Jama v. Pengiuns Restaurant

Filed 8/16/07 Jama v. Pengiuns Restaurant CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Plaintiff Susan Jama claimed to be injured as a result of a slipping incident at Penguins Restaurant and Bar (Penguins), where she worked. Her employers had no workers compensation insurance, so Jama sued in the Superior Court, as she was allowed to do. A jury heard less than three days of testimony and quickly returned a special verdict, answering no to the first question on the verdict form, whether Jama was injured on the job. Jama contends that submission of that question was an abuse of discretion. We disagree, and conclude that submission of the question was not improper in the circumstances here and, even if it were, that Jama did not preserve the issue for appeal or show that any such error was reversible. We thus affirm.

I. BACKGROUND

A. Summary of Proceedings Below

On October 22, 2003, Jama filed a complaint for damages, naming only Penguins as a defendant. The complaint alleged three causes of action, styled: (1) negligence, (2) statutory violations of Labor Code sections 3700, 3706, and (3) premises liability.[1] An amendment to complaint filed February 5, 2004, substituted Gregory Hosburgh for Doe 1, and Lewis Maldonado for Doe 2, and Hosburgh and Maldonado doing business as Penguins Bar and Restaurant for the originally named defendant.

There is no clerks transcript before us, only an appellants appendix, and it does not contain any answer(s) or any other pleading indicating any appearances by any defendant. The reporters transcript indicates that trial began as against Maldonado only, but that the court allowed an additional amendment after trial began, adding as a defendant M&H Napa Company, a partnership, which was apparently the owner of the restaurant.[2]

Proceedings before the jury began on the morning of June 29, 2005, with jury selection. That afternoon saw opening statements, and the beginning of Jamas testimony. The jury heard evidence all day on June 30 and on part of July 1, when the evidence concluded. A total of six witnesses testified, including Jama and three others on her behalf, and Maldonado and another witness for the defense.

Both sides rested early in the afternoon of July 1, and because of the holiday weekend the jury was instructed to return at 1:45 p.m. on July 6. The jury returned as instructed, heard closing arguments and concluding instructions, and apparently left for the evening without beginning deliberations, to resume at 9:00 a.m. on July 7. According to the reporters transcript, the jury quickly had a verdict that morning, perhaps as early as 9:00 a.m.

B. The Facts

Jama was 34 years old at the time of the trial and had not worked since early December 2002, her last day on the job at Penguins. As set forth in detail below in connection with her testimony about the claimed incident on which her suit is based, Jamas testimony was imprecise, inconsistent, and on many occasions impeached. Such certainly did not enhance Jamas standing before the jury, and it presents some difficulty here in setting forth an accurate statement of facts.

Jama was not certain when she first began employment at Penguins, believing it was probably in 1997 or 1998. She was hired by Anglika and Denny Drossos, the owners, and worked as a server. Jama worked at Penguins, she believed, for a year to a year and a half, and then left for a time, during which she worked as a server at Round Table, and also at the Marriott Hotel.[3]

Jama returned to work at Penguins, rehired by the Drossoses. Jama first testified that she returned to Penguins in summertime 2000, 2001, at which point she was leadingly asked if the rehiring could have been the summer of 2002. Jama replied, Its possible. I dont recall the years. Its possible though. It appears in fact that Jamas reemployment was in 2002, and she claimed she was rehired as a floor supervisor, though at the time of the incident in issue here she was acting as a server.

Sometime after Java was rehired (apparently shortly after) she learned that Penguins had been sold to Maldonado and Hosburgh, and was told that the restaurant would be closed for 30 days for heavy cleaning and then reopened. This in fact occurred and, according to Maldonado, during the closure they extended the bar, did some remodeling, installed carpet and hardwood floors, and repaired the kitchen. Penguins reopened on September 18, 2002, and sometime thereafter the claimed slipping incident that was the basis of this action occurred.

