Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVRS700091, Martin A. Hildreth, Judge. (Retired judge of the San Bernardino Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
Homan & Stone and Robert J. Rossi for Defendants and Appellants.
Varner & Brandt and Keith A. Kelly for Plaintiff and Respondent.
OPINION
RICHLI, J.
Jeff Gerhart, a horse trainer, leased part of a ranch owned by Mary Elizabeth Piazza and operated by her adult daughter, Michel Ann Walters. During the first two years of his three-year lease, Gerhart had access to the arena, hot walkers, wash racks, and cross ties — vital necessities of any horse-training business — which were located in a common area and shared by all of the occupants of the ranch. Early in the third year, however, Walters put up barriers between his premises and the common area and forbade him to use the common area. This interfered with the operation of his business and caused him to lose customers. Walters told him, however, she would sue him if he left, so he stayed at the ranch until the lease was up.
According to Piazza and Walters, Gerhart was hostile; aggressive; and, on one occasion, violent toward their other tenants and those tenants’ clients. They put up the barriers as a last-ditch measure to stop him from driving the other tenants away. According to Gerhart, however, they had it in for him after he refused their demand that he pay more rent than the lease called for. The problem worsened after Walters hired a new ranch manager, Greta Hitzeman, who also had it in for him.
Hitzeman was a defendant below; the trial court entered judgment in favor of Gerhart against her, as well as against Piazza and Walters. However, she has not appealed.
A jury found in favor of Gerhart, awarding him $5,200 for breach of contract, plus $45,000 for negligent interference with prospective economic advantage. In addition, in connection with an incident in which loose dogs at the ranch caused Gerhart to be thrown from a horse and injured, they awarded him $55,000 for negligence. (The trial court later reduced this amount to $30,000.)
Appellants contend:
1. The trial court erred by excluding hearsay statements by other tenants of the ranch to the effect that they were leaving the ranch because of Gerhart.
2. Gerhart’s counsel committed prejudicial misconduct by repeatedly addressing his client as “Jeff.”
3. There was insufficient evidence that Gerhart sustained $45,000 in damages as a result of any negligent interference with prospective economic advantage.
4. The award of $55,000 for negligence was barred by assumption of the risk.
5. The trial court erred in awarding attorney fees to Gerhart.
We find no prejudicial error that has been preserved for appeal. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
Piazza was the record owner of a ranch on Pipeline Avenue in Chino. Walters, her daughter, was the general partner of the family limited partnership that operated the ranch. Because Piazza suffered from dementia, she had given Walters her power of attorney. Walters hired Robin Lindsey as the ranch manager.
Gerhart is a professional horse trainer. In 2004, he was looking to move his business to a new facility. He saw an ad for the ranch, which stated that it offered a show-sized arena, hot walkers, wash racks, and cross ties. These (along with a round pen and a shoeing area) are amenities that a trainer has to have to conduct his or her business. All of these amenities are customarily provided by the owner of the facility and shared with any other trainers at the same facility.
Gerhart contacted Walters, who gave him a tour of the ranch. She said she was showing him “everything that he had available to him, ” including the common areas. At trial, she admitted “understanding that he was going to be a trainer needing to use all of these facilities....” They agreed on the lease term and the rent amount. They also agreed that he would occupy a particular area in the southwest corner.
In October 2004, Gerhart moved in. He was supposed to draft a written lease. However, he had done a couple of favors for Walters (hauling manure away and moving his horses off the property temporarily during a county inspection); in return, Walters had agreed that she would not charge him rent for the first three months. For this reason, Gerhart put off actually drafting the lease.
In January 2005, at the end of the free-rent period, Gerhart finally drafted a written lease, signed it, and gave it to Walters. Walters, however, did not sign it. Instead, in March 2005, she drafted her own written lease, signed it, and left it on Gerhart’s windshield. Gerhart signed her version and put it in her mailbox. It was not until almost two years later, around December 2006, that Walters first asserted that she had never actually received it.
Defendants repeatedly assert that “[t]he evidence presented at trial established that Gerhart never actually signed the lease agreement.”
The written lease provided for a term of three years, beginning on October 1, 2004. It did not expressly state whether Gerhart had a right to use the common areas. However, it did state that the lessor “‘agrees to provide adequate facilities for normal and reasonable care required to maintain the health and well-being of the animals.’” “Adequate facilities” was a term of art; it included all of the facilities that a trainer would need, such as an arena, a hot walker, and wash racks. The lease also stated that Gerhart could be required to contribute to any expenses of upgrading the common areas.
From October 2004 through December 2006, Gerhart did, in fact, have the use of all the common areas, including the arena, the hot walkers, the wash racks, the round pens, and the cross ties. Lindsey, the ranch manager, understood that Gerhart was entitled to access to the entire facility. On the stand, Walters admitted that “he could use whatever he wanted to” — though only if he “behave[d].”
