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Nonnenmacher v. Walsh

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Aug 9, 2017
D069532 (Cal. Ct. App. Aug. 9, 2017)

Opinion

D069532

08-09-2017

LYNNE NONNENMACHER, Plaintiff and Appellant, v. DENISE WALSH, Defendant and Respondent.

Lynne Nonnenmacher, in pro. per., for Plaintiff and Appellant. Winet Patrick Gayer Creighton & Hanes, Randall L. Winet and Amanda F. Benedict for Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2011-00089457-CU-PA-NC) APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Affirmed. Lynne Nonnenmacher, in pro. per., for Plaintiff and Appellant. Winet Patrick Gayer Creighton & Hanes, Randall L. Winet and Amanda F. Benedict for Defendant and Respondent.

I.

INTRODUCTION

Lynne Nonnenmacher appeals from a judgment in favor of Denise Walsh. The trial court entered the judgment after a jury rendered a verdict finding that Walsh was not negligent. On appeal, Nonnenmacher raises 19 separately captioned arguments. Sixteen of the 19 arguments pertain to evidentiary rulings made by the trial court. The other three arguments pertain to alleged procedural errors committed by the trial court. The record on appeal does not contain any reporter's transcripts from either the proceedings pertaining to these rulings or from the jury trial.

Although the complaint is not contained in the record, it is clear from the record and the parties' briefing that Nonnenmacher alleged that she suffered personal injuries for which Walsh was liable.

Our state constitution provides that a court may not reverse a judgment based on a trial court's erroneous evidentiary or procedural rulings unless the reviewing court determines, after an "examination of the entire cause, including the evidence," that the errors "resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13, italics added.) Without a reporter's transcript of the trial in this case, this court has no ability to "examin[e] . . . the entire cause, including the evidence" to determine whether any of the alleged errors in this case requires reversal. (Cal. Const., art. VI, § 13.) Accordingly, we are required to affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

According to the parties' briefs, Nonnenmacher filed this action against Walsh seeking to recover damages for personal injuries that Nonnenmacher allegedly suffered during an incident in which she attempted to climb into a pickup truck that Walsh was driving.

Prior to the trial, Nonnenmacher filed a motion to designate a neurologist as an expert witness. The trial court denied the motion. Also prior to trial, Walsh filed numerous motions in limine to exclude various items of evidence from the trial. The trial court granted many of Walsh's motions in limine. In addition, Nonnenmacher filed a motion in limine to preclude two of Walsh's experts from testifying at trial. The court denied Nonnenmacher's motion in limine.

The trial court held a jury trial on Nonnenmacher's claims in the Fall of 2015. The jury returned a special verdict finding that Walsh was not negligent. The court entered a judgment in favor of Walsh in accordance with the jury's verdict in October 2015.

Nonnenmacher appeals from the judgment.

III.

DISCUSSION

The record is not adequate to permit this court to review any of Nonnenmacher's claims

Nonnenmacher raises 19 separately captioned arguments on appeal. Sixteen of these arguments pertain to evidentiary rulings of the trial court. For example, Nonnenmacher contends that the trial court erred in excluding certain hearsay statements, denying her request to designate an expert witness, and precluding certain witnesses from offering expert opinions. The other three arguments pertain to whether the trial court erred in delaying the start of the jury trial in order to hear another matter, whether the court erred in granting Walsh's objection to Nonnenmacher's filing an untimely opposition to Walsh's motions in limine, and whether the court erred in failing to admonish Walsh not to discuss her testimony with another witness. A. Governing law

We refer here to issues on appeal in Nonnenmacher's brief numbered 1 through 13, 15, 17, and 18.

We refer here to issues on appeal in Nonnenmacher's brief numbered 14, 16, and 19.

Article VI, section 13 of the California Constitution provides:

"No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Italics added.)