Asked to describe the incident, Jama testified she came out of the kitchen door carrying dinner plates in each hand and stepped to her left to proceed to the entrance into the bar, at which point her right foot slipped and went forward with her left leg behind her; she described herself as doing the splits or the semi‑splits. Jama did not drop either plate (though a cruet of sour cream flew off the plate in her left hand) and she was able to brace herself against a wall with her forearm. At that point Jama looked up and made eye connection with bartender David Aduna who, she said, was watching television and did not come from behind the bar to help her. Jamas testimony about Aduna consumed several pages, in which she testified in detail about the eye connection, that Aduna was facing her, that he was watching TV, and that there were no customers at the bar. As she summed it up: they both met eyes . . . [and I] was trying to get back up. And he looked at me and looked away. I connected eyes with him and [he] looked away.

Jama was able to lift herself back up, which apparently took her up to a minute, which she did by moving her left leg forward and lifting her torso up, still bracing herself with her left forearm. At that point Jama apparently returned to the kitchen to replace the spilled sour cream, and continued with her server duties.

Jama was asked if her back twisted or moved, and responded: I only, I only felt a pop. . . . I paid no mind to it at all. I paid no mind to the fall. I thought for a second of asking David to help either grab a plate or help get me up, but I was extremely busy, you know. I didnt stop. Uhm, to my knowledge, we made eye connection, and that was it.

The complaint alleges that the incident occurred [o]n or about November 1, 2002, and at her deposition Jama apparently testified that it occurred on November 2, 2002. At trial she backed off that testimony and responded on cross-examination that the date may have been November 23, 2002, and at another point indicated it could have been on any of the Saturdays in November. In a word, Jama was unsure of the date. But Jama was sure of two things: (1) she knew the incident occurred on a Saturday night; and (2) it occurred on a Saturday night when she was the only server on duty. As will be seen, the defense evidence cast severe doubt on Jamas story, and particularly the two items on which she was certain.

Jama testified that for some period of time, either days or weeks, she had some discomfort, but not enough to alarm me, and she apparently continued her normal employment at Penguins. As she did, Jama testified, she reported the incident to Maldonado and Hosburgh, specifically recalling that she stood between them and was speaking to both of them. Maldonado specifically denied any such conversation.[4]

According to Jama, sometime in early December 2002, which she described as a week or two after the incident, she awoke one morning with pain so severe that she could not stand straight, with pain radiating to her legs. Either that day or the next, she went to the emergency room, a visit which the documentary evidence revealed was on December 4, 2002. While nothing of medical significance apparently came from that visit, what was of significance is the statement in the emergency room report that Jama denied any work injury.

On December 19, 2002, Jama signed a form under penalty of perjury, apparently an application for unemployment insurance. One of the questions asked point blank: was this disability caused by your job; yes or no. Jama answered, No.

In February 2003, Jama consulted orthopedic surgeon James Talcott, M.D., apparently having been referred there by Dr. Huard, her primary care physician. Jama told Dr. Talcott that she slipped at work and felt a slight pop, but that she had no pain until she ended up in the emergency room. According to Jama, Dr. Talcott told her that the injury occurred due to [her] slipping. This was, Jama said, the first time she associated her injury with the incident at work.

Dr. Talcott referred Jama to neurosurgeon Jay Levy, M.D., who in March 2003 performed a lumbar MRI which revealed a very large herniation at the L5 S1 disc. Dr. Levy testified that in his professional opinion the herniation was caused by the fall Jama told him about, the fall at work in November 2002.[5] In late April 2003, Dr. Levy performed a lumbar laminectomy. However, the disc herniation returned (a phenomenon which occurs in some six percent of disc operations), and on March 30, 2004, Dr. Levy performed a second surgery and has recommended yet a third.

The theory of the defense, from beginning to end, was that the incident did not occur, defense counsel beginning her opening statement with the assertion that Jamas claim was a complete fiction, something completely concocted. Pursuing that approach in light of some of the details of which Jama claimed to be certainthe incident was on a Saturday night, Jama was the only server on duty, and her vividly recalled eye contact with bartender Adunathe defense introduced various evidence casting significant doubt on Jamas story. Such evidence included, for example, restaurant tickets and credit card receipts showing that on every Saturday in November 2002 there was more than one server on duty. It also included documentary evidence that Aduna had not worked any Saturday night in November 2002.

