California
Appeals
Standard of Review

Standard of Review-Sufficiency of the Evidence to Support the Jury’s Verdict McCarty v. Caltrans

C.        The Sufficiency of the Evidence to Support the Jury’s Verdict under the Retained Control Doctrine.

Caltrans also contends that there was insufficient evidence to support the jury’s
 verdict finding it liable under the retained control doctrine.  McCarty responds that Caltrans has forfeited this contention by failing to give a full or fair summary of the relevant evidence.  We agree.

“An appellant has the duty to summarize the facts fairly in light of the judgment, and such duty ‘“grows with the complexity of the record.”’  [Citation.]”  (Jones & Matson v. Hall (2007) 155 Cal.App.4th 1596, 1607, quoting Ajaxo Inc. v. E*Trade Group Inc.  (2005) 135 Cal.App.4th 21, 50.)  “Where the appellant challenges the sufficiency of the evidence, the reviewing court starts with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant’s affirmative burden to demonstrate otherwise.  [Citations.]  The appellant’s brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and must show how the evidence does not sustain the challenged finding.  [Citations.]  If the appellant fails to set forth all of the material evidence, its claim of insufficiency of the evidence is forfeited.  [Citations.]”  (Cequel III Communications I, LLC v. Local Agency Formation Com. of Nevada County (2007) 149 Cal.App.4th 310, 329, fn. 7.)

Caltrans’s statement of facts is short, relative to the length of the trial,^[11] and it includes only the evidence favorable to Caltrans.  The argument sections of Caltrans’s brief make additional evidentiary assertions, also favorable to Caltrans, but do not support them with any citations to the record, as rule 8.204(a)(1)(C) of the California Rules of Court would require.  Admittedly, not all of the trial testimony is necessarily pertinent to this appeal.  However, as Caltrans acknowledges, McCarty’s position is that Caltrans negligently exercised its retained control by insisting that FCI remove the utility pole immediately, even though FCI lacked the necessary skill and equipment and even though Sturgeon, which did have the necessary skill and equipment, was already scheduled to remove the pole one or two working days later.  Moreover, a Caltrans representative admittedly told McCarty’s supervisor to let the pole fall during removal.  Caltrans’s opening brief does not mention any of the evidence underlying McCarty’s position.

We therefore conclude that Caltrans has forfeited this contention.

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