Selman Breitman, Elaine K. Fresch, Suzanne E. Rischman and Melanie M. Smith for Plaintiffs and Appellants. Wallace, Brown & Schwartz, Lisa J. Brown and George M. Wallace for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2013-00043836-CU-PO-NC) APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Affirmed. Selman Breitman, Elaine K. Fresch, Suzanne E. Rischman and Melanie M. Smith for Plaintiffs and Appellants. Wallace, Brown & Schwartz, Lisa J. Brown and George M. Wallace for Defendants and Respondents.
Ali Nilforushan and Rebecca Lewis (Plaintiffs), owners of a show jumping horse named Formidable, appeal from a defense judgment in favor of Rodrigo Vazquez De Mercado and Equine Surgical Services, Inc. (together Vazquez). Plaintiffs do not challenge the jury's unanimous verdict that Vazquez was not negligent in his care and treatment of Formidable. However, Plaintiffs contend the court erroneously found in Vazquez's favor in the second phase of trial, a bench trial of their cause of action under the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) In that UCL cause of action, Plaintiffs alleged Vazquez "falsely entered and/or altered the dates and types of diagnoses" of the horse . . . ." The trial court found otherwise, determining there was "no proof of falsification . . . ."
Plaintiffs contend the judgment on the UCL cause of action should be reversed because the court erroneously (1) denied their motion to amend their complaint to conform to proof, (2) ignored counsels' agreement that the court consider evidence from the jury trial when deciding the UCL cause of action, (3) failed to issue a tentative decision and a statement of decision, and (4) failed to resolve certain controverted issues. We reject these contentions and affirm the judgment.
Because Plaintiffs do not challenge the jury's finding that Vazquez was not negligent, only an overview of the malpractice claim is provided here to place the UCL issues in context.
A. The Horse, Formidable
Nilforushan is an experienced equestrian specializing in show jumping. Lewis knows Nilforushan and in 2010 they purchased Formidable for €350,000. Formidable, then five-years old, was a Holsteiner champion, bred by one of the best show jumping horse breeders in Germany, and was a "real superstar."
Lewis contributed €25,000 in exchange for an 8.33 percent interest in the horse.
Vazquez is an equine veterinarian specializing in sports medicine and surgery. When Plaintiffs purchased Formidable, Vazquez had been rendering veterinary services to Nilforushan's other horses for several years.
C. First Bout of Dermatitis
In March 2012 Formidable had dermatitis, an inflammation of the skin. His limbs had areas of bald skin and were irritated. Vazquez treated the dermatitis by administering antibiotics, an antifungal, and a corticosteroid.
Unless otherwise indicated dates are in 2012.
About two weeks later on April 4, Formidable's dermatitis was much improved. Hair was growing back, scabs were healing, and the horse was more comfortable. Vazquez provided no further treatment, believing the dermatitis was resolved.
D. Second Bout of Dermatitis
By April 11 Formidable's dermatitis flared up and become so severe, it was one of the worst cases Vazquez had seen in his 30-year career. The horse could barely walk because of the pain, and he had ulcers from below the knee to the hoof and around the legs, which were very swollen.
Vazquez treated Formidable with "every form [he] thought possible to help [Formidable] improve his condition and degree of comfort" including several different corticosteroids, a nonsteroidal antiinflammatory, antihistamines, an antibiotic, and an antifungal medication. He continued treating Formidable for several weeks. The horse steadily improved and by May 8 had recovered. On June 4, Formidable was trotting again. From May 8 to June 13, Vazquez heard nothing about Formidable's condition.
On June 13 Vazquez learned that Formidable was unable to bear weight on his front legs. The horse had laminitis, a painful inflammation of tissue surrounding the hoof. Often, horses suffering severe laminitis are euthanized because "the whole
condition deteriorates to the point that they usually don't stand very long." From June through August, Vazquez treated Formidable for laminitis. Formidable recovered; however, he can no longer perform at the level he was showing before the laminitis.
