Diaz v.
Angeles
Filed 3/5/13 Diaz v. Los Angeles County MTA CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SEVEN
EDUVIGIS DIAZ,
Plaintiff and Appellant,
v.
LOS
ANGELES COUNTY
METROPOLITAN TRANSPORTATION AUTHORITY et al.,
Defendants and Respondents.
B236856
(Los Angeles
County
Super. Ct.
No. LC075998)
APPEAL from
a judgment of the Superior Court
of
County, Michael A. Latin, Judge. Affirmed in part, reversed in part and
remanded with directions.
Marlon M.
Alo for Plaintiff and Appellant Eduvigis Diaz
O’Reilly
& McDermott, Paul O’Reilly; Greines, Martin, Stein & Richland, Martin
Stein and Carolyn Oill for Defendants and Respondents
Los Angeles County
Metropolitan Transportation Authority and Omar Forero
______________
Eduvigis Diaz appeals from the judgment entered in this
a jury found the Los Angeles County Metropolitan Transportation Authority (MTA)
and its employee, Omar Forero (collectively MTA defendants), negligent in
connection with injuries Diaz sustained while a passenger on an MTA bus. Diaz contends the trial court erred in
denying her motion for summary judgment. She also challenges several of the trial
court’s evidentiary rulings, contends the jury’s damage award of $15,175 was
insufficient as a matter of law and asserts the court committed misconduct by
improperly questioning witnesses at trial.
We reverse the trial court’s order taxing costs on appeal and affirm in
all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
1. The
Accident and This Lawsuit
Diaz was a
passenger on an MTA bus driven by Forero on November 21, 2005.
As the bus approached the intersection of Van Nuys
Boulevard and Roscoe
Boulevard, it braked suddenly and hit the back of
the car driven by Cindy Artero. Diaz,
then 79 years old, fell off her seat and hit her head, sustaining injuries.
Diaz sued
the MTA defendants claiming her injuries were caused by Forero’s
negligence. The MTA defendants asserted
Forero had behaved reasonably and it was Artero who had caused the accident by
suddenly cutting in front of Forero from the adjacent lane.
2. The
First Trial and Appeal
At the first trial the jury found
in favor of the MTA defendants. Diaz
appealed, arguing the trial court had erred in failing to give a res ipsa
loquitor instruction to the jury. We
agreed, holding that, under long-standing Supreme Court authority (see
passenger on a common carrier, through no fault of his or her own, is injured
in connection with the operation of the carrier’s vehicle, the plaintiff is
entitled to a res ipsa loquitor instruction that creates a rebuttable
presumption of negligence and initially shifts the burden to the common carrier
to demonstrate the absence of negligence.
(See Diaz v. Los Angeles County
Metropolitan Transportation Authority (July 20, 2009), B206259, opn. ordered nonpub. Oct. 22, 2009.) Finding the error prejudicial, we reversed
the judgment and remanded to the trial court for further proceedings. (Ibid.)
3. Diaz’s
Summary Judgment Motion
Diaz moved
for summary judgment or, alternatively, summary adjudication, contending there
was no evidence to rebut the presumption of negligence. Diaz claimed $32,440 in special damages for
past and future medical expenses and
requested the court award her additional, unspecified general damages for
allowed by law.â€
In their
opposition papers the MTA defendants argued there were triable issues of
material fact as to whether Artero alone was negligent and had caused the
accident. They supplied evidence Forero
was 120 feet from the intersection and driving at a speed of 25 miles per
hour prior to the collision. He was
covering his brakes in accordance with his safety training in case the light
changed when Artero’s car suddenly cut in front of him and then stopped abruptly
as the light turned yellow. Artero’s
unsafe lane change and sudden stop forced Forero to apply his brakes hard. He ultimately ended up hitting Artero’s
vehicle.
The trial
court denied the motion concluding there were triable issues of material fact
as to whether the MTA defendants were negligent.
4. The
Second Jury Trial and Special Verdict
After each side presented
evidence at a second trial, the jury in a special verdict
found the MTA defendants negligent, apportioning fault for
the accident 50 percent to Forero and 50 percent to Artero. Diaz was awarded $7,675 in past medical
expenses and $7,500 in past noneconomic loss including physical pain and mental
suffering. The jury awarded no damages
for future medical expenses or future noneconomic loss.
5. Diaz’s
Motion for a New Trial or Judgment Notwithstanding the Verdict
Diaz moved
for a new trial or, in the alternative, judgment notwithstanding the
verdict. She argued the evidence was
insufficient to justify the verdict; the damages were inadequate as a matter of
law; and the court had made several errors of law to which she objected at
trial, including instructing the jury with the evidentiary presumption of res
ipsa loquitor in CACI No. 417 rather than in accordance with language contained
in Evidence Code section 646 as she had requested. The trial court denied both motions.
DISCUSSION
Alleged Errors Relating to Issues of Liability Were Harmless
At the threshold, Diaz raises
several arguments relating solely to the question of the MTA defendants’
negligence. She asserts the court erred
in sustaining objections to questions directed to Merlyn Wilson, a former
California Highway Patrol Officer in charge of accident investigation, who
opined on the question whether Forero had behaved negligently. She also insists the court committed
prejudicial error by instructing the jury with CACI No. 417, the res ipsa
loquitor instruction approved by the Judicial Council, arguing the CACI instruction
fails to “adequately state the presumption of negligence†or shift the burden
to the MTA defendants to show Forero was not negligent.
