Filed 9/14/26 Arches v. Lee CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
HILBEN ARCHES, B344691
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22STCV11529)
v.
DIANE INHA LEE,
Defendant and Respondent.
APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Karen Moskowitz, Judge. Affirmed.
Gusdorff Law, Janet Gusdorff; Accident Fighters,
Alexander J. Zeesman and Diana Zeesman for Plaintiff and
Appellant.
Horvitz & Levy, John F. Querio, Steven S. Fleischman;
Courtney D. Flannery & Associates, Michael H. Park and
Mariam M. Margaryan for Defendant and Respondent.
________________________________
Hilben Arches filed this personal injury action against
Diane Inha Lee, alleging Lee was negligent in making a right
turn in her car, colliding with Arches on his bicycle. Arches
appeals from the judgment entered after the jury found Lee was
not negligent. Arches contends the trial court committed
multiple evidentiary errors, including allowing Lee’s accident
reconstruction expert to testify without having served a pretrial
report; declining to conduct an Evidence Code section 402 hearing
before allowing Lee’s expert to present reconstruction
animations; and excluding from evidence the written report of
Arches’s accident expert.
Arches also appeals from the trial court’s postjudgment
order awarding Lee $99,800 in expert witness fees and other
costs, after the court found Lee’s pretrial offer of $20,000 to settle
the case under Code of Civil Procedure section 9981 was
enforceable. Arches contends the trial court abused its discretion
by considering Lee’s untimely opposition to his motion to tax
costs and refusing to consider his objection that the section 998
offer was unreasonable. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Accident
At about 1:00 p.m. on April 23, 2021 Lee was driving her
white Tesla Model 3 sedan southbound on Haskell Avenue in the
North Hills neighborhood of Los Angeles and came to a stop at a
red light at the intersection with Lassen Street. Lee was in the
1 Further undesignated statutory references are to the Code
of Civil Procedure.
2
right (number 2) lane, and she intended to turn right onto Lassen
Street. At the same time, Arches was riding his red bicycle
southbound on Haskell Avenue and stopped for the red light.
Arches was in the number 2 lane to the right of Lee, and he
intended to continue traveling south on Haskell Avenue. After
the traffic light turned green, Lee proceeded to the intersection
and began to turn right, when her car collided with Arches’s
bicycle. The bicycle was knocked over, and Arches was thrown at
least six feet onto the pavement, sustaining injuries to his head,
left shoulder, and knees.
The parties did not summon the police or paramedics, and
Arches rode his bicycle home. Arches later began to experience
pain and filed a police report. The left handle grip on Arches’s
bicycle was damaged, the steering fork required realignment, and
Arches’s helmet was scraped. The right rear door of Lee’s car
was dented.
B. The Complaint and Pretrial Proceedings
On April 5, 2022 Arches filed a complaint for personal
injury and property damage, asserting causes of action for
negligent operation of a motor vehicle and general negligence.
Arches alleged Lee “made a sudden right turn on Lassen Street,
hitting [Arches] and causing him to slam on the hood of [her]
vehicle.” Arches sought damages for past and future pain and
suffering, emotional distress, lost earnings and earning capacity,
medical expenses, property damage, loss of use of property, and
incidental expenses. Lee denied the allegations and asserted
several affirmative defenses, including comparative negligence.
3
On July 10, 2023, about three months before the case was
set for trial (in October 2023), Lee served Arches with a
section 998 offer to settle the case for $20,000 in exchange for
dismissal with prejudice, with each party to bear his or her
attorneys’ fees and costs. Arches did not accept the offer.
Pursuant to stipulations in August 2023 and January 2024, the
trial date was continued to May 2024.
On March 29, 2024 Lee served a designation of expert
witnesses pursuant to section 2034.310. Lee designated Isaac N.
Ikram, P.E., a California-licensed professional engineer, as a
retained expert on accident reconstruction and biomechanical
engineering. Lee stated in her designation that Ikram would
testify “as to the speeds and directions of travel of the vehicles
involved in the accident, the sequences of impacts, the impact
points to the vehicles, the nature and extent of the vehicle
damage and other causative factors in the occurrence . . . as well
as any engineering principles, analysis and/or physical forces
involved in the reconstruction of the accident.” Ikram would also
testify “regarding the amount, nature, and extent of forces on the
car and [Arches] as a result of the accident including but not
limited to . . . movement of the vehicle, the relationship of the
forces to the claimed injuries, analogies of the forces on [Arches]
to everyday activities, and the anticipated injuries that would be
sustained.” Further, Ikram would “give testimony in the area of
injury mechanics on issues of causation” and would provide an
opinion on Arches’s expert’s testimony on these topics. Lee’s
designation attached Ikram’s curriculum vitae, but it did not
include an expert report, stating, “There are no discoverable
reports or written materials generated by [Ikram] at this time.”
Lee also designated two physicians who would testify as experts
4
regarding Arches’s claimed injuries, treatment, and other
damages issues.
In May 2024 Arches filed 12 motions in limine (MIL’s),
including to exclude expert opinion testimony not stated in the
expert’s deposition (MIL 10); evidence not previously disclosed in
discovery (MIL 11); and Lee’s three experts from testifying at all
(MIL 12.) Arches argued as to MIL 12 that Lee refused to make
her experts available for deposition. After Arches filed the MIL’s,
the case was reassigned to another trial department, and the
trial date was continued to August, and then to October 21, 2024.
On October 21 the trial court denied MIL’s 10, 11, and 12 without
prejudice to Arches making trial objections. The court also
ordered Lee to produce Ikram’s complete file the following
morning and set Ikram’s deposition for the afternoon of
October 23 (following opening statements).
C. The Evidence at Trial
The jury trial lasted seven days, commencing October 23,
2024. Fact witnesses included Arches, Lee, Arches’s wife, and a
physician who treated Arches for neurological complaints.
