Pitcher v. Trinidad CA2/2

Opinion

Filed 9/3/26 Pitcher v. Trinidad CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

RYAN PITCHER, B345176

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. v. 22STCV10266)

DANILO SOLIS TRINIDAD et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory W. Alarcon, Judge. Appeal dismissed.

ORIGINAL PROCEEDING in mandate. Petition denied.

Law Office of Stanley D. Bowman and Stanley D. Bowman for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Corinne C. Bertsche, Daniel R. Velladao; Law Offices of Scott C. Stratman and Varduhi R. Petrosyan for Defendants and Respondents. ______________________________ Ryan Pitcher (Pitcher) sued his landlords, Danilo Solis Trinidad and Lydia Flores Trinidad (the Trinidads), after he fell on a set of stairs. The trial court granted the Trinidads’ motions in limine to: (1) exclude testimony from Pitcher’s treating physicians based upon his failure to designate them as expert witnesses; and (2) exclude Pitcher’s medical bills for lack of foundation. Instead of proceeding to trial, Pitcher requested dismissal of his complaint without prejudice, which the court granted. Pitcher filed a notice of appeal. Because Pitcher “voluntarily dismiss[ed] [his] action before the [trial] court ha[d] reached a final resolution regarding any of the claims pleaded in the complaint, the effect of the dismissal [wa]s to terminate the action entirely, thus forfeiting the right to appeal.” (Maniago v. Desert Cardiology Consultants’ Medical Group, Inc. (2026) 20 Cal.5th 91, 96 (Maniago).) Accordingly, we dismiss Pitcher’s appeal for lack of jurisdiction. Exercising our discretion to treat the purported appeal as a petition for writ of mandate challenging the trial court’s rulings on the motions in limine, we deny the petition.

BACKGROUND Pitcher filed a complaint in March 2022, asserting a single cause of action against the Trinidads for premises liability. Pitcher alleged that, in April 2020, he “suffered traumatic injuries while walking up stairs to his residence.” The stairs, 2 which the Trinidads constructed in February 2020, allegedly were built without obtaining permits and did not conform to applicable building codes. Pitcher alleged that, “[a]s a result of the fall, [he] injured his lower back and has become permanently disabled.” In April 2023, the Trinidads served discovery requests seeking, among other things, witnesses and documents supporting Pitcher’s contentions and damages. Pitcher served (untimely) discovery responses in July 2023. Pitcher did not respond to Form Interrogatory No. 6.4, which required him to disclose whether he “receive[d] any consultation or examination (except from expert witnesses covered by Code of Civil Procedure sections 2034.210–2034.310) or treatment” from a healthcare provider for any injury from the incident and, if so, to identify the provider, the type of consultation/examination/treatment, and the dates/charges. Then, in January 2024, Pitcher served supplemental discovery responses, but only identified “Dr. Astrid Pineda,” “Dr. Yoshida,” and “Dr[.] Fleming” by name in response to Form Interrogatory No. 6.4. The Trinidads served a demand for expert witness disclosures under Code of Civil Procedure section 2034.270 et seq. Pitcher did not designate any expert witnesses. Then, in April 2024, when the parties were preparing a joint witness list, Pitcher’s counsel identified the following witnesses as “ ‘non- retained medical treaters’ ”: (1) Vibha Agrawal; (2) Dr. John Fleming; (3) Gregory M. Yoshida Harbor; (4) Dr. Marc Rothschild; and (5) John Gardiner (Gardiner).1 1 Gardiner was actually a licensed biomechanical engineer who acted as a consulting expert in Pitcher’s wife’s prior trip-and- fall case against the Trinidads.

3 The Trinidads filed several motions in limine, including motions to: (1) exclude testimony from Pitcher’s treating physicians based upon his failure to designate them as expert witnesses; and (2) exclude Pitcher’s medical bills for lack of foundation. Pitcher did not file written oppositions to these motions. Following a hearing on January 2, 2025, the trial court granted the motions in limine. Pitcher did not seek leave to designate late expert witnesses. The case was transferred to a different trial court, which held a hearing on February 6, 2025. The court adopted the prior rulings on the Trinidads’ motions in limine. Purportedly to facilitate an immediate appeal, Pitcher’s counsel made an oral request to dismiss the complaint without prejudice. The Trinidads’ counsel had no objection, and the court granted the request. Pitcher filed a notice of appeal from the trial court’s February 6, 2025, order. The court subsequently entered judgment in favor of the Trinidads and against Pitcher. While this appeal was pending, the California Supreme Court issued its opinion in Maniago, supra, 20 Cal.5th 91. The Court held that when “plaintiffs voluntarily dismiss their action before the court has reached a final resolution regarding any of the claims pleaded in the complaint, the effect of the dismissal is to terminate the action entirely, thus forfeiting the right to appeal.” (Id. at p. 96.) Pursuant to Government Code section 68081, we invited the parties to file supplemental briefs addressing whether this appeal should be dismissed for lack of jurisdiction in light of Maniago. Each party submitted a timely supplemental brief.

