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Basco v. Tishgart6/14/2005
ony. (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1113, 1115, 1117.)
As respondent's counsel argued to the trial court, the central issue in determining whether the court abused its discretion is the court's finding that respondent had not acted unreasonably. (See Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1504 ["the exclusion sanction applies only if noncompliance with the statute was `unreasonable.' "].) Without contradiction from appellant, respondent told the court that (1) appellant had known of respondent's noncompliance for a considerable period of time but had not mentioned it to respondent, (2) respondent had corrected the omissions prior to trial, and (3) the omissions had caused no prejudice to appellant. In these circumstances the court could conclude that respondent's omissions were "mere infractions" calling for no sanctions (see Zellerino v. Brown, supra, 235 Cal.App.3d 1097, 1117).
III.
Appellant's other contention concerning an in limine motion is framed in his opening brief as follows: "The trial court committed reversible error in refusing to allow evidence of [appellant's] prior psychiatric and psychological history." As respondent's counsel correctly points out: "Tishgart does not include the in limine motion in the appellate record, nor does he cite the portion of the transcript in which the trial court ruled on the motion. The record on appeal does not include the oral argument or the court's ruling on the motion. The record on appeal does not reveal what evidence Tishgart intended to offer, or how it would have helped the trial court determine the true facts of the case."
Respondent is correct. Appellant is unable to substantiate the nature of his motion, the purpose of the evidence, or an actual ruling by the court. Respondent is therefore entirely warranted in citing a recent decision of this court that " ` "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." [Citation.]' [Citations.] `A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' [Citation.]" (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; see Evid. Code, ยง 354, subd. (a).) In any event, it is clear that respondent did not make a specific psychological or emotional distress claim of the sort that would defeat the psychotherapist-patient privilege. (Davis v. Superior Court (1992) 7 Cal.App.4th 1008, 1011.)
IV.
Although respondent conceded liability at the start of the trial, he argues with typical disingenuousness: "Respondent failed to establish her `case-within-a-case'; she failed to establish the identity of the party against whom she would have won a judgment. In the absence of finding that a judgment would have been recovered against a specific party defendant, respondent's case fails."
The trial court addressed this point in its statement of decision: "Mr. Tishgart argued that Ms. Basco had not really proved who the defendants were in her personal injury case. Mr. Tishgart drafted the May 24, 1999 complaint filed with the San Mateo Superior Court. It identifies the California Farmer's Market and Barbara Casarez as defendants. In his December 19, 2002 responses to requests for admissions, Mr. Tishgart admits to filing the complaint and genuineness of the copy of the complaint attached. Ca
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