As noted above, Maldonado denied any recollection of Jama telling him of any slip or fall. What he did recall was being told by Jama that she couldnt come to work because her back was hurting too bad. Asked if Jama told him why, Maldonado said some previous auto accident.

Jeremy Wilson, who had been the general manager at Penguins for several months beginning in late 2002, also testified for the defense. He was asked if he recalled Jama ever complaining of any physical symptoms. His response: I remember many complaints of physical symptoms mostly having to do with her back, and I remember her leaving often. Wilson also stated that he worked every Saturday night in November 2002 and at no time did Jama ever tell him that she slipped.[6]

In addition to the testimony from Wilson about complaints, the defense introduced much evidence about Jamas having prior back problems and prior complaints, which revealed that Jama had sought medical treatment in connection with her back on numerous occasions. The evidence about medical visits for back problems was extensive, and revealed that Jama had such complaints as early as 1993 (when she would have been 22 years of age), and that she had been treated for back pain as recently as April 2002. In that ten-year period Jama was seen no fewer than 18 times for back pain, on some of which visits, including November 15,1993 and February 23, 1995, the pain was described as severe.

C. The Special Verdict Form

As noted above, the record contains no clerks transcript, and the appellants appendix does not contain the proposed instructions submitted by the parties or, as particularly germane to the issue here, any proposed special verdicts. Thus, the documentary record concerning the verdict form is not before us and what little we have is found in the reporters transcript.

The first reported reference to the special verdict is on July 6, 2005, the last day of the trial and shortly before the court was to begin instructing and counsel was to give their closing arguments. That record begins at page 401 of the reporters transcript:

THE COURT: Good afternoon.

We are on the record outside the presence of the jury. We went over instructions yesterday.

Ms. Schisster, do you have packets for the Court and counsel? [] . . . [] And then did you get Ms. Fraters verdict?

MS. SCHISSTER [counsel for Jama]: Yes. And we have some argument about that.

Your Honor, I received a verdict form by fax before I left and now, apparently, there is another version. I can only comment on the one that I got by fax.

THE COURT: All right. Lets do the instructions.

There followed several pages of discussion on the instructions, with the next reference to the special verdict at page 406 of the reporters transcript, where the court referred to 5012, Introduction to Special Verdict Form and other items. The next page begins as follows:

MS. SCHISSTER: Okay.

THE COURT: All right. What was faxed to me this morning was a verdict form from Ms. Fraters office.

And I know, Mr. Hubbs, that you already said you had something faxed and then there is something new. So is there another new thing.

MS. FRATER [counsel for Penguins]: Yes. If I could address that, your Honor.

Mr. Hubbs responded to my e-mail and he pointed out that I forgot to put the language about substantial factor, so I amended it in this copy. And we didnt address the apportionment issue. And I did a third copy with the verdict, so I made three copies for how the Court ruled.

MR. HUBBS [counsel for Jama]: Your Honor, there may be other options forced upon us, I mean, if none of these makes sense.

THE COURT: I have two special verdict forms and then is there a third one, Ms. Frater?

MS. FRATER: The one I faxed.

THE COURT: All right. I think I have everything. The one that was faxed, we are going to have that one, the special verdict form.

MS. SCHISSTER: No, we dont have that version, the one that was faxed.

. . .

THE COURT: We have got one for you.

MR. HUBBS: Thank you.

THE COURT: Now, what was wrong with that, Ms. Frater. It was based on Mr. Hubbs

MS. FRATER: Response. He said, I forgot to put in the substantial factor.

THE COURT: So we are not going to use this one?

MR. HUBBS: Yes, but that is probably the best of the three; but I agree as to that one.

THE COURT: That we are not using it?

MR. HUBBS: Yes, we will have to decide what we are going to use, but you cant have number one with Susan Jama during the course and scope of her employment and at the same time have an instruction later on about whether Louis Maldonado and Greg Hosburghs affect, if any was substantial in causing harm. That is the same instruction in two different places. Thats one problem I have with that.

That particular problem is not present in the faxed verdict form because that has only the first question, was Susan Jama injured during the course and scope, but doesnt say anything about substantial factor.

