Kamell v. Del Taco CA4/3

California Court of Appeal Nov 17, 2020 No. G057498Unpublished

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Holding. The trial court did not abuse its discretion in excluding health department inspection reports because the plaintiff failed to lay the necessary foundation for the business records exception and forfeited the public records exception argument by failing to raise it at trial. Furthermore, any potential error was harmless as the jury received the information through expert testimony and counsel's arguments.

Issues

Did the trial court abuse its discretion by excluding health department inspection reports as hearsay?
Did the plaintiff forfeit the argument that the reports were admissible under the public records exception by failing to raise it at trial?
Did the exclusion of the reports result in a miscarriage of justice?

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The OCHD reports were not admissible as business records because Kamell failed to lay a sufficient foundation to admit them as such”

“Del Taco argues, and we agree that Kamell forfeited the argument the records were admissible under section 1280 by not raising that theory during trial.”

“In any event, even if the court erred in excluding the reports themselves, Kamell was not prejudiced.”

Filed 11/17/20 Kamell v. Del Taco CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

RAFIK Y. KAMELL,

Plaintiff and Appellant, G057498

v. (Super. Ct. No. 30-2016-00891419)

DEL TACO, LLC, OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed. Rafik Y. Kamell, in pro. per., for Plaintiff and Appellant. Murchison & Cumming and Edmund G. Farrell for Defendant and Respondent. * * *

Rafik Kamell sued Del Taco alleging he suffered injuries from food poisoning. The case went to trial and the jury returned a verdict in favor of Del Taco. Kamell appeals, arguing the court improperly excluded two Orange County Health Department (OCHD) inspection reports. We disagree and affirm the judgment.

FACTS In December 2014, Kamell was hospitalized when he suffered an esophageal tear as a result of vomiting not long after eating at a Del Taco restaurant. He sued Del Taco alleging his injuries were caused by contaminated food. At trial, Kamell sought to introduce expert testimony related to two OCHD 1 inspection reports. The first report (Report 1) was based on an inspection eight months 2 prior to Kamell’s visit to the Del Taco restaurant; the second report (Report 2) was based on an inspection at the same Del Taco restaurant one month prior to Kamell’s injury. Del Taco filed a motion in limine to exclude the OCHD reports and their findings, arguing they were (1) case-specific hearsay, (2) not relevant evidence (Evid. 3 Code, § 210), and (3) any probative value was substantially outweighed by the prejudicial value (§ 352). Kamell argued in response the evidence was relevant and more probative than prejudicial. The court ruled the contents of the reports could be discussed, but the reports themselves would not be admitted into evidence because “[t]hey are hearsay

Kamell v. Del Taco CA4/3

AI Brief

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RAFIK Y. KAMELL,

DEL TACO, LLC, OPINION

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