Opinion
C077399
08-02-2017
MARGARET TOPETE et al., Plaintiffs and Appellants, v. THEODORE GOODMAN et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2011-00099829-CU-MM-GDS)
After Jose Topete received medication and electroconvulsive treatment (ECT) for depression, Topete sued defendant doctors Theodore Goodman, Robert Blanco, and Eugene Fealk for medical malpractice. The case went to a jury trial, and the jury found in favor of defendants. Topete appeals the resulting judgment.
Margaret Topete appears both for herself (with an allegation of loss of consortium) and as guardian ad litem for her husband Jose Topete (on his negligence claims). However, in this opinion, for clarity of who the essential actors are, we refer only to Jose Topete as plaintiff, even though he has a guardian ad litem, because there is no separate contention pertaining to Margaret Topete's loss of consortium claim. --------
On appeal, Topete contends we must reverse the judgment because: (1) the trial court abused its discretion by excluding impeachment evidence that Dr. Goodman had a prior felony conviction, (2) the evidence was insufficient to sustain the defense verdict, and (3) the trial court erred by denying Topete's motion for new trial based on juror misconduct.
None of the contentions has merit. First, Topete fails in his briefing to account for the fact that the trial court excluded the impeachment evidence under Evidence Code section 352 and fails to demonstrate prejudice. Second, Topete cites only to evidence favorable to him in making his sufficiency argument, thus forfeiting the argument. And third, Topete cites only to evidence favorable to him in making his argument that the trial court erred by denying his motion for new trial, thus forfeiting the argument.
Finding no prejudicial error, we affirm.
BACKGROUND
Because of the defective nature of Topete's briefing, it is unnecessary to provide a detailed account of the facts. Topete received psychiatric care for depression from defendants. The care included medications and ECT. He filed a complaint against defendants, alleging medical malpractice and injuries from the medications and ECT. After trial, a jury rendered a special verdict finding none of the three defendants was negligent in the diagnosis or treatment of Topete. Topete filed a motion for new trial, but the trial court denied the motion and entered judgment in favor of defendants.
DISCUSSION
I
Exclusion of Impeachment Evidence
Defendant contends that the trial court abused its discretion by excluding impeachment evidence that Dr. Goodman had a prior felony conviction for unauthorized sale to independent laboratories of human organs, tissues, and fluids removed in autopsies at a Veterans Administration hospital. He argues that it should have been admitted for impeachment purposes because: (1) it was a crime of moral turpitude involving the medical profession and (2) Dr. Goodman did not receive a certificate of rehabilitation from California, even though he received a presidential pardon. Topete fails to acknowledge that the trial court excluded the evidence under Evidence Code section 352, so he fails to address that independent reason for exclusion. Topete also fails to argue that the asserted abuse of discretion was prejudicial. Accordingly, defendant fails to establish that exclusion was a prejudicial abuse of discretion.
Two Evidence Code provisions are relevant to the trial court's exclusion of the prior conviction evidence: Evidence Code sections 788 and 352.
Evidence Code section 788 prohibits use of a felony conviction to impeach a witness if, as relevant here, (1) he received a pardon based on innocence, (2) he received a certificate of rehabilitation and pardon under Penal Code section 4852.01 and related provisions, or (3) he was convicted in another jurisdiction but has been relieved of the penalties and disabilities of the conviction under "a procedure substantially equivalent to" California's certificate of rehabilitation procedure.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." Even if prior conviction evidence is admissible under Evidence Code section 788, it may still be inadmissible under Evidence Code section 352. (Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140, 151.)
Before trial, Dr. Goodman moved to exclude evidence that he had a prior felony conviction. From 1977 to 1979, he was a pathology resident at a Veterans Administration hospital in San Diego. He sold cadaver organs, tissues, and fluids to biochemical companies for research. However, the sale of those materials was illegal because they were the property of the federal government. In 1981, Dr. Goodman was convicted on his guilty plea of unauthorized sale of government property, a violation of section 641 of title 18 of the United States Code. He was fined $500, and given 18 months of probation. He was discharged from probation in May 1982. Dr. Goodman's California medical license was on probationary status for three years until 1985 when his full privileges were reinstated. In 1997, Dr. Goodman applied to the President of the United States for a pardon, and he received a pardon from President Bill Clinton on December 23, 1999.
Dr. Goodman argued that: (1) the felony conviction was inadmissible under Evidence Code section 788 because he was pardoned and (2) the prejudicial effect of the evidence substantially outweighed its probative value under Evidence Code section 352. The trial court excluded the evidence, agreeing with Dr. Goodman on both points. Concerning the Evidence Code section 352 issue, the court observed that the prior conviction was remote (more than 30 years ago) and that the prejudicial effect of the evidence outweighed its probative value.
