/0/Documents/PDF/Forms%20and%20Rules/rulesofcourt.pdf> [as of October 1, 2013].)
When plaintiffs’ counsel objected to SAC Hospital’s motions in limine as not complying
with the court’s local rules, the court overruled the objection. It was within the trial
court’s discretion to overrule the objection, and we discern no abuse of discretion in its
decision to do so. Thus, the defense motions were not untimely, and when the trial was
continued to November 2010, and the motions in limine were heard on a date past the
assigned date for hearing them, there was no judicial misconduct.
Regarding their challenge to the trial court’s decision to continue the trial, the
record shows that the court required defense counsel to submit a declaration setting forth
counsel’s unavailability and showing that counsel was actually engaged in trial at that
time. At the further hearing, the trial court accepted the evidence that defense counsel
was engaged in a trial elsewhere. The court noted that the trial involved a five-year case.
After considering the declaration of counsel, as well as the vacation schedule of
plaintiffs’ counsel, the court continued the trial to November 8, 2010. The need for a
continuance was justified, and the trial court had previously continued the trial to
accommodate plaintiffs’ counsel. Moreover, the trial court granted a second request by
plaintiffs’ counsel for a short continuance of the trial to November 12, 2010. Thus, we
discern no judicial bias in the court’s treatment of either counsel.
7 E. Plaintiffs’ Motion in Limine
Plaintiffs fault the trial court for refusing to rule on their sole motion in limine.
Plaintiffs cite to pages 502 through 914 of the clerk’s transcript, more than 400 pages.
This motion sought to suppress certain discovery that plaintiffs alleged was untimely
produced. It was originally filed on November 2, 2009, prior to the original trial date.
SAC Hospital opposed the motion, noting that it addressed numerous documents, which
ostensibly had not been produced when plaintiffs had many opportunities following the
continued trial and discovery cutoff dates to obtain them. The trial court questioned
whether the motion was moot, given the fact that the trial and discovery cutoff dates had
been continued. Given the number of items addressed in the motion, the trial court
reserved ruling “because if something comes up and [the court believed it to be]
prejudicial, [it] may keep it out.” The court decided “to deal with that on an item-by-item
basis.”
As SAC Hospital point outs, plaintiffs offer no argument how the court’s ruling
constituted judicial misconduct or resulted in prejudice. Thus, we deem it waived.
(Cahill, supra, 194 Cal.App.4th at p. 956.) Nonetheless, we conclude the court did not
abuse its discretion in reserving ruling, nor did such decision amount to judicial
misconduct.
F. Preclusion of Evidence of Surveillance Cameras
Plaintiffs contend the trial court committed misconduct when it denied its prior
ruling to allow them to elicit testimony about cameras in the hospital that captured any
roving patrols around the time of the accident.
8 1. Further background facts
One of SAC Hospital’s motions in limine sought to preclude references to
surveillance cameras. During argument on the motion, plaintiffs asserted that SAC
Hospital had cameras capable of having still photographs; however, Carol Hull, Director
of Risk Management, determined there was no need to save any videos that may have
depicted Mrs. Legardy’s fall. They argued that the cameras are relevant to establish
exactly where the fall occurred, how Mrs. Legardy was injured, the substance on the
floor, and who assisted her. Plaintiffs asserted that spoliation of evidence had always
been an issue.
In response, SAC Hospital argued the point of its motion in limine is that there
were no cameras in the area where Mrs. Legardy fell; any electronic imaging was
recycled every 30 days; and SAC Hospital had not received any notice prior to the 30
days to preserve any imaging. Plaintiffs replied that SAC Hospital knew where Mrs.
Legardy fell but it was trying to say she fell somewhere else. Additionally, plaintiffs said
the cameras are relevant as to “whether or not there’s a roving patrol,” because “[o]ne of
their defenses is that there’s a roving patrol in the hospital.” Plaintiffs continued to argue
that SAC Hospital intentionally destroyed any pictures of the fall.
The court noted that plaintiffs had no evidence of deliberate destruction. SAC
Hospital commented the map indicated there were no cameras located in the area that
could have captured Mrs. Legardy’s fall. Furthermore, the hospital was not disputing that
she fell, that there was a liquid on the floor, or that she hit her knee on the floor. The
court ruled as follows: “I’ll grant the motion with a caveat. I’ll allow plaintiff to go into
9 the existence of these surveillance cameras with regard to the issue of roving patrols. The
allegation will be that they had a policy of roving patrols. And I’ll allow her to challenge
whether they had a camera system and did they pick up any roving patrols on that day
either sometime before the accident or after the accident. I think that’s important because
the issue of roving patrols can—most likely will be prejudicial to the plaintiff but
prejudicial in an admissible way to the plaintiff, and I think they have to have an avenue
to try and impeach for that. And if they know there’s [sic] video cameras, of course, they
say ‘they erased everything so we can’t show it.’ I think that that makes it fair to both
sides. [¶] I think the issue is obviously important to the defense. ‘Look, our policy was
to have people walk through there, and they inspected the hallways.’ [¶] And her
contention is ‘You didn’t have anybody, and did you have a video of them on that day?’