THE COURT: And where is the one with the substantial factor, Ms. [Frater]:

MS. FRATER: That would be the second one. Number three was Louis Maldonados negligence, a substantial factor in causing harm.

THE COURT: Whats the difference on the final version?

The next page reflects colloquy about issues of apportionment and whether Hosburgh was acting within the course and scope of the partnership, at which point the following ensued:

THE COURT: This is a little late in the game for this because to get the argument going, do you have a verdict form that we suggest?

MR. HUBBS: I think the one that I had yesterday.

THE COURT: Do you have it with you now?

MR. SCHISSTER: I attached the one that we agreed to yesterday, your Honor, with your stack.

THE COURT: The one that the parties agreed to?

MS. FRATER: Yes.

MS. SCHISSTER: Yes.

Then, following brief discussion about Hosburghs conduct, there was this:

THE COURT: Ms. Frater, any response then?

MS. FRATER: Quite candidly, I am concerned about, number one, being part of the verdict form because that is consistent with the jury instruction.

THE COURT: Which one is that?

MS. FRATER: Verdict form number one or verdict form number two.

THE COURT: You are talking about was Susan Jama injured during the course and scope of employment?

And that we didnt have in the special verdict form.

MS. FRATER: Thats correct. So with respect to the apportionment issue, I will just submit it.

THE COURT: I do think that I will allow Ms. Frater to have that question, was she injured in the course and scope of her employment. But, beyond that, I will adopt your verdict form, Mr. Hubbs.

MR. HUBBS: If number one is allowed, then I wouldnt think the substantial factor one shouldnt be allowed. Isnt that a double question on the same topic?

THE COURT: I was just going to use your verdict with that first question regarding Ms. Jama being injured during the course and scope.

MR. HUBBS: In other words, we are adding another factor that is duplicative.

THE COURT: What is there in yours?

MR. HUBBS: Was Louis Maldonados and Hosburghs negligence, if any, a substantial factor in causing harm. I think number one.

THE COURT: I am looking at your verdict that you said you attached which doesnt have that. This just says, Was Louis Maldonado negligent?

MR. HUBBS: But understand that it has substantial factor.

THE COURT: Right.

MR. HUBBS: And what you are proposing is adding Ms. Fraters first question to the very front of my form.

THE COURT: Which is to say, was she injured in the course and scope of her employment.

MR. HUBBS: So we have one and then three, which I believe are duplicative and inconsistent, actually.

THE COURT: I dont see why itsit may be somewhat duplicative. What is your objection to it? Because its duplicative?

MR. HUBBS: That, but also it says during the course and scope of her employment. That is not really the standard, number one.

THE COURT: Isnt it required that she be hurt on the job?

MR. HUBBS: No, I thinkthat is why we get into a problem here. Her injury occurred during her job but there [are] no symptoms until two weeks later. So the jury can read this, during the course and scope. So they may think in their minds

THE COURT: So you want to say, was she injured on the job. Will that do it?

MR. HUBBS: That is better. That is better.

But still we dont need both. I think it makes it too confusing.

THE COURT: I will allow a question to that issue as to whether she was injured on the job.

MR. HUBBS: All right. Can we say as a result of the job?

THE COURT: Ms. Frater, any input?

MS. FRATER: I would stick with on the job.

THE COURT: That has been her testimony.

MR. HUBBS: I understand.

The next discussion was about how to physically prepare the verdict form, and whose office might do it, at which point Jamas counsel indicated his office would not understand. Then this occurred:

THE COURT: Ms. Schisster, I was adopting yours but adding one question at the beginning.

MR. HUBBS: If given ten minutes, I can explain it to her to go to the right computer directory and find it and add language. I drafted it. Its on my computer.

MR. HUBBS: But I think it should be, Was Susan Jama injured as a result of her employment?

THE COURT: That language doesnt bother me. Ms. Frater, can you agree to that?

MS. FRATER: No. I stick firmly with on the job.

MR. HUBBS: I think that manifests that is has to be then and there.

THE COURT: I dont agree. So I will adopt, Was Susan Jama hurt on the job?

