Filed 4/20/22 Gonsalves v. Sok CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

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Chanel Gonsalves sued Sal Sok after he rear-ended her in a car accident. A jury afterward awarded her around $17,000 in damages. Gonsalves now appeals the judgment on that verdict, arguing that the trial proceedings were unfair in two respects. First, she argues that the trial court wrongly allowed the jury to view during its deliberations a timeline of events that Sok’s counsel had used in closing arguments. She reasons that because the timeline was never admitted into evidence, the court should not have allowed the jury to view it in deliberations. Second, she contends that Sok’s counsel improperly told the jury that Gonsalves’s medical treatment following the accident was “attorney driven”—which, she asserts, “plays on the pre-conceived notions that plaintiff’s lawyers are all ambulance chasers that belong at the bottom of the sea.” We affirm.

BACKGROUND

In 2013, Sok rear-ended Gonsalves’s car. The two afterward exchanged information and then went their separate ways.

Gonsalves sued Sok sometime after, though her complaint is not part of the record. Five years after the accident, in 2018, Gonsalves’s case went to trial. During the trial, Gonsalves testified that she suffered injuries to her neck, head, back, and hips as a result the accident. She also presented evidence that she visited doctors tens of times in the months after the accident to treat these injuries.

Sok, in response, accepted fault for the accident. But he sought to present evidence questioning the nature and severity of Gonsalves’s injuries. This included evidence showing that Gonsalves engaged in physical activities after the accident, including lifting interior doors, a small dog, and a young girl. It also, among other things, included testimony from Sok’s retained expert, who stated that he saw no objective evidence that Gonsalves suffered any injuries from the accident.

Following closing arguments, the jury entered a verdict for Gonsalves and awarded her damages in the amount of around $17,000. The trial court afterward entered a judgment for Gonsalves.

Gonsalves timely appealed.

DISCUSSION

Gonsalves argues that the judgment should be set aside for two reasons. First, she asserts that the trial court wrongly allowed the jury to view during its deliberations a timeline of events that Sok’s counsel had used in closing arguments. She reasons that because the timeline was never admitted into evidence, the court should not have allowed the jury to view it in deliberations. She adds that the court, in nonetheless allowing the jury to review it, caused her prejudice. Although we agree with Gonsalves to an extent, we decline to find reversal appropriate.

To start, we agree that the trial court should not have allowed the jury to view the timeline during deliberations. Code of Civil Procedure section 612 describes the materials that juries “may take with them” during deliberations. It states: “Upon retiring for deliberation the jury may take with them all papers which have been received as evidence in the cause, except depositions, or copies of such papers as ought not, in the opinion of the court, to be taken from the person having them in possession; and they may also take with them any exhibits which the court may deem proper, notes of the testimony or other proceedings on the trial, taken by themselves or any of them, but none taken by any other person.” Under this statute, in short, a jury may bring into deliberations only their notes and certain exhibits and papers that have been introduced in evidence. (See Higgins v. Los Angeles Gas & Elec. Co. (1911) 159 Cal. 651, 655 [“The only express provision of the law bearing upon the right of juries to use exhibits or upon the right of the court to permit juries to use exhibits in their deliberations is found in section 612 of the Code of Civil Procedure, and this has to do solely with ‘papers’ which have been introduced in evidence.”].)

The timeline here, however, was none of these things. It was not an admitted exhibit or paper. Nor was it a note taken by one of the jurors. It instead, as all parties acknowledge, was something that Sok’s counsel created for use in closing argument only. The trial court thus should have, following Gonsalves’s objection, declined to allow the jury to view the timeline during deliberations.

But although we agree with Gonsalves on this point, we do not go so far as to find reversal appropriate. Gonsalves acknowledges in her briefing that she must show more than error to support reversal; she must also show prejudice. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 [“it is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment”].) She also explains, correctly, that in cases like ours a court may find prejudice “ ‘only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citation.]” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 808 (Cassim).)

But Gonsalves never follows through to show any potential prejudice that could warrant reversal. To meet her burden to show prejudice, Gonsalves relies on two considerations: (1) The jury asked for the timeline during deliberations, and (2) “a member of the jury indicat[ed] [in a sworn declaration] that the jury relied on the timeline.” But she only supplies admissible evidence to support her first point. Although true, to her second point, that a member of the jury said that he relied on the timeline to determine Gonsalves’s damages and that “t was [his] perception” that other jurors did the same, none of this was admissible. As our Supreme Court has often explained, “[e]vidence of a juror’s mental process—how the juror reached a particular verdict, the effect of evidence or argument on the juror’s decisionmaking—is inadmissible.’ [Citation.]” ([i]In re Manriquez (2018) 5 Cal.5th 785, 799; see Evid. Code, § 1150, subd. (a); see also Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 910 [“Evidence Code section 1150 ‘prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors’ mental processes or reasons for assent or dissent. The only improper influences that may be proved under section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.’ ”].)

We are left, then, only with the fact that the jury asked for the timeline during deliberations. But Gonsalves has neither produced the timeline, which apparently is not part of the record, nor even bothered to describe the substance of the timeline in her briefing. At most, she says only that Sok’s counsel created this timeline for use during closing argument. But if that is all we know about the timeline, then we cannot find that the jury’s mere request for it shows that “ ‘it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’ [Citation.]” (Cassim, supra, 33 Cal.4th at p. 800; see also Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [“When an appellant . . . asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)[1]

Apart from her argument premised on the timeline, Gonsalves also asserts that Sok’s counsel “committed misconduct when they repeatedly argued that [Gonsalves’s] [medical] treatment was ‘Attorney Driven.’ ” But in the course of making this argument, Gonsalves offers not a single cite to the record. Because Gonsalves thus offers no evidentiary support for her claim, we decline to consider this unsupported argument. (Cal. Rules of Court, rule 8.204(a)(1)(C) [each brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears”]; Jumaane v. City of Los Angeles (2015) 241 Cal.App.4th 1390, 1406 [courts “may disregard any claims when no reference [to the record] is furnished”].)

In her reply brief, Gonsalves offers two additional grounds for finding that Sok’s counsel made inappropriate arguments to the jury. First, she asserts that Sok’s counsel made a “joke” that “left the obvious implication that attorneys, especially ‘injury attorneys’ are nothing but ambulance chasers who will make up a story, and procure their clients’ unnecessary treatment in order to make a buck.” Second, Gonsalves suggests that Sok’s counsel improperly argued that her medical treatment was “litigation driven.” But Gonsalves cites nothing in the record supporting these claims. And in any event, because she raises these new arguments for the first time in her reply brief, and without good cause, we find them forfeited. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)

DISPOSITION

The judgment is affirmed. Sok is entitled to recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

\s\ ,

BLEASE, Acting P. J.

We concur:

\s\ ,

HULL, J.

\s\ ,

RENNER, J.

[1] At oral argument, Gonsalves’s counsel asserted that the timeline showed the dates that she received medical treatment. But we find this to be too little too late.