Because
Diaz prevailed on the issue of liability, she cannot demonstrate the court’s
rulings were prejudicial. Accordingly,
we do not consider the merits of her arguments directed solely to questions of
negligence. (See Cal. Const., art. VI,
§ 13 [“No judgment shall be set aside, or new trial granted, in any cause
. . . for any error as to any matter of
procedure, unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.â€]; Code Civ.
Proc., § 475 [“[n]o judgment, decision, or decree shall be reversed or
affected by reason of any error, ruling, instruction, or defect, unless it
shall appear from the record that such error, ruling, instruction, or defect
was prejudicial, and also by reason that such error, ruling, instruction, or
defect, the said party complaining or appealing sustained and suffered
substantial injury, and that a different result would have been probable if
such error, ruling, instruction, or defect had not occurred or existedâ€]; Evid.
Code, §§ 353, 354 [verdict or finding shall not be set aside or
reversed for evidentiary error unless it resulted in miscarriage of justice];
see also Soule v. General Motors Corp. (1994)
8 Cal.4th 548, 570 [instructional error in civil case is harmless when “it is
not reasonably probable [the aggrieved party] would have obtained a more favorable
result in its absenceâ€].)
2. The
Trial Court Did Not Err in Denying Diaz’s Motion for Summary Judgment or, in
the Alternative, Summary Adjudication
Diaz contends the trial court
erred in denying her motion for summary judgment or, in the alternative summary
adjudication, because the evidence submitted with the motion established the
MTA defendants were negligent as a matter of law and Diaz was entitled to the
damages she requested. The motion was
properly denied; Diaz failed to meet her initial burden on summary
judgment. (See Code Civ. Proc.,
§ 437c, subds. (a) [“[a]ny party may move for summary judgment in any
action or proceeding if it is contended that the action has no merit or that
there is no defense to the action or proceedingâ€]; (p)(1) [“a plaintiff or
cross-complainant has met his or her burden of showing that there is no defense
to a cause of action if that party has proved each element of the cause of
action entitling the party to judgment on that cause of actionâ€].)
Damages are
an essential element of a negligence cause of action. (See Merrill
v. Navegar, Inc. (2001) 26
Cal.4th 465, 500 [elements of negligence action are duty, breach, causation and
damages].) Yet, Diaz did not specify in
her motion the amount of damages incurred.
Although she identified special damages, mainly past and future medical
expenses, her motion requested the trial court operate as fact-finder and fix
the amount of general damages to be awarded as allowed “under the law.†For this reason alone, the motion for summary
judgment was properly denied. (See
McGrath (2005) 128 Cal.App.4th 1093, 1106 [plaintiff cannot “establish a
prima facie entitlement to summary judgment without showing both the fact
Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1097 [“[b]ecause issues of
the calculation of damages apparently remain to be determined, it is not
appropriate to grant summary judgmentâ€]; Lerner
v. Ehrlich (1963) 222 Cal.App.2d 168, 173 [same]; see generally
233 Cal.App.3d 1505, 1513 [“[r]eview of a trial court’s determination [on
summary judgment] involves pure matters of law, requiring reassessment of the
legal significance of the documentsâ€].)
To the
extent Diaz contends the court should have at least granted summary
adjudication on the question of Forero’s negligence, that is, whether Forero
breached his duty of reasonable care, this too would have been improper. At the time of Diaz’s motion, summary
adjudication was authorized only if it “completely dispose[d] of a cause of
action, an affirmative defense, a claim for damages, or an issue of duty.†(Code Civ. Proc., § 437c, subd. (f)(1).)
for summary adjudication on the question of breach because negating that
element would dispose of the cause of action, a plaintiff could not because it
would not resolve the cause of action or meet the other requirements of Code of
Civil Procedure section 437c, subdivision (f)(1). (Ibid.) In any event, the jury ultimately found in
Diaz’s favor on the question of negligence.
Thus, as we have explained, even if the trial court erred, its denial of
summary adjudication on the question of Forero’s negligence was plainly
harmless. (See Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833 [error in
denying summary judgment cannot result in reversal following trial on the
merits unless error was prejudicial; prejudice is not shown merely by fact that
entry of summary judgment would have avoided a trial].)
3.
Any Evidentiary Errors Were
Harmless
a. Rulings
relating to expert witness testimony
Diaz contends the court erred in
sustaining hearsay objections to questions directed to her expert witnesses,
Dr. Kiana Kiasaleh, Dr. Stanley Goodman and Donna Pope, each of whom testified
on the issue of damages. Diaz has failed
to demonstrate any reversible error.
Dr. Kiasaleh
Dr. Kiasaleh, Diaz’s treating
chiropractor, testified she referred Diaz to a neurologist for a video
electronystagmography (VENG) test to help diagnose Diaz’s balance
problems. Diaz’s counsel asked Dr.
Kiasaleh the amount of the neurologist’s invoice. The trial court sustained the MTA defendants’
objection on hearsay grounds because Dr. Kiasaleh did not prepare the
invoice. No other evidence was presented
that Diaz had incurred an additional $2,600 in medical expenses.