For example, the 2006 Kentucky Derby winner, Barbaro, was euthanized after developing laminitis.
1. Causes of action at trial
At trial, Plaintiffs pursued two causes of action against Vazquez: (1) veterinary malpractice—Plaintiffs alleged that Vazquez's treatment of dermatitis with multiple corticosteroids violated the standard of care and caused Formidable to contract laminitis; and (2) a UCL action—Plaintiffs alleged that Vazquez treated Formidable between May 10 and June 13, misdiagnosed the laminitis, and then in an attempt to conceal his malpractice, falsified records to make it appear he first saw that Formidable was lame on June 13.
2. Separate trials
Before jury selection, Vazquez's attorney asked the court to bifurcate the jury trial of negligence cause of action from the court trial of the UCL claim. After initially denying that motion, the court reversed itself and agreed the jury trial on negligence would proceed, followed by a separate bench trial on Plaintiffs' UCL cause of action.
3. Jury phase
The jury trial largely consisted of a battle of veterinary medicine experts. Plaintiffs' expert, James Orsini, testified there is a link between corticosteroids and laminitis. Orsini testified that Vazquez violated the standard of care by administering multiple corticosteroids to Formidable to treat the dermatitis.
Orsini was impeached several times with prior inconsistent statements. For example, in his deposition, Orsini testified there was no known standard of practice with respect to treating dermatitis. In deposition, he also admitted that he probably administered prednisone, a corticosteroid, in treating dermatitis.
Vazquez's expert, Bradley Jackman, testified that unless a horse has an underlying metabolic disorder, a "systemic illness," or a previous laminitis episode, there is no link between corticosteroids and laminitis. Jackman testified that Formidable had none of these preexisting conditions. Jackman opined that Vazquez's aggressive treatment of Formidable's dermatitis was warranted and complied with the standard of care.
4. Court trial
While the jury was deliberating on the malpractice cause of action, the parties tried the UCL claim to the court. In the bench trial, Vazquez explained how he documented his care and treatment of Formidable. He testified that after making contemporaneous handwritten notes of his examinations and treatment, he gave those notes to his secretary, who then typed the information on a computer using software that created both a bill and a record of the examination. After entering the handwritten information, Vazquez's secretary customarily disposed of the handwritten notes. In some cases, the secretary might initially enter only a portion of the handwritten notes into the computer to create a bill right away, and later as time permitted go back and add more information for the record of examination. Vazquez authenticated several invoices for veterinary services sent to Nilforushan's secretary that included a list of medications administered to Formidable.
Nilforushan testified that Vazquez never gave him a written record of his treatment of Formidable.
5. Judgment, appeal
In the midst of the UCL trial, the jury returned a unanimous verdict, finding that Vazquez was not negligent. After the bench trial, the court issued a minute order stating it found "no proof of falsification" of Vazquez's medical records.
In light of this finding and Plaintiffs' abandonment of any appellate challenge to the verdict, we disregard statements in Plaintiffs' opening brief that Vazquez "prescribed the wrong dosages of medication," did not "properly and thoroughly examine the horse," and "fell below the standard of care vis-a-vis recordkeeping." (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630-631 [standard of review].)
The court entered judgment for Vazquez. Plaintiffs timely appealed from the judgment. However, in their opening brief, Plaintiffs state they "only appeal the bench decision" on their UCL claim and "do not appeal the jury's verdict . . . as to the negligence/veterinary malpractice cause of action."
I. THE AMEND TO CONFORM TO PROOF ISSUE
A. Additional Factual Background
1. The UCL claim, as alleged in the complaint
In the UCL cause of action, Plaintiffs alleged that Vazquez altered his records to delete an entry showing he misdiagnosed Formidable's laminitis sometime prior to June 13. Specifically, the fourth amended complaint (complaint) alleges, "[Vazquez] falsely represented in [his] electronic log and invoices . . . the timeline of treatment and date(s) of diagnoses of Formidable." The complaint also alleges that "[Vazquez] falsely entered and/or altered dates and types of diagnoses of Formidable, including falsely identifying June 13, 2012 as the first time [Vazquez] examined Formidable for lameness."
