Filed 6/12/15 Bradford v. Van Cleave CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


CAROLYN BRADFORD,

     Plaintiff and Appellant,                                          G050692

         v.                                                            (Super. Ct. No. RIC10014089)

MEGHAN LYN VAN CLEAVE,                                                 OPINION

     Defendant and Respondent.

ALLEN BRADFORD,

     Plaintiff and Appellant,                                           (Super. Ct. No. RIC10014090)

         v.

MEGHAN LYN VAN CLEAVE,

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Riverside County,
Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the
Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
              Law Offices of Zulu Ali, Zulu Ali and Maleha Khan-Avila for Plaintiffs
and Appellants.
              Bonnie R. Moss & Associates and Bradley R. Blamires for Defendant and
Respondent.
                                *             *              *
                                       INTRODUCTION
                                                                 1
              Plaintiffs Carolyn Bradford and Allen Bradford appeal from the judgment
entered in favor of defendant Meghan Lyn Van Cleave, following a jury trial of the
Bradfords’ negligence claims arising out of an automobile accident. The Bradfords
contend the trial court erred by denying their oral motion for a continuance of the trial.
              We affirm. The appellate record does not show (1) the grounds asserted by
the Bradfords to the trial court in seeking a continuance of the trial, (2) their motion
satisfied the requirements of rule 3.1332 of the California Rules of Court, or (3) the
reason the trial court denied their motion. Even if we were to assume, for the purpose of
our analysis, that the trial court erred by denying the motion to continue the trial, the
Bradfords have failed to show prejudicial error.
                                       BACKGROUND
              In July 2010, Carolyn filed a form complaint against Van Cleave, alleging
that on July 21, 2008, Van Cleave made an unsafe lane change while driving on a
highway and negligently collided into the back of the Bradfords’ car. Carolyn asserted
claims for motor vehicle and general negligence against Van Cleave. Allen separately
filed a form complaint containing the same claims and allegations against Van Cleave as
asserted by Carolyn.
              In her case management statement, Carolyn stated that she had to be treated
“due to pain in the pelvic area, both legs, both hands, neck and shoulders.” She further
       1
        We refer to Carolyn Bradford and Allen Bradford individually by their first
names for clarity and intend no disrespect; we refer to them collectively as the Bradfords.

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stated she had incurred about $10,146 in medical expenses. Carolyn also stated,
“[c]urrently, Plaintiff suffers symptoms with the hands which go numb on occasion. The
right leg gives off an irritation causing an inability to sleep at night.”
              In his case management statement, Allen asserted that as a result of the
accident, he “developed low back pain and right-sided abdominal pain” and has been
“diagnosed with abdominal seatbelt contusion, lumbar spine impairment, and cervical
spine and had to undergo treatment.”
              In each of her case management statements, Van Cleave asserted: “This
matter arises from a minor rear end vehicle collision that occurred on July 21, 208 [sic] at
9:15 p.m. on the southbound I-215 . . . in an unincorporated area of Riverside County.
Defendant was cut[]off by another car and hit the plaintiff’s car in the rear. There was
minor damage. Defendant dispute[s] liability and the nature and extent of Plaintiff’s
injuries.” Van Cleave also stated she would file a motion seeking to consolidate the
Bradfords’ lawsuits or the “court can consolidate” them because they arose from same
accident. The trial court consolidated Carolyn’s and Allen’s separate lawsuits into the
instant action.
              At the time the case was set for trial, the Bradfords made an oral motion to
continue the trial. Nothing in the record identifies the grounds for the motion. The trial
court denied the motion and a jury was selected for trial.
              After the Bradfords rested their case, Van Cleave made an oral motion for a
partial nonsuit pursuant to Code of Civil Procedure section 581c, subdivision (b). The
court granted Van Cleave’s partial nonsuit motion “on the basis that plaintiff failed to
establish a Prima Facie Case that medical expenses (Past and Future) were ‘reasonable’
and ‘necessary.’”
              After Van Cleave rested her case, and before the trial court instructed the
jury, the court informed the jury: “Counsel has entered into a stipulation with regard to
the traffic collision report that Officer R. Pereida prepared from the California Highway