Diaz argues
the objection to Dr. Kiasaleh’s testimony should not have been sustained because
experts may rely on hearsay in formulating their opinions. (See In
re Fields (1990) 51 Cal.3d 1063, 1070 [an expert may base an opinion on
hearsay and other inadmissible matter provided there exists reasonable basis
for the particular opinion offered]; Howard
Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1115
[same].) While true, the argument misses
the point. The information on the
invoice, which Dr. Kiasaleh apparently neither prepared nor directed to be
prepared concerning a test she was not medically qualified to administer, was
inadmissible hearsay in the absence of a proper foundation that it was a
business record (See, e.g., Evid. Code, § 1271.) Diaz attempted to have Dr. Kiasaleh testify as
to the amount charged for the test to prove an element of her damages—that is,
for the truth of the information contained in the invoice—not as part of the
basis for Dr. Kiasaleh’s opinions.
Indeed, the trial court permitted Kiasaleh to opine on Diaz’s condition
as an expert in chiropractic medicine, as well as on the cost of Dr. Kiasaleh’s
treatment of Diaz and whether those chiropractic costs were reasonable. The trial court’s ruling was entirely
proper.
ii. Dr.
Goodman
Dr. Goodman, an expert in
geriatric psychiatry, opined Diaz had developed major depressive disorder as a
result of the accident. Dr. Goodman
explained he based his opinion in part on his interview with Diaz, as well as
on Diaz’s medical records, which did not indicate she suffered from any
psychiatric disorder prior to the accident.
Diaz
contends the court erred in prohibiting Dr. Goodman from testifying whether
Diaz’s treating physician had ever referred her to a psychiatrist.
able to refer to Diaz’s medical records, on which he had relied to formulate
his expert opinion, to answer that question.
She is correct to the extent the question was directed to the basis for
Dr. Goodman’s opinion that Diaz had developed a major depressive disorder as a
result of the accident. However, it
appears Diaz was attempting to use Dr. Goodman’s testimony to establish that
Diaz had, in fact, never been referred to a psychiatrist prior to the
accident. Therefore, the trial court’s
evidentiary ruling was technically correct.
Dr. Goodman’s testimony would have been inadmissible hearsay to prove
that historic fact. In any event, during
another part of his examination Dr. Goodman testified, based on her medical
records, Diaz’s treating physician had not referred Diaz to a
psychiatrist. Dr. Goodman repeated this
testimony on cross-examination. Thus,
Diaz has not demonstrated any prejudicial error.
Donna Pope
Donna Pope, a registered nurse
and geriatric case manager, prepared a life care plan assessing the costs of
Diaz’s future medical needs. Pope
testified, in preparing the life care plan, she had interviewed Diaz and her
family and reviewed her medical records from her treatment providers. Pope learned Diaz suffered from memory
impairment, mild traumatic brain injury, vertigo, post-traumatic stress
disorder and severe depression. Based in
part on her interviews with Diaz and her family and her review of Diaz’s
medical records, Pope opined Diaz would need $57,437 each year for the rest of her
life and explained she estimated a future life expectancy of approximately
seven years in arriving at Diaz’s total medical needs valuation.
Diaz
contends the court improperly precluded Pope from testifying, as hearsay,
regarding conversations she had had with Drs. Goodman and Kiasaleh or relying
on their reports. Diaz misapprehends the
court’s rulings, which were directed to the form of the questions, not to the
witnesses’ ability to rely on hearsay in formulating an opinion. For example, Diaz’s counsel asked Pope
whether Dr. Goodman had said Diaz would need future psychiatric
treatments. The form of the question
called for hearsay. In contrast, when
counsel inquired whether Pope had relied on the reports of Drs. Kiasaleh and
Goodman in reaching her opinion, Pope was permitted to answer.
Diaz
also cites a portion of the transcript where Pope was asked again, on redirect
examination by Diaz’s counsel, what she had relied on in reaching her
conclusions. The court stated, “The
question calls for hearsay. You’re just
asking her to regurgitate what she read in somebody else’s report. Hearsay.
The court is going to sustain its own objection.†Although the court’s objection and ruling
were erroneous—the question called for the witness’s expert opinion, which may
be based on hearsay sources (see In re
Fields, supra, 51 Cal.3d at p. 1070) —Pope had already testified to matters
she relied on in reaching her conclusion.
Drs. Goodman and Kiasaleh also testified as to their opinions, which
Pope explained she had relied on in formulating her life care plan. Thus, any error here could not be
prejudicial. (Evid. Code, § 354; see
1148, 1161 [reversal warranted for improper admission or exclusion of evidence
in civil case only if appellant establishes it is reasonably probable jury
would have reached result more favorable to appellant absent the error];
Cal.App.4th 327, 337 [appellant’s burden to demonstrate error is prejudicial
and resulted in miscarriage of justice].)
b. Ruling
excluding former testimony of out-of-state witnesses
Diaz’s daughter, Bianca Diaz,
and Diaz’s grandson, David Gonzales, testified at the first trial. Sometime thereafter they moved to, and became
residents of, Arizona. The trial court
did not allow Diaz to read portions of their prior testimony into evidence
because she failed to show she had exercised reasonable diligence in attempting
to procure their attendance at trial.