[¶] Let it be explained why they didn’t or if the cameras weren’t there. Do you
understand, counsel? [¶] . . . [¶] I’ll allow you to go into it with regard to the issue of
roving patrols only; [d]o you understand?” Other than roving patrols, plaintiffs were not
allowed to pursue the issue of whether surveillance cameras captured anything else.
During the redirect examination of Gene Santilli, the facility director of SAC
Hospital in 2006, plaintiffs’ counsel asked him about the surveillance cameras and
whether they would have captured images of the people who walked through the
hallways. Counsel also asked whether he had received any request to save the videos
from the time that Mrs. Legardy fell. Counsel further inquired into how long the tapes
would last, how many days of video are saved before being recycled, and how difficult it
10 is to download a tape or a still picture. The court asked both counsel to approach the
bench.
Noting that plaintiffs’ counsel’s questions exceeded cross-examination, the court
inquired into the relevance of whether or not Mr. Santilli was able to take still pictures
from the surveillance videos. Plaintiffs’ counsel explained that because defense counsel
had inquired into how SAC Hospital employees are trained to monitor the hallways, she
believed it opened the door to inquire about the cameras. The court disagreed on the
grounds that the previous testimony established the fact that SAC Hospital did not have
anyone who patrolled the hallways. Plaintiffs’ counsel argued that the video would show
who was in the hallways, who monitored it, where Mrs. Legardy fell, who responded, and
who was present. She added this was relevant to proving that SAC Hospital was not
monitoring the hallways. The court replied there was no video, and thus, counsel was
trying to present evidence of spoliation, i.e., that there were videos or pictures which
SAC Hospital hid from plaintiffs. Following further discussion, the court told plaintiffs’
counsel: “Whatever conspiracies you have [regarding spoliation of evidence] which may
or may not be true are not relevant to what’s going on in the trial right now. It’s not
relevant.” Over further argument of plaintiffs’ counsel, the trial court said: “We’re done.
You have made your record, and we’ll go out and finish this witness, and we’ll move
away from what was clearly a violation of the motion in limine, and there was no basis to
it. You may think there was a basis, but it was not based on the questions he asked. It
had nothing to do with cameras. It had nothing to do with anybody who could spot these
11 things. It only had to do with whether there were people regularly walking through, and
he said no. Let’s move on.”
Later during the trial, SAC Hospital requested that the jury be admonished
regarding the surveillance cameras. Plaintiffs’ counsel argued that because SAC Hospital
brought up floor observation or maintenance programs or supervision of the floors, she
was entitled to bring up the rebuttal evidence of the cameras. The court disagreed,
finding that counsel had violated the court’s prior order granting SAC Hospital’s motion
in limine. The court thus agreed to admonish the jury as follows: “‘There is no evidence
of surveillance cameras that would have captured imaging of the area where Ms. Legardy
claims she fell or where the hospital claims she fell. Accordingly, you are instructed to
disregard any and all questioning and testimony regarding surveillance cameras.’”
2. Discussion
Plaintiffs argue that the trial court completely disregarded its order regarding the
motion in limine which dealt with the issue of surveillance cameras. According to
plaintiffs, “if [SAC Hospital] asserted that there were roving patrols employees of the
hospital that Plaintiff[s] could introduce evidence of the lack of tape evidence showing
that there were no roving patrols the day of Plaintiff’s fall.” They further fault the court
for not allowing them to state during opening statement that the hospital had 63 cameras.
Plaintiffs maintain that the evidence “would have shown the [h]ospital violated [its] own
procedures, that all of [its] employees were not trained; and that the hospital did not have
a roving patrol monitoring the floors for spills.” Thus, they contend the trial court erred
in excluding relevant evidence. We disagree.
12 The trial court did not disregard its order. Plaintiffs were told that, other than
roving patrols, they were not allowed to pursue the issue of whether surveillance cameras
captured anything else. Witnesses testified there were no designated persons who
patrolled the halls at certain times of the day looking for things such as spills. Rather, if
someone noticed a spill, he or she would page one of the floaters, or people who would
respond to calls, such as, “stat calls on beds, hazardous waste, furniture lifting, just
basically helping out anybody in their needs.” According to Mr. Santilli, all employees
were responsible for keeping their eyes open for spills or other items on the floor.