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Patrol. He wrote the following things, among other things, in his report: [¶] Quote, P1,
Van Cleave, related that she was southbound on the I-215 south of Ramona Expressway
in the No. 2 lane at 75 miles per hour. [¶] Second item: P1 related that she was cut off.
                                                                                              2
P1 applied her vehicle’s brakes and veered to the right in an effort to avoid the vehicle.”
              The jury returned a special verdict finding Van Cleave was not negligent.
The judgment on the special verdict, entered in Van Cleave’s favor, stated in part: “The
jury deliberated and thereafter returned into court with its verdict consisting of the special
issues submitted to the jury and the answers given thereto by the jury, which said verdict
was in words and figures as follows, to-wit: [¶] We answer the questions submitted to us
as follows: [¶] 1. Was Meghan Lyn Van Cleave negligent? [¶] __ Yes X No.”
(Boldface omitted.) The Bradfords appealed.


                                        DISCUSSION
              The Bradfords solely argue in this appeal that the trial court erred by
denying their counsel’s oral motion to continue the trial. For the reasons we will explain,
the Bradfords’ argument is without merit.
              We begin by reviewing “three fundamental principles of appellate review:
(1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in
favor of correctness; and (3) the appellant bears the burden of providing an adequate
record affirmatively proving error.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150
Cal.App.4th 42, 58.)
              The Bradfords failed to provide an adequate record affirmatively proving
error. Our record does not show anything about the Bradfords’ motion to continue the
trial except the reference in a single minute order that it was oral. The record does not


       2
         The reporter’s transcript designated by the Bradfords did not include any
witness testimony; the reporter’s transcript begins after Van Cleave rested her case.

                                              4
reveal the grounds for the motion that were asserted to the trial court, or the trial court’s
reasoning for denying the motion.
              Rule 3.1332(b) of the California Rules of Court governs motions or
applications to continue trial and requires: “A party seeking a continuance of the date set
for trial, whether contested or uncontested or stipulated to by the parties, must make the
request for a continuance by a noticed motion or an ex parte application under the rules
in chapter 4 of this division, with supporting declarations. The party must make the
motion or application as soon as reasonably practical once the necessity for the
continuance is discovered.” (Italics added.)
              Our record contains neither a noticed motion nor an ex parte application to
continue the trial, and does not include any declarations in support of the Bradfords’
request for a continuance. The Bradfords do not address their failure to comply with
these requirements in their appellate briefs.
              Rule 3.1332(c) of the California Rules of Court sets forth the standard for
the trial court to determine whether a noticed motion or an ex parte application should be
granted, in relevant part, as follows: “Although continuances of trials are disfavored,
each request for a continuance must be considered on its own merits. The court may
grant a continuance only on an affirmative showing of good cause requiring the
continuance. Circumstances that may indicate good cause include: [¶] (1) The
unavailability of an essential lay or expert witness because of death, illness, or other
                            3
excusable circumstances.”

       3
          Rule 3.1332(d) of the California Rules of Court states: “In ruling on a motion or
application for continuance, the court must consider all the facts and circumstances that
are relevant to the determination. These may include: [¶] (1) The proximity of the trial
date; [¶] (2) Whether there was any previous continuance, extension of time, or delay of
trial due to any party; [¶] (3) The length of the continuance requested; [¶] (4) The
availability of alternative means to address the problem that gave rise to the motion or
application for a continuance; [¶] (5) The prejudice that parties or witnesses will suffer as
a result of the continuance; [¶] (6) If the case is entitled to a preferential trial setting, the