Three separate times before trial, Plaintiffs stated their UCL claim was based on Vazquez's falsification of medical records. For example, Plaintiffs' trial brief states, "[Vazquez] attempted to cover up [his] grossly negligent and harmful conduct by falsifying veterinary medical documents . . . ." Similarly, in opposing Vazquez's motion to bifurcate, Plaintiffs again stated:
"Vazquez was called to examine and treat Formidable for lameness at some time between May 10 . . . and June 13 . . . . However, that visit is not reflected anywhere in  Vazquez's records, and indeed it was scrubbed clean from the records to cover his tracks. . . . [T]herefore [P]laintiffs have brought a cause of action arising under [the UCL]."
Third, at the outset of the hearing on motions in limine, Plaintiffs again stated the UCL claim was based on Vazquez deleting a record entry to cover up malpractice:
"[Defense counsel]: . . . The essence of the [UCL] claim is that there was allegedly a record created . . . which was subsequently altered—
"[The Court]: Scrubbed.
"[Defense counsel]: —or scrubbed is the vivid verb that [P]laintiffs have been using. . . . [¶] . . .
"[Plaintiffs' counsel]: . . . [T]he issue is, is that—exactly that, that there was no entry . . . . [T]here's the whole issue." (Italics added.)
2. The expanded UCL claim at trial
However, as the hearing on motions in limine progressed, Plaintiffs' UCL theory broadened. Plaintiffs' counsel asserted that Vazquez had not kept Plaintiffs informed about his treatment of Formidable and prescribed medications. Vazquez's lawyer replied that "this latest theory . . . has never been alleged, never been argued until this very moment." After expressing concerns about the viability of Plaintiffs' UCL cause of action, the court invited Vazquez's attorney to file a motion for "nonsuit on that issue." Before opening statements, Vazquez's lawyer did so, filing a motion "for nonsuit" on the UCL cause of action.
The motion was procedurally improper because under Code of Civil Procedure section 581c, subdivision (a), a nonsuit motion may only be brought after the plaintiff has completed opening statement, or after presenting his or her evidence in a jury trial.
Opposing the nonsuit motion, Plaintiffs broadened their UCL claim, asserting that Vazquez's medical records lacked detail and specificity, violating certain statutes and administrative regulations governing veterinary records—allegations not made in the complaint.
At the hearing on the nonsuit motion, defense counsel stated, "[N]ow we have all these new theories in this brief that have never been raised in this case." The court replied, "Well, if it's not in the complaint, it's not going to be raised." (Italics added.)
Despite the court's statement, Plaintiffs did not request leave to amend their complaint to add these new UCL claims. The court deferred ruling on the nonsuit motion until after Plaintiffs presented their case-in-chief.
3. Trial of the UCL cause of action
Nilforushan and Vazquez were the only witnesses who testified in the UCL bench trial. After taking the matter under submission, the court issued a minute order stating:
"The Court, after considering the evidence on Plaintiffs' Sixth Cause of Action [UCL] in this 1.6 hour bench trial, finds no proof of falsification of Defendant's log, dates of treatment or dates and types of diagnoses of Formidable, as alleged in the subject cause of action. Accordingly, the Court finds for Defendant on this claim."
B. Plaintiffs' Contention
Plaintiffs contend the court erroneously limited the UCL trial to whether Vazquez falsified his records, as alleged in the complaint. Plaintiffs contend the court should have also considered their theory that Vazquez's record keeping was "improper and unlawful." Plaintiffs assert that they "orally moved to amend the complaint to conform to proof offered at trial" on the UCL cause of action, "which was denied by the court."