When Gerhart first moved in, he shared the ranch with several other trainers. He had no trouble getting along with them (as defendants conceded). Between October 2004 and March 2005, however, all of the other trainers gradually moved out, leaving Gerhart the lone tenant.
In April 2005, according to Gerhart, Walters came to him and said that, because all of the other trainers were gone, she needed him to pay more. He refused, saying, “[W]e have a contract.” Walters seemed “disgusted” and said, “That’s why I hate contracts.” Lindsey, the ranch manager, likewise testified that Walters told her that she needed to get more money from Gerhart. (Walters, however, denied ever asking Gerhart to pay more.)
In June 2005, Greta Hitzeman began boarding horses at the ranch. Walters and Hitzeman immediately “hit it off.” They entered into a business arrangement; basically, Hitzeman leased the entire ranch (other than Gerhart’s area) at a fixed price, then subleased portions of it and kept the difference.
Hitzeman effectively replaced Lindsey as ranch manager. Hitzeman refused to be comanager with Lindsey, telling her, “[A]s long as you have anything to do with [Gerhart], I can’t have anything to do with you.... He’s got to go or else[.]” Walters similarly said, “If you are loyal to him, you are disloyal to me.” Walters said she wanted Gerhart “out of there. He was interfering with [Hitzeman]. She wanted him to go... and leave his customers for [Hitzeman].” Lindsey, however, never heard any of Hitzeman’s customers complain about Gerhart and never saw Gerhart antagonize any of them; to the contrary, she saw him helping them. Walters admitted that she had no problems with Gerhart until Hitzeman arrived.
Around July 2005, two other trainers (Gary Mullen and Tim Keeling) came to the ranch. In October 2005, a third trainer, Keylee Grenier, came. Grenier objected to Gerhart and his customers using the wash racks in front of her area. Otherwise, however, it does not appear that there was any immediate conflict between Gerhart and any of the other trainers.
Around December 2005, Hitzeman arranged for a contingent of police posse horses to use the main arena for a one-day training event. However, she did not tell Gerhart. The posse event interfered with three appointments that Gerhart had scheduled for that day. When he saw Hitzeman, he remarked, “You should have told me.” Walters, who was sitting in a car nearby, “came flying out....” She said, “[W]e don’t have to tell you anything. I hate your guts. Get off this place.” Walters and Gerhart both started yelling obscenities at each other. Walters yelled, “[H]it me, you S.O.B. I want you to hit me.” Walters also said, “We don’t have a contract anyway.” Gerhart replied, “If you didn’t think we had a contract, you would have tried to evict [me] a long time ago.”
At trial, both Walters and Hitzeman basically confirmed this account of the “posse incident.”
Starting in February 2006, Walters served Gerhart with a series of eviction notices. They cited various alleged breaches, including failure to pay rent and failure to maintain sufficient liability insurance. Each time, Gerhart prevented the eviction from going further by curing the alleged breach. One notice, in March 2006, alleged that Gerhart had failed to sign and return a lease. He forestalled that particular eviction proceeding by producing the signed lease to Walters’s attorneys.
In July 2006, Gerhart was in an altercation with Kimberly Garcia, a client of trainer Keylee Grenier. Gerhart was shoeing a horse at the wash racks outside Grenier’s barn. He had Walters’s permission to shoe horses there; he had been doing so for two years. Garcia asked him to move his belongings. According to Gerhart, he complied; however, he commented that she “does a lot of bitching.” She swung a garden hose — with a nozzle — and hit him in the head with it. It drew blood and almost knocked him unconscious. As she was trying to hit him again, he put his hands around her neck briefly.
Garcia gave a somewhat different account of the altercation. However, she admitted that she told Gerhart that he was not supposed to use the wash racks and that she asked him to move his belongings. He supposedly commented, “All you [fuck]ing bitches think you own the place.” She replied, “[Y]ou [fuck]ing faggot.” She admitted that she “threw the hose, ” though she denied hitting him with it. After she threw the hose, Gerhart choked her.
In August 2006, Grenier gave 30 days’ notice. She claimed that she was leaving the ranch due to a number of “major concerns” about Gerhart. However, the 30 days passed, and she remained as a tenant at the ranch. At trial, Walters admitted that she could not name a single person who had refused to do business with the ranch because of Gerhart.
Around December 2006, Gerhart was in an altercation with trainer Tim Keeling. Keeling “had been given the right to make the rules around the ranch....” One was that horses could be “turned out” (i.e., set loose) in the main arena, but only if attended. One day, as Gerhart was turning out a horse in the main arena, Keeling came in and told him that turnouts were not allowed at all. They yelled back and forth at each other. Keeling “stormed off” and told Hitzeman, “That is it. I’m out of here. You have my 30-day notice.”
