Filed 5/21/14 Barkus v. White CA2/8



             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SECOND APPELLATE DISTRICT

                                       DIVISION EIGHT


DINA A. BARKUS,                                       B244644

                  Plaintiff and Appellant,            (Los Angeles County
                                                       Super. Ct. No. MC019871)
        v.
                                                      ORDER MODIFYING OPINION
JENNIFER MARIE WHITE,

                  Defendant and Respondent.



                  GOOD CAUSE appearing, the opinion filed May 14, 2014, in the above
entitled matter is hereby modified as follows:
             1.      On page 8, beginning at line 2 of DISPOSITION, add a period after
                        “denied” and delete the balance of the sentence and the citation.
                                             [end of modifications]
        There is no change in judgment.




______________________________________________________________________
                                                                                            *
RUBIN, ACTING P. J.                          FLIER, J.                    KUSSMAN, J.




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
Filed 5/14/14 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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 EIGHT


DINA A. BARKUS,                                                      B244644

                   Plaintiff and Appellant,                          (Los Angeles County
                                                                      Super. Ct. No. MC019871)
         v.

JENNIFER MARIE WHITE,

                   Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Randolph Rogers, Judge. Affirmed.


         Law Offices of Olaf Landsgaard and Olaf Arthur Landsgaard for Plaintiff and
Appellant.


         Tharpe & Howell, Eric B. Kunkel and Charles D. May for Defendant and
Respondent.

                                       __________________________
       Dina A. Barkus appeals from the judgment entered for defendant Jennifer Marie
White in this action for the wrongful death of Barkus’s son, contending that the trial court
committed instructional error and improperly admitted certain expert witness testimony.
We affirm because the instructional error did not occur and because any claims of
evidentiary error have been waived.

                       FACTS AND PROCEDURAL HISTORY

       At around 1:00 a.m., on August 22, 2008, Logan Barkus, 17, was struck and killed
in Lancaster by a car driven by 18-year-old Jennifer White. Barkus’s mother, Dina
Barkus, sued White for wrongful death.1 White contended that Barkus was at fault
because he stepped off of a median strip and directly into the roadway. Appellant
contended that White was at fault because she admittedly glanced down at the radio right
before striking Barkus, she should have been using her high beam headlights at the time,
and she failed to render assistance, as required by the Vehicle Code.
       After hearing from the sheriff’s deputy who investigated the accident and White’s
accident reconstruction and human factors expert witnesses, the jury found that White
had not been negligent and that Barkus’s death was caused by his own negligence. The
trial court, commenting on how “conservative” people were in Lancaster, granted
appellant’s motion for judgment notwithstanding the verdict (JNOV), finding that the
verdict was the product of socioeconomic bias. It also granted appellant’s new trial
motion, but as to damages only.
       White filed a mandate petition with this court, asking us to reverse the JNOV and
new trial orders and reinstate the jury’s verdict. We granted that petition. As to the
JNOV, we concluded that the verdict had been supported by substantial evidence and that
the trial court had erred by reweighing the evidence and by improperly taking judicial
notice of certain supposed facts concerning the nature of the roadway. We held that the
1
       We will refer to Logan Barkus by his last name and to Dina Barkus as appellant.



                                             2
new trial order was procedurally defective because the trial court failed to specify the
grounds upon which it had been granted or the reasons for its ruling. We concluded that
the new trial issue had also been rendered moot by our ruling on the JNOV motion and
directed the trial court to vacate its JNOV and new trial orders and enter judgment for
White. (White v. Superior Court (Dec. 14, 2011, B233360) [nonpub. opn.] (White I).)
       On remand, the trial court granted appellant’s “renewed” new trial motion on all
issues, finding that under Bove v. Beckman (1965) 236 Cal.App.2d 555 (Bove), it had
erred by failing to instruct the jury on the rebuttable presumption that Barkus acted with
due care at the time of the accident, even though no such instruction had been requested.
The trial court also faulted itself for allowing some of the expert testimony offered on
behalf of White, and called into question the trustworthiness of the investigating deputy’s
testimony.
       White filed another mandate petition, contending that the trial court violated our
previous order to vacate its orders granting JNOV and a new trial on damages and instead
reinstate the verdict. We granted that petition for the following reasons: (1) the trial
court failed to comply with our order in White I that it enter judgment for White; (2) the
trial court lost jurisdiction to hear a second new trial motion once it ruled on the first one;
(3) once we reversed the JNOV and new trial orders, White was entitled to have
judgment entered according to the verdict; and (4) our opinion in White I was the law of
the case and determined that the trial court’s initial new trial order on the issue of
damages was procedurally defective and that a new trial on damages had been rendered
moot by our order reversing the JNOV. (White v. Superior Court (Aug. 8, 2012,
B241749) [nonpub. opn.] (White II).) The trial court then vacated its second new trial
order and entered judgment for White, leading to this appeal.2


2
        White complains that appellant filed her notice of appeal prematurely, one day
before a second amended judgment that awarded trial costs had been entered. The record
shows that the original date stamp was crossed out and the notice of appeal was accepted
for filing again five days after the second amended judgment was entered.