"As with any civil appeal, we must presume the judgment is correct, indulge every intendment and presumption in favor of its correctness, and start with the presumption that the record contains evidence sufficient to support the judgment." (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251.) "An appellant has the burden to overcome the presumption of correctness and show prejudicial error." (Silva v. See's Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 260.) An appellant also has the burden of ensuring that an adequate record exists for review. (Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499, 1503 (Roberson).) Specifically, an appellant who fails to provide a reporter's transcript on appeal is precluded "from raising any evidentiary issues on appeal." (Hodges v. Mark (1996) 49 Cal.App.4th 651, 657.) That is because "it is presumed that the unreported trial testimony would demonstrate the absence of error." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)

Where an appellant fails to provide an adequate record to permit review of the merits of her claims, a reviewing court is required to affirm the judgment. (See, e.g., Roberson, supra, 226 Cal.App.4th at p. 1503 ["We affirm the judgment denying Roberson's petition . . . [because] Roberson has not demonstrated reversible error [since] the record on appeal is inadequate"].) Finally, an appellant "is not exempt from the foregoing rules because [s]he is representing [her]self on appeal in propria persona. Under the law, a party may choose to act as his or her own attorney. [Citations.] '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]' [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 (Nwosu).) B. Application

1. This court is unable to review the merits of Nonnenmacher's claims without a reporter's transcript

As discussed in part I, ante, the record on appeal does not contain any of the reporter's transcripts from any of the proceedings in this matter. Without transcripts, this court is unable to examine the entire matter, "including the evidence," (Cal. Const., art. VI, § 13) to determine whether any reversible error has occurred.

In her opening brief, Nonnenmacher states:

"[A]s [Nonnenmacher] is designated fully disabled by the Federal Government and living in subsidized disability housing because of her injuries sustained on May 23, 2009, [Nonnenmacher] could not afford to have a trial transcript prepared. As you know, it is within the right of this Court to request a copy of said transcript in order to truly appreciate how one sided this Trial was."

Even assuming that Nonnenmacher is indigent, it is Nonnenmacher's burden to ensure that this court has an adequate record to review her claims. Nonnenmacher does not argue that principles of due process require that she be provided with a reporter's transcript free of charge.

While this appeal was pending, this court granted Nonnenmacher's application to waive court fees on appeal.

The Supreme Court is considering an issue concerning the effect of indigency on the ability of a litigant to obtain a reporter's transcript in Jameson v. Desta, review granted Jan. 27, 2016, S230899. (See Appellate Courts Case Information at <http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2126896&doc_no=S230899> [as of August 8, 2017] ["In the case of a litigant who has been granted a fee waiver (Gov. Code, § 68631), can a county's superior court employ a policy that has the practical effect of denying the services of an official court reporter to civil litigants who have been granted such a fee waiver, if the result is to preclude those litigants from procuring and providing a verbatim transcript for appellate review?"].)

2. Nonnenmacher did not timely obtain a reporter's transcript

During the oral argument of this case, Nonnenmacher suggested that the lack of a reporter's transcript in the record in this case was caused by this court's failure to permit her adequate time to obtain a reporter's transcript. That is not the case. While we certainly understand that obtaining a reporter's transcript can be costly and time consuming, a review of the docket reveals that Nonnenmacher did not comply with the relevant Rules of Court, was granted numerous extensions of time, and failed to demonstrate that she was entitled to additional time to obtain a reporter's transcript.

After this case was argued, we vacated submission of the cause to allow for time to investigate Nonnenmacher's contentions at oral argument that she had obtained or tried to obtain a reporter's transcript and that this court had thwarted that effort by denying her final request for an extension of time.

a. The appellate docket

In January 2016, Nonnenmacher filed an amended notice designating the record in this case. That notice indicated that she would be proceeding without a reporter's transcript. Thereafter, throughout 2016, this court granted Nonnenmacher's numerous applications for extensions of time to file an opening brief, including in July, September and October. In November 2016, Nonnenmacher filed an opening brief that raised 19 arguments. As discussed above, all of Nonnenmacher's claims require a reporter's transcript in order to permit review on the merits.

Walsh filed her respondent's brief on January 17, 2017, and noted that Nonnenmacher had failed to provide an adequate record to permit this court to review her claims. Walsh failed to properly serve Nonnenmacher with her respondent's brief at Nonnenmacher's new street and e-mail addresses. On February 3, Nonnenmacher filed an application for an extension of time to file her reply brief, citing Walsh's improper service. Nonnenmacher indicated that she had "received [respondent's brief] for the first time today [i.e., February 3]." That same day, this court granted Nonnenmacher's application for an extension of time to file her reply brief and ordered that the brief be filed on February 27. Our order stated, "No further extensions are contemplated."

Walsh did not oppose Nonnenmacher's application.

In late February 2017, Nonnenmacher filed a second application for an extension of time to file her reply brief, on the ground that she was suffering from a "rare eye condition." This court granted the application, ordered that the brief be filed on March 20, and again remarked, "No further extensions are contemplated."

