Pedersen v. Target Stores





















Filed 10/22/12 Pedersen v. Target Stores CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
TWO




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DESTINY PEDERSEN, Plaintiff and Appellant, v. TARGET STORES, Defendant and Respondent.

B231964 (Los Angeles County Super. Ct. No. BC405642)

APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

David L. Minning, Judge.
Affirmed.



Horvitz
& Levy, Karen M. Bray, Wesley T. Shih, Mark A. Kressel for Plaintiff and
Appellant.



Trachtman
& Trachtman, Benjamin R. Trachtman, Ryan M. Craig for Defendant and
Respondent.



___________________________________________________





Destiny Pedersen allegedly fell on toys strewn on the
floor of a Target store. After hearing
the evidence, a jury rendered a verdict for Target. On appeal, Pedersen contends that her case
was prejudiced by the hearsay statement of an unidentified eyewitness, who said
that her misbehaving child caused plaintiff’s fall. We conclude (1) plaintiff invited the error
by presenting the eyewitness statement during her case-in-chief, and later
failed to object to the admission of the statement, and (2) even if the issue
was preserved for appeal and assuming that the eyewitness statement was
inadmissible hearsay, there was no miscarriage
of justice sufficient to justify a reversal of the judgment.

FACTS

Testimony of Pedersen and Her Daughter

On October 27, 2007, Destiny Pedersen
entered a Target store with her 12-year-old daughter Monique to purchase an
iPod dock with a $50 Target gift card.
Plaintiff went directly to the electronics department for the iPod dock,
as Monique lingered in the girls’ clothing department. While lingering, Monique “happened to notice
that there was [sic] toys on the
floor”—pet shop animal toys in boxes—in checkout lane number 27. Monique told the jury that there were two or
three items on the floor, contradicting her deposition testimony when she
recalled “three to five” toys. After reviewing her deposition during trial,
Monique said that there were three to five items on the floor.

Monique
joined plaintiff in the electronics department, and they selected an iPod
dock. They proceeded to checkout lane
number 27, where Monique had previously seen the fallen toys. Monique testified on direct examination, “I
didn’t notice that they were still there . . . .” On cross-examination, Monique stated, “I
noticed them but I didn’t really pay attention to them.” She and plaintiff walked past the three to
five toys without a problem. Plaintiff
did not see the boxes, and Monique did not point them out.href="#_ftn1" name="_ftnref1" title="">^[1]

The iPod dock had an advertised
price of $49.99, which would be covered by Monique’s $50 gift card. When the cashier scanned the item, the
register showed a price of $79.99. Plaintiff
turned to walk back to the electronics department for a price check. Monique saw plaintiff take two or three
steps, then fall down when her foot came into contact with one of the toys on
the ground. Plaintiff said, “‘I’m all
right,’ and she stood right back up.” Monique did not help plaintiff stand up.

Monique’s trial testimony
dramatically contradicted her deposition
testimony. In deposition (taken
months before she viewed a Target surveillance recording), Monique testified
that plaintiff lay on the floor in pain for four or five minutes, with Monique
at her side, while the cashier and other customers stared at them and did
nothing to help. Finally, plaintiff
supposedly said, “‘Please, can you help me up Monique’ . . . so I kind of
grabbed her on like—it’s like below the shoulder,” then helped plaintiff stand
up and walk over to the cashier. After
viewing a surveillance tape of the incident, Monique realized that she did not
help her mother rise from the floor or walk to the cashier; instead, plaintiff
got up immediately—in 10 seconds without any assistance—and proceeded on her
own to the electronics department.href="#_ftn2"
name="_ftnref2" title="">^[2]

Plaintiff recalled that there was a
child blocking her way as she left the cashier’s area, among the four or five
people in line behind her. As she
maneuvered around the child, “my foot came in contact with something that made
my foot twist and I fell to the ground.”
She then saw some toys on the ground.
Plaintiff did not see the toys before she fell, but was not looking at
the floor as she walked.

