Peterson v. Carson Trailer

Peterson v. Carson Trailer

Filed 9/22/08 Peterson v. Carson Trailer CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

RICHARD PETERSON, Plaintiff and Appellant, v. CARSON TRAILER, Defendant and Respondent.

B203057 (Los Angeles County Super. Ct. No. MC016345)

APPEAL from a judgment of the Superior Court of Los Angeles County, Carlos P. Baker, Jr., Judge. Affirmed.

Richard Peterson, in pro. per., for Plaintiff and Appellant.

Yee & Belilove, Steven R. Yee, Steve R. Belilove, and Robert A. Hufnagel for Defendant and Respondent.

Plaintiff Richard Peterson (plaintiff) appeals the judgment of dismissal entered against him and in favor of defendant Carson Trailer (defendant). We find no error, and we affirm.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff filed the present action against defendant on March 30, 2005. We do not know precisely what the complaint alleged because plaintiff has not included it in the appellate record, but we understand it to allege that plaintiff suffered significant injuries on defendants premises while shopping for a cargo trailer. We further understand the complaint to assert two causes of action for negligence and premises liability.

On August 1, 2006, plaintiff filed an expert witness designation. It stated that plaintiff intended to call the following retained experts to testify at trial: Paul Broadus (vocational rehabilitation counselor); John Tyson (accident reconstructionist); Lawrence Coates (psychologist); and Marianne Inouye (forensic economist). It also identified L. Janumpally, M.D., and Cornelius Vanderhoek, M.D., as non-retained experts who treated or examined [plaintiff] and will be called to testify as to their knowledge of facts relating to the accident and/or injuries sustained by [plaintiff], and may be asked opinions within their expertise, including but not limited to issues of causation; the nature and severity of Plaintiffs injuries and damages; all care provided to the Plaintiff; necessity of treatment; damages, both up to the present and future damages; reasonableness of medical bills and treatment; future treatment, diagnosis and prognosis.

On August 4, 2006, defendant noticed the depositions of experts Broadus, Tyson, Coates, and Inouye. Subsequently, on plaintiffs motion, trial was continued from September 8, 2006, to January 19, 2007. Defendant took the expert depositions off calendar.

On October 24, 2006, the trial court granted the motion of plaintiffs attorney, Brian Reed, to be relieved as counsel.

On November 3, 2006, defendant re-noticed the depositions of experts Broadus, Tyson, Coates, and Inouye. Plaintiff responded by a letter to defense counsel, dated November 13, 2006, which stated in pertinent part as follows: As you recall, when we met after the hearing in Lancaster on 12/24? I was unaware of any experts that had been secured by Mr. Reed. [] At this time, I am unable to confirm the status of the unknown people who were designated as experts by Mr. Brian Reed. [] From my conversation with Ms. Inouye, no agreement was made that she would serve as an expert nor was she retained. [] Dr. Coates has yet to return my phone calls. [] I confess I have never met Mr. Broadus or Mr. Tyson and dont know what they do. [] Due to my continued injuries from falls, I have been limited in my ability to follow up since our last meeting in Lancaster. [] I tore a ligament in my right knee and am on crutches. [] Since Mr. Reed left me with this mess, I am afraid I will be requesting a rescheduling of our trial at the meeting on November 29th.

Later the same day, plaintiff sent a follow-up letter to defense counsel, which stated: So there is no confusion, I must disavow the statements of Mr. Brian Reed concerning any experts or representations made by Mr. Reed concerning experts as I have learned that experts named by Mr. Reed as ready to testify have not, in fact, been retained in this case or have not prepared as Mr. Reed did not ask them to prepare. [] Thus at this moment, I must disavow all experts given to you by Mr. Reed but may reinstate any or all of them as soon as my health allows me to employ an attorney who can take over the case. There is no indication in the appellate record that plaintiff ever timely redesignated these or any other experts.

On December 14, 2006, plaintiff filed an ex parte application to continue the trial for 120 days. The court granted the application and continued the trial to April 6, 2007, but expressly did not extend the discovery cutoff dates or expert designation deadline.