(Evid. Code, § 240, subd. (a)(5) [witness is unavailable if he or she is
absent from hearing and the proponent of his or her statement has exercised
reasonable diligence but has been unable to procure his or her attendance by
the court’s process].) Diaz contends
this was error because, as residents of Arizona, Gonzalez and Bianca Diaz were
beyond the court’s process and thus by definition statutorily unavailable. (See Evid. Code, § 240,
subd. (a)(4) [declarant is unavailable if absent from hearing and court is
unable to compel his or her attendance by its process]; see also Code Civ.
Proc., § 1989 [witness not obliged to attend hearing unless he or she is a
resident within the state at the time of service].)
We need not
decide which definition of unavailability the court should have applied because
Diaz failed to demonstrate her daughter and grandson were unavailable under
either Evidence Code section 240, subdivision (a)(4) or (a)(5). Indeed, there was no showing, or even
representation to the court, that Bianca Diaz and her son had not visited
California within a reasonable time prior to trial and thus were, at all
reasonable times, “beyond the court’s process.â€
In any event, Diaz has not established the exclusion of their testimony
was prejudicial. Bianca Diaz had
testified her mother was independent before the accident, but afterward
suffered balance problems and walked with a cane. She also complained of pain in her back and
in her head, pain she did not complain of prior to the accident. David Gonzalez’s testimony was essentially
the same. This evidence was entirely
cumulative. Diaz’s expert witnesses,
Pope, Dr. Goodman and Dr. Kiasaleh, testified Diaz only complained to her
treating physicians of pain or balance issues after the accident. Accordingly, even if there were error, it is
not reasonably probable Diaz would have received a more favorable verdict had
the testimony of those witnesses been received.
(See Lone Star Security &
Video, Inc. v. Bureau of Security & Investigative Services (2009) 176
Cal.App.4th 1249, 1255 [where excluded evidence was merely cumulative or
corroborative of other evidence in record, it is not “reasonably probable a
more favorable result would have been reached absent the errorâ€];
Cal.App.4th 1211, 1220 [same].)
c. Ruling
excluding Diaz’s former testimony
Diaz’s counsel also sought to
introduce Diaz’s testimony from the prior trial, asserting her memory problems
had worsened and Diaz was too mentally infirm to testify. (See Evid. Code, § 240, subd. (a)(3) [a
person is unavailable for purposes of testifying if he or she is “[d]ead or
unable to attend or to testify at the hearing because of then-existing physical
or mental illness or infirmityâ€]; People
v. Alcala (1992) 4 Cal.4th 742, 778 [upholding trial court’s finding
following witness’s testimony at pretrial hearing that witness suffered from
Alzheimer’s disease and thus was unavailable to testify].) The trial court denied the request, noting
Diaz’s counsel had failed to make a proper foundation that she was too mentally
infirm to testify.
title="">[3]
Emphasizing
Dr. Kiasaleh’s testimony that Diaz suffered from memory problems and, at their
last meeting in 2010, did not recognize Dr. Kiasaleh or recall the treatment
she had provided, Diaz argues she established a sufficient foundation she was
unavailable due to mental infirmity. We
need not belabor this contention. The
totality of the former testimony sought to be introduced was that Diaz, with
her recollection refreshed by a photograph of her on a hill in Columbia,
recalled taking a trip to her native country three months before the accident
and climbing on a rock unassisted. The
exclusion of this small portion of Diaz’s prior testimony has not been shown to
be prejudicial.
4.
Damages Is Supported by Substantial Evidence
“Appellate review of a fact
finder’s award of damages is limited.
[Citation.] In the absence of
error in the admission of testimony supporting a claim of economic damages . . .
we will affirm the judgment if substantial evidence supports the damage
award. [Citation, fn. omitted.] ‘Damages, even economic damages, are
difficult to measure in personal injury cases.
There may be disputed facts regarding the amount of medical expenses or
lost wages, or disputed inferences about the probable course of events such as
the length of incapacitation or whether a continuing disability will worsen,
pleateau, or improve.’ [Citation.] ‘Technical arguments about the meaning and
effect of expert testimony on the issue of damages are best directed to the [fact
finder.]’†(Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th
1298, 1321-1322 (Pannu); accord,
Cal.App.4th 853, 856.)
To
determine whether a damages award is supported by substantial evidence, “we
“must start with the presumption that the record contains evidence sufficient
to support the judgment; it is appellant’s burden to demonstrate
otherwise.†(Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368;
accord, Pannu, supra, 191 Cal.App.4th
at p. 1322, fn. 18.) “‘Under that
standard, we must consider all of the evidence in the light most favorable to
the prevailing party, giving it the benefit of every reasonable inference, and
resolving conflicts in support of the judgment.’ [Citation.]
‘It is not our task to weigh conflicts and disputes in the evidence;
that is the province of the trier of fact.
Our authority begins and ends with a determination as to whether, on the
entire record, there is any substantial
evidence, contradicted or uncontradicted, in support of the judgment.’†(Pannu,
at p. 1322, fn. 18; accord, Howard v.
Owens Corning (1999) 72 Cal.App.4th 621, 630.)