Arches’s expert witnesses included John Smith, an accident
investigator who opined about the dynamics of the collision and
the biomechanics of Arches’s injury, and a medical expert. Lee’s
expert witnesses included Ikram and two medical experts.
Arches testified that as he approached the intersection of
Lassen Street while heading southbound on Haskell Avenue,
Lee’s vehicle was already stopped at the red light. Arches rode
up along the right edge of the number 2 lane next to the curb,
and he came to a stop “in front of [Lee’s car] after the side
mirror.” Arches could see Lee through the tinted passenger
5
window, and he was certain she could also see him because of his
position. When the light turned green and Arches began to
proceed through the intersection, Lee “right away” made a right
turn into his path. Arches tried to avoid her by veering right, but
Lee continued her turn, hitting his bicycle with the front bumper
of her car.
Lee testified she was the second car in line waiting for the
traffic light at Lassen Street. She was looking up and was not on
her phone, eating, or drinking. She did not see anyone on a
bicycle stopped on her right, and the Tesla’s dashboard computer
monitor did not alert her that there was anything on the car’s
right perimeter; in her experience, the Tesla computer indicated
when a cyclist was present on her right. As she continued onto
Lassen Street, she saw Arches and his bicycle on the pavement in
the Lassen Street crosswalk in her rearview mirror, and she
stopped. Lee testified there was a small dent on the rear
passenger door that had been sustained during the collision.
Smith testified that he examined the parties’ deposition
transcripts, photographs of both vehicles taken after the accident,
specifications for the Tesla Model 3, and Arches’s medical records
in forming his opinions. Smith opined that “everybody agrees
that there was contact between the passenger side of the Tesla
and . . . the left side of the bicycle,”and the primary question was
“exactly what sequence did it happen in.” Because there was no
video of the accident itself, there was “not enough information” to
do a simulation. Smith relied instead on the parties’ accounts.
Based on the factual premise that Lee accelerated from a stop
and Arches was thrown six feet, Smith opined that Lee’s car was
traveling at about six miles an hour—“not an unreasonable speed
to be making a turn”—when it struck Arches. But this low speed
6
meant that “if Ms. Lee had looked, she would have seen Mr.
Arches.” Lee’s version of events, in which Arches rode up behind
her car, was not plausible, because it “would require Mr. Arches
intentionally . . . run[ning] into the side of the car.” Smith
explained that he did not inspect the Tesla because it “won’t tell
us anything.” In particular, although the Tesla was equipped
with an “event data recorder” to record information about the
vehicle’s operations during an accident, the forces involved in this
collision were inadequate to activate the device. On cross-
examination, Smith admitted there was visual damage to the
Tesla’s rear passenger door and no damage to the car’s hood,
bumper, or right front fender.
Ikram testified that he inspected the Tesla and documented
a dent on the rear passenger door. He also inspected Arches’s
bicycle, but the handlebar had been repaired, and Arches no
longer had his helmet. Ikram downloaded the Tesla’s event data
recorder, but no data had been recorded for the accident; Ikram
agreed with Smith that the force of the collision was insufficient
to activate the device. Using photographs of the intersection, the
parties’ accounts, the damage to the vehicles, a photograph
Arches provided of his helmet, and Arches’s location after the
collision, Ikram developed three reconstruction scenarios.
Computer animations for each scenario were played for the jury
during his testimony, but they were not admitted into evidence.
The first animation scenario was based on Arches’s account
and assumed that Arches’s bicycle was stopped at the
intersection just in front of Lee’s right mirror. Based on
published literature concerning motor vehicle acceleration and
movement during right turns and bicycle acceleration, Ikram
plotted the path of each vehicle assuming they began moving on
7
their intended trajectories at the same time. In this scenario,
Lee’s front bumper would have collided with Arches’s bicycle and
thrown Arches’s body to the left, in the opposite direction from
where he landed. In a second scenario based on the same
starting position but assuming Arches started pedaling after
Lee’s car started moving, the car’s front right fender would have
hit the bicycle and knocked Arches to the ground at the point of
impact, on the shoulder of Haskell Avenue.
The third scenario was based on Lee’s version of events in
which Arches was behind her when she started turning right.
Under this scenario, Lee’s vehicle would have struck Arches’s
bicycle near the car’s rear passenger door and projected Arches to
the right toward Lassen Street, where he landed. Only the third
scenario was consistent with the physical evidence on the
vehicles and Arches’s position after the collision. Ikram further
opined that Smith’s opinion had no scientific basis and relied on
the false assumption that Lee could have avoided the accident.
Moreover, Smith’s testimony that the Tesla was moving at six
miles an hour at the time of impact was flawed because it did not
account for the car’s velocity on a curved path and the fact the car
sideswiped the bicycle rather than colliding head-on.
D. The Verdict, Judgment, and Costs Award
On November 1, 2024 the jury returned a special verdict
finding Lee was not negligent. The jury did not reach any other
questions on the verdict form. On December 3 the trial court
entered judgment against Arches. Arches filed a motion for new
trial or, in the alternative, for judgment notwithstanding the
verdict (JNOV), which the court denied on February 10, 2025
after a hearing.
8
On December 17, 2024 Lee filed a cost memorandum
seeking $144,661 in total costs, including $84,839 in expert
witness fees. In a supporting declaration, Lee’s attorney attached
Lee’s section 998 offer of $20,000 and attested it was served on
Arches on July 10, 2023. On January 3, 2025 Arches filed a
motion to tax costs. After further briefing and a hearing, on
February 10, 2025 the trial court granted in part the motion to
tax costs and awarded Lee $99,800, including $67,966 in expert
witness fees (after reducing one of the medical expert’s fees).
