Wells v. San Francisco Bay Area Rapid Transit Dist. CA1/3 ( 2021 )

Filed 3/12/21 Wells v. San Francisco Bay Area Rapid Transit Dist. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
DONNA WELLS,
Plaintiff and Appellant, A153548
v.
SAN FRANCISCO BAY AREA (City & County of San Francisco
RAPID TRANSIT DISTRICT, Super. Ct. No. CGC-15-545833)
Defendant and Respondent.
This is an appeal from judgment in a product liability and premises
liability lawsuit brought by plaintiff Donna Wells against defendant San
Francisco Bay Area Rapid Transit District (BART). Plaintiff Donna Wells
argues on appeal that “no justice was done” regarding the outcome of her case
and that her previous attorney, who was relieved by the trial court as her
counsel in 2017, failed to provide proper representation. We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
On May 14, 2015, Wells, represented by counsel, Dean M. Schmidt,
filed a complaint against BART asserting causes of action for general
negligence, product liability and premises liability. According to this
complaint, on October 19, 2014, Wells was injured at BART’s Powell Street
Station in San Francisco. As Wells attempted to pass through the automated
exit gate, the gate closed, thereby trapping and crushing her against it.
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Wells allegedly sustained serious injuries to her hip, back, and leg areas. On
November 4, 2015, BART filed an answer to the complaint.
On November 12, 2015, the trial court ordered the parties to
arbitration. Plaintiff’s counsel thereafter requested and was granted
dismissal of her general negligence cause of action with prejudice.
Accordingly, the parties proceeded to arbitration on only the product liability
and premises liability causes of action.
On May 15, 2017, the arbitrator denied both of Wells’s claims and
ordered the parties to bear their own costs.
On July 11, 2017, Wells requested a trial de novo after judicial
arbitration, which the court set for November 13, 2017.
On July 24, 2017, Schmidt moved to be relieved as counsel on the
grounds that Wells failed to inform him that she had a felony conviction for
“health fraud.” The trial court granted his motion, and Wells appeared
in propria persona for the court trial on November 13, 2017. After Wells
presented photographic evidence and testified on her own behalf, BART
moved for a nonsuit. After briefly taking the matter under submission, the
trial court granted BART’s motion on December 6, 2017, finding that Wells
failed to present sufficient evidence to prove an element necessary to her
case, to wit, the existence of a dangerous condition.
On January 23, 2018, the court entered a final judgment in favor of
BART and against Wells. Wells filed a timely notice of appeal of the court’s
December 6, 2017 order, which we interpret to encompass the subsequent
January 23, 2018 judgment. (Walker v. Los Angeles County Metropolitan
Transportation Authority (2005) 35 Cal.4th 15, 21.)
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DISCUSSION
Wells argues on appeal that “no justice was done regarding the outcome
of my case and [I] was represented improperly by my previous attorney
Dean M. Schmidt . . . .”
However, under the order and judgment from which Wells has taken an
appeal, the trial court granted BART’s motion for nonsuit and entered
judgment against Wells on one ground—her failure to prove an essential
element of her product liability and premises liability case, to wit, a
dangerous condition on BART’s property. In briefing, Wells offers no legal
grounds, much less evidence, for reversing the trial court’s finding of
insufficient evidence to support her claims. This omission is fatal to her
appeal: “ ‘A judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on matters as to
which the record is silent, and error must be affirmatively shown. This is not
only a general principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.’ [Citations.]” (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564; accord, Gee v. American Realty &
Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [appellant has burden to
present an adequate record for meaningful review and to affirmatively show
error on appeal].)1
Nor does Wells’s claim that her former attorney, Schmidt, provided
improper legal representation provide a basis for reversal. The trial court
granted Schmidt’s motion to be relieved as Wells’s counsel on August 24,
1 Wells argues in her opening brief that the trial court should have
selected a later trial date to provide more time for her to gather evidence.
However, there is no evidence in the record that Wells requested a
continuance from the trial court, much less that she made the appropriate
showing to support such a request.
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2017, based on her failure to disclose a felony conviction for “health fraud.”
Prior to Schmidt’s withdrawal as counsel, Wells raised no challenge
regarding the nature of his representation. Nor did she challenge his request
to cease representing her. Wells subsequently appeared in propria persona
at the trial on her complaint, after which the court granted BART’s motion
for nonsuit and entered judgment in its favor. It is this order and judgment,
issued nearly a year and a half after Schmidt’s withdrawal from the case,
that is the subject of Wells’s appeal. Accordingly, any issue relating to the
propriety of Schmidt’s legal representation is not properly before this court.
(See Faunce v. Cate (2013) 222 Cal.App.4th 166, 170 [“We have no
jurisdiction over an order not mentioned in the notice of appeal”].)
Accordingly, for the reasons stated, we decline to disturb the trial
court’s judgment.
DISPOSITION
The judgment is affirmed.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Petrou, Acting P. J.
_________________________
Wiseman, J.*
A153548/Wells v. San Francisco Bay Area Rapid Transit Dist.
*Retired Associate Justice of the Court of Appeal, Fifth Appellate
District, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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