In his appellate briefing, Topete argues that the trial court abused its discretion by excluding the evidence of Dr. Goodman's prior felony conviction under Evidence Code section 788 because, in his view, the presidential pardon was not a procedure "substantially equivalent to" California's certificate of rehabilitation procedure. (Evid. Code, § 788, subd. (d).) He makes no mention of the independent ground relied upon by the trial court in excluding the evidence under Evidence Code section 352.
Since the trial court based its exclusion of prior conviction evidence on two separate grounds, and Topete fails to argue that exclusion under one of the grounds, Evidence Code section 352, was improper, Topete fails to establish abuse of discretion in excluding the evidence. Even assuming for the purpose of argument, without so finding, that exclusion of the evidence under Evidence Code section 788 was improper, the trial court did not abuse its discretion by excluding the evidence because the prejudicial effect of the evidence substantially outweighed its probative value. Topete does not argue otherwise, and nothing more was needed for proper exclusion.
In the heading for his argument that the prior conviction evidence was improperly excluded, Topete also writes that the trial court should have granted his new trial motion based on the improper exclusion of the prior conviction evidence. For the same reasons discussed above, Topete fails to establish that the trial court should have granted the motion for new trial based on the exclusion of the evidence.
Finally, as an independent basis for finding that Topete's argument is without merit, we conclude that Topete failed to argue that exclusion of the evidence was prejudicial. We reverse for improper exclusion of evidence only if the appellant demonstrates a miscarriage of justice. In other words, we reverse only if it is probable that the appellant would have obtained a more favorable result in the litigation if the trial court had not erred. (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1480; see also Cal. Const., art. VI, § 13; Evid. Code, § 354.) Topete makes no attempt in his briefing to demonstrate that, if the evidence of Dr. Goodman's prior felony conviction had been admitted, it is probable that Topete would have obtained a more favorable result. He therefore fails in his attempt to obtain a reversal based on erroneous exclusion of evidence.
II
Sufficiency of Evidence
Topete contends the evidence does not support the judgment. In making this contention, he chooses a few examples of evidence favorable to him and asserts that the evidence supports a judgment in his favor only . We conclude that this manner of making the contention—discussing only evidence favorable to himself—forfeits the contention.
"It is obvious that[, at trial,] the burden is upon plaintiffs to establish the negligence by a preponderance of the evidence and that a verdict in favor of the defendants is but a finding that the jury has not been convinced that [the defendants were] negligent. [¶] It has been frequently laid down that upon appeal the duty of the appellate court begins and ends with the determination of whether there is substantial evidence to support the finding of the trial court or the verdict of the jury. [Citation.]" (Climo v. Lamp (1959) 176 Cal.App.2d 509, 511.)
Topete's heading for this contention betrays a basic misconception of appellate law. He argues: "The evidence presented by the defendants was insufficient to justify the verdict and the motion for a new trial should have not been denied." (Unnecessary capitalization omitted.) Contrary to the implication in this argument, a plaintiff, not a defendant, bears the burden of providing sufficient evidence in order to prevail. (Evid. Code, § 500.) And on appeal, a plaintiff cannot prevail simply by relating evidence favorable to the plaintiff or by pointing to deficiencies in the defendant's evidence. Instead, a plaintiff must show that, considering all evidence in its light most favorable to the defense verdict, the plaintiff was entitled to judgment as a matter of law. (Silva & Hill Constr. Co. v. Employers Mut. Liab. Ins. Co. (1971) 19 Cal.App.3d 914, 931.) "[I]t must be borne in mind that, in examining the sufficiency of the evidence to support a questioned finding, an appellate court must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court [or, as here, the jury] to lead to the same conclusion. Every substantial conflict in the testimony is, under the rule which has always prevailed in this court, to be resolved in favor of the finding. (Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142.)
Therefore, Topete's argument suffers, at the outset, from the misconception that defendants had a burden to present evidence negating liability. From there, the body of the argument in Topete's opening brief gets worse.
Topete offers a view of the evidence strictly limited to what he apparently perceives was in his favor, and only a minimal amount of it. He refers to: (1) Dr. Fealk's purported confusion during a deposition concerning the effect of a certain medication, (2) the testimony of Topete's medical expert, Dr. Peter Breggin, that medications a patient is taking should be considered when making a diagnosis, (3) Dr. Breggin's opinion that Topete should not have been referred for ECT, that Dr. Goodman and Dr. Blanco administered too many treatments, and that bitemporal ECT (wiring both sides of the head) should not have been used, and (4) a comparison of scan results before and after ECT.