Prior to trial, defendant filed in limine motions to, among other things, preclude plaintiff from proffering any expert witness testimony, opinions, or conclusions at trial on the grounds that plaintiff did not produce his designated expert witnesses for deposition and/or has withdrawn his designation of expert witnesses. Plaintiff opposed the motion, stating that defendant attempts to deceive the court. However, plaintiff did not suggest that any of defendants assertions was incorrect, that he had not disavow[ed] the experts designated by his former attorney, or that he had timely designated any additional experts.[1]

Trial commenced on July 27, 2007. That morning, the court heard argument on the parties in limine motions, including defendants motion to exclude expert testimony. With regard to testimony of plaintiffs physicians, the parties appeared to agree that defendant had deposed plaintiffs treating physicians (Drs. Vanderhoek, Janumpally, and Shanmugan), and that they therefore properly could testify about plaintiffs medical condition and treatment. Defense counsel contended, however, that because plaintiff had withdrawn his designation of these physicians as medical experts, they should not be permitted to give expert testimony. The court agreed and granted defendants motion, stating that it would preclude the physician witnesses expert testimony, but not their percipient testimony.

On July 30, the parties again discussed the proper scope of the physicians testimony. The trial court reaffirmed its prior ruling that plaintiffs physicians would be allowed to testify as percipient witnesses, but not to give expert testimony on causation. The court then reminded the plaintiff that [y]ou got a jury out there and asked the plaintiff to [p]ut on what you can. The following discussion ensued:

Mr. Peterson: I believe youve made reversible error, Your Honor. I dont see any point in going on at this point.

The Court: Sir, then drop your case. Lets get on with this thing. Mr. Peterson: Ill drop my case.

The Court: Okay.

Mr. Belilove [defendants counsel]: I would request judgment be entered in favor of defendant at this time, Your Honor.

The Court: Okay.

Mr. Peterson: Can I serve notice of appeal now, Your Honor?

The Court: Sure; you can do it any time you want. Just make sure you get on with it. Bring in the jury and well testify that as . . . you feel you cant prove your case, so you are going to abandon it, and the court is going to rule in favor of the defense.

The trial court entered judgment on August 9, 2007. The judgment recited that trial commenced on July 27, 2007; plaintiff abandoned the trial on July 31, 2007; and the court therefore ordered judgment entered for defendant on July 31, 2007. Notice of entry of judgment was served on August 16, 2007. Plaintiff filed a timely notice of appeal on October 9, 2007.[2]

DISCUSSION

Plaintiff asserts 10 errors on appeal, but all raise essentially the same issue: Whether the trial court erred in precluding plaintiffs treating physicians, including Dr. Vanderhoek, from giving expert (as opposed to percipient) testimony.

I. Appealability

As an initial matter, we must consider whether the dismissal and judgment are appealable. Ordinarily, there is no right to appeal from a voluntary dismissal. (E.g., Gray v. Superior Court (1997) 52 Cal.App.4th 165; H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1365; In re Tomi C. (1990) 218 Cal.App.3d 694, 698.) However, some appellate courts have held that when a dismissal is requested after an adverse trial court ruling in order to expedite an appeal of the ruling, an appeal will lie. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012; Denney v. Lawrence (1994) 22 Cal.App.4th 927, 930, fn. 1; Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 792-793.) Because in the present case plaintiffs voluntary dismissal followed an adverse ruling by the trial court, we deem this rule to apply and consider the appeal on the merits.

II. The Trial Court Did Not Commit Reversible Error by Limiting the Testimony of the Physician Witnesses

Plaintiff urges that the trial court erred in precluding his treating physicians from testifying as experts because they were properly named as plaintiffs non-retained expert[s] in the declaration of July 31, 2006. In so urging, he ignores his November 13, 2006 letters to defense counsel, in which he disavow[s] all experts designated by his former counsel because they either have not . . . been retained in this case or have not prepared as Mr. Reed did not ask them to prepare. (Italics added.) Plaintiff contends that by this letter he intended to withdraw the designation only of the retained experts identified by counsel, not the nonretained experts, but that is not what the letter says. By its plain language, it disavow[s] the designation of all experts given to you by Mr. Reed. (Italics added.) The trial court did not abuse its discretion in so concluding.