D. The Return of the Special Verdict

The trial court completed the closing jury instructions late in the afternoon of July 6. The court then advised the jury to Go in the jury room and pick a foreperson and then go home for the evening or just go home and come back. You can come back at any time you want. We op[en] at 8:30. We op[en] the doors at 8:00. You can come in and start at 8:15 or 8:30. Its completely up to you. Apparently the jury chose to go home, as two pages later the court advised counsel that the bailiff informs me that the jury has left and they will be back at 9:00. The reporters transcript indicates that the jury had a verdict at 9:00 a.m. on July 7.

Judgment was entered on that special verdict form, after which Jama filed a timely notice of appeal.

II. DISCUSSION

A. The Standard of Review

Jama acknowledges that the standard of review of a trial courts submission of a special verdict form is abuse of discretion. Under this standard of review we will set aside a trial court ruling only upon a showing of   a clear case of abuse   and a miscarriage of justice. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331; Denham v. Superior Court (1970) 2 Cal.3d 557, 566.) A trial court abuses its discretion when its ruling  fall[s] outside the bounds of reason.    (People v. Benavides (2005) 35 Cal.4th 69, 88.) An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the courts decision exceeds the bounds of reason and results in a miscarriage of justice. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) There was no clear abuse of discretion here. And certainly no miscarriage of justice.

B. Summary of Jamas Argument

As described above, the first question on the special verdict form asked whether Jama was injured on the job Jama apparently contends that this language was somehow too restrictive, that the jury should have been asked if the injury occurred as a result of the job, going on to argue, however, that the workers compensation standard is whether the injury arises [o]ut of and in the [c]ourse of [e]mployment language, not incidentally that was objected to by Jama below. Fundamentally, Jama argues that the question submitted to the jury did not conform to law, and thus to submit it was an abuse of discretion.

Arguing in claimed support of such abuse, Jama devotes 12 pages of her brief to a discussion of various cases and legal principles. For example, Jama has an extensive discussion of Huang v. L.A. Haute (2003) 106 Cal.App.4th 284 (Huang), which she cites for the proposition that an  employee seeking damages from an uninsured employer has the same burden of proof as an employee seeking workers compensation benefits.  There follows a brief discussion of the contention that the appropriate standard is whether the injury arises out of and in the course of employment, followed by an assertion that workers compensation law recognizes four categories of injuries. Finally, there is a six-page discussion of delayed onset cases, within which is a lengthy discussion of Lundberg v. Workmens Comp. App. Bd. (1968) 69 Cal.2d 436, from which Jama concludes that the California Supreme Court has recognized for over forty years that some industrial injuries have a delayed onset of symptoms. Jamas argument is not persuasive, for several reasons.

C. The Question on the Verdict Form Was Proper

We begin by noting that neither Huang nor Lundberg nor delayed onset nor any other legal principle mentioned in Jamas brief was even mentioned belownot to the trial court in any colloquy about the special verdict, not to the jury in any instruction. Indeed, the only jury instruction pertinent to the issue on Jamas appeal instructed the jury that Jama had to prove that she was harmed at her place of employment, in an instruction which read in its entirety as follows: Susan Jama claims that she was harmed by Louis Maldonados negligence. To establish this claim, Susan Jama must prove all of the following: Susan Jama was harmed at her place of employment; Louis Maldonado or Greg Hosburghs negligence was a substantial factor in causing Susan Jamas harm.

There is no indication that Jama objected to that instruction. Indeed, for all we know, she proposed it. But whatever the instructions origin, we have trouble discerning any difference between on the job and at her place of employment.

Huang, one of the cases on which Jama primarily relies, is instructive. There, at one point the court did use the language on which Jama relies, that the injury must arise  out of employment.  However, the Court of Appeal affirmed the judgment against Huang, affirming that her lack of credibility caused her failure to meet her burden of proving that her injuries occurred during her employment, in an opinion which concludes as follows: In summary, the trial court did not misinterpret Labor Code section 3708 or improperly allocate the burden of proof. Huang had the burden of proving by a preponderance of the evidence that she sustained an injury during her employment. (Huang, supra, 106 Cal.App.4th at p. 291, italics added.) Again, we discern no semantic difference between during her employment and on the job. In sum, the language in the special verdict was not misleading or inaccurate or otherwise improper. Put another way, Jama has not demonstrated that question number one on the special verdict form did not properly address the issue. (See Olson v. Arnett (1980) 113 Cal.App.3d 59, 67.)

