Filed 8/25/15 Avigdor v. Sprouts Farmers Market CA4/1
                           NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA



EARL AVIGDOR,                                                       D065297

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2012-00096760-CU-PL-CTL)
SPROUTS FARMERS MARKETS, LLC,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Lisa

Schall, Judge. Affirmed.

         The Feldman Law Group and Michael A. Feldman, Gregory S. Cilli for Plaintiff

and Appellant.

         Horvitz & Levy and Peter Abrahams, Lisa M. Freeman; Law Office of Richard A.

Guido and Richard A. Guido, Julie Morris Soden for Defendant and Respondent.
       Earl Avigdor appeals a judgment entered following a jury's finding that respondent

Sprouts Farmers Market, LLC1 was not negligent for injuries he suffered at a Sprouts

store. Avigdor contends the court prejudicially erred by admitting testimony—lacking

sufficient foundation—that a Sprouts store manager had received no other complaints of

someone who had suffered an injury similar to Avigdor's at the store. We affirm the

judgment.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Avigdor sued Sprouts for personal injury, alleging causes of action for general

negligence, products liability and premises liability based on an incident occurring when

he was shopping at a Sprouts store in Chula Vista. As to the general negligence cause of

action, he alleged he "was in the produce section getting bananas from the banana display

and came into contact with a sharp protruding piece of metal located at the base of the

display causing severe permanent damage to his right toes." As to the products liability

cause of action, he alleged Sprouts "did not do a proper daily scan of the store, and

remove any items or protruding items that has caused injury [sic] to [him]." He alleged

regarding the premises liability cause of action that the "banana display had a metal piece

protruding at the bottom of display and caused injury to [his] foot."

       The parties' joint trial readiness conference report included this statement: "This is

a case of disputed liability arising from an incident that occurred on May 5, 2010[,] at the



1     The respondent in this case, Ronald Cohn, Inc. dba Henry's Marketplace,
erroneously named as Sprouts Farmers Markets, LLC, was referred to in the trial court as
Sprouts. We therefore refer to the respondent that way in this opinion.
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defendant's property store whereby [Avigdor], who was wearing open[-]toed sandals

injured his toe on a banana display in the produce section of the market."

       Over Sprouts's objection, the trial court initially granted Avigdor's motion in

limine to exclude evidence from the Sprouts store manager who had not received reports

of prior accidents or claims concerning injuries involving the display case. Later,

Vojislav Banjac, Ph.D., an engineer, testified as an expert about his safety analysis of the

circumstances surrounding Avigdor's foot injury: "[A]n average consumer probably at

some point in time getting very close to the display stand will probably start reaching out

one or both arms to start selecting the bananas. [¶] But what is facing us down below is .

. . the combination of several unsafe factors. First of all, we have—it's the piece of

plywood that's about three-quarters of an inch thick . . . . It is sticking out roughly an

inch . . . . [¶] In addition to that, it's only about an inch and a half off the ground. So

certainly not—I don't mean to invoke any intention. But it's a trap of sorts for the human

foot. If you look at the alignment of the dimensions of the human foot—another

interesting aspect of physics, the dimensions of the front part of the human foot start at

right about an inch and a half. So it's like a perfect storm that's happening here on this

edge. Three-quarter-inch-thick plywood, juts out about an inch out from this base, sits at

about an inch and a half height off the ground and it's painted black. And it's waiting for

a potential collision with a foot. [¶] That, to me, is the main basis for this being an

unsafe and hazardous situation. And raised edge or lip like that jutting out painted black

only not even a couple inches off the ground, it shouldn't be there. There's no reason for

it. It's calling for trouble." (Italics added.)

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       In light of Dr. Banjac's testimony, Sprouts's counsel requested the court revisit its

ruling on the motion in limine, and permit it to recall the store manager, John Cordova, to

testify he had not received any other complaints from customers regarding the display.

Avigdor's counsel opposed the request, suggesting it would be time consuming and

adding, "we are talking about people wearing shoes, not wearing shoes, I didn't go into

any of that with [Dr. Banjac] because [of the court's] prior ruling [regarding the motion in

limine]."

       The court ruled Sprouts could recall the store manager and limited the scope of

inquiry regarding complaints of prior incidents at the store, specifically informing

Avigdor's counsel regarding permissible cross-examination: "[Y]ou're given every

opportunity to go into those questions with [the store manager] questioning the protocol

and procedures . . . with what claim of certainty can he make that everything gets

reported to him. I mean, you don't know if someone got injured and left the store and

never said anything to [the store manager]. [¶] . . . [¶] You're entitled to go open the

door, is what I am saying, beyond the scope of [defense counsel's] inquiry because he is

going to be recalling [the store manager] back to the stand. So I will give you that

latitude."

       Cordova testified on direct examination on recall: "For the past—for 12 years, I

have been the store manager of the Chula Vista and Eastlake location back and forth, and

I have been, the past three years, overseeing both locations as vice president of the

company." Cordova testified that not once did it ever come to his attention that a

customer or employee had made a claim following an injury related to the base of the

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display stands. On cross-examination, this brief colloquy occurred between defense

counsel and Cordova:

         "[Defense Counsel:] [S]o you—you don't know if there's ever been anybody

who's actually been injured by this type of condition. You just know that there has never

been a claim made, correct?

         "[Cordova:] There's never been a claim. There's never been a complaint.

         "[Defense Counsel:] That you know of?

         "[Cordova:] That I know of managing the stores and operating the stores, correct."