Arches timely appealed from the judgment, the order
denying his motion for new trial or JNOV, and the order on
costs.2
DISCUSSION
A. Standard of Review
On appeal, Arches challenges the trial court’s evidentiary
rulings concerning the admission and exclusion of expert
testimony and exhibits. We review the trial court’s rulings on the
admission of evidence for an abuse of discretion. (People v.
Trujeque (2015) 61 Cal.4th 227, 278; Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 773
[“Except to the extent the trial court bases its ruling on a
conclusion of law (which we review de novo), we review its ruling
excluding or admitting expert testimony for abuse of
discretion.”].) A ruling constitutes an abuse of discretion only if it
2 On appeal, Arches does not argue that the court abused its
discretion in denying his motion for new trial or that the evidence
was insufficient to support the jury’s verdict. We consider only
his challenges to the judgment and the costs order.
9
is “‘so irrational or arbitrary that no reasonable person could
agree with it.’” (Sargon, at p. 773; accord, Onglyza Product Cases
(2023) 90 Cal.App.5th 776, 784.)
Even if a trial court abuses its discretion in admitting
evidence, the judgment may only be reversed if the error was
prejudicial. (ABM Industries Overtime Cases (2017)
19 Cal.App.5th 277, 293; Grail Semiconductor, Inc. v. Mitsubishi
Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786,
799.) In civil cases, the judgment will be reversed only “‘when
the reviewing court, after an examination of the entire cause,
including the evidence, is of the opinion that it is reasonably
probable that a result more favorable to the appealing party
would have been reached in the absence of the error.’” (Grail
Semiconductor, at p. 799.) The “[a]ppellant has the burden of
establishing an abuse of discretion and resulting prejudice.”
(People v. Hill (2011) 191 Cal.App.4th 1104, 1122; accord, Grail
Semiconductor, at p. 799.)
B. The Trial Court Did Not Abuse Its Discretion in Admitting
Ikram’s Testimony and Reconstruction Animations
Arches contends the trial court abused its discretion by
allowing Ikram to testify because Lee did not produce Ikram’s
report before trial.
1. Relevant proceedings
On December 20, 2023 Arches served a deposition notice for
Ikram to appear for a remote video deposition on the afternoon of
January 9, 2024, approximately one month before the (then) trial
date. The notice demanded Ikram produce his work file and any
report or draft reports three days before the deposition. A few
10
hours before the deposition was set to begin, Arches’s lead
lawyer, Alexander Zeesman, sent Lee’s attorney, Marian
Margaryan, an email stating he had sent a link for the deposition
and intended to file a motion to exclude Ikram’s opinions and
testimony because Ikram failed to produce the requested
documents in advance of the deposition and Lee did not serve an
objection to the notice. Margaryan wrote in response that she
had advised Zeesman the previous day that she and Ikram were
not available on January 9, and she apologized for a
miscommunication with her office during her vacation the
previous week that led to a delay in informing Zeesman of their
unavailability. Zeesman did not respond, commenced the
deposition, and had the deposition reporter issue a certificate of
nonappearance.
On January 17, 2024 the parties stipulated to continue the
trial date, which the court set for May 20, with expert discovery
to track the new trial date but fact discovery to remain closed
except for resolution of pending motions to compel. As discussed,
in March Lee served her expert designation for Ikram.
Over the next 10 months, Zeesman and his office made
three attempts to unilaterally notice Ikram’s deposition, with
minimal efforts to coordinate the dates with Margaryan.
On April 22, 2024 Arches noticed Ikram’s deposition for May 3;
on April 23 Margaryan emailed Zeesman that Ikram was not
available and offered May 7 instead; she also served an objection
stating Arches unilaterally set the deposition without clearing
the date with Margaryan. Zeesman did not respond to
Margaryan’s offer, and instead, on May 9 he filed an ex parte
application to continue the trial because Lee “failed to produce
[her] expert for deposition.” The trial court denied the
11
application, finding “the [d]efense did offer dates for the expert
deposition, and [p]laintiff offers no explanation as to why the
deposition cannot occur before trial.” However, pursuant to the
attorneys’ oral stipulation at the May 21 final status conference,
the court continued the trial until August 19, with discovery
closed “with the exception of the pending expert depositions.”
On May 23, 2024 Zeesman noticed Ikram’s deposition for
July 18. Margaryan’s office responded by email that Ikram was
unavailable that day but offered July 19. Zeesman’s office did not
respond to the proposal and instead requested new dates.
Margaryan advised Zeesman that Ikram was on vacation and
unavailable between July 22 and August 18.
On July 30, 2024 Zeesman nonetheless noticed Ikram’s
deposition for August 9. Margaryan wrote Zeesman that Ikram
was unavailable, as she had previously advised, and asked
Zeesman to propose three dates she would offer to Ikram. On
August 6 (after the trial had been continued to October 21),
Zeesman responded, “[w]ith our trial date being pushed back, we
can agree to conduct expert depositions a bit further out.” The
record does not show any efforts by Zeesman after August 6 to
schedule Ikram’s deposition. Zeesman and Margaryan submitted
hundreds of pages of their emails in connection with Arches’s
MIL to exclude Ikram.
On the October 21, 2024 trial date, the trial court heard the
parties’ MIL’s and postponed jury selection until the following
day. The court indicated it was familiar with the attorneys’
voluminous correspondence and ordered the parties to meet and
confer “to see if there’s any way you can reach some agreement,
either withdraw those witnesses or have them deposed this
week.” The court added there was “plenty of time that a remote
12
deposition can be taken of experts at night” during the trial, and
the court would allow experts to be called out of order. After a
recess, Zeesman reported that the attorneys agreed to conduct
Ikram’s deposition at 5:00 p.m. on the afternoon of October 23.
