monitor my vital signs, including respiration, during post-surgery recovery and for improperly charting (overwriting of entries); [¶] C. I should file a new complaint with regard to my concerns over the failure to obey doctor’s orders to administer Narcan and/or oxygen in case of Demerol intoxication and the improper care rendered during the change in nursing shifts. [¶] 3. Prior to talking to Mr. Yee I was totally uninformed, about and unaware of, both the actions taken by the County of Los Angeles Health Department of Health Services and its intent to cite the hospital.”
In their reply to defendant’s opposition to the motion for new trial, plaintiffs submitted an uncertified copy of what were described as complaint and investigation materials forwarded to counsel for plaintiffs by the County of Los Angeles Department of Health Services. The first intake information sheet states that Dr. Terajima had complained that defendant failed to follow a physician’s order to monitor her respiration rate every two hours while she was on the machine for delivery of pain medication (PCA). Edmond Yee apparently completed onsite visits on August 18, 2006 and September 26, 2006. The next page states that this was a follow-up investigation to a complaint initially investigated on July 3, 2006. The stated conclusion is: “Based on a review of facility documentation, and interview with staff, it was determined that the above allegation was substantiated. [¶] A deficiency pursuant to California Title 22 regulations will be issued.”
The next page of the County of Los Angeles Department of Health Services documents submitted by plaintiffs is a summary statement of deficiencies with a plan of correction. Under the deficiencies column, it states: “[A] review of the patient assessment and intervention flowsheet when [Dr. Terajima] was on the Demerol PCA from February 3, 2004-. . . .” At this point, the entry is cutoff by the bottom of the form, which states it is continued on a page two, which is not in the record. The next page lists survey findings. Finding number 6 states: “A review of the patient assessment and intervention flowsheet when [Dr. Terajima] was on the Demerol PCA from February 3, 2004 -11:00am to February 05, 2004-5:00pm revealed monitoring omissions when the respiratory rate was not assessed every two hours. For example: [¶] a. [Dr. Terajima’s] respiratory rate was monitored and charted as 18 breaths/minute on February 04, 2004 at 7:45am. But subsequent monitoring every two hours later was absent until 3:43pm when the respiratory rate was charted as 18 breaths/minute. [¶] b. Patient A’s respiratory rate was monitored and charted as 18 breaths/minute on February 05, 2004 at 7:30am. But subsequent monitoring every two hours later was absent until 3:30pm when the respiratory rate was charted as 18 breaths/minute.”
Based on the record, this is likely an error. The time apparently should have been 11:00 p.m., which is when Dr. Terajima was moved from the PACU to the surgical floor.
The form has the name, title and contact information for Edmond Yee, Pharm.D. for Los Angeles County and is dated August 28, 2006. Yee is identified on one of the forms as the “Responsible Staff Member.” The same page is also signed by someone named Stone and dated September 26, 2006.
Code of Civil Procedure section 657, subdivision 4 authorizes the court to grant a new trial motion “where the moving party has discovered new, material evidence which could not, with reasonable diligence, have been discovered and produced at trial. ‘The essential elements which must be established are (1) . . . the evidence is newly discovered; (2) . . . reasonable diligence has been exercised in its discovery and production; and (3) . . . the evidence is material to the movant’s case.’ [Citation.] . . . [¶] ‘Material’ in this context means ‘“likely to produce a different result.” [Citation.]’ (In re Marriage of Smyklo (1986) 180 Cal.App.3d 1095, 1101.)” (Sherman v. Kinetic Concepts, Inc., supra, 67 Cal.App.4th at p. 1161.)
Plaintiffs argue that the records are admissible under Evidence Code section 1280 as official records. “Evidence Code section 1280 provides: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” Plaintiffs also contend the records are admissible under the hearsay exception for business records, Evidence Code section 1271.
They also argue the trial court could take judicial notice of the documents under Evidence Code sections 452, subdivision (h) and 459, which permit judicial notice of facts not reasonably subject to dispute which are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.
Defendant argues that there is no foundation to establish that Edmond Yee, or whoever made the findings reflected in the Los Angeles County documents, had the requisite expertise to render an opinion on the standard of care as required to establish negligence. We agree. “Because the standard of care in a medical malpractice case is a matter ‘peculiarly within the knowledge of experts’ [citation], expert testimony is required to ‘prove or disprove that the defendant performed in accordance with the standard of care’ unless the negligence is obvious to a layperson. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) We find no error in denial of the motion for new trial on the ground of discovery of new evidence.
III
For the first time in their reply brief on appeal, plaintiffs argue the Los Angeles County citation was evidence of negligence per se. They contend they were denied an opportunity to raise this issue because they were barred from introducing the citation in a new trial. “‘“[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.” Thus, “we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. [Citations.]”’ (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fns. omitted.) ‘Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. [Citation.] Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier.’ (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.)” (Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 830.)
In any event, the argument lacks merit. “‘Negligence per se’ is an evidentiary doctrine codified at Evidence Code section 669. Under subdivision (a) of this section, the doctrine creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 218.) These latter two elements are determined by the court as a matter of law. (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.)
Here, plaintiffs fail to cite a specific regulation which is the basis of the citation. Instead, they provide only a vague reference to a violation of California Code of Regulations, title 22. In the absence of a citation to a specific regulation, the remaining elements cannot be established.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.