         During closing argument, Avigdor's counsel summarized his view on Cordova's

testimony regarding the absence of prior incident reports: "Now, Mr. Cordova at the very

end, he testifies that he wasn't aware in his years of being a store manager of anybody

ever having an incident with this exposed edge [of the display case]. That was the

testimony. [¶] [Sprouts] didn't produce any testimony that said that [Cordova] went and

reviewed the records or the database of all the incident reports. And he did a thorough

analysis of it. There wasn't any testimony that any investigation was done as to whether

or not there was any other incidents [sic] involving this display case or this exposed edge.

In fact, it was his testimony, as he sat here today, that he just simply wasn't aware of any

other incidents over all these years of experience from him going back between the Chula

Vista store and the Eastlake store. [¶] I think . . . Dr. Banjac's opinions and his basis for

his opinions clearly establish that this exposed edge created an unreasonable risk of

harm."



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       Sprouts's counsel argued to the jury his view of Cordova's testimony regarding

safety issues at the store: "Mr. Cordova got up on the stand and says that he has 18-to

20,000 customers come through that store a week. That's a million customers a year.

And they have no reported injuries on this stand. In the 13-plus years that he's worked

there, they have no injuries on these stands. No documents. No reports of injuries. [¶]

Was he there every day? No. Would he have found out, as the VP, over the last three or

four years of a problem? Yes. Are they conscious and cognizant of safety in the store?

Of course. First of all, you want to have a safe environment in the store. [¶] Secondly,

you don't want to end up here [in court]. Like he said, you don't want to end up here, so

you're always looking for safety issues. And if you find one, you're going to take care of

it. They never did anything with these display cases because it was never a problem here.

This isn't something that is so open and obvious that, 'Oh boy, we should have fixed that.

Wow.' "

       The jury decided by special verdict that Sprouts was not negligent.

                                       DISCUSSION

       Avigdor contends the court prejudicially erred by allowing Cordova to testify

about the absence of claims of injury related to the store display stand because the

testimony lacked foundation.

       " 'The abuse of discretion standard of review applies to any ruling by a trial court

on the admissibility of evidence.' [Citation.] 'Under this standard, a trial court's ruling

will not be disturbed, and reversal of the judgment is not required, unless the trial court

exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted

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in a manifest miscarriage of justice.' " (Employers Reinsurance Co. v. Superior Court

(2008) 161 Cal.App.4th 906, 919.)

       A claim that evidence was erroneously admitted because an insufficient

foundation was laid is forfeited when there was no objection in the trial court. "The

ground of the rule is that the proponent would have had opportunity to obviate the

objection if it had been made at the trial." (Bank of America Nat. Trust & Sav. Ass'n. v.

Taliaferro (1956) 144 Cal.App.2d 578, 582.) Here, we regard the contention as forfeited

because Avigdor did not object to Cordova's testimony on the ground of lack of

foundation. Rather, he objected on other grounds, namely it would involve an undue

consumption of time and he had failed to thoroughly examine Dr. Banjac. "To raise on

appeal the point of erroneously admitted evidence there must be a showing that a timely

objection had been made at the trial directing the attention of the court to the particular

evidence sought to be excluded. To fail to make such objection, or to make it defectively

by specifying the wrong ground, constitutes a waiver." (Wagner v. Osborn (1964) 225

Cal.App.2d 36, 43.)

       Setting aside Avigdor's waiver and addressing the contention on the merits, we

conclude the court did not abuse its discretion by admitting Cordova's testimony on

recall. In light of Dr. Banjac's testimony the store's display case was a trap, the court did

not err by permitting Sprouts to recall the store manager to provide testimony regarding

the absence of similar incidents of prior personal injuries suffered at the store. Cordova

had adequate foundation for his testimony. As manager at the Chula Vista store for

several years, Cordova reasonably was expected to know about personal injury incidents

                                              7
occurring at the store; thus his testimony was supported by sufficient foundation. In any

event, in this case, any limitations in the foundation merely went to the weight of his

testimony, not its admissibility. Therefore, the jury was in the best position to evaluate

how much weight to give his testimony.

       The trial court specifically gave Avigdor's counsel broad latitude to cross-examine

Cordova about Sprouts's protocol and procedures for handling injury claims. Indeed,

Avigdor's counsel seized the opportunity and on cross-examination attempted to

undermine Cordova's testimony by noting that the purported absence of claims or reports

of prior incidents at the store were based exclusively on Cordova's personal knowledge,

leaving open the suggestion that the manager might not have known about other personal

injury incidents at the store. Avigdor's counsel followed up by arguing to the jury that

Sprouts had failed to present evidence it investigated whether any other incidents

involved the same display case or exposed edge. Notwithstanding the evidence Avigdor's

counsel adduced from Cordova and his closing arguments, the jury resolved the conflict

in evidence by finding in Sprouts's favor. We do not reweigh the jury's credibility

determination. "It would seriously disturb our entire judicial system if appellate courts

were to become triers of fact and attempt to make nice distinctions as to credibility of

witnesses and the weight of testimony. It needs no authority to support the rule that this

court will not disturb a finding of fact by the [trier of fact] where there is substantial

evidence to support it." (Banks v. Pann (1927) 82 Cal.App.20, 22.)




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                                   DISPOSITION

      The judgment is affirmed. Sprouts Farmers Markets, LLC is entitled to costs on

appeal.




                                                             O'ROURKE, Acting P. J.

WE CONCUR:


AARON, J.


IRION, J.




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