The law is that the questions submitted on a special verdict must call for ultimate facts, not for evidentiary facts or questions of law. (See generally, 7 Witkin, Cal. Procedure (4th ed. 1977) Trial, 355, p. 404, and authorities there collected; see also Neal v. Montgomery Elevator Co. (1992) 7 Cal.App.4th 1194, 1199 [products liability action; verdict form asked Was there a defect in the design of the product; held: question was sufficient where jury had been provided with correct instructions].) In Wyler v. Fever (1978) 85 Cal.App.3d 392, the Court of Appeal concluded its opinion with guidance of trial judges about special verdicts, ending with the admonition that [t]rial judges should submit special verdicts to juries only when the number of questions is brief and the questions are couched in nontechnical language. (Id. at pp. 405-406.) The trial court here, we conclude, followed such advice to a T.

We find support for our conclusion that the question was proper in the conduct of Jamas own counsel, who never once mentioned the special verdict question in either of his closing arguments, not its content, not what it meant, not how it applied to the facts, nothing. If, in fact, Jamas counsel thought there was something in the verdict of concern, one would have expected counsel to have concentrated on that subject in [her] closing argument. (Bly-Magee v. Budget Rent-A-Car Corp. (1994) 24 Cal.App.4th 318, 326.) Moreover, not having done so can have its own consequences here, as a leading practice treatise notes: Where a special verdict form is potentially confusing or ambiguous, counsel should explain any possible misunderstandings during closing argument. Failure to do so may waive the objection on appeal. (Wegner et al., Cal. Practice Guide: Civil Trials & Evidence (The Rutter Group 2006) 17:13.1, p. 17-5, citing Bly‑McGee, supra, 24 Cal.App.4th 318.)[7]

But that Jamas counsel did not do so, and the record is as it is, is perhaps not surprising, as the issue presented by the question on the special verdict form was hardly the focus of the case, or the arguments, which focused instead on whether the incident ever happened. That is what this case was about.

As indicated above, the theory of the defense was that the incident did not happen. Defense counsel began her opening statement by describing Jamas claim as a complete fiction, something completely concocted. And her closing argument immediately took up that theme, the second paragraph of argument urging that Jama had created a fiction. This is what was argued to the jury, and it was clearly understood by Jamas counsel, who anticipated in her own opening argument that the defendant is going to try to convince you that, number one, this never happened. And its probably obvious to everyone why he wants to show that based on these jury instructions. Such was crucial, Jamas counsel argued, as defense counsel is really going to have to do a good job of discrediting Ms. Jama because you cant believe her in order for him to get out of this. If you believe her, that this thing happened, then he is, you know, negligent. He is on the hook. So he is going to have to really attack her credibility in a whole bunch of different ways.

The crux of the case, in other words, was whether the incident occurred. If it did, as Jamas counsel urged later in the opening argument, Maldonado had an affirmative duty to show that he was not negligent in order to overcome that part of the case. So as far as Ms. Jama is concerned, he is liable. [] So if you find that Ms. Jama fell at work, not a whole fall but a partial fall, twisted her back and got this herniation, I believe that you have to find that she is entitled to damages. In sum, Jamas case was simply this: if the incident occurred, the defendants were liablethey were on the hook.

Defense counsels closing argument began with the theme that Jama has created a fiction, and from there launched into her argument that Jama must prove to you that she was injured at work. And when you pull out that verdict form, you will see question number one is, was Ms. Jama injured on the job? If you dont find her creditworthy and trustworthy, then you stop right there. The burden never shifts to Mr. Maldonado. Essentially, all of the defense argument was devoted to an attack on Jamas story, and her credibility.

The rebuttal argument of Jamas counsel acknowledged all this, succinctly summing up the issue this way: if you believe that the injury happened there, [Maldonado] is presumed negligent and there is nothing, nothing that [defense counsel] said . . . .