Shortly after that, at Hitzeman’s suggestion, Walters put up green mesh barriers, with “no trespassing” signs, between Gerhart’s premises and the common areas. Walters and Hitzeman did not talk to Gerhart before putting up the barriers. Afterwards, however, they told him that he was not to cross the barriers and not to use any of the common areas ever again. At trial, they testified that they wanted to “keep him out of the arenas” and to keep him from “harassing [Hitzeman’s] clients.” Hitzeman added that the barriers were “a desperate attempt to keep Tim Keeling.” Keeling did, in fact, stay at the ranch until July 1, 2007.
Gerhart wrote to Walters, objecting to the barriers. Walters admitted that she did not respond, because “[h]is life was about complaining.”
As a result of the barriers, Gerhart lost customers. His business fell off sharply. However, he stayed at the property until his lease expired in October 2007, because Walters told him if he tried to break the lease, she would sue him.
When asked at trial if she knew that the barriers were going to affect Gerhart’s business, Hitzeman answered, “[W]asn’t my problem.”
Additional evidence pertinent to Gerhart’s negligence claim will be discussed in part VII, post.
II
PROCEDURAL BACKGROUND
In 2007, Gerhart filed this action against Piazza, Walters and Hitzeman. Walters and Hitzeman filed a cross-complaint against Gerhart. The parties have not seen fit to include either the operative complaint or the operative cross-complaint in the record. By the time the case went to the jury, however, Gerhart was asserting causes of action for breach of contract, negligent interference with prospective economic advantage, and negligence. It is not clear what causes of action Walters and Hitzeman were asserting; however, the only damages they were seeking consisted of lost profits.
The jury returned special verdicts in favor of Gerhart on both the complaint and the cross-complaint. It awarded him: (1) $5,200 for breach of contract; (2) $45,000 for negligent interference with prospective economic advantage; and (3) $55,000 for negligence, for a total of $105,200.
The award of $5,200 for breach of contract was against Piazza and Walters only. Thus, the total judgment against Hitzeman was $100,000.
Gerhart’s counsel prepared a proposed judgment. It incorporated verbatim the special verdicts on the complaint; however, it failed to incorporate the special verdict on the cross-complaint. It also awarded Gerhart costs and attorney fees, in an amount to be determined. Defendants’ counsel filed a written objection to the proposed judgment, but the objection has not been included in the record. In September 2009, the trial court signed and entered the proposed judgment.
Defendants filed a motion for new trial. Gerhart filed an opposition, but it has not been included in the record. In November 2009, after hearing argument, the trial court denied the motion for new trial, on condition that Gerhart accept a reduction of damages (remittitur) on the negligence cause of action from $55,000 to $30,000, for a new total of $80,200. Both sides apparently agree that Gerhart accepted the remittitur.
In December 2009, appellants filed a notice of appeal from the September 2009 judgment.
Meanwhile, in November 2009, according to the register of actions, Gerhart filed a motion for attorney fees. Appellants, however, have not included the motion, their opposition, or Gerhart’s reply in the appellate record. On January 4, 2010, the trial court held a hearing on the motion. It tentatively determined several issues, including that Gerhart was the prevailing party; however, it asked for further briefing on other issues, and it continued the hearing to February 3, 2010. The record does not include a reporter’s transcript of the continued hearing. It also does not include the trial court’s ultimate ruling on the motion.
On February 11, 2011, however, the trial court entered an amended judgment. It was essentially the same as the original judgment, except that (1) it reduced the damages, consistent with the remittitur, and (2) it awarded Gerhart $90,542.50 in attorney fees.
III
APPEALABILITY
Upon reviewing the record, we realized that there were substantial issues as to whether this appeal was properly before us. We therefore asked the parties to submit further briefing on the following issues. Having now received and considered those supplemental briefs, we address the issues seriatim.
A. Failure to Adjudicate the Cross-Complaint.
First, we asked whether the September 2009 judgment was appealable, given that it did not appear to adjudicate the cross-complaint.
Curiously, appellants took the position that the September 2009 judgment was not appealable, because it failed to expressly adjudicate the cross-complaint. (Appellants blamed this on Gerhart’s counsel, because he had drafted the proposed judgment.) They argued, however, that the February 2010 amended judgment was also nonappealable, for the same reason; thus, yet another amended judgment would have to be entered, and they would be entitled to appeal from that.
On the other hand, Gerhart argued that the September 2009 judgment did effectively adjudicate the cross-complaint, and therefore it was appealable.
We had hoped that one side or the other might cite some legal authority (see Cal. Rules of Court, rule 8.204(a)(1)(B)), but no such luck. Hence, we analyze the issue independently.
“[W]hen a judgment resolves a complaint, but does not dispose of a cross-complaint pending between the same parties, the judgment is not final and thus not appealable. [Citation.]” (Angell v. Superior Court (1999) 73 Cal.App.4th 691, 698.)
Piazza did not file a cross-complaint. Accordingly, the September 2009 judgment was at least final as to her. (Justus v. Atchison (1977) 19 Cal.3d 564, 567–568, disapproved on other grounds in Ochoa v. Superior Court (1985) 39 Cal.3d 159, 171.)