                                               3
                                       DISCUSSION

    1. Limited Issues Raised on Appeal

       After appellant filed her opening appellate brief, White moved to dismiss the
appeal because in the two previous writ proceedings we resolved the issues raised by
appellant in White’s favor, making them the law of the case. We denied that motion
because it appeared that appellant had raised two issues we had not been asked to
consider during the writ proceedings: (1) purported errors in the admission of certain
expert witness testimony; and (2) error for the trial court’s failure to instruct the jury on
the presumption that Barkus had acted with due care.
       Our latest review of appellant’s opening brief confirms that no other issues have
been coherently raised. The brief is a tangled knot of ill-expressed ideas and consists
mainly of verbatim excerpts from the trial court’s new trial order and some case law. To
the extent appellant might contend that she raised any other issues, we deem them waived
for her failure to articulate any intelligible argument. (Luckett v. Keylee (2007)
147 Cal.App.4th 919, 927, fn. 11 (Luckett).)

    2. No Instructional Error Occurred

       Appellant’s claim of instructional error rests on the mistaken notion that under
Bove, supra, 236 Cal.App.2d 555, she was entitled to an instruction that Barkus was
presumed to have been acting with due care at the time of the accident.3 The defendants

       White also contends the notice of appeal was defective because it referred to the
judgment entered on August 16, 2012—which was the date of the initial judgment in
compliance with our decision in White II—instead of the second amended judgment. The
notice refers to the August 16 judgment and all other appealable judgments and orders,
and we liberally construe the notice of appeal to include the ultimate second amended
judgment. (Cal. Rules of Court, rule 8.100(a)(2); Bullock v. Philip Morris USA, Inc.
(2008) 159 Cal.App.4th 655, 672, fn. 3.)


3
       In fairness to appellant, it was the trial court, not her, that raised Bove as an issue.

                                               4
in Bove were the driver and owner of a car that struck and killed a young woman as she
crossed Pacific Coast Highway at night. In rejecting the defendants’ substantial evidence
challenge to the judgment for plaintiff, the Bove court noted that there was a rebuttable
presumption that a decedent had exercised due care, a point of law as to which a jury
should be instructed. (Bove, supra, 236 Cal.App.2d at pp. 558-559.)
       However, Bove was relying on former Code of Civil Procedure section 1963,
subdivision (4), which has not been the law since 1967 when its substance was made part
of the new Evidence Code as section 521, which “eliminated this as a presumption and
restated it as a rule of burden of proof.” (1 Witkin, Cal. Evidence (5th ed. 2012) Burden
of Proof and Presumptions, § 16, p. 190; Cal. Law Revision Com. com., 29B West’s
Ann. Evid. Code (2011 ed.) foll. § 500, p. 310; see Williams v. Forcades (1968)
262 Cal.App.2d 23, 24.)
       Evidence Code section 521 states: “The party claiming that a person did not
exercise a requisite degree of care has the burden of proof on that issue.” Although the
trial court did not initially give such an instruction, it caught the omission during the
argument phase of the trial and instructed the jury with CACI No. 470 that White was
required to prove that Barkus had been negligent and that his negligence contributed to
his death.4 Accordingly, there was no error.

4
        Appellant designated as part of the record only the reporter’s transcript of the post-
trial hearing where costs were awarded, an issue she has expressly abandoned on appeal.
However, in her opening appellate brief, appellant cites liberally to the trial transcript and
claims that the transcript was properly part of the record under rule 8.147 of the
California Rules of Court, which provides for the use of the transcript from previous
appeals in subsequent related appeals.

        As White points out, that rule is inapplicable because the trial transcripts were
lodged as part of the White I writ proceeding, and rule 8.147 applies to only related
appeals. (See Guardado v. Superior Court (2008) 163 Cal.App.4th 91, 95, fn. 1 [record
augmentation procedure not available in appellate writ proceedings because
augmentation is a creature of the proceedings governing appeals, not writs].) Even if
rule 8.147 applies, as White points out appellant’s record designation in this case failed to
state that she was invoking the rule or, apart from the costs hearing, specify the portions
of the reporter’s transcript she intended to use. (Cal. Rules of Court, rule 8.147(b).)