As appellants, it is Plaintiffs' obligation to establish error by an adequate record. The Court of Appeal "'will not consider facts having no support in the record and will disregard statements of such facts set forth in a brief.'" (Mitchell v. City of Indio (1987) 196 Cal.App.3d 881, 890.) "When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two." (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.)
To support their assertion that Plaintiffs requested leave to amend the complaint to conform to proof, the opening brief cites four groups of material in the record: (1) 1RT132:1-11; (2) 4RT201:17-202:12, 205:14-24; (3) 10RT 1245:27-1246:14, and (4) 2AA201-314. However, as discussed next, none of these citations contains any request to amend the complaint.
The first citation is to a hearing on in limine motions. The court asked Plaintiffs' counsel if the UCL claim "relates to . . . in essence, poor record keeping." Counsel responded, "Poor record keeping or lack of record keeping under the statute." There is nothing here about seeking leave to amend the complaint. To the contrary, later on the same page cited by Plaintiffs, the court invited a nonsuit motion directed to the allegations in the complaint.
The second group of citations involves pretrial proceedings after the parties had filed their papers on the nonsuit motion. Vazquez's lawyer expressed concern that Plaintiffs' opposition to the nonsuit motion added new UCL claims that Vazquez violated veterinary recordkeeping regulations. Defense counsel asserted, "That has never been brought up during the entire lawsuit . . . depriving [Vasquez] an opportunity to do any discovery on that issue." He told the court, "I do not believe that part of their claim that is in the [nonsuit] papers should be able to come in at all . . . ."
If Plaintiffs intended to ask for leave to amend, this would seem to be a natural time for doing so. However, Plaintiffs did not ask for leave to amend. Rather, Plaintiffs' attorney argued "record keeping is absolutely relevant" and "plays into their negligence." Plaintiffs' counsel stated the recordkeeping issue was raised in a deposition and, therefore, Defendants "have been placed on notice regarding this."
Plaintiffs also cite pages 201, 202, and 205 of the reporter's transcript as containing their request for leave to amend. Interestingly, Plaintiffs skip page 203. On pages 201 through 202, Plaintiffs' counsel argued that Vazquez's recordkeeping is relevant to the negligence cause of action. On page 203, the court stated the UCL trial would be limited to the allegations in the complaint. The court stated, "I am always going to be looking at the allegations in the complaint when I get a relevancy objection, right?" Despite that warning, Plaintiffs did not ask for leave to amend the complaint to conform to proof.
In the third group of record citations, volume 10 of the reporter's transcript, the jury is deliberating on the negligence cause of action, and the court trial on the UCL claim is about to start. Before calling any witnesses, counsel stipulated to the admissibility of certain Vazquez records pertaining to Formidable. However, when Plaintiffs' counsel offered a July 2013 invoice, defense counsel objected, asserting that had "nothing to do with the issue before the court, which is whether or not [Vazquez] altered his records as it relates to his treatment of . . . Formidable during the dermatitis/laminitis."
Next, the following discussion occurred regarding the proper scope of the UCL trial:
"[The Court]: . . . Let me go back now, just to remind us why we're here and what the allegations are. I'm looking at the sixth cause of action in the . . . fourth amended complaint. And it says: After incorporating [paragraphs] 1 through 51 . . . [D]efendants falsely represented in their electronic log and invoices the . . . timeline of treatment and dates of diagnos[e]s of Formidable. Plaintiffs . . . allege that [D]efendants falsely entered and/or altered the dates and types of diagnoses . . . including falsely identifying June 13, 2012 as the first time [D]efendants examined Formidable for a lameness.
"And then it goes on to say: Defendants' falsified records constitute unlawful, unfair, and fraudulent business acts and practices . . . .
"Okay. So we are talking about falsely entering and altering dates. Is that your claim?
"[Plaintiffs' counsel]: Yes, as well as poor business practices pursuant to the standard of Business and Professions Code section—
"[The Court]: Well, you say that he falsely represented in the electronic log and invoices the timeline of treatment and dates of diagnos[i]s. That's what you're talking about, right?