Walters did file a cross-complaint, which the September 2009 judgment did not expressly adjudicate. However, if it is clear that the trial court intended to adjudicate the cross-complaint, “we can amend [the judgment] to do explicitly what it did only implicitly.” (Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 6; see generally Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶¶ 2:70, 2:73, pp. 2-42 to 2-43 (hereafter Eisenberg).) The jury’s special verdict did dispose of the cross-complaint. Through a mere clerical error, the September 2009 judgment failed to expressly enter judgment on that special verdict. Accordingly, we deem the September 2009 judgment amended so as to adjudicate the cross-complaint.
B. The Subsequent Amended Judgment.
Next, we asked whether the September 2009 judgment was appealable, given that an amended judgment was entered in February 2010.
Both sides argue that the amended judgment does not affect the appealability of the original September 2009 judgment.
Appellants cite ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 122 Cal.App.4th 994. ECC did hold, albeit in a footnote, that the appeal there was properly taken from the original judgment, rather than from an amended judgment that was entered after the plaintiff consented to a remittitur. (Id. at p. 1003, fn. 5.) The authority, however, that ECC cited — Stone v. Regents of University of California (1999) 77 Cal.App.4th 736 — would seem to point to the opposite result.
In Stone, the trial court entered a judgment requiring the defendant to pay the plaintiff’s costs of defending a separate action, starting from a date in 1996. After the plaintiff moved for reconsideration, the trial court entered an amended judgment requiring the defendant to pay the plaintiff’s costs of defense, starting from an earlier date, in 1995. (Stone v. Regents of University of California, supra, 77 Cal.App.4th at p. 743.)
The appellate court held that the defendant had properly appealed from the modified judgment. (Stone v. Regents of University of California, supra, 77 Cal.App.4th at pp. 744-745.) It explained: “When a judgment has been modified, an appeal must be taken from the original judgment if the change was a clerical one, and from the modified judgment if the change was material and substantial. ‘[I]f a party can obtain the desired relief from a judgment before it is amended, he must act — appeal therefrom — within the time allowed after its entry. If the amendment materially and in a substantial respect affects the judgment and the rights of a party against whom it is rendered, and a party desires relief therefrom, he must appeal from the corrected judgment....’ [Citation.] Changes which correct errors, mistakes and omissions made through inadvertence, but do not involve the exercise of the judicial function, are considered corrections of clerical errors that leave the original judgment intact. [Citation.]” (Id. at p. 744) “The modification required the [defendant] to pay [the plaintiff]’s legal expenses for an additional nine months. That materially affected [the defendant’s] rights.” (Ibid.) Similarly, an additur or remittitur is an exercise of the judicial function, and it materially affects both parties’ rights. Thus, Stone fails to support the ECC court’s footnote.
To our surprise, our research has not produced any case on point, other than ECC. In general, however, “[w]hen the court denies a motion for new trial and, as authorized by section 662 of the Code of Civil Procedure, enters a substantially modified judgment, that judgment becomes the final judgment of that court and the appeal from the prior judgment becomes ineffective.” (Neff v. Ernst (1957) 48 Cal.2d 628, 634; accord, In re Marriage of Micalizio (1988) 199 Cal.App.3d 662, 670-672 [Fourth Dist., Div. Two].) Although Neff was dealing with an unconditional modification of the judgment under Code of Civil Procedure section 662, whereas we are dealing with a remittitur, which is a conditional modification under Code of Civil Procedure section 662.5, it is not clear how we could distinguish the two.
Fortunately, we need not decide this issue. Precisely because it is fraught with difficulty, we choose to assume, without deciding, that the amended judgment did supersede the original judgment. On that assumption, appellants had to appeal, if at all, from the amended judgment. Even if so, however, we may entertain the appeal under California Rules of Court, rule 8.104(d)(2), which deals with a premature notice of appeal. Under that rule, “[t]he reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.” Here, the trial court announced its intended ruling by granting the conditional remittitur in November 2009. Appellants then filed their notice of appeal in December 2009. Thus, we may treat the notice of appeal as if it were filed immediately after entry of the amended judgment in February 2010.
IV
THE EXCLUSION OF HEARSAY STATEMENTS BY OTHER TENANTS THAT THEY WERE LEAVING THE RANCH BECAUSE OF GERHART
Appellants contend that the trial court erred by excluding hearsay statements by third parties to the effect that they were leaving the ranch because of Gerhart.
A. Additional Factual and Procedural Background.
Hitzeman testified that she witnessed an argument between Gerhart and Tim Keeling, another trainer at the ranch. Defendants’ counsel asked what Keeling said to her after the argument. Gerhart’s counsel objected based on hearsay. Defendants’ counsel cited the excited utterance exception. (Evid. Code, § 1240.) The trial court overruled the objection. Hitzeman then testified that Keeling said, “I shouldn’t have to put up with this man. My client shouldn’t have to put up with this man, ” and he gave her 60 days’ notice that he was leaving the ranch.
