Light v. Sterling & Reid Bros. Circus

Filed 8/3/06 Light v. Sterling & Reid Bros. Circus CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Thomas LaVoy, Judge. Affirmed.

A jury found by special verdict that Sterling & Reid Brothers Circus was not negligent for the injuries William R. Light allegedly suffered when the electricity failed at a circus event he attended. Light contends (1) the court erroneously ruled on his three motions in limine; (2) the defense attorney committed misconduct during trial; and (3) the court erroneously granted the motion for nonsuit. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

Light alleged in a lawsuit against Sterling & Reid Brothers Circus that the circus "negligently organized, maintained and operated [the premises on Mission Center Road in San Diego] so as to create a dangerous condition to patrons inside the tent. More specifically defendants failed to properly set up, maintain, operate and monitor the lights and electricity so that a black out occurred causing panic and a stampede of people, and animals, resulting in [Light's injury]." Sterling's answer generally denied the allegations.

At the close of Light's case-in-chief, Sterling moved for nonsuit based on insufficient evidence regarding negligent generator failure. (Code Civ. Pro. § 581c,

subd. (b).) The court granted the motion on that basis, but allowed the case to proceed to the jury on the theory that Sterling created "a potential dangerous and unsafe condition

. . . concerning overselling and negligent seating."

DISCUSSION

I.

At trial, when Sterling introduced evidence Light's motions in limine sought to exclude, Light did not renew his objection to the court's rulings. Accordingly, Light failed to preserve for appeal the admission into evidence of such testimony. "In limine rulings are by their nature tentative." (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1430.) "A tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial itself." (People v. Holloway (2004) 33 Cal.4th 96, 133; Evid. Code § 353, subd. (a)^[1].)

Even assuming for sake of argument that the issue is not waived on appeal, the contested evidence was admissible, and we find no error.

Motion In Limine Number 1

Light sought to exclude evidence of his alcohol and prescription drug use as irrelevant, prejudicial, and inadmissible character testimony under sections 350^[2], 352^[3], and 1101^[4]. Sterling countered that such evidence was relevant to both liability and damages because from the mid-1990's Light used deceit to obtain prescriptions for various pain killers from at least four different physicians. According to Sterling, this evidence tended to prove Light "exaggerated the nature and extent of his injuries, if any, to satisfy his drug addiction." The trial court excluded evidence regarding Light's alcohol use but allowed evidence of Light's prior prescription drug use. Light submitted to the ruling and his attorney stated, "I just don't want there to be general blanket statements being stated when there isn't evidence backing it up. Certainly there is evidence that I could not argue should be excluded regarding some of the drug issues. And I can see the court's position will be on some of those doctors or whomever testify regarding that issue, I'll have an opportunity to cross-examine them." (Emphasis added.)

Motion In Limine Number 2

Light sought to exclude "any evidence of [his] uncharged crimes of obtaining prescriptions from multiple doctors that [Sterling] might have." (§§ 350, 352.) Sterling countered, in part, "The evidence is crucial and supports Sterling's contention that [Light's] claim of injuries, extent of injuries and level of pain is directly related to his use of, and desire to obtain prescription pain medication and that a patient under the perception that his ailments are not adequately treated will exaggerate the level and intensity of his pain, in order to obtain prescription medications."

The court denied the motion but required Sterling to lay the requisite foundation before it introduced evidence regarding Light's attempts to obtain pain medication. Light's attorney stated, "[W]ith regard to the second motion, the Court did require the proper foundation be laid there. So provided that's done, I would submit on number 2."

Motion In Limine Number 3

Light sought to exclude evidence of his prior misdemeanor arrests because it was irrelevant and more prejudicial than probative. (§§ 350, 352.) Sterling explained, "On September 25, 2003, [Light] was charged with six felony counts and pled guilty to one misdemeanor charge of obtaining prescription by fraud/deceit." Sterling argued the evidence was more probative than prejudicial, and admissible both as an admission and for impeachment purposes. (§§ 352, 1101, subd. (b), 1220; People v. Wheeler (1992) 4 Cal.4th 284, 295-296.)