Plaintiff was deposed before seeing
the Target surveillance recording, and her deposition testimony was at odds
with her trial testimony. In deposition,
plaintiff testified that she lay on the floor for four or five minutes after
falling. Upon viewing the surveillance
recording, plaintiff conceded that she was on the floor for less than 10
seconds, not four or five minutes. Like
Monique, plaintiff claimed during deposition that the cashier just stared at
them for five minutes without rendering aid, and that Monique helped her to
stand up and walk to the food court.
Plaintiff conceded that “after looking at the video, it is clearly a
mistake. I was able to get up on my
own.” Plaintiff testified during
deposition that she hung onto the box containing the iPod dock when she fell,
saying, “I couldn’t believe that I still had the box in my hands.” After seeing the video, plaintiff conceded
that the box slid from her hands as she fell.
In deposition, plaintiff insisted that she limped over to the cashier
after falling; she now concedes that the videotape shows she did not go to the
cashier, but arose and walked to the electronics department using a normal
gait.

When plaintiff returned from the
electronics department, Monique observed that plaintiff’s hand was
bleeding. The cashier paged the manager,
who suggested that plaintiff go and sit in the food court, where a store
employee bandaged plaintiff’s hand. At
trial, Monique stated that the manager asked plaintiff what happened, and
plaintiff said that she fell on some items in the checkout lane. Monique went over and scooped up four or five
toys, “two that was [sic] on the rack
and the rest were on the floor.” By
contrast, Monique testified during her deposition that the manager did not ask
plaintiff how she fell.

Testimony of Target Employees

Susanna
Martirosyan was the cashier on duty in checkout lane number 27. Her primary duties are to help customers
purchase merchandise and to “look around . . . for safety, if there is anything
on the floor, any liquid, take care of that.”
Martirosyan observed that Target has “guest service team leaders who are
going around all the time checking” to see if there are items on the floor.

Martirosyan
paged the electronics department when plaintiff objected to the scanned price
for the iPod dock. Plaintiff was “in a
hurry and very upset because we got a different price for that item.” Martirosyan handed the item back to plaintiff
and continued to help other guests. She
did not see plaintiff fall down.

The customer behind plaintiff was
“very angry with her boy; and she was disciplining him that he can’t stay
still, and when I heard she was yelling at her boy, I saw she was picking up
her son off the floor.” The customer
said Pedersen “tripped over [the] child.”
After the customer said that plaintiff tripped over the child,
Martirosyan came out from behind the cash register to see what happened, and
checked to see if there was anything on the floor. On inspection, Martirosyan saw no toys or
other items and no liquids. She
testified that there was “nothing on the floor,” adding “There wasn’t
anything. I remember for sure because I
checked.”

Martirosyan
saw plaintiff standing up. She did not
appear to be injured. After observing
that plaintiff “was okay,” Martirosyan returned to her post and continued her
work. Five minutes later, plaintiff
returned to cash register. When
Martirosyan saw that plaintiff’s finger was bleeding, she signaled for
help. Martirosyan completed a team
member witness statement. It reads,
“1. I was ringing. 2. Check lane
27. 3.
Helping guests. 4. When guest fall [sic], she tripped over a child because the mother told me there was
no liquid on the floor, my son was in her way and she fall [>sic] down. . . .” (Paragraph identations omitted.)

Target
guest service team leader Lily Martinez testified that she came to checkout
lane 27 when summoned by the cashier.
Though Martinez recalled that plaintiff said “she had tripped over toys
and fell on top of the merchandise she was carrying,” Martinez testified that
“There was nothing on the floor.”
Martinez explained, “[A]t the moment she was telling me that she had
tripped over toys, I immediately turned and looked at the floor. The toys would have been there. And there was nothing on the floor.” This conversation took place in the cashier’s
area, so Martinez could look straight at the floor.