The focus of the case, as made clear by Jamas own counsel, was not about delayed onset, not about the definition of a work-related injuryneither of which was ever mentioned to the jury. No, the case was about whether the incident occurred and, since it was, submission of the question could not have made a difference. It could not be reversible error. (See People v. Watson (1956) 46 Cal.2d 818, 836; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802.)

Assuming arguendo that question number one on the special verdict form was improper and that it could have made a difference, Jama has waived any claim of error by failing to clearly object to the question in the trial court.

D. Jama Waived Any Claim of Error

The rule is that any claimed error in a special verdict is waived if no proper objection is made in the trial court. (Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 858 and cases there collected.) Such rule defeats Jama here.

Jama states in her brief that she vigorously objected to the question on the special verdict, citing to reporters transcript pages 411:15 to 413:7. Those pages are quoted at length above, and an objective reading of them reveals that vigor is hardly an apt description.

As shown above, it appears that Jama initially objected to the language in the verdict about during the course and scope. Responding to this concern, the trial court asked Jamas counsel, so you want to say, was she injured on the job. Will that do it? Counsel responded, That is better. That is better, though going on to express concern about the claimed duplication: But still we dont need both. It think it makes it too confusing. Then this:

THE COURT: I will allow a question to that issue as to whether she was injured on the job.

MR. HUBBS: All right. Can we say as a result of the job?

THE COURT: Ms. Frater, any input?

MS. FRATER: I would stick with on the job.

THE COURT: That has been her testimony.

MR. HUBBS: I understand.

At one point Jamas counsel says the now-objected to language is better; at another point he says I understand. If that is evidence of a vigorous objection, it comes in a novel guise.

Not only was that objection less than vigorous, it was vague, and runs afoul of another rule, that the objection must be specific. As the California Supreme Court has noted,  [A]s a general rule, the failure to object to errors committed at trial relieves the reviewing court of the obligation to consider those errors on appeal. [Citations.] This rule applies to claims based on statutory violations, as well as claims based on violations of fundamental constitutional rights. [Citations.] This applies equally to any claim on appeal that the evidence was erroneously admitted, other than the stated ground for the objection at trial. When an objection is made to proposed evidence, the specific ground of the objection must be stated. The appellate courts review of the trial courts admission of evidence is then limited to the stated ground for the objection. (Evid. Code,  353.)  (People v. Kennedy (2005) 36 Cal.4th 595, 612; see also People v. Boyette (2002)29 Cal.4th 381, 424 [ Specificity is required both to enable the court to make an informed ruling on the motion or objection and to enable the party proffering the evidence to cure the defect in the evidence. ].)

While this rule is generally applied in connection with objections to evidence, it can apply in other situations as well, as, for example, in Trigueiro v. Skow (1937) 24 Cal.App.2d 253, where the issue was whether a minor was competent to testify. After some voir dire, Appellants counsel commented, I think he is pretty young to put under oath. Id. at p. 254. On appeal, the Court of Appeal held that this language was not sufficiently unequivocal to amount to an objection. (Id. at p. 255.) Such rule, too, is applicable here.

E. The Result Was Clearly Right

Article VI, section 13 of the California Constitution provides that: No judgment shall be set aside in any cause, or new trial granted, on the ground of misdirection of the jury . . . or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. As Witkin describes it, this section has its most striking effect on substantial error that was calculated to influence the court or jury: If, nevertheless, the judgment is the only proper one in the state of the record, i.e., under the pleadings and evidence the same result would have been reached even if the error had not been committed, there is no miscarriage of justice. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal 435, p. 480.)

The Witkin section quoted above contains numerous illustrations citing and distilling various cases, among which are the following:

Paulsen v. McDuffie (1935) 4 C.2d 111, 119 . . . [erroneous instruction on presumption, but evidence clearly showed plaintiffs right to recover].

Jacobs v. Bozzani Motors, Ltd. (1952) 49 C.2d 681 . . . [erroneous instructions, but it did not appear from record that a different result would have been probable had the questioned instructions not been given].