                                               5
    3. The Evidentiary Issues Are Waived or Lack Merit

       As best we can tell from appellant’s appellate briefs, she challenges either the
admissibility or the sufficiency of the testimony by the sheriff’s deputy who investigated
the accident and the testimony of White’s accident reconstruction and human factors
experts. As appellant made clear at oral argument she does not ask us to somehow grant
her a new trial. Instead, she asks us to reverse the judgment and order that judgment be
entered for her under Mercer v. Perez (1968) 68 Cal.2d 104 (Mercer) on the ground that a
miscarriage of justice occurred at trial.5
       Appellant’s reliance on Mercer is misplaced. In that case, a jury returned a
defense verdict in an action arising out of a traffic collision between two cars. The trial
court granted the plaintiff a new trial in an order that said, after analyzing the evidence, it
believed there had been a miscarriage of justice. On appeal by the defendant, the
Supreme Court reversed the new trial order because the trial court did not properly

       However, once we determined that the claimed instructional error issue was in fact
governed by Evidence Code section 521, we notified the parties that we intended to take
judicial notice of pages 1527-1529 and 1556 of the reporter’s transcript lodged in the
prior writ proceedings, which showed that the trial court gave the correct instruction, and
offered them the opportunity to brief this issue. White filed supplemental briefing but
appellant did not.

        Appellant separately asked us to take judicial notice of documents filed in White I:
White’s index of exhibits and appellant’s supplemental opposition brief. She also asks
us to judicially notice a supplemental reply brief filed by White in connection with White
II and the trial court’s original and nunc pro tunc orders granting JNOV and a new trial
on damages. We deny that request because those documents are not relevant to the issues
on appeal.


5
         We assume appellant does not request a new trial in recognition of our decision in
White II that the trial court lost jurisdiction to enter a second new trial order after entering
its initial order granting a limited new trial on the issue of damages only. Therefore, no
new trial was permissible. (Wenzoski v. Central Banking System, Inc. (1987) 43 Cal.3d
539, 542.) In White II, we also rejected appellant’s contention that she was entitled to a
judgment notwithstanding the verdict.

                                               6
specify the reasons for that order, as required by Code of Civil Procedure section 657.
(Mercer, supra, 68 Cal.2d at pp. 108-109.)
       The plaintiff had cross-appealed, contending the trial court erred by instructing the
jury on contributory negligence even though the defendant had not raised that issue. The
Supreme Court agreed, concluding that the error had been prejudicial because the
instructions misled the jury and because there was strong evidence of the defendant’s
negligence. (Mercer, supra, 68 Cal.2d at p. 126.) As part of its prejudice analysis, the
Mercer court gave “considerable weight” to the trial court’s finding that the verdict had
been a miscarriage of justice. Even though that finding was made in regard to the
sufficiency of the evidence, the Mercer court believed the finding was important because
the trial court was in a better position to evaluate the facts and had applied the same
harmless error test: whether a more favorable result for plaintiff was reasonably probable
absent the error. (Id. at p. 127.)
       Mercer has no bearing on this case, if for no other reason than the fact that we
have already concluded no instructional error occurred. To the extent appellant is raising
a sufficiency of the evidence challenge, we have already decided that issue against her in
White I, and it is law of the case. To the extent she is challenging the admissibility of that
evidence, as noted in the trial court’s order granting the renewed new trial motion, the
trial court struck nearly all of the human factor expert’s testimony. Although appellant
mentions this in passing in her opening appellate brief, apart from her conclusory
statement that “the bell could not be unrung,” she does not address through cogent
argument and citation to pertinent legal authority whether she in fact suffered any
prejudice in light of the trial court’s order striking that testimony. (People v. Horton
(1995) 11 Cal.4th 1068, 1121 [we presume the jury obeyed instruction to disregard
stricken testimony].) We therefore deem that issue waived. (Luckett, supra,
147 Cal.App.4th at p. 927, fn. 11.)
       Appellant also fails to acknowledge, as the trial court mentioned in its second new
trial order, that she did not object to the testimony of the deputy and the accident


                                              7
reconstruction expert.6 As a result, any objections to that evidence were waived both at
trial (Evid. Code, § 353, subd. (a)), and on appeal. (Luckett, supra, 147 Cal.App.4th at
p. 927, fn. 11.)

4.     Appellant’s Failure to Designate the Reporter’s Transcript

       As noted in footnote 4, appellant failed to designate the reporter’s transcript of the
trial proceedings as part of the appellate record. As a result, apart from the four transcript
pages we judicially noticed in order to determine that no instructional error occurred, we
are unable to determine whether error occurred or whether any error was prejudicial. We
therefore alternatively conclude that her failure to do so waives all of her appellate
contentions. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324-325; Lankster v. Alpha
Beta Co. (1993) 15 Cal.App.4th 678, 683.)

                                          DISPOSITION

       The judgment is affirmed. Respondent shall recover her costs on appeal.
Respondent’s request for appellate sanctions is denied because she did not file a separate
sanctions motion along with a declaration supporting the amount sought. (Cal. Rules of
Court, rule 8.276(b)(1); In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180.)




                                                  RUBIN, Acting P. J.
WE CONCUR:



              FLIER, J.

6
       Appellant’s opening appellate brief does quote verbatim the portion of the trial
court’s second new trial order where the trial court mentions the failure to object, but she
does not acknowledge or address this issue by way of argument.



                                              8
             KUSSMAN, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                            9