Because there was no evidence of roving patrols, it was improper for plaintiffs’ counsel
to question any witness about surveillance cameras. Even if the court did disregard its
earlier ruling on a motion in limine, such rulings are tentative. The trial court retains the
discretion to make a different ruling as the evidence unfolds. (Rufo v. Simpson (2001) 86
Cal.App.4th 573, 608 [“A ruling on a pretrial motion in limine is necessarily tentative
because subsequent evidentiary developments may change the context.”].)
G. Outrageous Comments Made by the Trial Court Before the Jury
Plaintiffs assert they were prejudiced by the trial court’s outrageous comments
made before the jury. In support of their claim, plaintiffs cite to a discussion between the
court and their counsel regarding their counsel’s desire to recall Mr. Legardy to the stand.
The discussion was outside the presence of the jury. They also reference an exchange
between the court and plaintiffs’ counsel, wherein the court reminded counsel to limit
redirect examination to the scope of cross-examination by commenting, “Counsel[],
13 you’re supposed to stick within his questions.” Finally, plaintiffs complain that the court
“would say things like, ‘just testing you’ to [their c]ounsel in front of the jury.”3
Because the first discussion was outside the presence of the jury, there is no
evidence of discourteous and disparaging remarks made before the jury. Nonetheless,
plaintiffs also complain that the trial court refused to allow them to continue cross-
examination of the witness Lauriston Kenneth Smith the next day and continually
interrupted their counsel’s cross-examination of Mr. Smith reminding counsel that it was
“five minutes to four” and “five after.” According to our review of the record, plaintiffs’
counsel was seeking to impeach Mr. Smith with his deposition testimony on the issues of
(1) when he retired, (2) whether he was “going” to the cafeteria or “walking towards” the
cafeteria. Both of these areas are irrelevant. Mr. Smith was no longer employed by SAC
Hospital, and was living in Georgia. SAC Hospital wanted to introduce his deposition
testimony into evidence; however, plaintiffs refused. Thus, Mr. Smith had to fly to
California to testify at trial and the court was determined to not require him to stay
another day when plaintiffs’ counsel was questioning him beyond the scope of direct
examination or on irrelevant issues. More importantly, plaintiffs’ counsel ended her
cross-examination of Mr. Smith, stating, “I have nothing further.” She did not seek to
3“[THE COURT:] We’re right at 4:00. This is beyond the scope of cross- examination. “Who do you have for tomorrow? “[PLAINTIFFS’ COUNSEL]: Tomorrow we have nobody, your Honor. We’re dark. “THE COURT: That’s right. We won’t be here tomorrow. Just testing you. “[PLAINTIFFS’ COUNSEL]: Thank you, your Honor. Did I pass?”
14 have him brought back the next day, nor did she state the need to continue questioning
him. We discern no misconduct or erroneous evidentiary rulings on the part of the trial
court.
The second comment was made to remind plaintiffs’ counsel that her redirect
examination was exceeding the scope of cross-examination. Because plaintiffs do not
argue that their counsel was not exceeding the scope of cross-examination, there is no
prejudice. Finally, regarding the last comment, when considered in the context of when it
was made, i.e., at the end of the day, and plaintiffs’ counsel’s response, we conclude it
was not discourteous or disparaging. Rather, as SAC Hospital notes, the comment
appears to be “nothing more than a lighthearted exchange between the trial judge and
[plaintiffs’] counsel.”
H. CACI No. 1011
Plaintiffs contend the court used SAC Hospital’s “jury instruction and judgment
on special verdict that was not in compliance with Ortega v. Kmart [Corp.] (2001) 26
Cal.4th 1200, 1205 [(Ortega)], and CACI 1011, over repeated objections.”
(Capitalization omitted.) They argue the court rejected their requested instructions and
“blindsided” them with the ones used. However, they supply little pertinent legal
argument and no analysis. As such, their claim may be deem waived. (Cahill, supra,
194 Cal.App.4th at p. 956.) Even if their arguments have not been waived, plaintiffs
cannot prevail.
As SAC Hospital notes, our state’s highest court addressed the scope of an
owner’s duty to visitors regarding dangerous conditions of the property. (Ortega, supra,
15 26 Cal.4th at p. 1205-1207.) “It is well established in California that although a store
owner is not an insurer of the safety of its patrons, the owner does owe them a duty to
exercise reasonable care in keeping the premises reasonably safe. [Citation.]” (Id. at p.