Zeesman argued with respect to MIL 11 that Ikram’s report
should be excluded at trial because Lee never produced Ikram’s
work file in connection with the deposition noticed in
January 2024, the March 2024 expert designation, or in
supplemental discovery responses. Zeesman asserted, “the day of
the trial, we still don’t have a single report, a single calculation,
or a single analysis by Mr. Ikram.” Margaryan responded that at
the time of the expert designation, there were no reports or
documents. She added, “As of today, actually, there’s nothing in
writing. [Ikram]’s working on his demonstrative [slide
presentation], which he’ll give to me hopefully by the end of the
day today.”
The trial court asked if Ikram currently had “any reports,
analysis, documents that he’s basing his opinion on,” to which
Margaryan answered yes, stating “my understanding is it’s a lot
of diagrams and links.” Margaryan explained the files were not
produced because Ikram’s deposition had not been noticed since
Ikram prepared them. The court ordered the materials produced
by 10:00 a.m. the following day (October 22). The court granted
the MIL to exclude unproduced expert documents, but ruled “as
to Mr. Ikram specifically, we’ll take that up at the time of his
testimony, depending on the deposition and how many documents
are produced and when.” The court denied the other MIL’s
regarding the experts’ testimony without prejudice to Arches’s
attorneys raising objections during trial.
13
That evening (October 21) Margaryan produced Ikram’s 20-
gigabyte file. The production included Ikram’s demonstrative
slideshow, comprising 20 slides with photographs and five
accident reconstruction animations addressing the three
scenarios (each lasting from five to 13 seconds).
Ikram’s deposition commenced on the afternoon of
October 23 (after opening arguments), and Zeesman ended the
deposition in less than three hours. The next morning Zeesman
moved to exclude Ikram’s opinions and animations, stating he did
not have an opportunity to review the file and play the
animations, and he therefore was unable to depose Ikram about
the animations. Margaryan stated the animations had been
produced on the evening of October 21 (two days before the
deposition), and Zeesman did not ask Ikram to play the
animations during the deposition, focusing instead on
questioning Ikram about his pretrial unavailability. The court
denied Arches’s motion to exclude Ikram from testifying but
excluded any documents produced after the October 22 deadline.
Ikram testified on October 30 as the last witness for the
defense case. Before Ikram took the stand, Zeesman objected
under Evidence Code section 402 to the accident reconstruction
animations being played for the jury. Zeesman argued, “There’s
no testimony that supports any of those . . . videos. It would be
confusing, misleading and really a waste of time. And more
importantly, it doesn’t meet the test to come to court and show a
jury those types of documents.” Specifically, “[Ikram] has
multiple versions of Mr. Arches standing on the corner. However,
none of those have a vehicle in front of [Lee] as she testified to.
You can’t pick and choose the data points that he wants and put
14
that in front of a jury. It’s confusing, misleading, fails to comply
with the code . . . and a waste of time. . . .”
Margaryan responded that the animations were based on
deposition and trial testimony, and Zeesman did not ask Ikram
about the animations during the deposition. The trial court
ruled, “Mr. Zeesman, you keep bringing up things that the court
has already ruled on. . . . So we’re not doing a 402 for Mr.
Ikram.” [GF12.1]
2. Law governing expert disclosures
Section 2034.260 provides that when an appropriate
demand for expert exchange is made, a party is required to
disclose “[a] brief narrative statement of the general substance of
the testimony that the expert is expected to give.” (§ 2034.260,
subd. (c)(2); accord, Valencia v. Mendoza (2024) 103 Cal.App.5th
427, 449 (Valencia).) “Although a party is required to ‘“disclose
the substance of the facts and the opinions to which the expert
will testify,”’ this ‘does not require disclosure of specific facts and
opinions.’” (DePalma v. Rodriquez (2007) 151 Cal.App.4th 159,
165.) Section 2034.270 provides that if a demand is made, “all
parties shall produce and exchange” at the time specified in the
demand, “all discoverable reports and writings, if any, made by
any designated expert. . . .”
Section 2034.410 provides that a party is entitled to depose
any expert on the opposing party’s witness list. After a
deposition notice has been served, the expert “shall, no later than
three business days before his or her deposition, produce any
materials or category materials, including any materials or
category of materials, including any electronically stored
information, called for by the deposition notice.” (§ 2034.415.)
15
The code requirements for expert disclosure are intended to
allow the opposing party in taking an expert’s deposition “to fully
explore the relevant subject area . . . and to select an expert who
can respond with a competing opinion on that subject area.”
(Bonds v. Roy (1999) 20 Cal.4th 140, 146-147; accord, Valencia,
supra, 103 Cal.App.5th at p. 449; see Dozier v. Shapiro (2011)
199 Cal.App.4th 1509, 1518-1519 [parties are required to
“‘“‘disclose the substance of the facts and the opinions to which
the expert will testify, either in his witness exchange list, or in
his deposition, or both’”’”]; accord, Easterby v. Clark (2009)
171 Cal.App.4th 772, 778.) “‘“When an expert is permitted to
testify at trial on a wholly undisclosed subject area, opposing
parties . . . lack a fair opportunity to prepare for cross-
examination or rebuttal.”’” (Dozier, at p. 1519; accord, Valencia,
at p. 449.)
Section 2034.300 provides that upon a party’s objection,
“the trial court shall exclude from evidence the expert opinion of
any witness that is offered by any party who has unreasonably
failed to do any of the following: [¶] . . . [¶] . . . [s]ubmit an
expert witness declaration . . . [¶] [p]roduce reports and writings
under [§ 2034.270] [¶] [or] “[m]ake that expert available for
deposition under [§ 2034.270 et seq.].” (§ 2034.300, subds. (b)-(d);
accord, Valencia, supra, 103 Cal.App.5th at p. 449.) A party’s
failure to comply with the rules for expert disclosure “may be
found to be ‘unreasonable’ when [that] party’s conduct gives the
appearance of gamesmanship, such as undue rigidity in
responding to expert scheduling issues.” (Staub v. Kiley (2014)
226 Cal.App.4th 1437, 1447.)
16
3. The trial court did not abuse its discretion in allowing
Ikram to testify
Arches argues the trial court abused its discretion in
allowing Ikram to testify because Lee’s eleventh-hour production
of Ikram’s work file and report (i.e., the demonstrative
presentation with reconstruction animations) violated the expert
designation and deposition requirements of sections 2034.260,
2034.270, and 2034.410. Arches has failed to show that Lee
materially violated her expert disclosure obligations.