                                                5
              Our record does not reflect the Bradfords made any showing to the trial
court of good cause requiring the trial continuance, much less by way of sworn
declarations. We thus have no record upon which to evaluate whether the trial court
abused its discretion by denying the oral motion to continue the trial, based on the record
before it. (See Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246;
Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249 [whether to continue a trial rests
within the sound discretion of the trial court].)
              In their opening brief, the Bradfords argue their counsel’s oral motion to
continue the trial was “based on the unavailability of critical witness, police officer
R. Pereyda who wrote the traffic collision report.” They argue, “[i]n lieu of the
testimony,” the above quoted stipulation regarding Van Cleave’s statements to Pereida
was read to the jury. The Bradfords claim in their opening brief that they had
subpoenaed Pereida “to appear for the pre disposition hearing held on October 22, 2012.
However, Officer R. Pereyda was scheduled for his vacation time at the time for when
trial was reset to October 26, 2012 because Plaintiffs’ counsel attempted to subpoena him
again for the jury trial and were told the Officer would be out and unavailable for trial at
that time. [¶] As a result Plaintiffs’ counsel asked for motion to continue trial on
October 30, 2012 as counsel discovered the officer was available. [Citations.] The
motion was however denied despite the fact counsel only needed a continuance in regards
Officer’s availability. The officer had appeared before when subpoenaed once before and

reasons for that status and whether the need for a continuance outweighs the need to
avoid delay; [¶] (7) The court’s calendar and the impact of granting a continuance on
other pending trials; [¶] (8) Whether trial counsel is engaged in another trial; [¶]
(9) Whether all parties have stipulated to a continuance; [¶] (10) Whether the interests of
justice are best served by a continuance, by the trial of the matter, or by imposing
conditions on the continuance; and [¶] (11) Any other fact or circumstance relevant to the
fair determination of the motion or application.” The Bradfords have not provided any
analysis of the factors identified in rule 3.1332(c) or (d) of the California Rules of Court
in arguing the trial court erred by denying their counsel’s oral motion to continue the
trial.

                                               6
therefore was not avoiding service but was not available on the day set for trial.
Therefore the Officer was unavailable and good cause for a continuance was
established.”
                The Bradfords’ assertions regarding Pereida’s status as an “essential lay or
expert witness” within the meaning of rule 3.1332(c) of the California Rules of Court is
without any support in the record. The record does not contain any subpoenas or
declarations explaining any attempt by the Bradfords to subpoena Pereida to appear at
trial, or otherwise contain information regarding his availability to testify at trial.
                Even if we were to assume for the purpose of our analysis that the
Bradfords presented to the trial court a properly noticed motion or an ex parte application
to continue the trial, supported by declarations, which was brought on the ground of
Pereida’s unavailability, the Bradfords have failed to show they suffered any prejudice as
a result of the court’s denial of their request. An appellant must demonstrate prejudice
from the trial court’s denial of a request to continue the trial. (Rebney v. Wells Fargo
Bank (1990) 220 Cal.App.3d 1117, 1141.)
                In their opening brief, the Bradfords argue, “Police officers routinely report
to accidents and take down the pertinent facts and even make determinations based upon
negligence and fault. The officer who reported at the scene of the accident in the case at
hand was Officer R. Pereyda who was not available at the time of trial. The Officer was
an expert and would have established causation with regards to defendant’s act, which
was the critical issue at trial. [¶] Officer R. Pereyda would help establish Defendant
actions were outside the norms of ordinary care and skill for the management of her
property, car, and brought injury upon the Plaintiffs.” (Boldface & underscoring
omitted.) Even in their appellate briefs, the Bradfords fail to summarize, other than in the
most general terms, the testimony they assert Pereida would have given had he testified at
trial.



                                               7
              The Bradfords never designated any expert witnesses, much less Pereida as
an expert witness, to testify at trial. As for percipient witness testimony, the jury was
provided with Pereida’s police report containing Van Cleave’s statements to him
regarding the circumstances of the accident. The Bradfords fail to describe in any
meaningful detail other lay witness testimony that Pereida would have offered at trial.
Because the Bradfords did not designate a transcript of trial testimony for the appellate
record, we are unable to determine any prejudicial impact of the omission of Pereida’s
lay witness testimony.
              The Bradfords argue that if the trial had been continued to permit Pereida to
testify, the trial court would not have granted the partial nonsuit in Van Cleave’s favor on
the ground the Bradfords failed to establish a prima facie case that their claimed past and
future medical expenses were reasonable and necessary. Nothing in the record shows
how Pereida’s nonexpert, nonmedical witness testimony would have had any effect on
the court’s ruling on the motion for a partial nonsuit.


                                        DISPOSITION
              The judgment is affirmed. Respondent shall recover costs on appeal.



                                                  FYBEL, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



MOORE, J.



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