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http://www.leagle.com/xmlResult.aspx?xmldoc=In%20CACO%2020101118057.xml&docbase=CSLWAR3-2007-CURR SUGLIA v. LIFESTYLE CUSTOM CYCLES, LLC
SHERYL SUGLIA, Plaintiff and Appellant,v.LIFESTYLE CUSTOM CYCLES, LLC et al., Defendants and Respondents.
No. E049208.
Court of Appeals of California, Fourth District, Division Two.
Filed November 18, 2010.
Dubin Law Firm and Eric J. Dubin for Plaintiff and Appellant. Horvitz & Levy, Karen M. Bray, Peder K. Batalden; Law Offices of Steven M. O'Neal and Steven M. O'Neal for Defendants and Respondents.
OPINION RICHLI, J.
I INTRODUCTION In a motorcycle accident caused by a drunk driver, plaintiff and appellant Sheryl Suglia suffered severe injuries, including amputation of her left leg. Her husband, Kerry Suglia, was killed. Plaintiff sued the manufacturer of the motorcycle helmet, NexL Sports Product (NexL), and the retailer, defendants and respondents, Mark Skolnick, Jr. (Skolnick) and Lifestyle Custom Cycles, LLC (Lifestyle). The jury found NexL was 100 percent liable for negligent misrepresentation and did not find any liability on the part of the Lifestyle defendants. Our review of the record, such as it is, discloses significant problems with causation and no error in the jury verdict forms. Nor is the judgment against NexL a basis for imposing liability against the Lifestyle defendants. We affirm the judgment.1 II THE DEFICIENCIES OF APPELLANT'S PRESENTATION The notice designating the record on appeal designated only three items. It also expressly elected to waive a reporter's transcript while acknowledging that, without a record of the oral proceedings in the trial court, the Court of Appeal may not be able to determine whether there was error. As finally filed, the 142-page clerk's transcript contains only the following: 1) a reply brief filed by plaintiff; 2) two minute orders; 3) a notice of intent to file a motion for new trial; 4) the notices of appeal and designating the record; and 5) a 120-page register of actions. No other pleadings or documents were included. Subsequently, appellant, apparently recognizing the deficiencies in the record, filed with her opening brief a motion to augment, identifying a hodgepodge of disorganized documents, including the second amended complaint; the jury verdicts and the judgment; two partial reporter's transcripts; a purported court ruling; trial exhibits; an expert witness designation; a partial deposition transcript; a motion in limine; Eric J. Dubin's posttrial declaration; and some other miscellaneous documents. Additionally, appellant tried to file a request for transmission of exhibits which was returned for nonconformance because it also incorrectly requested transmission of reporter's transcripts, an irregular request repeated in appellant's motion to augment. Ultimately, a number of trial exhibits were transmitted to this court on June 30, 2010. Fortunately, Lifestyle also filed a motion to augment, which has been granted, supplying the court with some documents necessary to understanding the case. We cannot review appellant's claim that a motion for judgment notwithstanding the verdict should have been granted. The court cannot conduct a substantial evidence review when we have not been provided with a complete record of the proceedings below. (Dell'Oca v. Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531, 555, 561; Estate of Fain (1999) 75 Cal.App.4th 973, 987.) In our view, the court would be justified in striking appellant's brief. But, in the interests of justice and to avoid prolonging the difficulties for everyone affected by these proceedings, we elect to consider the appeal on its merits. (Cal. Rules of Court, rule 8.204(e).) III FACTUAL AND PROCEDURAL BACKGROUND A. The April 2002 and June 2003 Recalls NexL manufactured a "beanie-style" motorcycle helmet for sale by retail dealers like Lifestyle. In April 2002, NexL issued a dealer recall notice on model No. 01 for failure to comply with Federal Motor Vehicle Safety Standard No. 218. The recall notice stated portions of the shell did not provide sufficient protection and the helmets lacked a label stating "Make No Modifications." NexL asked the dealers to return the helmets. After reworking, the helmets would be returned as model No. 02. Lifestyle returned the recalled model No. 01 helmets to NexL and did not sell them to the Suglias or anyone else. The Suglias bought a used Harley Davidson in August 2002 from Lifestyle and its owner, Skolnick. Apparently, the Suglias also purchased two NexL model No. 02 helmets from Lifestyle that were labeled as DOT2 compliant. A second recall of the NexL helmet occurred eight months later. According to a federal Recalls Summary and a NexL consumer notice, the National Highway Traffic Safety Administration (NHSTA) recalled the model No. 02 helmet in June 2003. Skolnick testified that "the manufacturer's recall notice asked us to send [the] helmets back, post notices on the doors. We put them on the sales counters. It did not ask us to contact customers, . . ." B. The Accident and Subsequent Litigation In