JEFF GERHART, Plaintiff and Respondent, v. MARY ELIZABETH PIAZZA et al., Defendants and Appellants.

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.

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.

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.

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 allthe 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 notsee 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.