Lee’s March 29, 2024 expert designation provided a more
than adequate “narrative statement of the general substance” of
Ikram’s anticipated testimony. (§ 2034.260, subd. (c)(2).) Ikram
disclosed that he would testify as to the speeds and directions of
the vehicles, the impact sequences, the vehicle damage, and other
causes of the accident, “as well as any engineering principles,
analysis and/or physical forces involved in the reconstruction of
the accident.” Arches contends the disclosure was an empty
“word salad” and it did not reveal that “Ikram would present
animations, that he made notes of his inspection of Lee’s vehicle,
or that he had downloaded [the] Tesla [event data recorder].”
But Ikram was not required under section 2034.260 to disclose
the “specific facts” supporting his opinions (DePalma v.
Rodriquez, supra, 151 Cal.App.4th at p. 165), such as the items
he inspected or how he would present his opinions at trial, i.e., as
computer animations. Rather, Lee met her disclosure obligations
by designating Ikram as her “accident reconstructionist” and
stating he would discuss specified factors in his “reconstruction of
the accident.”
17
Arches also failed to show that Ikram withheld
“discoverable reports and writings” in violation of
section 2034.270. Lee stated in her March 2024 designation that
Ikram had not generated any reports and writings at that time.
Although Arches’s lawyers argued this was implausible, they had
the opportunity to examine Ikram about his involvement in the
case at his deposition yet failed to adduce any evidence that
Ikram generated discoverable writings before March 2024.
Arches likewise did not show that Lee “unreasonably
failed” to make Ikram available for his deposition. (§§ 2034.270,
2034.300, subd. (d).) It is true that Ikram did not appear for his
deposition on January 9, 2024 and Lee failed to serve an objection
(or responsive documents). However, Zeesman was aware at
least a day before the deposition that Ikram and Margaryan were
unavailable, yet Zeesman took Ikram’s nonappearance and
threatened to move to compel the deposition instead of
rescheduling. For the next 10 months, Zeesman made three
attempts to schedule Ikram’s deposition—for May 3, July 18, and
August 9. Further, Zeesman unilaterally set all three dates
without checking with Margaryan first. Ikram was unavailable
on each of the three dates, and Zeesman never responded to
Margaryan’s offers of alternative dates. And for the third date,
Zeesman set the deposition for the week that Ikram was on
vacation despite Margaryan giving notice of the vacation dates
the month before. And Zeesman did not attempt to schedule the
deposition in the more than two months before trial. The trial
court reasonably found defense counsel did not obstruct the
taking of Ikram’s deposition and that Arches’s attorneys could
have taken Ikram’s deposition prior to trial.
18
Finally, Arches contends his lawyers were prejudiced
because he only had a day to review Ikram’s work files with
20 gigabytes of data prior to making his opening statement and
taking Ikram’s deposition. But Arches made no showing at trial,
in his new trial motion, or on appeal of what was contained in the
file that was voluminous or difficult to digest. The only evidence
in the record showing what was in the files are the five
animations that lasted from six to 16 seconds. In addition,
although Ikram’s deposition was taken after opening statements,
it concluded before the first day of testimony, two days before
Smith’s testimony, and more than a week before Ikram testified.
Under these circumstances, the trial court did not abuse its
discretion in balancing Lee’s right to present an expert who was
properly disclosed and Arches’s right to a “‘“fair opportunity to
prepare for cross-examination or rebuttal.”’” (Dozier, supra,
199 Cal.App.4th at p. 1519; see Fatica v. Superior Court (2002)
99 Cal.App.4th 350, 353 [trial court abused its discretion in
granting MIL to exclude expert opinions from plaintiff’s doctor
where doctor had not reviewed plaintiff’s medical records in
preparation for doctor’s deposition, observing “the court could
have . . . order[ed] [the expert] to submit to a further deposition”
instead of “gutting [plaintiff’s] case”].)
4. The trial court did not abuse its discretion in
allowing Ikram to use computer animations as a
demonstrative aid
Arches contends the trial court abused its discretion with
respect to Ikram’s computer animations by “declin[ing] to view
the animations or hold any foundational hearing before they were
displayed to the jury.” The court did not abuse its discretion.
19
Computer animations are demonstrative aids, not
substantive evidence. As the Supreme Court explained in People
v. Duenas (2012) 55 Cal.4th 1 (Duenas) in contrasting a
computer-generated animation of an expert’s reconstruction of a
shooting with simulation software used to generate forensic
conclusions from data inputs, “‘Animation is merely used to
illustrate . . . testimony while simulations contain scientific or
physical principles requiring validation. [Citation.] Animations
do not draw conclusions; they attempt to recreate a scene or
process, thus they are treated like demonstrative aids.’” (Id. at
p. 20; see People v. Hood (1997) 53 Cal.App.4th 965, 969
[computer animations of a shooting “were tantamount to
drawings by the experts from both sides to illustrate their
testimony”].)
A computer animation is admissible “‘“it is a fair and
accurate representation of the evidence to which it relates. . . .”’”
