Guirguis v. Dacey

Filed 10/18/06 Guirguis v. Dacey CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed.

Edmon Awad Guirguis, in pro. per., for Plaintiff and Appellant.

Wesierski & Zurek, Christopher P. Wesierski and Lisa L. Renaud, for Defendants and Respondents.

Edmon Awad Guirguis appeals from a defense verdict in his negligence action against Megan E. Dacey and Sue E. Dacey (collectively, Dacey). Guirguis argues there were various errors, but none are supported by the record, so we must affirm.

* * *

The only information we have comes from the judgment on a special verdict, and Dacey’s brief. The record does not contain the complaint, motions, or any minute orders, and Guirguis elected to proceed without a reporter’s transcript. Unfortunately, Guirguis’ brief is a stream-of-consciousness recitation without a statement of facts, coherent point headings, legal argument, relevant record citations, or legal authority. Of necessity, our statement of the facts and rulings at trial is based on Dacey’s recollection of these events as recounted in her brief.

Guirguis commenced the instant action in October 2003, seeking damages for personal injuries suffered in an automobile accident. His attorney withdrew in November 2004, and Guirguis elected to represent himself when the matter was tried in June 2005.

The trial court granted Dacey’s motion in limine to bar Guirguis from introducing into evidence certain documents not produced in discovery. Her brief does not identify the documents, and neither the motion in limine nor the ruling are in the record. Dacey also tells us an expert Guirguis wanted to call was not available during the week the case was set for trial, and the trial court continued the matter for a week to accommodate Guirguis, but ultimately his expert did not testify.

Trial commenced on June 15, 2005. Guirguis attempted to introduce his medical reports and other documents (none of which are identified), but many were excluded for lack of foundation. Guirguis testified, giving his version of the accident and his injuries (what he said is not revealed). His expert was unavailable to testify. Dacey tells us she offered a medical expert, but otherwise nothing about her case. According to Dacey, she argued that all of Guirguis’ claimed injuries were pre-existing conditions. In a special verdict returned on June 20, 2005, the jury found Megan Dacey was negligent, but her negligence was not a substantial factor in causing harm to Guirguis.

I

Guirguis argues the trial court was wrong when it granted a motion to exclude 57 of his medical records for failure to produce them prior to the discovery cutoff, because he did produce them on time. We cannot agree.

An appellant must provide a record upon which a reviewing court may assess the claimed error. “Where the party fails to furnish an adequate record of the challenged proceedings, his claims on appeal must be resolved against him. [Citations.]” (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.)

The problem here is the record contains nothing that allows us to evaluate the merits of Guirguis’ claim. We do not have the motion in limine, the opposition, or the ruling, nor a reporter’s transcript of oral argument on the motion.^[1] Without knowing the basis for the motion, the evidence in support of it, or the evidence against it, we are not in a position to determine whether the trial court abused its discretion in ruling on the motion. On the record before us, we have no choice but to conclude Guirguis fails to show error in excluding his medical records.

Guirguis argues this court allowed him to use the medical records in preparing the appeal, and that shows the trial court should have admitted them in evidence. But that argument displays a misapprehension of both our orders and the appellate process.

Guirguis’ designation of the record did not list any documents filed with the superior court, but instead set out a lengthy list of his medical records. It was rejected by the superior court for failure to comply with court rules. (Cal. Rules of Court, rule 5.)^[2] Subsequently, we dismissed the appeal for failure to timely designate the record. (Rule 8.)

Guirguis moved to reinstate the appeal, explaining he had been unable to obtain the original exhibits from his former lawyer or opposing counsel despite several requests. On October 25, 2005, we issued an order granting the motion, reinstating the appeal, and directing the superior court to accept “the designation of the record on appeal” if filed within 10 days. It appears that the order was read as directing acceptance of the same designation initially rejected, because that is what eventually happened.

On November 2, 2005 and November 22, 2005, Guirguis requested this court to direct Dacey to provide him with the trial exhibits so that he could prepare his brief. On November 30, 2005, we ordered any party in possession of exhibits to transmit them to the court within 15 days. Timely responses were received from Dacey, the superior court, and Guirguis. The record on appeal was filed on December 28, 2005.

These orders do not mean Guirguis’ medical records should have been admitted in evidence at trial. They mean only that Guirguis was entitled to the opportunity to prepare an adequate record on appeal. The purpose of the clerk’s transcript is to provide a reviewing court with a record of what transpired in the trial court so that it may decide appellant’s claims of error. The fact of inclusion is not a decision, and it does not mean that an included exhibit should have been admitted in evidence.