Next, defendants’ counsel attempted to introduce exhibit 207. Exhibit 207 has not been transmitted to us. Apparently, however, it was a letter from Keeling stating that he was leaving the ranch because of Gerhart.
Gerhart’s counsel objected again based on hearsay. Defendants’ counsel argued that the letter was within the state of mind exception, citing (among other things) Evidence Code section 1250. The trial court sustained the objection.
Gerhart’s counsel pointed out, “There are several of these letters.” The trial court responded, “To the extent that they’re similar, the objection ruled upon will apply.”
Defendants filed a motion for new trial in which they argued, among other things, that the trial court had erred by excluding four specific letters. The letters, which were attached to the motion, were:
1. A letter dated January 15, 2007, from Keeling, stating that he was giving notice because of “conflicts with another tenant....”
2. A letter dated June 25, 2007, from Keeling, stating that he was leaving the ranch at the end of the month because of Gerhart.
3. A letter dated January 1, 2007, from one Marlene Anschultz, stating that she was giving notice because of Gerhart.
4. A letter dated June 25, 2007, from one Joe King, complaining about Gerhart and concluding, “We hope his negative attitude will not force us to look elsewhere for another training facility.”
The trial court agreed that it had erred. Nevertheless, it denied the motion because it found that the “error was de minimis, harmless, and not substantially prejudicial.”
B. Analysis.
Evidence Code section 1250, subdivision (a) provides:
“Subject to Section 1252, evidence of a statement of the declarant’s then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when:
“(1) The evidence is offered to prove the declarant’s state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or
“(2) The evidence is offered to prove or explain acts or conduct of the declarant.”
Appellants argue that under this section, a person’s statement that he or she was leaving the ranch because of Gerhart would be admissible to show why defendants put up the barriers. In principle, we agree. Such a statement would be a statement of motive under Evidence Code section 1250. Moreover, the person’s motive would be an issue in the action.
Actually, the evidence would also be admissible for the nonhearsay purpose of showing that appellants reasonably believed that they were losing customers because of Gerhart. (See Central H. Imp. Co. v. Memorial Parks. (1940) 40 Cal.App.2d 591, 608-609.) Appellants forfeited this theory, however, by failing to raise it below. (People v. Ramos (1997) 15 Cal.4th 1133, 1178.)
Gerhart responds that the statements were being offered for their truth. However, if a statement is admissible under a hearsay exception, it can be considered for its truth.
Gerhart also argues that under Evidence Code section 1250, subdivision (b) a statement of memory or belief is not admissible to prove the fact remembered or believed. Here, however, we are dealing with statements of motive, not memory or belief.
Next, Gerhart argues that the declarants were not unavailable. Evidence Code section 1251 requires that the declarant be unavailable; Evidence Code section 1250 does not.
Gerhart argues that the letters were not authenticated. However, he did not object below on that ground. It appears that, even if he had objected, Walters and/or Hitzeman received the letters and could have authenticated them.
Finally, Gerhart argues that the letters were not trustworthy. (See Evid. Code, § 1252 [“[e]vidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness”].) However, he does not explain why they were not trustworthy. By ruling, on the motion for new trial, that the letters were admissible, the trial court implicitly found that they were trustworthy. Gerhart cannot show that this was an abuse of discretion.
We conclude, however, that the declarants’ states of mind as stated in these particular letters were not at issue in the action. That is because the barriers were put up in 2006, but each of the letters is dated 2007. Thus, the letters are irrelevant to why defendants put up the barriers. Accordingly, the trial court did not err by excluding them.
Appellants suggest that the trial court erroneously excluded not only the letters, but also conversations with the people who wrote the letters. In theory, such conversations could have taken place in 2006. We have no way of knowing, however, because appellants never actually offered any such conversations into evidence (other than the one conversation with Keeling, and that conversation was, in fact, admitted). Hence, they have forfeited any such contention. (Evid. Code, § 354, subd. (a).)
Separately and alternatively, we agree with the trial court that the exclusion of the letters was not prejudicial. Hitzeman was allowed to testify that Keeling told her that he was giving notice because of Gerhart. She also testified that she lost “[o]ne major tenant and a couple other minor ones” because of Gerhart. Evidence was admitted that both Keeling and Anschultz left because of Gerhart. Hitzeman specifically testified that the barriers were put up in “a desperate attempt to keep Tim Keeling, ” then added, “And others.” Thus, the jury was well aware that defendants were claiming that they put up the barriers in a reasonable attempt to prevent other customers from leaving.
V
ATTORNEY MISCONDUCT IN CALLING GERHART “JEFF”
Appellants contend that Gerhart’s counsel committed prejudicial misconduct by repeatedly calling his client “Jeff” instead of “Mr. Gerhart.”