Martinez walked through the
checkout lanes in a maneuver called “speedweaving” or “walking the racetrack”
five to 10 minutes before the incident.
It is her job to pick up fallen items immediately while performing this
maneuver. There were no objects in the
checkout lanes during the speedweaving maneuver before plaintiff fell.

Target
manager Rejina Roque-Coti filled out a guest incident report, which she and
plaintiff both signed. The report reads,
“[The cashier] called for price check and I was told to go [>sic] dept. I turned with item in my hand and there was a
child in the way and I scuffled and the next thing I know I fall. There were checklane items on the floor. My right [sic]
gouged and bleeding and left ankle twisted.”
Roque-Coti looked at checkout lane 27 and did not see any items on the
floor. With respect to Monique’s claim
of collecting fallen items and putting them on the table in the food court in
front of Roque-Coti, the manager said, “Absolutely not.”

Roque-Coti
wrote a second report concerning her own response to the incident. She wrote,
“When I arrived at Food Ave. [Pedersen] was sitting down. I immediately asked if she was alright and
she said her right hand and ankle hurt.
I asked if she need [sic]
emergency care, she said, ‘no I’ll be o.k.’
I asked her about the incident and she said she tripped over a child and
items that the child had thrown on the floor.
I asked . . . Lily [Martinez] if there was liquid or debris on
the floor and she responded no. . . .”
Roque-Coti used the word “tripped” because that is how she interpreted
plaintiff’s use of the word “scuffled.”

PROCEDURAL HISTORY

Pedersen
sued Target for negligence in 2009.href="#_ftn3"
name="_ftnref3" title="">^[3] After deliberating for two hours, a jury
found for Target, by a vote of nine to three.
Judgment was entered on January 18, 2011. Pedersen filed a timely notice of appeal.

>DISCUSSION

Pedersen moved in limine for an order precluding Target
from alluding to statements made by an unidentified percipient witness. The witness, a store customer who was waiting
in line, said her child was “in the way,” causing Pedersen to “fall down” (the
Customer Statement). The Customer
Statement was made to Target employee Martirosyan, who included it in a report
about the incident. Pedersen argued that
the Customer Statement is hearsay and must be excluded. In opposition, Target asserted that the
Customer Statement is a spontaneous declaration made under the stress of the
event. The court denied Pedersen’s
motion in limine, and ruled that the Customer Statement is admissible.

Plaintiff
presented the Customer Statement to the jury.
She called Martirosyan as her first witness and asked questions about
the Customer Statement.href="#_ftn4"
name="_ftnref4" title="">^[4] At the close of

evidence, the court asked,
with respect to admitting Martirosyan’s report containing the Customer
Statement, “Any objections?” Plaintiff’s
counsel replied “no.”

A verdict
cannot be set aside, nor a judgment reversed, unless a timely objection was
made clearly stating the grounds for excluding evidence. (Evid. Code, § 353, subd. (a).) “Generally when an in limine ruling that evidence is admissible has been made, the
party seeking exclusion must object at such time as the evidence is actually
offered to preserve the issue for appeal.
[Citations.] The reason for this
rule is that until the evidence is actually offered, and the court is aware of
its relevance in context, its probative value, and its potential for prejudice,
matters related to the state of the evidence at the time an objection is made,
the court cannot intelligently rule on admissibility.” (People
v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3. Emphasis added. Accord:
People v. Crittenden (1994) 9
Cal.4th 83, 126.) “[A]n objection at the
time the evidence is offered serves to focus the issue and to protect the
record.” (People v. Morris (1991) 53 Cal.3d 152, 190; Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659,
671. In short, a motion in limine to
exclude evidence is not a sufficient objection unless it was directed to a
particular, identifiable body of evidence and was made at a time when the trial
court could determine the evidentiary question in its appropriate context.