The trial court granted the motion as to arrests and charges, but permitted evidence regarding Light's conviction to be used only for impeachment. Light's attorney accepted the ruling and stated, "[C]learly we can't deny that Mr. Light did have that conviction. We can't deny he has a long-standing history of being on pain medication. But I think that as far as making opinions or presenting opinions that it was more than him being in pain and more than him getting appropriate medication, other than where it's clear in the case of that conviction, I think we need to tread carefully and lightly." (Emphasis added.)

A plaintiff who challenges discretionary rulings on motions in limine must demonstrate the court's " 'discretion was so abused that it resulted in a manifest miscarriage.' " (Hernandez v. Paicus (2003) 109 Cal.App.4th 452, 456.) Under the circumstances of this case, there was no abuse of discretion. Such evidence was clearly relevant to the issue of damages and Light's pain and suffering.

Evidence of Light's criminal conviction was properly admitted for purposes of impeachment. "Of course, the admissibility of any past misconduct for impeachment is limited at the outset by the relevance requirement of moral turpitude." (People v. Wheeler (1992) 4 Cal.4th 284, 296; People v. Castro (1985) 38 Cal.3d 301, 314.) "Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness." (Emphasis added.)

(§ 787.) Given that Light's conviction implicated his reputation for honesty, testimony regarding his truthfulness was relevant to attack his credibility. (§ 210.) The trial court expressly weighed the probative value of this evidence versus its prejudicial effect.

(§ 352.) Light argues, with no citation to authority, that although evidence regarding prior conviction for a crime of moral turpitude is admissible in criminal trials, it is inadmissible in civil trials. Light's argument was squarely rejected in Robbins v. Wong (1994) 27 Cal.App.4th 261, 268; 274. (Accord, Witkin, California Evidence (4th ed. 2000) Presentation at Trial, §292, p. 366.)

II.

Light contends Sterling's counsel committed attorney misconduct because he made "repeated reference to Light as a 'liar, a 'deceiver', a 'fraud', a 'drug addict', having a reputation for being a liar, seeking 'secondary gain', a 'criminal', one 'guilty of criminal fraud', an 'exaggerator' of his claims of injury, a 'drug abuser', a target of 'DEA' drug investigation, a target of a Medi-Cal Fraud Investigation, one willing to lie and deceive or 'do anything' to get drugs to feed his drug addiction, and [made] other personal attacks on Light's character."

In order to preserve alleged attorney misconduct for review, the defendant must "assign misconduct and request appropriate admonitions," unless admonitions could not have cured the harm from the misconduct. (People v. Gionis (1995) 9 Cal.4th 1196, 1215.) "A party is foreclosed from complaining on appeal of misconduct during arguments to the jury where his counsel sat silently back during the arguments [and] allowed the alleged improprieties to accumulate without objection[.]" (Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1247.)

We have reviewed each of the claims of attorney misconduct that Light details in his opening brief. Light never objected in the trial court on the basis of attorney misconduct, and there is no evidence that timely objections and requests for limiting instructions would have failed to cure any alleged harm.^[5] Consequently, we have no cause to consider whether Sterling's counsel used " ' " 'deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' " (People v. Padilla (1995) 11 Cal.4th 891, 940, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

III.

Light contends the court should not have granted the motion for nonsuit based on the issue of overcrowding. He is incorrect. The court did not grant the nonsuit on the issue of overcrowding. It permitted the jury to decide whether Sterling was negligent on that basis. The court granted nonsuit only on the basis that insufficient evidence was presented regarding negligent generator failure. Light's attorney acceded to the trial court's ruling and stated, "[F]rankly, your Honor, I -- I think that, ah, the Court's ruling is probably correct."

DISPOSITION

The judgment is affirmed. Sterling & Reid Brothers Circus is awarded costs on appeal.

O'ROURKE, J.

WE CONCUR:

NARES, Acting P. J.

McDONALD, J.

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^[1] All further statutory references are to the Evidence Code unless otherwise stated.

^[2] Section 350 states, "No evidence is admissible except relevant evidence."

^[3] Section 352 states, "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."

^[4] Section 1101 states in relevant part, "Except as provided in this section and in sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or conduct on a specified occasion.

^[5] Light's only objection to any of the alleged instances of misconduct arose in a context unrelated to any claim of attorney misconduct. After one of Light's treating doctors testified about an altercation between him and Light, the trial court sustained Light's objection and granted Light's motion to strike the offending testimony.