On March 17, 2017, this court received Nonnenmacher's third application for an extension of time to file a reply brief. In support of her application, Nonnenmacher stated, for the first time, that she needed additional time to obtain a reporter's transcript of the trial. Together with her request, Nonnenmacher filed a declaration that indicated that she had been "unaware of the necessity to designate" the reporter's transcript until she read Walsh's repeated references to the inadequacy of the record in Walsh's respondent's brief. Nonnenmacher stated that she could "now afford to purchase the very important [t]ranscript" because "[u]nexpectedly, out of the blue, [Nonnenmacher] was offered a discounted [t]ranscript due to her disability, in addition to the Transcript Reimbursement fund and a donation from a concerned third party." Nonnenmacher also attached to her application for an extension of time a March 16, 2017 application to the "Transcript Reimbursement Fund," from the Court Reporters Board of California. On March 20, this court granted the third extension application, indicated that the reply brief would be due on April 10, and marked the extension, "Last extension."

On April 7, this court received Nonnenmacher's fourth application for extension of time to file her reply brief, again stating that she needed additional time to obtain the reporter's transcript of the trial. The April 7 application was nearly identical to the March 17 request. While Nonnenmacher again asserted that she could "now afford to purchase the very important [t]ranscript," the application did not indicate when the transcript would be ready and did not state that it had been ordered and was actively being prepared.

Walsh opposed Nonnenmacher's application, arguing in part:

"Despite this Court indicating that [Nonnenmacher's] third extension was the 'Last Extension', on April 7, 2017, [Nonnenmacher] filed a fourth request for an extension of time to file a Reply Brief. . . . In her extension request, [Nonnenmacher] does not provide a date for when she expects the brief to be completed. Rather, [Nonnenmacher] is seeking an open-ended date until after the Reporter Transcripts have been prepared. However, [Nonnenmacher] does not provide the current status of her fee waiver request, whether the Reporter's Transcripts have been ordered or when the transcripts will be completed.

"[Walsh] opposes any further continuances in this matter. [Nonnenmacher] has not shown good cause for the continued delays and has not provided a date certain for the filing of the brief. Accordingly, [Walsh] respectfully requests this Court deny [Nonnenmacher's] fourth request for an extension of time to file a Reply Brief."

On April 10, this court denied Nonnenmacher's fourth application for an extension of time to file a reply brief.

Also on April 10, Nonnenmacher filed an amended motion to augment the record on appeal in which she sought to augment the record with numerous documents, including various deposition transcripts and an emergency room report.

The following day, respondents filed an opposition to Nonnenmacher's April 10 motion to augment.

On April 12, this court denied Nonnenmacher's amended motion to augment the record on appeal. Our order stated:

"Appellant's April 10, 2017 motion to augment the record on appeal is DENIED AS UNTIMELY. This appeal has been pending for a long time and the briefing in this case is now complete (the due date for the reply brief having expired on April 10). The court will place this appeal on the next available calendar."

Also on April 12, Nonnenmacher filed a letter with this court seeking reconsideration of our denial of her application for an extension of time. In the letter, Nonnenmacher contended that Walsh's failure to properly serve her respondent's brief had "caused over one-half (½) of the three (3) month delay that [Walsh was] now complaining about." Nonnenmacher further argued that Walsh had indicated (by way of a February 2, 2017 e-mail) that she would "not fight the extension request," but that this was "exactly what [Walsh is] now doing." Nonnenmacher argued that Walsh was "using [Walsh's] error to penalize [Nonnenmacher.]"

With respect to the timing of the preparation of the reporter's transcript, Nonnenmacher stated the following:

"From what [Nonnenmacher] understands, after the Court files paperwork, it will take the Court Reporter 60 days to prepare the Transcript only 10 days more than the 50 day delay [Walsh's] error cost this case.

"[Nonnenmacher] worked diligently and was right on schedule with payment to the Court Reporter, Terri Nuttall.

"Having secured the funds, [Nonnenmacher] was requesting additional time on the above granted extension so that on Monday May 10, 2017, Court Reporter Terri Nuttall could have filed a "Waiver of Court Reporter Fees for Appellate Transcripts" in furtherance of the goal of adding the Court Reporter's Transcripts to the record by way of [augment]. ([Cal. Rules of Court,] Rule 8.155(a).) All standard procedure for the Court."