(Duenas, supra, 55 Cal.4th at pp. 21-22 [objection that shooting
animation was based on speculation about the participants’
position and the sequence of events failed “[b]ecause the
animation accurately depicted the conclusions of the prosecution
experts who testified”]; see People v. Caro (2019) 7 Cal.5th 463,
509 [“We allow the admission of a computer animation as
demonstrative evidence of expert testimony, but only if certain
conditions are met. The animation must accurately depict an
expert opinion, the expert opinion must fairly represent the
evidence, the trial court must provide a proper limiting
instruction, and the animation must be otherwise admissible
under Evidence Code section 352.”].)
20
Arches’s attorney objected at trial that the computer
animations were inconsistent with Lee’s testimony because they
did not depict a vehicle sitting at the red light in front of Lee’s
vehicle, and Ikram improperly selected the data points he wanted
to use in the animations. However, Ikram was free to select what
to depict in the animations so long as the animations accurately
reflected Ikram’s testimony. (People v. Duenas, supra, 55 Cal.4th
at p. 22 [“Although defendant frames his argument as a challenge
to the admissibility of the animation, his real quarrel is with the
conclusions the prosecution’s experts drew from the evidence.”].)
Arches had ample opportunity during cross-examination to
question Ikram about why the animations did not depict another
vehicle at the stoplight and to explore whether the presence of
another vehicle in front of Lee would have impacted Ikram’s
opinions.
On appeal, Arches also argues the trial court abused its
discretion in failing to make findings under Evidence Code
section 352 and in not giving a “proper limiting instruction”
before allowing Ikram to use the animations.3 But at trial Arches
did not make an objection under section 352 or request a limiting
instruction, thereby forfeiting the issues. (People v. Partida
(2005) 37 Cal.4th 428, 433-434 [“‘we have consistently held that
the “defendant’s failure to make a timely and specific objection”
3 Evidence Code section 352 allows a trial court to exclude
evidence that is otherwise admissible “if its probative value is
substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create a
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”
21
on the ground asserted on appeal makes that ground not
cognizable’”].)
To the extent Zeesman preserved his section 352 objection
by arguing at trial that the animations were misleading and
would waste time, the court overruled the objection, impliedly
finding the animations were not unduly prejudicial. Arches has
not shown how this ruling was an abuse of discretion. (Jameson
v. Desta (2018) 5 Cal.5th 594, 608-609 [“[T]he burden is on an
appellant to demonstrate, on the basis of the record presented to
the appellate court, that the trial court committed an error that
justifies reversal of the judgment.”].)
Arches’s reliance on People v. Caro, supra, 7 Cal.5th at
page 509 to support his contention the trial court erred in not
giving a limiting instruction to the jurors is misplaced. The court
in Caro observed that courts must be “mindful of the powerful
impact computer animations may have on jurors.” (Ibid.) In
contrast to this case, however, the Caro court considered the
admissibility of a blood-splatter expert’s animation of the
shooting of three children that showed “three-dimensional,
mannequin-like re-creations” with some facial features and a
Winnie the Pooh doll dripping with blood. (Id. at pp. 508-510.)
The court held the animation was admissible because it was
consistent with the expert’s testimony, did not include “highly
emotional details,” and the jury was given limiting instructions
that “the animation was an aid for understanding an expert’s
opinion.” (Id. at pp. 509-510.) Nothing in the Caro decision
requires a trial court in a civil action sua sponte to give a limiting
instruction regarding an expert’s use of animations.
22
C. The Trial Court Did Not Abuse Its Discretion in Excluding
Smith’s Report
1. Relevant proceedings
During his direct examination of Smith, Zeesman moved to
admit Smith’s 22-page report into evidence. The trial court
overruled Lee’s attorney’s objection to the jury having the report
in the jury room and admitted the report. Smith’s report
included a nine-page summary of the parties’ discovery
responses, deposition testimony, and other evidence concerning
the collision, including the police report filed by Arches and Lee’s
phone records. The report also included a five-page summary of
the medical records provided by approximately a dozen
physicians and specialists who treated Arches, including
recitation of their diagnoses and clinical observations. Only four
pages of the report provided Smith’s opinions on the accident
reconstruction and the biomechanics of Arches’s injuries.
During the direct examination of Ikram, Zeesman objected
to the admission of Ikram’s slide presentation into evidence as
hearsay and for lack of foundation under People v. Sanchez (2016)
63 Cal.4th 665 (Sanchez). Zeesman argued, “there’s medical
records that are just loaded inside of this witness’ report.”
Margaryan responded that it would be unfair to exclude Ikram’s
report given that the “the court allowed John Smith to admit his
entire file which also contained a summary of medical records.”
After taking the matter under submission, the trial court
sustained Arches’s objection. The court further ruled, “The court
on its own motion is going to take this opportunity under its
inherent authority to correct erroneous rulings, and I am going to
exclude [Smith’s report], which I had previously admitted over
objections. . . . I believe it is unnecessarily confusing to the jury.
23
It’s going to be excluded under Evidence Code [section] 352.” The
court declined to hear further argument.
2. Smith’s report was properly excluded because it
contained inadmissible hearsay
Arches contends the trial court abused its discretion “[b]y
withdrawing a key exhibit after admitting it” where counsel
justifiably relied on admission of the report. Arches further
argues the court failed to address whether Smith’s report was
inadmissible under Sanchez, supra, 63 Cal.4th at page 686 and
instead invoked Evidence Code section 352 as a “free-floating
justification.” Arches has not shown the court abused its
discretion.
The Supreme Court in Sanchez held, “When any expert
relates to the jury case-specific out-of-court statements, and
treats the content of those statements as true and accurate to
support the expert’s opinion, the statements are hearsay. It
cannot logically be maintained that the statements are not being
admitted for their truth.” (Sanchez, supra, 63 Cal.4th at p. 686;
accord, People v. Garton (2018) 4 Cal.5th 485, 505 [coroner’s
testimony conveying the details and findings of an autopsy
performed by her retired predecessor was hearsay under Sanchez
(and violated defendant’s confrontation rights)]; see People v.