Further, even if the trial court erred in limiting the testimony of the physician witnesses, plaintiff has not demonstrated that the error was prejudicial. The trial court is vested with broad discretion in ruling on the admissibility of evidence. (Smith v. Brown-Forman Distillers Corp. (1987) 196 Cal.App.3d 503, 519.) [T]he courts ruling will be upset only if there is a clear showing of an abuse of discretion. (Id., at p. 520.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citation.] (Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) Moreover, even where evidence is improperly excluded, the error is not reversible unless it is reasonably probable a result more favorable to the appellant would have been reached absent the error. [Citations.] [Citation.] (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1013; accord, Castaneda v. Bornstein (1995) 36 Cal.App.4th 1818, 1830 [overruled on other grounds in Bonds v. Roy (1999) 20 Cal.4th 140, 149, fn. 4].) (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.)

In general, a judgment may not be reversed for the erroneous exclusion of evidence unless the substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means. (Evid. Code, 354, subd. (a); see, e.g., People v. Pride (1992) 3 Cal.4th 195, 235; People v. Livaditis (1992) 2 Cal.4th 759, 778 . . . ; People v. Whitt (1990) 51 Cal.3d 620, 648 . . . ; see also [People v.] Staten [(2000)] 24 Cal.4th 434, 456.) This rule is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice. (People v. Anderson (2001) 25 Cal.4th 543, 580; see also People v. Brady (2005) 129 Cal.App.4th 1314, 1332 [It is the burden of the proponent of evidence to establish its relevance through an offer of proof or otherwise, and a specific offer of proof is necessary in order to preserve an evidentiary ruling for appeal].)

In the present case, plaintiff did not make known to the court the substance, purpose, and relevance of the excluded evidence, either through the questions asked, an offer of proof, or by any other means. (People v. Anderson, supra, 25 Cal.4th at p. 580.) In other words, he neither elicited any testimony from his physicians nor made an offer of proof concerning what the physicians would testify to if given an opportunity to do so.[3] As a result, we do not know what the physicians testimony would have been, and we therefore cannot evaluate whether plaintiff was prejudiced by the exclusion of that testimony.

As the appellant, plaintiff has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) To satisfy this burden, plaintiff had to develop the fullest possible evidentiary record before seeking review. (Tudor Ranches, Inc. v. State Comp. Ins. Fund, supra, 65 Cal.App.4th at p. 1433.) Because he refused to proceed with his case, he relinquished the opportunity to create a complete appellate record and, thus, precluded any meaningful review by this court.

DISPOSITION

The judgment is affirmed. Defendant shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

SUZUKAWA, J.

We concur:

WILLHITE, Acting P. J.

MANELLA, J.

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[1] Plaintiff filed further opposition on March 29, 2007; there, he urged the court to deny the motion because when he purported to withdraw his attorneys expert witness designation, he had just suffered a knee injury and was under the influence of Vicodin.

[2] Plaintiff appealed both from the judgment and subsequent cost award, but on appeal he does not urge any independent ground for reversing the cost award.

[3] An offer of proof is a presentation of evidence for the record (but outside the jurys presence) usu[ally] made after the judge has sustained an objection to the admissibility of that evidence, so that the evidence can be preserved on the record for an appeal of the judges ruling. An offer of proof, which may also be used to persuade the court to admit the evidence, consists of three parts: (1) the evidence itself, (2) an explanation of the purpose for which it is offered (its relevance), and (3) an argument supporting admissibility. Such an offer may include tangible evidence or testimony (through questions and answers, a lawyers narrative description, or an affidavit). (Blacks Law Dict. (7th ed. 1999) p. 1112, col. 2.)