A. Additional Factual and Procedural Background.
During a pretrial conference, the trial court told both counsel: “I would ask you in addressing parties and witnesses, to use the last name or the appropriate designation, Mr., Ms., Mrs., Miss. Do not use first names....”
On the first day of trial, Gerhart’s counsel called Gerhart as his first witness. At one point, he started a question with the words, “All right, Jeff....” Defendants’ counsel did not object.
Appellants suggest that on the first day of trial, Gerhart’s counsel used Gerhart’s first name a second time; they cite page 63, line 20 of the reporter’s transcript. That claim is not supported by the record citation.
At the end of the day, the trial court said:
“THE COURT:... [¶] The only comment I wanted to make, ... you slipped a little bit at the end and used your client’s first name.
“[GERHART’S COUNSEL]: I apologize.
“THE COURT: Keep in mind the formalities. It is one of the last parts of formality in the courtroom.”
During the rest of the examination, Gerhart’s counsel addressed his client as “Jeff” four more times. Defendants’ counsel did not object.
In questioning other witnesses, Gerhart’s counsel referred to his client as “Jeff” 12 more times. Defendants’ counsel did not object.
At least nine witnesses spontaneously referred to Gerhart as “Jeff, ” including Walters herself.
B. Analysis.
Gerhart’s counsel did commit misconduct by referring to his client by his first name but only because this violated a court order. (People v. Friend (2009) 47 Cal.4th 1, 33.) Admittedly, it can be misconduct to appeal to the sympathy of the jury. (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 216, pp. 262-264.) However, using a client’s first name does not rise to this level, at least in the absence of additional circumstances. (Cf. Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 122 [counsel was properly held in contempt for “continual references to his friendship and affection for the defendant, ” including calling defendant by first name, despite repeated warnings].) It is almost inconceivable that it would prejudice any reasonable juror. That is particularly true in this case, where many of the witnesses who knew Gerhart — both friend and foe alike — referred to him on the stand as Jeff. When the trial court ordered counsel not to use first names, its stated reason was to maintain decorum, not to prevent prejudice. Appellants even concede that “it was permissible for [Gerhart]’s counsel to attempt to make his client ‘likeable’”; they merely argue that “it was... improper for him to attempt to make his client likeable by disobeying a specific court instruction....”
Appellants’ counsel forfeited the misconduct, however, by failing to object. “‘“Generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished.... In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice.”’ [Citation.] If there is no request that the jury be instructed to disregard the objectionable conduct, the error is deemed waived unless the conduct was of such an aggravated character that it could not be cured by any instruction. [Citation.]” (West v. Johnson & Johnson Products, Inc. (1985) 174 Cal.App.3d 831, 862, italics omitted.)
Appellants quote Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, which stated that “even in the absence of an objection and request for admonition, where there are flagrant and repeated instances of misconduct, an appellate court cannot refuse to recognize the misconduct.” (Id. at p. 355.) In Simmons, however, it was “clear from the record” that objections would have been futile: “[O]bjecting would have overemphasized the objectionable material and would have alienated the jury....” (Ibid.)
When an objection would not be futile, it must be raised immediately, because it can prevent the misconduct from becoming “flagrant and repeated.” For example, in Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, plaintiff’s lawyer’s referred to the “Lemon Law” 14 times, in violation of the trial court’s ruling on a motion in limine. (Id. at pp. 1129-130.) The court stated: “[T]here is no reason to conclude a timely objection and admonition would have been ineffective to cure whatever harm occurred, and, more importantly, to prevent further reference to what [the defendant] considered an inflammatory term.” (Id. at p. 130.) Here, similarly, a prompt objection, if meritorious, would have nipped the supposed misconduct in the bud.
Even if not forfeited, this contention lacks merit because appellants have not shown that the supposed misconduct was prejudicial. “[I]t is axiomatic that a judgment will not be disturbed on appeal on the basis of misconduct unless it appears that such misconduct resulted in miscarriage of justice [citations].” (O’Neil v. Spillane (1975) 45 Cal.App.3d 147, 157.) As already discussed, Gerhart’s counsel violated a court order, but the misconduct was not particularly prejudicial.
Appellants themselves assert that Gerhart “clearly [wa]s not likeable” and that the testimony to his bad character was “overwhelming.” If so, however, then the trivial fact that his own attorney called him by his first name could not possibly have changed the jury’s view of him.
VI
THE SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE AMOUNT OF DAMAGES AWARDED FOR NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE
Appellants contend that there is insufficient evidence to support the $45,000 amount awarded for negligent interference with prospective economic advantage.
This contention, however, has been forfeited by their failure to provide an adequate statement of the facts. “An appellant asserting lack of substantial evidence must fairly state all the evidence, not just the evidence favorable to the appellant. [Citation.]” (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415, italics added.) “If the appellant fails to fairly state all material evidence, we may deem waived any challenge based on insufficiency of the evidence. [Citations.]” (Ibid., italics added.)