. . .

Vasquez v. Alameda (1958) 49 C.2d 674, 676 . . . [despite erroneous instructions evidence overwhelmingly established plaintiffs contributory negligence].

Alarid v. Vanier (1958) 50 C.2d 617, 625 . . . [although error in instructions, ample uncontradicted evidence to negative defendants negligence].

Murphy v. Atchison, Topeka & Santa Fe Ry. (1958) 162 C.A.2d 818, 823 . . . [erroneous failure to instruct on presumption, but not reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error].

Mason v. Case (1963) 220 C.A.2d 170, 183 . . . [despite erroneous instructions evidence of contributory negligence too strong for recovery]. (Id. at pp. 480-481.)

The principle manifest in these cases is equally applicable here, in light of the overwhelming evidence devastating to Jamas claim, manifest perhaps best by how quickly the jury returned the verdict, as described in detail above. The record of the proceedings on the evening before the verdict, read in conjunction with the time on the last reporters transcript, 9:00 a.m., reveals that the verdict was returned in less than 45 minutes, and perhaps instantaneously.

F. Dr. Levys Testimony Does Not Avail Jama

Jama ends her brief with a short argument entitled Respondent Failed to Present Expert Witness Testimony, the claimed result of which is the testimony of [Jamas] expert, Dr. Levy, stands unrebutted on this record. Maybe so, but we fail to see the significance of this, as it could have no bearing on whether the incident on which Jamas claim was based in fact happened. (See fn. 5, ante.) But even if it did, it would not matter, as even unrebutted expert testimony may be disregarded.

Howard v. Owens-Corning (1999) 72 Cal.App.4th 621 is dispositive. Howard was an asbestosis case that resulted in a defense verdict at trial. Division Three of this court affirmed that verdict despite expert evidence that Howard had asbestosis, and despite that defendant failed to present any expert testimony whatsoever. The court concluded that substantial evidence nevertheless supported the defense verdict, on the basis that the jury could have found the expert testimony from plaintiffs expertstestimony uncontroverted in the recordlacked credibility. As Presiding Justice McGuiness held, Because the instant case does not present any issues of professional negligence or medical malpractice, there was no reason to require the trier of fact to accept as conclusive the uncontradicted testimony of appellants experts. Instead, the general rule applies. Under this rule, as the trial court correctly instructed the jury, the opinion of any expert witness is only as good as the facts and reasons on which it is based. . . .   (BAJI No. 2.40.) If the jury finds that the party offering expert testimony has failed to prove any foundational fact, or that some fact on which the experts opinion is based has been disproved by the opposing party, the jury is required to consider that in evaluating the expert testimony. . . . So long as it does not do so arbitrarily, a jury may entirely reject the testimony of a plaintiffs expert, even where the defendant does not call any opposing expert, and the expert testimony is not contradicted. [Citations.] (Howard, supra, 72 Cal.App.4th at pp. 632-633.)

III. DISPOSITION

The judgment for the defendants is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Lambden, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

[1] At trial the second cause of action was dismissed by the court, which dismissal is in no way involved in this appeal.

[2] According to Jamas counsel, Hosburgh declared bankruptcy before trial began, and, as noted, the case proceeded against Maldonado, who was represented by counsel. Maldonado filed for bankruptcy after the trial, and we filed an order allowing Jeffrey G. Locke, trustee in bankruptcy, to intervene in the action. A respondents brief was filed on behalf of Locke, in which Maldonado, now in propria persona, joined.

[3] Jama also worked for a time as a custodian at a school, at one time testifying that this was between her two employments at Penguins, and at another that such employment predated her first employment at Penguins.

[4] Hosburgh did not testify.

[5] Dr. Levy, of course, had no independent knowledge whether Jama in fact fell or slipped, and relied solely on what Jama said.

[6] If she had, Wilson said, he would have made a written report and sent it to the doctor pursuant to the policy at Penguins.

[7] The special verdict form was mentioned only once in the course of the three closing arguments, this by defense counsel. But that mention did not focus on the legal significance or meaning of the question, or its relationship to the facts, but only to alert the jury what question to expect.