Nadey (2024) 16 Cal.5th 102, 163 [“[a] ‘hearsay problem arises
when an expert simply recites portions of a report prepared by
someone else’”].) The court in Sanchez explained that “[c]ase-
specific facts” are “those relating to the particular events and
24
participants alleged to have been involved in the case being
tried.” (Sanchez, at p. 676.)4
Sanchez reaffirmed that an expert witness “may still rely
on hearsay in forming an opinion and may tell the jury in general
terms that he [or she] did so.” (Sanchez, supra, 63 Cal.4th at
p. 685; accord, People v. Curiel (2023) 15 Cal.5th 433, 457.) An
expert may tell the jury “generally the kind and source of the
‘matter’ upon which his [or her] opinion rests. . . . There is a
distinction to be made between allowing an expert to describe the
type or source of the matter relied upon as opposed to presenting,
as fact, case-specific hearsay that does not otherwise fall under a
statutory exception.” (Sanchez, at p. 686; accord, People v.
Camacho (2022) 14 Cal.5th 77, 128 [“an expert may ‘tell[] the jury
the expert relied on additional kinds of information that the
expert only generally describes’”].)
Smith’s report was suffused with case-specific hearsay (and
double hearsay), including his summaries of the medical records
and the police report. (See Sanchez, supra, 63 Cal.4th at p. 675
[“An emergency room report, for example, may record the
observations made by the writer, along with statements made by
the patient. If offered for its truth, the report itself is a hearsay
statement made by the person who wrote it. Statements of
4 Although Sanchez concerned expert testimony in a criminal
prosecution implicating constitutional confrontation rights, “its
intention was to ‘clarify the proper application of Evidence Code
sections 801 and 802, relating to the scope of expert testimony.’”
(In re Marriage of Lietz (2024) 99 Cal.App.5th 664, 673.) “Thus,
the Sanchez rule concerning state evidentiary rules for expert
testimony applies in civil cases.” (Ibid.; accord, Conservatorship
of K.W. (2017) 13 Cal.App.5th 1274, 1282 [“Sanchez is
not . . . limited in its application to criminal proceedings.”].)
25
others, related by the report writer, are a second level of
hearsay.”].)
In his testimony Smith properly provided a more general
description of the evidence on which he relied in forming his
opinions, and he did not recite the case notes in his report. Thus,
Smith’s report not only contained inadmissible hearsay, but it
was untethered from his testimony. Moreover, the four pages of
Smith’s report containing his findings were cumulative of his oral
testimony. Under these circumstances, the court did not abuse
its discretion in excluding the report under Evidence Code section
352 as unnecessarily confusing to the jury. (See Briley v. City of
West Covina (2021) 66 Cal.App.5th 119, 133-134 & fn. 7 [trial
court did not abuse its discretion in excluding as confusing under
Evid. Code § 352 an investigator’s report and testimony about
statements she gathered from witnesses on the basis the
investigator testified “about the nature of the allegations she had
investigated, the witnesses she had interviewed . . . , the basis for
her findings, and in some cases the very statements she relied
on”].)
Arches argues the trial court abused its discretion because
his attorneys detrimentally relied on the trial court’s initial
ruling to admit the report. He points out that during cross-
examination, Smith denied a suggestion he ignored Lee’s version
of events, stating “I have several pages discussing her deposition
in my notes.” Arches asserts his attorney did not on redirect ask
Smith to address his analysis of Lee’s testimony because his
attorney assumed the jury would have the report in the jury
room. Arches offers no authority for his argument that a trial
court is estopped from correcting a clearly erroneous evidentiary
ruling later at trial based on an attorney’s purported reliance.
26
Moreover, Arches’s attorney could have requested to recall Smith
after the court’s ruling but failed to do so.5
D. The Trial Court Did Not Err in Awarding Expert Costs
1. The trial court did not abuse its discretion in
accepting Lee’s untimely opposition to the motion to
tax costs
Arches filed his motion to tax costs on January 3, 2025,
with a January 31 hearing date. Lee filed her opposition on
January 23, which was six days late under section 1005,
subdivision (b) (requiring filing and service of opposition papers
nine days before the hearing). Lee’s opposition stated the late
filing was due to “attorney error” and asked the court to consider
the untimely submission, allowing Arches to have an opportunity
to reply. Arches filed a reply seeking to strike the opposition,and
the trial court continued the hearing and authorized Arches to
file a supplemental reply, which he did on February 5.
Arches contends the trial court erred by considering the
opposition. However, “[a] trial court has broad discretion under
rule 3.1300(d) of the Rules of Court to refuse to consider papers
served and filed beyond the deadline without a prior court order
finding good cause for late submission.” (Bozzi v. Nordstrom, Inc.
(2010) 186 Cal.App.4th 755, 765; Cal. Rules of Court,
rule 3.1300(d) [“No paper may be rejected for filing on the ground
5 Because we find that none of the trial court’s challenged
evidentiary rulings was an abuse of discretion, we reject Arches’s
claim of cumulative error. (People v. Ramirez (2021) 10 Cal.5th
983, 1020 [“‘Because we have found no error, there is no
cumulative prejudice to evaluate.’”].)
27
that it was untimely submitted for filing. If the court, in its
discretion, refuses to consider a late filed paper, the minutes or
order must so indicate.”]; see Levingston v. Kaiser Foundation
Health Plan, Inc. (2018) 26 Cal.App.5th 309, 314 [“a trial court
has discretion to consider late-filed papers without the need of
granting relief from default”].) Arches has not met his burden on
appeal to present legal argument or evidence showing the trial
court abused its discretion or otherwise erred. (Jameson v. Desta,
supra, 5 Cal.5th at pp. 608-609.) Nor has he shown that he was
prejudiced by the court’s ruling continuing the hearing and
authorizing an additional reply brief.