Diaz
contends there was uncontradicted evidence she required future medical care “to
a reasonable certainty†and argues the jury was required to award her at least
some future damages even if there was conflicting evidence about the
amount. Although Diaz cites the
testimony of Pope and her medical providers to support this assertion,
her claim. For example, there was
evidence Diaz suffered from diabetes and expert testimony that people with
diabetes may suffer from dizziness and unsteadiness similar, or even identical
to, the symptoms Diaz purportedly suffered as a result of the accident. The jury could have found Diaz’s need for
future medical care was not caused by the MTA defendants’ negligence, but her
advanced age and health conditions unrelated to the accident. Moreover, although Dr. Kiasaleh
testified as to Diaz’s future medical needs, when confronted on
cross-examination with her notes discharging Diaz in April 2006, she admitted
she believed Diaz’s injuries from the accident had resolved at that time. As for psychiatric therapy, there was
evidence Diaz needed help for clinical depression following the accident, but
conflicting evidence as to whether the accident, as opposed to her advanced age
and associated medical problems unrelated to the accident, had caused the
depression. Simply stated, for a variety
of reasons supported by the evidence, the jury could have found Diaz was not
entitled to any future damages. The
record amply supports the jury’s verdict.
(See Abbott v. Taz Express, supra,
67 Cal.App.4th at p. 855 [“[B]etween black and white are various
shades of gray, and all of the colors of the rainbow as well. What constitutes fair and reasonable
compensation in a particular case is a question of
fact . . . .â€]; Choate
v. County of Orange (2000) 86 Cal.App.4th 312, 321 [same].)
5. Diaz
Has Not Demonstrated Prejudicial Judicial Misconduct
Diaz contends the trial court
engaged in prejudicial misconduct by asking questions that effectively
“misrepresented evidence†(implying Diaz suffered from Alzheimer’s disease) and
were designed to induce witnesses to alter their testimony and bolster the
defense case. By failing to object to
any of the court’s questions, Diaz has not preserved the issue for appeal. (See People
v. Cook (2006) 39 Cal.4th 566, 598 [failure to object to court’s questions
of witnesses at trial results in forfeiture of objection on appeal];
350 [“Defendant argues the court overstepped its bounds with respect to the
tone, form and number of questions posed.
However, he did not object to the trial court’s questioning, thus making
the claim not cognizable on appealâ€].)
Diaz
insists any objection would have been futile because the very comments she
identifies as misconduct show the court was inherently biased against her and
her attorney. (See People v. Sturm (2006) 37
Cal.4th 1218, 1237 [“As a general rule, judicial misconduct claims are not
preserved for appellate review if no objections were made on those grounds at
trial. [Citations.] However, a defendant’s failure to object does
not preclude review ‘when an objection and an admonition could not cure the
prejudiced caused by’ such misconduct, or when objecting would be futile.â€];
see also ibid. [where trial court
belittled crucial defense witnesses, hamstrung their testimony, and repeatedly
disparaged defense counsel, appellate claims of judicial misconduct were not
forfeited by failure to object at trial; “[g]iven the evident hostility between
the trial judge and defense counsel during the penalty phase, it would also be
unfair to require defense counsel to choose between repeatedly provoking the
trial judge into making further negative statements about defense counsel and
therefore poisoning the jury against his client or, alternatively, giving up
his client’s ability to argue misconduct on appealâ€].) The court’s questioning in this case was at
times aggressive, and it occasionally overstepped its bounds by straying from
the ideal of “‘“temperate, nonargumentative, and scrupulously fair.â€â€™â€ (People
v. Cook, supra, 39 Cal.4th at p. 597.)
Nonetheless, the court did not manifest such hostility as to entirely
excuse Diaz’s counsel from his obligation to object, at least at some point in
the trial, to comments and questions he now identifies as biased.
its merits, we find no prejudicial misconduct.
a.
“A trial
court has both the discretion and the duty to ask questions of witnesses,
provided this is done in an effort to elicit material facts or to clarify
confusing or unclear testimony.†(
597; see Evid. Code, § 775 [“[t]he court, on its own motion or on the motion of
any party, may call witnesses and interrogate them the same as if they had been
produced by a party to the action, and the parties may object to the questions
asked and the evidence adduced the same as if such witnesses were called and
examined by an adverse partyâ€]; People v.
Carlucci (1979) 23 Cal.3d 249, 256 [Evid. Code, § 775, a
codification of case law, “‘confers upon the trial judge the power, discretion
and affirmative duty . . . [t]o participate in the examination of witnesses
whenever he [or she] believes that he [or she] may fairly aid in eliciting the
truth, in preventing misunderstanding, in clarifying the testimony or covering omissions,
in allowing a witness his [or her] right of explanation, and in eliciting facts
material to a just determination of the cause’â€].)
b. The
court’s questions regarding Alzheimer’s disease
During Diaz’s counsel’s examination of Dr.
Goodman, the court inquired whether Diaz suffered from Alzheimer’s
disease. During this colloquy the court
stated, “There is some form of Alzheimer’s or dementia in varying stages in
almost 50 percent of the population in those people 85 years old; is that a
correct statement?†The court went on to
ask, “And there is no case in documented history, is there, where a person was
found to have Alzheimer’s as the direct result of a fender bender in a car, is
there?†Dr. Goodman agreed with both
statements. The court then asked, “Is
there any link between head trauma and the immediate onset of Alzheimer’s in
any published study that you can point me to?â€
Dr. Goodman responded there was not, to his knowledge, but explained he
had diagnosed Diaz with memory problems from traumatic brain injury, not
Alzheimer’s. The court replied, “But she
has Alzheimer’s correct? Her life care
plan is based on it.†“[Do] you see the
word ‘Alzheimer’s’ all over the life care plan and . . . , more importantly,
the vast majority of expenses in the life care plan, right?†Dr. Goodman then explained Alzheimer’s
is mentioned in the life care plan because the assisted living Alzheimer’s
dementia unit is a program that can help people with memory-disorders, but, to
his knowledge, Diaz was never diagnosed with Alzheimer’s.