4 DISCUSSION I. Appealability “The right to appeal is wholly statutory, and a judgment or order is not appealable unless expressly made so by statute. [Citations.]” (Department of Water Resources Cases (2026) 119 Cal.App.5th 602, 618.) “The existence of an appealable order or judgment is a jurisdictional prerequisite to an appeal. [Citation.] Accordingly, if the order or judgment is not appealable, the appeal must be dismissed. [Citation.]” (Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302 (Canandaigua); see also In re Javier G. (2005) 130 Cal.App.4th 1195, 1201 (Javier G.) [“A reviewing court lacks jurisdiction to consider appeals from a nonappealable order, and has the duty to dismiss such appeals”].) Here, Pitcher voluntarily dismissed the complaint without prejudice following adverse rulings granting the Trinidads’ motions in limine to exclude testimony from Pitcher’s treating physicians and evidence of his medical bills. Although these “ruling[s] may have made it more difficult for [Pitcher] to prove his claim [for premises liability], [they] did not legally foreclose the claim.” (Maniago, supra, 20 Cal.5th at p. 106.) Rulings on motions in limine are not appealable orders. (Sheehy v. Chicago Title Ins. Co. (2025) 108 Cal.App.5th 178, 182 [“orders on evidentiary matters, including motions in limine, are not themselves appealable”].) Voluntarily dismissing the action without prejudice “ ‘did not transform the nonappealable interim orders into an appealable judgment.’ [Citation.]” (Maniago, supra, 20 Cal.5th at p. 103; see also Sherman v. Standard Mines Co. (1913) 166 Cal. 524, 525 [“An attempt to appeal from a nonappealable order does not give this court jurisdiction or 5 authority to review it”].) “Rather, the voluntary dismissal operated to terminate” the entire action, “thus forfeiting the right to challenge any orders the [trial] court issued prior to the entry of dismissal. [Citation.]” (Maniago, supra, 20 Cal.5th at p. 100, fn. omitted.) Resisting this conclusion, Pitcher contends that Maniago should not be applied “retroactively” to divest this court of jurisdiction. “The general rule that judicial decisions are given retroactive effect is basic in our legal tradition.” (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978.) Although “[t]his general rule extends fully to decisions . . . that resolve Court of Appeal conflicts or establish the meaning of a statutory enactment” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1023), “[c]ourts sometimes make an exception . . . when the decision changed a settled rule on which the parties had relied.” (Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 318.) We conclude that Maniago applies retroactively to this case. Although prior to Maniago, “many courts . . . allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial court, on the theory the dismissals were not really voluntary, but only done to expedite an appeal” (Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 793; see also Austin v. Valverde (2012) 211 Cal.App.4th 546, 550– 552, disapproved of by Maniago, supra, 20 Cal.5th at p. 106), this practice was not universally accepted (see Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342–1343; Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d 758, 760–761 [“A wilful dismissal terminates the action for all time and affords the appellate court no jurisdiction to review rulings on demurrers or motions made prior to the dismissal”]). Maniago did not overrule Supreme 6 Court precedent or otherwise disturb a settled rule, and the general rule of retroactivity applies. Following Maniago, as we must (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455), we dismiss Pitcher’s purported appeal for lack of jurisdiction. (See Canandaigua, supra, 177 Cal.App.4th at p. 302; Javier G., supra, 130 Cal.App.4th at p. 1201.) II. Writ Review “An appellate court has discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate, but that power should be exercised only in unusual circumstances. [Citation.]” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366–1367 (H.D. Arnaiz).) Discretionary writ review is warranted here for several reasons. First, when Pitcher voluntarily dismissed his action and filed his notice of appeal, the Supreme Court had yet to grant review in Maniago. Second, the Trinidads did not object in the trial court to Pitcher’s voluntary dismissal of the complaint expressly to expedite an appeal and did not raise any challenge to appealability in their initial respondents’ brief. Third, the parties fully briefed the merits of Pitcher’s purported appeal before the Supreme Court issued its opinion in Maniago. In light of these “unusual circumstances” (H.D. Arnaiz, supra, 96 Cal.App.4th at p. 1367), we exercise our discretion to treat the purported appeal as a petition for writ of mandate. III. Standard of Review “We apply the abuse of discretion standard when reviewing the trial court’s rulings on evidentiary objections.” (Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1447; see also McMillin Companies, LLC v. American Safety 7 Indemnity Co. (2015) 233 Cal.App.4th 518, 529 [“Like many evidentiary rulings, orders on motions in limine are generally reviewed for abuse of discretion”].) IV. Forfeiture Pitcher did not file oppositions to the motions in limine. Nor did Pitcher’s counsel orally oppose the motions or object to the trial court’s rulings at the hearing. In fact, when the court asked if there was anything else, Pitcher’s counsel said, “Nothing further.” Therefore, Pitcher forfeited review of these issues. (See Mangano v. Verity, Inc. (2009) 179 Cal.App.4th 217, 221 [party who fails to oppose motion in limine to exclude evidence forfeits his ability to argue that the evidence was improperly excluded]; Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602 [“Failure to register a proper and timely objection to a ruling or proceeding in the trial court waives the issue”].) V. The Trial Court Did Not Err in Excluding the Evidence Forfeiture aside, we find that the trial court did not abuse its discretion in excluding the witness testimony and documents. Treating physicians who will also provide an expert opinion must be listed as expert witnesses. (Kalaba v. Gray (2002) 95 Cal.App.4th 1416, 1421.) In the instant case, it is unclear whether the treating physicians would opine as to the cause of Pitcher’s injuries because Pitcher’s counsel did not make an offer of proof as to their testimony. Similarly, Pitcher’s counsel did not make an offer of proof as to how he would lay a foundation to introduce the medical records. Therefore, we cannot conclude that the trial court abused its discretion in excluding this evidence. (Evid. Code, § 354; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 [“[T]he failure to make an adequate offer of proof in the court below ordinarily precludes 8 consideration on appeal of an allegedly erroneous exclusion of evidence”].)

DISPOSITION The appeal is dismissed. Deeming the purported appeal a petition for writ of mandate, the petition is denied. Each party is to bear its own costs on appeal and in connection with this writ proceeding.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

GOORVITCH, J.

We concur:

CHAVEZ, Acting P. J.

RICHARDSON, J.