2. Lee’s section 998 offer was enforceable
Concurrently with filing his February 5, 2025 supplemental
reply in support of the motion to tax costs, Arches filed a two-
page “objection to defendant’s [section] 998 statutory offer to
compromise” (capitalization omitted), in which he argued the
offer was “unreasonable and unenforceable on the grounds that it
is premature, unreasonable, and not in good faith in that [Arches]
has not had an opportunity to depose the experts in this matter,
and testimony and evidence was unavailable, including records
from Tesla. As demonstrated from [Arches’s] papers during and
even post-trial, the information available was insufficient to
evaluate the offer as presented.” This was the first time Arches
raised any objection to the section 998 offer; in his motion to tax
costs, Arches argued only that Lee’s expert witness fees were not
properly documented and “some of these alleged costs may have
been incurred prior to [Lee’s] July 10, 2023 Code of Civil
28
Procedure 998 Offer to Compromise and are thus not
compensable.”6
In its February 10, 2025 order on costs, the trial court
found Arches’s objection to the section 998 offer was untimely
because it was filed after the judgment was entered against him,
and further, “no such objection can be made within a
supplemental brief for a motion to tax costs, thereby depriving
[Lee] of the opportunity to respond to this objection.” The court
therefore did not consider the objection. We agree with Arches
that the court erred to the extent it concluded a challenge to the
reasonableness of a section 998 offer cannot be raised in a motion
to tax costs. (See Covert v. FCA USA, LLC (2022) 73 Cal.App.5th
821, 832 (Covert) [“On a motion to strike or tax costs, ‘[t]he
burden is on the offering party to demonstrate that the offer is
valid under section 998.’”]; Ignacio v. Caracciolo (2016)
2 Cal.App.5th 81, 86 [same].)
However, Arches failed to address at the February 10, 2025
hearing the court’s additional finding that he could not challenge
the section 998 offer for the first time in his supplemental reply,
denying Lee a chance to respond. As a general matter, forfeiture
“results when a party fails to reserve a claim by raising a timely
objection.” (Lynch v. California Coastal Com. (2017) 3 Cal.5th
470, 476.)
Even if Arches did not forfeit his challenge to the section
998 offer, his challenge lacks merit. “‘“We independently review
whether a section 998 settlement offer was valid.”’” (Covert,
6 Arches’s motion to tax costs stated, “[Arches] also
incorporates his objection to Defendant’s Offer under
[section] 998.” But no “objection” was filed, and Arches has not
argued he inadvertently omitted an objection.
29
supra, 73 Cal.App.5th at p. 832.) “Only settlement offers made in
good faith are effective under section 998.” (Id. at p. 833; accord,
Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th
918, 924.) “‘“‘Where . . . the offeror obtains a judgment more
favorable than its offer, the judgment constitutes prima facie
evidence showing the offer was reasonable and the offeror is
eligible for costs as specified in section 998.’”’” (Covert, at
pp. 833-834; see Adams v. Ford Motor Co. (2011) 199 Cal.App.4th
1475, 1484.) “However, an offer is only made in good faith if the
offer ‘“‘carr[ies] with it some reasonable prospect of acceptance.’”’
[Citations.] ‘Whether a section 998 offer has a reasonable
prospect of acceptance is a function of two considerations, both to
be evaluated in light of the circumstances “‘at the time of the
offer’” and “‘not by virtue of hindsight.’” [Citations.] First, was
the 998 offer within the “range of reasonably possible results” at
trial, considering all of the information the offeror knew or
reasonably should have known? [Citation.] Second, did the
offeror know that the offeree had sufficient information, based on
what the offeree knew or reasonably should have known, to
assess whether the “offer [was] a reasonable one,” such that the
offeree had a “fair opportunity to intelligently evaluate the
offer”?’” (Covert, at p. 834; accord Licudine, at pp. 924-925;
Adams, at p. 1485.) “‘Although the party making a 998 offer
generally has the burden of showing that [the] offer is valid
[citations], it is the 998 offeree who bears the burden of showing
that an otherwise valid 998 offer was not made in good faith.’”
(Covert, at p. 834; accord, Licudine, at p. 926.)
Arches’s superficial argument in the objection that he could
not evaluate Lee’s offer because he had not had a chance to
depose the experts or to obtain records from Tesla does not
30
satisfy his burden of showing Lee’s offer was premature and
therefore unreasonable. The offer was served 15 months after
Arches filed the lawsuit, and his deadline to respond was two
months before the upcoming trial date. The parties’ stipulations
to continue trial indicate that by this time substantial discovery
had been conducted. Arches does not cite any authority for the
proposition that a section 998 offer is premature when experts
have not been deposed, but in any event, Arches had possession
of his medical records and other damages evidence, and he could
have reasonably assumed that Lee’s accident reconstruction
expert would present a case that Lee was not at fault.
Arches has failed to show what records Arches might have
received from Tesla that would have changed his valuation of the
case (especially given that his expert agreed the Tesla would not
have recorded the accident). Moreover, at the time of the
section 998 offer, Arches would have known that this was a low-
speed collision from which he rode home with minimal damage to
his bicycle and Lee’s car, he would have known the extent of his
injuries, and there were no percipient witnesses. Accordingly,
Arches has not identified any basis to conclude Lee should have
known in propounding the offer that Arches had insufficient
information to determine whether $20,000 was reasonable such
that he had a “‘“fair opportunity to intelligently evaluate it.”’”
(Covert, supra, 73 Cal.App.5th at p. 834.)
31
DISPOSITION
The December 3, 2024 judgment and the February 10, 2025
order awarding costs are affirmed. Lee is to recover her costs on
appeal.
FEUER, J.
We concur:
MARTINEZ, P. J.
STONE, J.
32