The record reflects that defense
counsel first suggested Diaz suffered from Alzheimer’s disease unrelated to the
accident: During cross-examination
of Pope, which immediately preceded Dr. Goodman’s testimony, counsel for the MTA
defendants observed Pope’s life care plan included substantial costs for
treatment at an Alzheimer-dementia center.
Pope admitted she had no information about whether Diaz suffered from
Alzheimer’s disease at all, much less whether the accident had exacerbated the
condition.
Pope’s
testimony concerning the life care plan she prepared arguably provided some
slight evidentiary basis for the court to inquire whether Diaz suffered from
Alzheimer’s disease. Based on the
court’s question, Dr. Goodman was able to explain that the references to
Alzheimer’s in the life care plan were based, not on any actual diagnosis, but
on the best therapeutic vehicle to assist Diaz.
At least, however, the tone and form of the court’s questions could have
been more circumspect. Nonetheless, the
court’s questions did not reflect an inherent bias or deny Diaz the right to a
fair trial.
c. The
court’s questions to Pope and Marianne Inouye
Diaz contends the court’s
questions to Pope and to economist, Marianne Inouye, criticized Diaz’s efforts
to recover damages through litigation and undermined the merit of her
claims. The record does not support the
assertion. Asked on cross-examination
what investigation she undertook to determine whether Diaz’s unsteady gait was
the result of the accident, Pope responded she relied, at least in part, on
Diaz’s representation she did not suffer from dizziness or vertigo prior to the
accident. Pope explained, “I have to go
by that: she said that she did not have
it before and that it caused her a problem with her balance.†The court interjected, “Ms. Pope, when you’re
talking to this person, you know you’re talking to them in the course of
litigation, right? . . .
And you know that their objective in the litigation is that they are seeking
money, right? . . . So,
you’re saying that when you question them you don’t go behind what they
claim? You just follow whatever they say
and you take that as the truth, and you don’t question it at all?†When Pope explained it was her duty to be an
advocate for the patient, the court interjected, “You have a different role
when you come to court. In court, you
are not to be an advocate for anybody.
You’re just a witness sworn to tell the truth and to answer the
questions directly and honestly. That’s
your only obligation. Any obligation
that you perceive to conflict with that case should be put out the window. Just tell the truth. Be objective.
Okay?†Again, we certainly do not
commend the tone or phrasing of these questions and comments, but they did not
disparage Pope or Diaz. Rather, they
were directed to the factors Pope relied on, and did not rely on, in
formulating Diaz’s life care plan. (
p. 256; Evid. Code, § 775.) The court’s
admonition to respond truthfully to questions, even if that interfered with her
perceived role as Diaz’s advocate, was not improper.
The court’s questions to Inouye
were similarly intended to elicit the facts on which she based her
opinion. When Inouye testified she relied
solely on the life care plan in formulating her opinion, the court inquired,
“What if none of [the information in the life care plan] is true?†Inouye explained her role was not to
determine the truth or accuracy of the future medical needs itemized in the
life care plan, but only to determine the present value of those damages as
represented to her. The court’s
clarifying questions to Inouye simply highlighted Inouye’s limited role in
reviewing the life care plan. They were
not improper.
d. Other
questions and comments by the trial court
Diaz
highlights several other comments and questions by the trial court that she
contends reflected a bias against her and her counsel and undermined her case
for damages: For example, when
questioning Dr. Goodman, the court referred to the accident as a “fender
bender,†minimizing the seriousness of Diaz’s claim that the accident caused
her substantial damages. That comment
was improper. Its impact, however, was
immediately mitigated when Diaz’s counsel asked Dr. Goodman whether he viewed
the accident as a fender bender, and Goodman said he did not. More importantly, the jury was properly
instructed not to take any of the court’s comments as evidence. We presume the jury properly followed these
instructions. (People v. Holt (1997) 15 Cal.4th 619, 622 [“[j]urors are presumed
to understand and follow the court’s instructionsâ€]; People v. Yeoman (2003) 31 Cal.4th 93, 139 [same].)
When Dr.
Goodman referred to a diagnostic tool called a “Beck test†to identify depression,
hopelessness and suicidal ideations, defense counsel jokingly asked whether
there was a Mrs. Beck. The court
responded, “How do you know the Beck in the test isn’t Mrs. Beck?†Diaz argues the court was ridiculing her
witness; not so. Attempts by the court
to introduce levity into the trial are generally not well-advised, but the
comment here was not directed to Dr. Goodman or to his credibility. (See People
v. Houston (2012) 54 Cal.4th 1186, 1220 [trial court’s humorous
reference to “Gertrude Rubenstein,†an allusion to a line in a Gertrude Stein
poem, “Sacred Emily,†was merely an “ill-advised attempt to interject some
levity in the proceedings†but did not convey to the jury the message the judge
did not believe the witness’s testimony].)