We must digress for a moment to point out that inclusion in the clerk’s transcript of medical records that were not exhibits was a mistake. Such documents are not properly a part of the record on appeal. The only documents that may be included in the clerk’s transcript are those that were “filed or lodged in the case in superior court,” along with “any exhibit admitted in evidence, refused, or lodged.” (Rule 5(b)(3)(A), (B).) The medical records that found their way into the clerk’s transcript in this case bear no indication they were filed or lodged below, or that they are copies of the exhibits. The actual exhibits, of course, are deemed a part of the clerk’s transcript without specific designation, although a party wanting an exhibit copied in the clerk’s transcript “must specify that exhibit by number or letter in its notice of designation.” (Rule 5(a)(5).)

Not to lose sight of the point, even with the actual exhibits in hand, we still cannot determine if the motion in limine was wrongly granted because the motion papers and ruling on the motion are not in the record. So no error is shown in excluding certain of Guirguis’ medical records for failing to produce them in a timely fashion during discovery.

II

Guirguis also argues several errors were committed during the trial. We will describe the arguments, but that is all we can do. Without a reporter’s transcript, there is no way to verify whether any of the claimed events took place, let alone determine if prejudicial error was committed. In other words, Guirguis fails to provide an adequate record to evaluate his arguments, so we must conclude no error is shown.

First, Guirguis argues the trial court made procedural and evidentiary errors. Here are the contentions: (1) Guirguis was not shown any of Dacey’s exhibits either before or during trial; (2) Dacey should not have been allowed to read portions of Guirguis’ deposition at trial because he was never given the opportunity to read, correct, or sign the deposition; (3) Dacey was allowed to read portions of Guirguis’ medical records without showing them to him in advance, so he could not correct the misleading impression that was presented; (4) Dacey was permitted to introduce false and fabricated medical reports and records, including those prepared by two physicians who had treated Guirguis (Dr. Noblett Bradley and Dr. Mohsen Hamza), and a report by Dacey’s expert (Dr. Douglas Kiester); (5) Dacey misrepresented the credentials of her expert (Dr. Kiester) by referring to him as “professor” when his reports identified him as “associate professor”; (6) Dacey’s attorney “fabricated and falsified” photographs of both cars involved in the accident by “playing with a pencil in the negative” in a way that “the damages . . . [were] disappeared by the help of photographer to cover the damages in the negative, by special pencil, then developed the negative with new picture.” Without a reporter’s transcript, we have nothing that allow us to pass on these claims.

Next, Guirguis argues he arranged for a medical expert to testify on June 22, 2005, but the case was transferred to another judge for trial, and the latter denied him the opportunity to call his expert because the case was concluded on June 20, 2005. We note that June 20, 2005, is the date the special verdict was returned, and the date on which judgment was entered on the verdict so obviously presentation of evidence concluded earlier than that. Here, again, the record is wanting. We have no transcript of any discussions between Guirguis and the trial judge regarding scheduling of his medical expert, so there is no way to know what happened. No error is shown in Guirguis’ alleged inability to call his medical expert.

Finally, we consider together two miscellaneous points. One claims a discovery abuse when Dacey sent a female paralegal to observe Guirguis’ physical examination by Dacey’s medical expert (Dr. Kiester). He did not want to disrobe in the presence of a female. According to Guirguis, the paralegal misrepresented her authority to be present, and after reading the documents she proffered, the physician sent her packing. But there is nothing in the record to back up this claim -- no request for a protective order or sanctions. And it also seems there was no harm, since the paralegal was not allowed to attend the physical examination.

The other argument is that Dacey’s attorney took advantage of Guirguis, who is not an attorney, and who was at the time of trial 72 years old, sick, and using medications that left him drowsy and dizzy. There is not much we can say here. We note that trying a personal injury case (particularly before a jury) requires considerable legal knowledge and skills, and a layman takes a big responsibility -- and a big chance -- in deciding to act as his own trial attorney. Guirguis’ attorney withdrew in November 2004, so there was ample time to retain new counsel prior to the June 2005 trial. We cannot relieve Guirguis of the adverse consequences of his decision to proceed to trial without a lawyer.

Since the record on appeal is insufficient to determine whether there was error in the matters challenged, the judgment must be affirmed. Respondent is entitled to costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

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^[1] The documents in the clerk’s transcript are unfiled copies of Guirguis’ responses to an initial round of discovery (February to June 2004), Dacey’s filed motions to compel responses to a second round of discovery (September 2004), the judgment, the notice of appeal, notice of designation, notice of election to proceed without a reporter’s transcript, and Guirguis’ medical records. Although the index describes the medical records as “exhibits,” examination of the documents shows otherwise. None includes a tag or other marking that indicates it was an exhibit below. The original exhibits were transmitted to the court in response to our order, and by statute they are deemed a part of the clerk’s transcript. (Cal. Rules of Court, rule 5(a)(5).)

^[2] All subsequent statutory references are to the California Rules of Court unless otherwise indicated.