June 2005, Sherri Smith (Smith), the intoxicated driver of a Chevrolet Trailblazer, caused a head-on collision with the Suglias. Plaintiff was severely injured. Kerry Suglia died from multiple blunt force trauma. Smith pleaded guilty to a homicide. Plaintiff settled with Smith for $100,000. In the second amended complaint, plaintiff sued NexL and the Lifestyle defendants for products liability, general negligence, wrongful death, and fraud. Plaintiff alleged the NexL helmets were defective and mislabeled as DOT-compliant, these defects causing Kerry Suglia's death and plaintiff's personal injuries. Plaintiff further alleged defendants knew about the defects when the Suglias purchased the model No. 02 helmet and Lifestyle did not contact customers directly to give them notice of the recall. On a motion for summary adjudication, the court decided the fraud claim in favor of Lifestyle. C. The Trial A three-week jury trial was conducted in May and June 2009. The issues at trial involved causation. Lifestyle's evidence included testimony by its experts and the coroner that the impact of the collision was so great, no helmet could have protected its wearer and Kerry Suglia would have died in any event. Lifestyle's experts also testified that plaintiff did not suffer any brain damage or head injury as she claimed. Furthermore, because her helmet was apparently discarded by the police, it was never examined by any expert. Finally, although Lifestyle admitted it sold the model No. 02 helmet, it denied knowing in August 2002 that the helmet was subject to a subsequent recall in June 2003. As the chronology demonstrates, Lifestyle did not know about any future problem with the model No. 02 helmet when the Suglias bought their helmets. In disputing this point, appellant depends wholly on so-called admissions made by Lifestyle. But those admissions, even if they were considered as evidence, do not stand for the propositions advanced by appellant. Instead, Lifestyle admits it did not tell the Suglias the subject helmet was not DOT-compliant at the time of sale. It admits the helmet was not DOT-compliant at the time of the sale even though it carried the DOT label. It also acknowledges the reasons for the recall and that the helmet was defective at the time of the accident. Lifestyle, however, does not admit it knew or could have known that the model No. 02 helmet it sold in August 2002 was defective or not DOT-approved, even if it later was determined to be noncompliant. The jury returned general verdicts3 in favor of the Lifestyle defendants. The jury also found that Smith was 100 percent negligent and NexL was 100 percent liable for negligent misrepresentation. The trial court entered a judgment in favor of the Lifestyle defendants and a $10 million default judgment against NexL. Plaintiff filed numerous posttrial motions, all of which were denied. Initially, the court apparently made a tentative ruling granting a new trial. But after Lifestyle's two attorneys submitted detailed declarations explaining the extent to which plaintiff's attorney helped prepare the verdict forms, the court denied plaintiff's motion for new trial. IV LEGAL ANALYSIS We begin our analysis by commenting again on the difficulties in reviewing the record as prepared by appellant's attorney: "Appealed judgments and orders are presumed correct, and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Consequently, plaintiff has the burden of providing an adequate record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Failure to provide an adequate record on an issue requires that the issue be resolved against plaintiff. (Id. at pp. 1295-1296.)" (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502; Withers v. Southern Pacific Co. (1929) 101 Cal.App. 373, 373-374; Jacobs v. Moffett (1947) 82 Cal.App.2d 141, 142.) We have no reporter's transcript for a three-week jury trial—only a few pages that have been incorrectly incorporated into appellant's motion to augment. The clerk's transcript is scanty. The exhibits are variously located throughout the record and it is not easy to determine whether they were admitted at trial. Appellant has utterly failed to satisfy the obligation to provide the court with an adequate record. (Hernandez v. California Hospital Medical Center, supra, 78 Cal.App.4th 498 at p. 502.) Additionally, appellant's briefing misrepresents the record in many instances and especially by repeatedly asserting that the Lifestyle defendants knowingly sold recalled or defective helmets to the Suglias. The record plainly shows that the helmets were sold after the first recall in April 2002 but before the second recall in June 2003. On appeal, appellant generally argues there was error in the jury verdict forms in omitting NexL from the products liability verdict. She also accuses defendants of discovery abuse, warranting a new trial. To the extent, we can understand appellant's points, we proceed to respond. A. The Motion for New Trial and the Jury Verdicts Appellant contends a motion for new trial should have been granted based on errors in the verdicts. We conduct an independent review based on the entire record and the evidence—a review that obviously cannot be accomplished in this case. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 872.) Two sets of verdict forms were used. The forms were prepared by plaintiff's attorney and defendants' attorney working together over the course of a week. One set of forms applied to plaintiff's personal injury claims. One set applied to plaintiff's wrongful death claims. The jury apportioned 100 percent liability to Smith for negligence and 100 percent liability to NexL for negligent misrepresentation. NexL was omitted from the products liability verdict form and the jury did not find any liability against Lifestyle on that claim. After the verdicts were read and the jury was polled, but before they were dismissed, plaintiff argued the jury should be requested to calculate damages. But plaintiff did not object to the omission of NexL from the products liability verdict form. In her motion for new trial, plaintiff argued strenuously it was error to omit NexL from the products liability verdict form. The first obstacle to appellant's assertion of this claim of error is waiver because she did not ask NexL to be added to the verdict form when there was still an opportunity to correct any problem: "Failure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected." (Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 521; Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263.) Under general civil litigation principles, "where a deliberate trial strategy results in an outcome disappointing to the advocate, the lawyer may not use that tactical decision as the basis to claim prejudicial error." (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686; Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 746-747.) Here substantial evidence supports that plaintiff's attorney made a strategic decision about what the verdict forms should contain, as well as not asserting pertinent objections. As described by the two defense attorneys, both plaintiff and defense counsel prepared, edited, and revised several versions of the verdict forms. Plaintiff's counsel insisted that NexL be omitted from the products liability form, consistent with his position that NexL and Lifestyle should be considered as one for purposes of products liability, making the inclusion of NexL unnecessary.4 Although plaintiff's counsel asserts the verdict forms were not the ones he prepared and approved, the trial court reasonably resolved this factual dispute against plaintiff when it denied the new trial motion. We also note that appellant has not identified a "correct" verdict form that was inadvertently omitted. Furthermore, the record demonstrates that the verdict forms were not blank or inconsistent, as persistently urged by appellant. The cases cited by appellant are not applicable because they involve verdicts deemed "insufficient, contradictory and incomprehensible" (Mish v. Brockus (1950) 97 Cal.App.2d 770, 776) or ambiguous. (Tri-Delta Engineering, Inc. v. Insurance Co. of North America (1978) 80 Cal.App.3d 752, 759.) In addition to declining to assign any liability against Lifestyle on the products liability verdict form, the jury made express findings in favor of Lifestyle on the products liability claim. The verdicts in the present case were wholly reconcilable. (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 679.) Moreover, appellant has not demonstrated prejudice. Appellant has not supplied the court with a full record of the proceedings on the new trial motion, notably the reporter's transcript. In evaluating the verdicts, we do not have the benefit of the complete pleadings, the evidence offered at trial, or the jury instructions. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092.) The juror declarations upon which appellant relies, in addition to being incomprehensible in places, suffer many defects rendering them objectionable and inadmissible. (Evid. Code, § 1150, subd. (a); Mesecher v. County of San Diego, supra, 9 Cal.App.4th at p. 1683; In re Stankewitz (1985) 40 Cal.3d 391, 398; Ford v. Bennacka (1990) 226 Cal.App.3d 330, 335-336.) Appellant's failure to designate most of the record on appeal leaves this court with no evidence upon which to base a finding that the trial court abused its discretion; we are unable to evaluate independently appellant's claims. On this record, it would be speculative to make that assessment ourselves, or to reject the trial court's judgment. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1264; Estate of Fain, supra, 75 Cal.App.4th at p. 994; Snodgrass v. Hand (1934) 220 Cal. 446, 448.) Therefore, we presume the trial court correctly denied the new trial motion. B. Discovery Violations Appellant also asserts the trial court should have granted a mistrial based on defendants' discovery violations concerning sales records produced by Lifestyle during trial. We review the denial of a mistrial motion for an abuse of discretion. (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 678-679.) Again, appellant must supply a sufficient record to allow the court to evaluate prejudice, which has not happened here. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 136.) Therefore, the issue has been waived on appeal. (Hernandez v. California Hospital Medical Center, supra, 78 Cal.App.4th at p. 502.) Even if we considered the discovery issue, based on the portions of the record submitted by respondents, we would still decide that substantial evidence supported the trial court's ruling. (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 366-367.) The trial court's detailed ruling determines there was an abuse of discovery in defendants not producing the documents earlier but also finds there was "no prejudice to plaintiff . . . warranting a mistrial because the jury implicitly found whatever acts or omissions to act may have occurred did not cause plaintiff's injuries. [¶] The jury also implicitly found no negligence in the failure to warn and no negligent misrepresentation occurred. It would be sheer speculation on the part of this Court to conclude that the content of the information on these sale records if obtained at some earlier time would have led to the discovery of information that would impact findings on causation, findings related to representations made by the defendants to the plaintiff or findings contrary to a negligent failure to warn the plaintiff." Similarly, this court discerns no basis for disregarding the findings and ruling of the trial court. C. Default Judgment Against NexL After NexL filed an answer, the court twice entered plaintiff's request for entry of default, in November 2007 and May 2009, against NexL. Based on the present record, we cannot accurately determine, as proposed by respondents, the procedural impropriety or the validity of the defaults and the $10 million default judgment against NexL. But we reject appellant's suggestion that the amount of the NexL judgment should be imposed on the Lifestyle defendants based on a theory of strict tort liability for innocent, non-negligent misrepresentation.5 The verdict forms asked the jury to decide plaintiff's claims against the Lifestyle defendants for negligence, products liability, and negligent misrepresentation. Plaintiff persistently argued that defendants knowingly made false representations about the NexL motorcycle helmet's safety. The jury found in favor of the Lifestyle defendants on all claims. The jury was not asked to decide a claim based on a theory of innocent, non-negligent misrepresentation. Because this theory of liability was not argued below, it cannot be argued on appeal. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874, 879.) Furthermore, the cases relied upon by appellant, particularly the two primary ones, do not support her position. In Hanberry v. Hearst Corp. (1969) 276 Cal.App.2d 680, 682, an injured plaintiff sued Hearst for advertising a brand of shoes as meeting the Good Housekeeping seal of approval. The court held that although Hearst was not the seller or manufacturer of the shoes, "it held itself out as a disinterested third party which had examined the shoes, found them satisfactory, and gave its endorsement. By the very procedure and method it used, respondent represented to the public it possessed superior knowledge and special information concerning the product it endorsed. Under such circumstance, respondent may be liable for negligent representations of either fact or opinion. [Citations.]" (Id. at pp. 686-687.) Thus, the Hanberry court approved a cause of action for negligent misrepresentation against Hearst but specifically declined to consider the question of strict liability in tort for a distributor or a retailer of a product. (Id. at p. 687, fn. 3.) The Hanberry court also did not consider the viability of a claim for non-negligent innocent misrepresentation. In Hauter v. Zogarts (1975) 14 Cal.3d 104, the California Supreme Court decided that a plaintiff could recover for injuries caused by a defective golfing device. The court approved three theories of recovery against the manufacturer and the seller: false misrepresentation based on express affirmative statements about safety (id. at pp. 111-114); express and implied warranty (id. at pp. 114-120); and strict liability for a defective product. (Id. at pp. 120-121.) But the Hauter court also did not determine the viability of a claim for non-negligent innocent misrepresentation. We acknowledge a retail dealer may be strictly liable for a defective product even though the seller did not know about or create the defect. (Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, 262.) But, in the present case, the jury found no liability against the Lifestyle defendants for negligence, products liability, or negligent representation. Plaintiff did not pursue a theory of strict tort liability for innocent, non-negligent misrepresentation against the Lifestyle defendants. Appellant cannot obtain a $10 million judgment against Lifestyle from this court. V DISPOSITION We affirm the judgment and order the Lifestyle defendants, as the prevailing party, to recover their costs on appeal. We concur: Ramirez, P. J. King, J.