We need not catalog all the evidence favoring the verdict, but, instead, we offer just a few facts omitted by Topete in making his argument: (1) Dr. Breggin, Topete's medical expert, earns more than half of his income from testifying for plaintiffs in psychiatric cases; (2) since at least 1979, Dr. Breggin has argued against the use of ECT and dedicated his career to that cause; (3) Dr. Stuart Eisendrath, one of defendants' psychiatric experts and a professor at University of California, San Francisco, testified that Topete's referral for ECT was appropriate, that Topete's medical records showed that he had memory and concentration problems before ECT, and that Topete is ill-served by Dr. Breggin's nonmainstream approach to treating depression, avoiding treatment with medications and ECT; (4) another defense expert, Dr. Stephen Hall, also a psychiatrist at University of California, San Francisco, testified that ECT is essential to a comprehensive psychiatry treatment program because some patients need it, that Dr. Breggin is not a respected voice in the ECT community, that providing ECT is not below the standard of care, that Topete was an appropriate candidate for ECT, and that the number and types of treatments given to Topete, and the manner in which they were given, were within the standard of care.
Topete mentions none of this evidence favorable to the verdict in his opening brief on appeal. And there is much more in defendants' favor.
When an appellant makes a substantial evidence argument, the appellant bears the burden of showing that no substantial evidence supports the challenged verdict. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Failure to set forth the evidence most favorable to the verdict results in forfeiture of the contention that substantial evidence does not support the verdict. (Ibid.) We are not compelled to act as counsel for an appellant and search the record for evidence to support the appellant's position. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
Therefore, we conclude that Topete forfeited his substantial evidence contention because he did not set forth the evidence most favorable to the verdict.
III
Denial of Motion for New Trial
Topete contends, in a one-paragraph argument in his opening brief, that the trial court abused its discretion by denying his motion for new trial based on jury misconduct. In support of this contention, he discusses a juror declaration that he filed in support of the motion for new trial but fails to mention a juror declaration filed by defendants and unfavorable to Topete's argument. Therefore, he also forfeited consideration of his contention that the trial court erred by denying his motion for new trial.
We review the denial of a new trial motion for abuse of discretion, unless it involves factual determinations, which are reviewed for substantial evidence. (Sandoval v. Los Angeles County Dept. of Public Social Services (2008) 169 Cal.App.4th 1167, 1176, fn. 6.)
After trial, Topete filed a motion for new trial, citing jury misconduct, among other grounds. The trial court denied the motion, finding no jury misconduct. On appeal, Topete asserts that the trial court's denial of the motion was an abuse of discretion. His argument fails even to acknowledge that factual issues were in play.
In support of his motion for new trial, Topete filed the declaration of Juror No. 11, Thong V. Pham. That juror claimed that, when he tried to discuss the standard of care during deliberations, he was "rushed by [Juror Valerie] Holcomb and the others." Some of the jurors made statements that they had vacation beginning the next day and "did not want to deliberate into their vacations." Juror Holcomb told the other jurors that she initially favored Topete but decided in favor of defendants without explaining why she changed her mind. Juror Holcomb also said that she had served on a prior jury that took three or four days to deliberate and she felt that was unreasonable. Another juror said that " 'if ECT was on trial, Defendants could be held liable, but since ECT was not on trial, then Defendants should be found not liable.' " Juror Pham claimed: "The only reason deliberation took until lunchtime was because certain jurors were afraid that if we come [sic] out with the verdict in half an hour, the judge would send them back. No evidence was examined in terms of the argument and the only reason any evidence was examined at all was to take up some extra time so that the jury could be released and not sent back to deliberate some more."
On appeal, Topete mentions only Juror Pham's declaration and claims that the trial court abused its discretion by not granting a new trial "based upon the declaration of Mr. Pham." However, defendants also submitted a declaration in opposition to the motion for new trial.
Valerie Holcomb, who served as the jury foreperson, stated that she told the other jurors that all jurors should be heard. She denied that she said that the three or four days of deliberation in the prior case was unreasonable. Instead, she said the deliberations in that case were unorganized and jurors were frustrated and worn down. That is why she urged the jurors in the present case to deliberate in an organized and efficient manner. Each juror spoke as long as desired, without interruption, and there was group discussion. The jury reviewed the evidence and the standard of care, including Juror Pham's concerns. He was not rushed. There was discussion about vacations, but the jurors were committed to make a good decision. Juror Holcomb denied saying that, at first, she was in favor of Topete's position; instead, she said that during the trial, before the court instructed the jury, she believed "imbalance or doubt would favor [Topete]." The jury did not reach its verdict in a half hour, and the jury was not afraid to send the verdict to the judge.
The trial court found Juror Holcomb more credible, observing "[Juror] Holcomb's declaration provides detail and context, and she denies she made some of the statements attributed to her. There is no reason to doubt [Juror] Holcomb's credibility. The evidence weighs in defendants' favor."
Having failed to acknowledge or discuss Juror Holcomb's declaration and the credibility finding of the trial court, Topete's contention is necessarily defective. He therefore forfeited our consideration of the contention. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
NICHOLSON, J. We concur: RAYE, P. J. ROBIE, J.