"[Plaintiffs' counsel]: Yes.
"[The Court]: So what does the deworming have to do with anything, for example?" (Italics added.)
After an off-the-record discussion, the court stated, "Counsel, we're at the deworming." Plaintiffs' counsel replied that she withdrew that exhibit. These record citations to not show Plaintiffs asked for leave to amend the complaint. Indeed, Plaintiffs' counsel stated "yes"—the UCL claim was that Vazquez falsely represented treatment dates and date of diagnosis.
The fourth and final group of record citations are 113 pages of opposition to Vazquez's nonsuit motion. It is not this court's obligation to read 113 pages to ferret out a few words requesting leave to amend. (See Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5.) Parties are required to provide exact page citations. (Nazari v. Ayrapetyan (2009) 171 Cal.App.4th 690, 694, fn. 1.) Nevertheless, we have conducted a word search of these 113 pages for "conform," and "leave," but those words do not appear. "Amend" and "proof appear, but in completely different contexts.
In their reply brief, Plaintiffs assert that based on certain deposition testimony, Vazquez's attorneys were on notice that "the content of the veterinary records and lack of written prescriptions" were at issue. However, notice and lack of prejudice are issues that relate to the merits of whether leave to amend a complaint to conform to proof should be granted—if such leave had been requested.
"'"[A] party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct."'" (A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1289.) Here, Plaintiffs are precluded from predicating error on the trial court's refusal to expand the scope of the UCL trial beyond the complaint's allegations because the record does not show they ever asked for leave to amend the complaint to conform to proof.
For the first time at oral argument, counsel cited Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1261 for the proposition that pleading a UCL claim does not have to be specific. She argued there was, therefore, no need to request leave to amend the complaint to conform to proof. However, Gutierrez is off-point because it is an appeal from a judgment of dismissal after a demurrer was sustained without leave to amend. On the UCL cause of action, the Court of Appeal reversed because the plaintiff had adequately alleged a violation of the Consumer Legal Remedies Act and that served as the predicate violation of law necessary to establish the unlawful practice that is actionable under the UCL. (Gutierrez at pp. 1238-1239.) Gutierrez does not involve a variance between pleading and proof at trial and does not address the consequences of failing to request leave to amend to conform to proof at trial. Accordingly, the case does not stand for the proposition that Nilforushan could plead one UCL violation and prove another at trial without first requesting leave to amend the complaint.
II. NO ERROR IN SEPARATE TRIALS AND EVIDENCE
Before the UCL trial started, Plaintiffs' attorney suggested the court decide the matter "on testimony that was presented in front of the jury" with the exception of "one or two things" that Nilforushan would add in his testimony. Relying on a fragment in the record where Vazquez's attorney stated, "we can rely on the testimony from the other trial," Plaintiffs assert both sides agreed that evidence received in the jury trial was automatically part of the UCL trial—and, therefore, the court erred in failing to consider such evidence.
Plaintiffs' argument fails because the record does not show the parties agreed that evidence received in the jury trial would be considered by the court in the UCL trial. It is true, as Plaintiffs assert, that Vazquez's attorney said, "we can rely on the testimony from the other trial." However, Plaintiffs distort the record by taking these words out of context. The entire quotation is here:
"[Plaintiffs' counsel]: . . . [M]y suggestion to the Court, we'd be willing to submit on testimony that was presented in front of the jury. I think that most of it was covered with the exception of maybe one or two things that can be provided—
"[The Court]: With the exception of what?
"[Plaintiffs' counsel]: With the exception of probably one or two things that can be provided by my client.
"[The Court]: Counsel?
"[Vazquez's counsel]: Well, I think it needs to be tried separately, so the witnesses need to come back. I don't think it's—we can rely on the testimony from the other trial.
"[The Court]: Yeah. . . ." (Italics added.)