In this case, Kelly Allen, an expert on accounting and business evaluations, testified extensively about how to quantify Gerhart’s damages. His testimony was supplemented by several exhibits, which appellants have not had transmitted to us. (See Cal. Rules of Court, rules 8.122(a)(3), 8.224(a).) Appellants mention almost none of this evidence; instead, they cherry-pick the two or three hardest blows that their counsel landed during Allen’s cross-examination. This falls short of the full and fair summary of the evidence that is required.
Even if not forfeited, the contention lacks merit.
“‘“‘When a... factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.’ [Citation.]...”’ [Citation.]” (Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 683-684.)
Allen testified that Gerhart lost profit totaling $69,000. Evidently the jury discounted this amount somewhat. Nevertheless, this testimony, standing alone, was sufficient to support its award.
Appellants argue that Allen did not have any written documentation of Gerhart’s expenses. He testified, however, that he relied on Gerhart’s representations regarding his expenses, and that the scope of his engagement did not require him to validate those representations. In addition, he determined that the “expenses were reasonable in light of the services that [Gerhart] was rendering.” Thus, a reasonable juror could find that his conclusions were still valid.
Appellants also argue that Allen did not have any of Gerhart’s tax returns. Allen, however, testified that tax returns were not necessary for the valuation of a small business.
Appellants claim that Allen admitted that his estimate of good will was “subjective.” Actually, he merely testified that it was the “most subjective” of the numbers listed in a certain exhibit. He went on to testify that it was based on his estimate that Gerhart would be able to retain his clients for an average of 15 months, which was “a reasonable conclusion.” Finally — at least on this record, which, as we have mentioned, does not include the relevant exhibits — it is not at all apparent that the $69,000 figure even included good will.
Finally, appellants cite the testimony of their own expert that it was improper to consider goodwill because Gerhart did not have a lease. Once again, however, it is not at all clear that the $69,000 figure included good will. Even assuming it did, the trial court could reasonably believe Allen and disbelieve appellants’ expert.
We therefore conclude that the $45,000 award is supported by substantial evidence.
VII
ASSUMPTION OF THE RISK
Appellants contend that the award of $30,000 to Gerhart on his cause of action for negligence was barred by the doctrine of assumption of the risk.
A. Additional Factual and Procedural Background.
The pertinent evidence was as follows.
Sometime around June 2005, Gerhart was riding a horse named Billy in the arena. At least three dogs ran into the arena and started nipping at Billy’s feet. These dogs belonged to Walters’s daughter.
Billy started rearing. Walters’s daughter called the dogs, and they went back to her. However, a fourth dog, attracted by all of the commotion, ran toward Walters’s daughter. This caused Billy to fall over backwards. Gerhart was thrown. He sustained a painful back injury, including a herniated disk.
Robin Lindsey, who was then still the ranch manager, was present. She did not actually see Gerhart fall, but she saw him on the ground. She also saw the dogs in the arena, “all around [Gerhart].” Walters’s daughter was running toward the arena, screaming at the dogs.
Jerry Courtemarche, an employee of the ranch, was also present. He noticed Gerhart riding in the arena. He saw some of the dogs. He heard the dogs barking, and he heard Gerhart “yelling at the dogs.” He realized that Gerhart was headed toward the dogs and that there was “an accident going to happen....” Then he saw Gerhart fall. According to Lindsey, Courtemarche yelled, “Now you can sue, Jeff.”
Courtemarche denied seeing the dogs actually inside the arena. However, he admitted that he had seen them around the arena “many times.” He also testified that, in his opinion, the dogs were too far away to do any harm until Gerhart rode closer to them.
Courtemarche freely admitted having an animus against Gerhart, arising out of what Courtemarche believed was Gerhart’s cruelty to animals. He felt that Gerhart “ought to be in jail.” On one occasion, Courtemarche admitted, “If I would have had a gun..., I would have shot him.”
Gerhart conceded that being thrown from a horse was “an occupational hazard.” He testified, however, the standard in the industry is not to allow dogs near horses, especially when off the leash.
The jury specifically found that defendants were “negligent in maintaining control of the dogs at the... Ranch” and that this negligence caused harm to Gerhart.
B. Analysis.
Appellants argue that, under the doctrine of assumption of the risk, a horse trainer cannot recover from injuries sustained in a fall from a horse. (See Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1537 [“the doctrine of primary assumption of the risk applies to horseback riding”].)
Appellants have not preserved this contention, however, because they have not included the jury instructions in the record. Thus, for all we know, the jury was not even instructed on assumption of the risk. (See Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1534-1536.)
And anyway, appellants are wrong. They cannot rely on this doctrine if they negligently increased the risk over and above the risk that is inherent in the sport. (Eriksson v. Nunnink (2010) 191 Cal.App.4th 826, 839 [Fourth Dist., Div. Two].) The evidence showed that the presence of a dog increases the inherent risk of horseback riding. Appellants do not challenge the jury’s finding that they were negligent.