Pedersen
chose to present the supposedly objectionable evidence herself, and asked
Martirosyan whether she recalled the Customer Statement. By eliciting the very testimony she now
challenges, Pedersen invited the error claimed on appeal. “It is axiomatic that a party who himself
offers inadmissible evidence is estopped to assert error in regard
thereto.” (People v. Williams (1988) 44 Cal.3d 883, 912.) “[A]n in
limine ruling on admissibility is not binding if the evidence is later introduced.” (Ibid.) The objection must be renewed because “the
trial court could not make an informed decision at a time when it had heard
none of the evidence.” (>Id. at p. 913.)

To preserve the issue for appeal,
plaintiff had to question Martirosyan about the demeanor of the customer, then
renew her objection that Martirosyan did not describe a person who was under
the stress of nervous excitement from an event, so that, in context, the
Customer Statement should be excluded.href="#_ftn5" name="_ftnref5" title="">^[5] (Evid. Code, § 1240.) To compound her error, plaintiff had no
objection to admitting the Customer Statement into evidence at the end of the
evidentiary phase, thereby waiving the issue on appeal.

Assuming
that Pedersen’s objection was properly preserved for appeal, and assuming further
that the Customer Statement is hearsay, Pedersen cannot show that admitting the
evidence resulted in a miscarriage of justice.
“No judgment shall be set aside, or new trial granted, in any cause, on
the ground . . . of the improper admission or rejection of evidence . . .
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.” (Cal. Const.,
art. VI, § 13; Evid. Code, § 353, subd. (b).)


Three
Target employees testified that they looked at the floor where plaintiff fell
and saw nothing. Martirosyan came out
from behind the cash register and looked at the floor as plaintiff stood,
before she left for the electronics department for a price check. Plaintiff and Monique testified—and the
surveillance video showed—that plaintiff stood up and walked away within 10
seconds. In that brief period, Martirosyan
saw “nothing on the floor,” adding “I remember for sure because I checked.” After plaintiff returned from the electronics
department a few minutes later, Martirosyan signaled for managerial help to
address plaintiff’s bloody finger. While
standing near the cashier’s post, plaintiff said she tripped over toys, but
Martinez “immediately turned . . . and there was nothing on the floor.” Finally, manager Roque-Coti looked at
checkout lane 27 and did not see items on the floor; she denied that Monique
collected toys from the floor and brought them to the food court. The Customer Statement merely corroborates
the testimony of three witnesses that something other than fallen items caused
plaintiff’s fall.

Plaintiff suggests that the jury
would by necessity have ruled in her
favor because the testimony of plaintiff and Monique is unrefuted, once the
Customer Statement is omitted. We
disagree. The jury had to actually
believe the testimony of plaintiff and her daughter to find in plaintiff’s
favor, and their testimony is not believable.
Plaintiff and Monique fabricated a story about plaintiff lying on the
floor in pain for four or five minutes, with Monique by plaintiff’s side, and
no one helped them. As the story went,
plaintiff asked Monique to help her stand up and support her as she limped to
the cashier. The surveillance camera
showed that the deposition testimony of both plaintiff and Monique was
false. Plaintiff was on the floor for
less than 10 seconds, Monique was not next to her, plaintiff rose immediately
without assistance and promptly walked with a normal gait to the electronics
department, not to the cashier. In
deposition, Monique quoted plaintiff as saying, “Please, can you help me up
Monique”; at trial, Monique quoted plaintiff as saying (at the same moment),
“I’m all right.” Given the tandem effort
to fabricate a story that a surveillance camera proved false, it is unlikely
that a reasonable jury would believe any other portion of Monique’s or
plaintiff’s testimony regarding the alleged three to five toys on the floor.

In sum, plaintiff has not
demonstrated a reasonable probability that she would have obtained a more
favorable result had the evidence been excluded. (Cassim
v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; People ex rel. City of Santa Monica v. Gabriel (2010) 186
Cal.App.4th 882, 887.) Absent a showing
of prejudicial error, we cannot set aside the judgment.

>DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



BOREN,
P.J.

We concur:



ASHMANN-GERST, J.



CHAVEZ, J.