When read in context, Vazquez's attorney did not agree that evidence received in the jury trial was automatically part of the UCL trial. Counsel unambiguously stated: (1) "I think it needs to be tried separately," and (2) "the witnesses need to come back." Then, he said, "I don't think it's—we can rely on the testimony from the other trial." The only reasonable way of interpreting this last sentence is that counsel intended "I don't think" to be linked with "we can rely on the testimony from the other trial."
Plaintiffs' contrary interpretation requires us to only consider "we can rely on the testimony from the other trial" and to ignore the rest of defense counsel's statement. If Plaintiffs' interpretation is correct, then after stating the UCL case "needs to be tried separately" and "the witnesses need to come back"—in the very next breath, counsel contradicted himself by stating, "we can rely on the testimony from the other trial." That makes no sense.
In interpreting a contract, a reliable indication of the parties' intent is how they act before any dispute arose. (Kennecott Corp. v. Union Oil Co. (1987) 196 Cal.App.3d 1179, 1189.) Applying that same principle here, the record shows that during the UCL trial—before anyone was conjuring up appellate arguments—Plaintiffs' counsel understood the defense was not agreeing to try the UCL cause of action based on evidence received in the jury trial. After Vazquez's attorney said the witnesses needed to return for the UCL trial, the following discussion occurred:
"[Plaintiffs' counsel]: Like I said, my suggestion, we'd be willing to submit it on the testimony from the trial. But if counsel wants us to restart and try it again—
"[The Court]: Yeah. I mean, this is kind of a different issue in a way. I mean, maybe some of it has come in.
"[Vazquez's counsel]: Right, but your point during the trial was that it was negligence, not to put things in the record. I think it's a different issue for the [Business and Professions Code] section 17200 claim.
"[The Court]: Yeah." (Italics added.)
Furthermore, before the first witness testified in the UCL trial, the parties stipulated to the admissibility of numerous trial exhibits. Six of those exhibits had already been received during the jury trial. If, as Plaintiffs contend on appeal, the parties had agreed that evidence in the jury trial would be automatically received in the UCL trial, this stipulation would not have been necessary.
III. NO ERROR IN NOT ISSUING A TENTATIVE DECISION
AND A STATEMENT OF DECISION
The UCL trial was completed on February 28, 2017, and consumed 1.6 hours. On March 1, 2017, the court issued a minute order stating it found "no proof of falsification."
On March 10, 2017, Plaintiffs requested a statement of decision. However, the court did not prepare a statement of decision. Plaintiffs contend the court committed reversible error in failing to file a tentative decision and a statement of decision.
Plaintiffs' contentions are untenable. Under Code of Civil Procedure section 632, in trials completed within less than eight hours over several days, a request for statement of decision must be made before the matter is submitted for decision. Here, the bench trial consumed 1.6 hours and the matter was submitted on February 28, 2017. Plaintiffs' request for a statement of decision was not filed until March 10, 2017, and is, therefore, untimely. Accordingly, the court was not required to file a tentative decision nor a statement of decision. (Earp v. Earp (1991) 231 Cal.App.3d 1008, 1012; see Moore et al., Cal. Civil Practice Procedure (2008) § 28:19, p. 28-23 [tentative decision not required if the trial is completed within eight hours spread over more than one day].) For the same reasons, the court did not improperly fail to resolve controverted issues identified in Plaintiffs' request for a statement of decision.
Code of Civil Procedure section 632 provides in part: "In superior courts, upon the trial of a question of fact by the court . . . [t]he court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision."
Plaintiffs also contend the court violated Code of Civil Procedure section 657, a statute pertaining to motions for new trial. However, the record on appeal does not contain a motion for new trial, opposition to same, or ruling. The issue is forfeited because it is unsupported by the record and lacks legal analysis. (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 154; Singh v. Lipworth (2014) 227 Cal.App.4th 813, 817.) --------
The judgment is affirmed. Respondents are entitled to costs incurred on appeal.
NARES, J. WE CONCUR: McCONNELL, P. J. IRION, J.