The real issue, then, is whether there is substantial evidence that the presence of the dogs was a proximate cause of Gerhart’s injuries. On this point, appellants misrepresent the evidence. They state, “The ‘horse throwing incident’ was witnessed by only one person, Jerry Courtemarche.” Well, what about Gerhart himself? “[T]he testimony of a single witness, even a party, is sufficient to provide substantial evidence to support a factual finding [citation].” (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 171.)
And what about Lindsey? Appellants cite Courtemarche’s testimony that Lindsey came “up the pathway” and asked him what had happened. They ask us to infer that Lindsey did not actually see the incident. That is an argument for a jury, not for an appellate court. We must draw all of the inferences that support the verdict. (Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 907.) It is not uncommon for multiple witnesses to an event to ask each other what happened.
Appellants also misrepresent Courtemarche’s own testimony. They claim that he “testified that no dogs improperly entered the arena.” Not so. He merely testified that he did not see any dogs inside the arena.
In any event, whether the dogs were in the arena is a red herring. While the three percipient witnesses differed on the details, they all agreed that the presence of the dogs — whether inside or outside the arena — caused the fall. Even Courtemarche described the situation as an accident about to happen. According to Lindsey, Courtemarche yelled, “Now you can sue, Jeff.”
Accordingly, the award of damages for negligence did not violate the doctrine of assumption of the risk.
VIII
ATTORNEY FEES
Appellants argue that the trial court erred in awarding attorney fees to Gerhart, in three alternative respects. First, they contend that a fee award was improper in the absence of either evidence or a jury finding that there was a written contract. Second, they contend that a request for mediation was a condition precedent to an award of attorney fees, and Gerhart made no such request. Third, they contend that the amount of fees was unreasonable.
Gerhart, in response, contends that appellants failed to file a timely appeal from the award of attorney fees.
“Generally, any postjudgment order awarding or denying... attorney fees is appealable.... [Citations.]” (Eisenberg, supra, ¶ 2:156, p. 2-72.13 (italics omitted).) “When a party wishes to challenge both a final judgment and a postjudgment... attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudgment order (since it is separately appealable). [Citation.]” (Id. at ¶ 2.156.1, p. 2-722.13, italics omitted.)
However, there is an exception to this general rule. “Where a judgment awards unspecified costs and attorney fees and provides for later determination of the amount, the failure to file a separate appeal from the subsequent order fixing the amount of costs and fees does not preclude review of the order on appeal from the underlying judgment: ‘[W]hen a judgment awards costs and fees to a prevailing party and provides for the later determination of the amounts, the notice of appeal subsumes any later order setting the amounts of the award.’ [Citation.]” (Eisenberg, supra, ¶ 2:156.2, p. 2-73.)
In part III, ante, we declined to decide whether the September 2009 judgment or the February 2010 amended judgment was the appealable final judgment.
Assuming it was the September 2009 judgment, that judgment awarded an unspecified amount of attorney fees, to be determined later. Accordingly, on that assumption, we have jurisdiction to review a subsequent award of attorney fees.
Assuming, on the other hand, it was the February 2010 amended judgment, as we have already held, appellants filed a premature but valid appeal from that judgment. Admittedly, in December 2009, when they filed their notice of appeal, the trial court had announced its intended ruling solely on the motion for new trial; it had not yet announced its intended ruling on the motion for attorney fees. Nevertheless, as already discussed, in most cases, “the notice of appeal from the final judgment encompasses the subsequent order fixing the amount of fees and costs.” (Eisenberg, supra, ¶ 2:156.2, p. 2-73.) Accordingly, again, we have jurisdiction to review the ultimate award of attorney fees.
We nevertheless reject appellants’ contentions, for a separate but related reason: Appellants have not provided us with an adequate record. The record does not include Gerhart’s motion for attorney fees, appellants’ opposition, or Gerhart’s reply. It includes a reporter’s transcript of the initial hearing on the motion but not of the continued hearing. Indeed, it does not even include the challenged order.
“Error must be affirmatively shown. [Citation.] The party appealing has the burden of overcoming the presumption of correctness. For this purpose, it must provide an adequate appellate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. [Citation.]” (Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859-860.) Admittedly, California Rules of Court, rule 8.163 provides, “The reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised.” Here, however, the record manifestly does not include all of the material matters. Thus, this presumption has been overcome.
We therefore conclude that the fee award must stand.
IX
DISPOSITION
The judgment is affirmed. Gerhart is awarded costs on appeal against appellants.
We concur: RAMIREZ, P.J., CODRINGTON, J.
We will use “defendants” to refer to Piazza, Walters, and Hitzeman; we will use “appellants” to refer solely to Piazza and Walters.
This misstates the record. Although the original exhibits have not been transmitted to us, one of them apparently was a copy of the lease signed by both Walters and Gerhart. Also, Gerhart testified that he signed the lease. Finally, on the stand, Walters admitted that Gerhart signed the lease and returned it to her.