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Nolasco v. Regents of the University of California3/11/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this medical malpractice case, Carina Nolasco and her parents (collectively, Nolasco) contend the trial court abused its discretion by (1) denying her motion to exclude the testimony of a defense expert; (2) limiting cross-examination of that defense expert; (3) not allowing her counsel to read from a textbook during closing argument and (4) not reading back a portion of her attorney's closing argument to the jury. Because Nolasco has not provided us with a record of the entire trial, we are unable to determine whether a miscarriage of justice has occurred. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Although the complaint is not part of the record on appeal, we infer that Nolasco sued the Regents of the University of California (Regents) for medical malpractice during Nolasco's birth. After a five- week trial, the jury returned a special verdict finding Regents was negligent, but the negligence had not caused Nolasco's injuries. The vote on the issue of causation was 9 to 3. The trial court entered judgment on December 29, 2000.
Nolasco moved for a new trial, based on the same alleged errors she urges on appeal. In support of the motion for new trial, Nolasco proffered the declaration of trial juror Saeed M. Isfahani, who stated he was one of the nine jurors who voted in favor of the Regents on causation and " ad additional favorable evidence regarding the causation issue been introduced by plaintiffs, then I would have voted differently on the issue of causation . . . ." Regents opposed the motion for new trial and objected to the Isfahani declaration. The trial court excluded the Isfahani declaration and denied the motion for new trial "for the reasons set forth in the defendant's opposition." It held the declaration "is not only inappropriate, but ineffective and of limited weight."
Nolasco filed a timely notice of appeal. Her notice designating the record on appeal and notice to prepare reporter's transcript were filed on March 23, 2001. The clerk's transcript was filed on August 24, 2001. On January 18, 2002 Nolasco filed a motion to augment the record on appeal and request for extension of time to file an opening brief. The motion was based on the fact that the reporter's transcript had not yet been prepared and filed. The motion was granted; and the reporter's transcript, consisting of the testimony of only two witnesses, was filed on April 19, 2002. Nolasco filed her opening brief on June 11, 2002.
In its respondent's brief, filed September 20, 2002, Regents argued the lack of a complete reporter's transcript made it "impossible to determine whether any of the alleged errors were prejudicial." On October 10, 2002, the day her reply brief was due to be filed, Nolasco filed a motion for an extension of time to file her reply brief and for leave to augment the record on appeal to include the reporter's transcript of the entire trial. Regents opposed the motion, arguing a motion to augment "`cannot be used to create a record. Its function is to supplement an incomplete but existing record.' (Estate of Larson (1949) 92 Cal.App.2d 267, 269.)" Regents also argued the motion to augment was not timely because it was not filed until both parties had filed their briefs on appeal, and augmentation and the concomitant supplemental briefing proposed by Nolasco would prej
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