1205.) “Because the owner is not the insurer of the visitor’s personal safety [citation],
the owner’s actual or constructive knowledge of the dangerous condition is a key to
establishing its liability. Although the owner’s lack of knowledge is not a defense, ‘[t]o
impose liability for injuries suffered by an invitee due to [a] defective condition of the
premises, the owner or occupier “must have either actual or constructive knowledge of
the dangerous condition or have been able by the exercise of ordinary care to discover the
condition, which if known to him, he should realize as involving an unreasonable risk to
invitees on his premises. . . .”’ [Citations.]” (Id. at p. 1206.)
“To exercise a degree of care that is commensurate with the risks involved, the
owner must make reasonable inspections of the portions of the premises open to
customers. [Citations.] . . . An injured plaintiff has the burden of showing that the owner
had notice of the defect in sufficient time to correct it, but failed to take reasonable steps
to do so. [Citation.] One way to carry that burden is to raise an inference that the
hazardous condition existed long enough for the owner to have discovered it, if an owner
exercising reasonable care would have learned of it. [Citations.]” (Howard v. Omni
Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431, fn. omitted.) “It remains a
question of fact for the jury whether, under all the circumstances, the defective condition
existed long enough so that it would have been discovered and remedied by an owner in
the exercise of reasonable care.” (Ortega, supra, 26 Cal.4th at p. 1213.)
16 The jury was instructed with CACI 1011, as follows: “‘In determining whether
[SAC] Hospital should have known of the condition that created the risk of harm, you
must decide whether, under all circumstances, the condition was of such a nature and
existed long enough that [SAC] Hospital had sufficient time to discover it, and using
reasonable care: 1, Repair the condition; or 2, Protect against harm from the condition;
or 3, Adequately warn of the condition. [¶] [SAC] Hospital must make reasonable
inspections of the property to discover unsafe conditions. If an inspection was not made
within a reasonable time before the accident, this may show that the condition existed
long enough so that an owner using reasonable care could have discovered it. [¶] What
constitutes a reasonable inspection must be determined from all the evidence.’”4
Additionally, the jury received Special Instruction Number 1 which provided:
“‘Defendant [SAC] Hospital is not an insurer of the safety of visitors, although it does
owe them a duty of reasonable care in keeping its premises reasonably safe.’”
(Capitalization omitted.)
Under current California law, the jury was properly instructed.
I. Exclusion of Expert Testimony on Damages
In their final argument, plaintiffs contend “[t]he Court refused expert opinions on
the subject of damages even though Plaintiff[s] complied in full with Bonds v. Roy (1999)
4 With the exception of the last paragraph, this instruction tracts the language approved by the Judicial Council for CACI 1011. (See Judicial Council of Cal. Civ. Jury Instns. (2012) CACI No. 1011.)
17 20 Cal.4th 140, 147,[5] and over repeated objections.” Other than citing to the 10 pages
in the reporters transcript, plaintiffs offer no further discussion or analysis. As we have
previously noted, it is not our job to develop plaintiffs’ argument for them. Their failure
to do so allows this court to treat the contention as waived. (Cahill, supra, 194
Cal.App.4th at p. 956.)
Notwithstanding the above, SAC Hospital provided this court with the context of
plaintiffs’ argument and a response. Plaintiffs sought to elicit testimony on the
reasonableness of the medical expenses via Michael Alexander Wiener, M.D. SAC
Hospital objected on the grounds that the doctor had offered no such opinion in his
deposition and plaintiffs failed to inform SAC Hospital that Dr. Wiener would provide
such an opinion. (Kennemur v. State of California (1982) 133 Cal.App.3d 907 [expert
witness’s testimony is limited to opinions rendered at the time of his or her deposition].)
Following a discussion between the court and counsel, outside the presence of the jury,
the trial court sustained SAC Hospital’s objection under Kennemur. The trial court’s
ruling was proper. Moreover, as SAC Hospital points out, the excluded opinion
testimony concerning damages is moot because plaintiffs did not prevail on the issue of
liability at the trial level or on appeal.
5 Plaintiffs cite the Supreme Court’s observation that “it is difficult to distinguish cases in which a party inaccurately describes the general substance of an expert’s expected testimony from cases in which a party wholly fails to disclose an expert. [Citations.]” (Bonds v. Roy, supra, 20 Cal.4th at p. 147.)
18 III. DISPOSITION
The judgment is affirmed. Each party shall bear its own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
MCKINSTER J.
CODRINGTON J.