In yet
another exchange between the court and Dr. Goodman, Dr. Goodman testified Diaz
had been unable to complete the Minnesota Multiphasic Personality Inventory
(MMPI), a diagnostic questionnaire with 567 questions. When Diaz’s counsel asked whether Dr. Goodman
had formulated an opinion why she had not completed the test, the court
sustained a defense objection on foundation and relevance grounds.
improperly sustained, the court interjected its own question: “Just too many questions for her, right? She couldn’t focus that well?†Dr. Goodman agreed and contrasted it
with Diaz’s earlier responses in 2007 when she was actually able to finish the
test. The court stated, “She
deteriorated; she got older, right . . . ? Happens to the best of us.†Diaz did not object.
This
exchange was also improper. While a
court may examine a witness, the court’s questions and comment risked conveying
to the jury that the court had formed its own view as to the reason Diaz did
not complete the test. (See generally
at pp. 1237-1238 [in conducting trials, judges “‘should be exceedingly discreet
in what they say and do in the presence of a jury lest they seem to lean toward
or lend their influence to one side or the other’â€]; accord,
Cal.App.4th 994, 1002.) Nevertheless, it
is not reasonably probable the damage award would have been different had the
comments not been made. (See
v. Day (1950) 36 Cal.2d 349,
351-352 [reversal for judicial misconduct in civil case not required unless it
is reasonable probable that there would have been a result more favorable to
appellant in the absence of the asserted misconduct].) There was no dispute that Diaz’s
depression had worsened in recent years and that it, coupled with her age, had
affected her ability to do many tasks, including completing several diagnostic
questionnaires, one of which was the MMPI.
The dispute at trial was directed not to the existence of her depression
and its debilitating effect on her life, but the cause of that depression. Neither the court’s questions, nor Dr.
Goodman’s reply, was directed to that causation issue.
Diaz also
contends the court disparaged Dr. Goodman’s opinion concerning Diaz’s level of
functionality prior to the accident:
When Diaz’s counsel asked Dr. Goodman whether he had an opinion as
to whether the accident had caused her current medical problems, Dr. Goodman
replied, “She was highly functional [prior to the accident.] She was climbing [a] mountain.†The court interjected, she was “climbing
mountains?†Dr. Goodman explained,
“There is a picture of her actually on a mountain or a hill.†Defense counsel objected, but before defense
counsel could fully articulate the basis for his objection, the court replied,
“Come on. Forget that.†Diaz’s counsel then asked, “Other than the
picture I mean.â€
It is not
clear from the record whether the court’s statement, “forget that,†was
directed to the photograph or to defense counsel’s objection. Diaz did not attempt to clarify the record on
that point. In any event, the net effect
of this exchange was simply that the court sustained defense counsel’s
objection. Diaz does not contend that
was error. Even if it were, it does not
show bias. (People v. Fuiava (2012) 53 Cal.4th 622, 732 [“‘a trial court’s
numerous rulings against a party—even when erroneous—do not establish a charge
of judicial bias, especially when they are subject to review’â€];
1110 [same].)
Diaz also
claims the court improperly “blamed†Diaz for not seeing a psychiatrist. The court asked Dr. Goodman whether Diaz’s
primary care physician had referred her to a psychiatrist. Dr. Goodman replied he had not and explained
he disagreed with her primary care physician on that point. The court observed that Diaz could always “go
on her own, right, if she wanted to?â€
Dr. Goodman explained most people with Diaz’s age and background would
not think of seeing a psychiatrist for depression. The court asked Dr. Goodman whether he
thought she would ever do so notwithstanding the identification of that need in
her life care plan.
title="">[7]
When Dr. Goodman stated he could not answer that question, the court
inquired whether Diaz had seen a psychiatrist after Dr. Goodman had recommended
she seek psychiatric treatment for her depression. Dr. Goodman acknowledged she had
not. These questions and comments on the
evidence were not improper. (Evid. Code,
§ 775.)
of disparate treatment
Finally,
Diaz asserts the court’s bias was reflected in its disparate treatment of her
counsel and counsel for the MTA defendants.
In particular, she asserts the court often interposed its own sua sponte
hearsay objections to Diaz’s counsel’s questions, but not to similarly framed
questions by counsel for the MTA defendants.
The examples Diaz cites, however, do not support her charge.
Counsel for
the MTA defendants properly asked its expert witness, Dr. Edwin Amos, whether,
based on his review of Diaz’s medical records, he had an opinion as to the
injuries Diaz sustained in the accident.
When Diaz’s counsel asked Dr. Goodman “what kind of injuries did
[Diaz] suffer from this accident?,†there was also no objection by either the
court or defense counsel. When the court
did interject, it was with respect to Dr. Goodman’s response, which he began by
attempting to relay what Diaz had said.
The court interrupted the answer, properly telling Dr. Goodman that what
Diaz “had said†was hearsay. Diaz’s
counsel did not reframe the question to allow Dr. Goodman to answer it.