On April 14, this court denied Nonnenmacher's request to reconsider our denial of her application for an extension of time.

No reporter's transcript has ever been filed with this court.

a. Application

In light of Nonnenmacher's election to proceed without a record of the oral proceedings in this case, the record in this case was complete when the clerk certified the clerk's transcript under Rule 8.122(d) on April 8, 2016. (See Cal. Rules of Court, rule 8.149 ["If the appellant elected to proceed without a record of the oral proceedings in the trial court and the parties are not proceeding by appendix under rule 8.124, the record is complete: (1) If a clerk's transcript will be used, when the clerk's transcript is certified under rule 8.122(d)" (boldface omitted)].) While Nonnenmacher states that she was "unaware" of the need to designate a reporter's transcript as a portion of the record in order for this court to review her claims, Nonnenmacher's pro. per. status does not excuse her from complying with the rules of appellate procedure. (See Nwosu, supra, 122 Cal.App.4th at p. 1247.)

Moreover, this court granted Nonnenmacher numerous extensions to file both her opening brief and her reply brief. Yet, it was not until March 17, 2017—nearly a year after the record had been certified and more than a month and a half after Nonnenmacher had received Walsh's brief noting the inadequacy of the record—that Nonnenmacher first sought an extension of time to obtain a reporter's transcript.

Further, as Walsh pointed out in opposing Nonnenmacher's April 7, 2017 fourth application for extension of time to file the reply brief, Nonnenmacher never provided this court with an estimate of when the reporter's transcripts might be filed. In fact, Nonnenmacher did not even demonstrate that the transcripts had been ordered and were being prepared. Even assuming that the reporter's transcripts were eventually prepared and that Nonnenmacher were able to file a brief that properly raised claims that could be reviewed on the merits, this court would be required to provide Walsh additional time to file a new respondent's brief that responded to citations to the untimely prepared record. We are aware of no authority that would permit an appellant essentially a "do-over" of the preparation of the record at the time of the filing of the reply brief.

In addition, while Nonnenmacher argued in her April 14, 2017 letter that Walsh's improper service of the respondent's brief was to blame for much of the delay in Nonnenmacher's filing of a reply brief, this court's February 3, 2017 order granting Nonnenmacher's first application for an extension of time fully accounted for the delay occasioned by Walsh's improper service. Finally, while Nonnenmacher contended in her April 14 letter that Walsh had indicated that she would not oppose Nonnenmacher's extension requests, Walsh's counsel's February 2 e-mail suggests only that Walsh would not oppose Nonnenmacher's initial application for an extension of time. Nonnenmacher has not demonstrated that Walsh agreed not to oppose any and all extension requests, no matter how long they might delay the appellate process.

Nonnenmacher stated in her February 3 application for an extension of time that she had received the respondent's brief on February 3, 2017. An appellant "must serve and file its reply brief, if any, within 20 days after the respondent files its brief." (Cal. Rules of Court, rule 8.212(a)(3).)

Nonnenmacher attached Walsh's counsel's February 2 e-mail to her April 14 letter. The email states, "While our office does not oppose your request for an extension of time to file a Reply Brief, our office cannot unilaterally grant you additional time to file the brief. You will need to file a motion for an extension of time with the Court of Appeal." --------

In sum, while we are truly sympathetic to the plight of those litigants who are forced by their economic circumstances to appear in proper persona in our court, we are required to apply the Rules of Court fairly to all parties in the case and ensure that justice is done without unwarranted delay. As the record above indicates, Nonnenmacher did not timely obtain a reporter's transcript of the trial that was necessary in order to permit this court to review her claims. Accordingly, we conclude that Nonnenmacher has failed to present an adequate record to permit review of her claims, and that we must therefore affirm the judgment.

IV.

DISPOSITION

The judgment is affirmed. Nonnenmacher is to bear costs on appeal.

AARON, J. WE CONCUR: McCONNELL, P. J. HALLER, J.


Summaries of

Nonnenmacher v. Walsh

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Aug 9, 2017
D069532 (Cal. Ct. App. Aug. 9, 2017)
Case details for

Nonnenmacher v. Walsh

Case Details

Full title:LYNNE NONNENMACHER, Plaintiff and Appellant, v. DENISE WALSH, Defendant…

Court:COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Aug 9, 2017

Citations

D069532 (Cal. Ct. App. Aug. 9, 2017)