Diaz also
contrasts the court’s response to a comment by Diaz’s counsel and its response
to a purportedly similar comment by the MTA defendants’ counsel. Dr. Amos testified during cross-examination
Diaz “did not mention†having symptoms of dizziness prior to November of
2005. Diaz’s counsel stated, “Correct.†The court immediately instructed the jury to
“disregard counsel’s statement of “‘correct’†and to draw its own conclusion as
to “whether an answer is correct, incorrect, credible or incredible.†According to Diaz, when counsel for the MTA
defendants made a similar “statement couched in questions†to Merlyn Wilson,
Diaz’s expert on traffic accidents, the court did not interrupt. The question to Wilson, however, did not
include the type of improper comment that drew the court’s rebuke.
phrased on some other ground, it was not similar to the statement Diaz’s counsel
made about a witness’s answer. There was
no disparate treatment.
f. Diaz’s
right to cross-examination
Diaz contends the trial court
interrupted her counsel’s examination of witnesses, effectively depriving her
of her right to cross-examination. She offers the following example: On direct examination, defense expert Dr.
Amos opined that Diaz suffered from diabetic neuropathy causing unsteadiness. On cross-examination, after establishing that
there was no indication Diaz had any symptoms of dizziness or falls prior to
the accident and no record of neuropathy, Diaz’s counsel asked: “And it so happened that she had three years
of this diabetes. Suddenly she meets—she
gets in an accident, on November 21, 2005.
She begins experiencing dizzy spells, falling down, loss of
balance. Do you think that is consistent
with a development of this condition called diabetic peripheral neuropathy?†The court interjected, “The court is going to
strike that last question in that it contained a statement of counsel which is
not permissible concerning which I have advised him many times. Ask questions. Do not make statements of fact.â€
While this
example more approximates the type of question counsel for the MTA defendants
asked Wilson without objection (see fn. 8, above), it is simply a single
evidentiary ruling. There are not
multiple instances of disparate treatment in this record. As discussed, the court’s evidentiary rulings
against Diaz do not constitute misconduct.
(People v. Fuiava, supra, 53
Cal.4th at p. 732 [evidentiary rulings, even if incorrect, not sufficient to
show judicial misconduct].) To the
extent Diaz asserts the ruling itself was prejudicial error, she offers no
argument or citation to the record in support of that contention. (Badie
v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 218
[argument on appeal deemed forfeited by failure to present factual analysis and
authority on each point raised]; Dills v.
Redwood Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [appellate
court “will not develop the appellants’ arguments for themâ€].)
In
sum, the record shows Diaz’s counsel had difficulty framing proper questions
that conformed to the rules of evidence.
The court, at times, apparently lost patience and expressed frustration
with Diaz’s counsel. Yet, whether
considered separately or cumulatively, the court’s participation in the
questioning at trial did not amount to substantial misconduct that deprived
Diaz of a fair trial. (See
43, 78 [The role of a reviewing court “‘is not to
determine whether the trial judge’s conduct left something to be desired, or
even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s
behavior was so prejudicial that it denied [the defendant] a fair, as opposed
to a perfect, trial.’â€]; People v.
Harris, supra, 37 Cal.4th at p. 347 [same]; see also Snow, at p. 78 [court does not engage in misconduct by
reprimanding attorney for ignoring instructions or asking inappropriate
questions].)
6. The
Trial Court’s Order Granting the Defendants’ Motion to Tax Costs on Appeal
Requires Modification
As part of our
decision in Diaz I, we awarded Diaz
her costs on appeal. Following issuance
of the remitter, Diaz filed in the trial court a memorandum of costs on appeal
totaling $8,232.03. The MTA moved to tax
costs contending the cost of printing appellate briefs and associated
materials, itemized as $4,155.03 in the costs memorandum, was
unreasonable. In support of their
motion, the MTA defendants argued the cost to copy pages at a standard copy
center is 11 cents per page, which, based on the 1100 pages of documents served
and filed (consisting of several copies of the appellate briefs and
multi-volume appendix), would amount to $121.
In her opposition papers Diaz supplied an itemized invoice from Counsel
Press detailing $4,155.03 in charges.
The trial court granted the motion to tax costs, observing that several
charges included in the invoice, for example, postage and filing fees, were
duplicative of costs sought elsewhere.
The court concluded only “about $3,000†of the requested $4,155.03
related to “actual printing.â€
reduced the printing costs to $439.35, striking $3,715.68 from the $4,155.03
Diaz had requested. Diaz contends the
court erred in granting the motion to tax costs.
We
review a trial court’s order granting or denying a motion to tax costs for
abuse of discretion. (
Cal.App.4th 1550, 1557; Arno v. Helinet
Corp. (2005) 130 Cal.App.4th 1019, 1025.)
That is, we will reverse such an order only when the trial court’s action
is arbitrary, capricious or exceeds the bounds of all reason under the
circumstances. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th
1242, 1249-1250.)
When
calculating statutorily authorized costs, “‘[t]he fact that the brief could
have been printed by some other printer, or produced by some other process, at
lesser cost is not controlling. The only
requirements in this respect are that the cost be actually incurred and that it
be reasonable. [Citation.] What is reasonable presents a question of
fact . . . .†(
(1984) 37 Cal.3d 235, 243 (Johnson);
accord, Bank of Idaho v. Pine Avenue
Associates (1982) 137 Cal.App.3d 5, 19 [finding no authority for
“proposition that the availability of alternative process made the printing of
briefs unreasonableâ€; in fact court observed all the authorities were to the
contrary].)
Here, there
is little doubt the court had a sound basis for reducing the printing costs by
$1,227 (to $2,928.03) based on the itemized receipt showing some of the costs
incurred were unrelated to printing and repetitive of other cost items
sought. However, the trial court reduced
that amount further without offering any explanation. The only showing made by the MTA defendants
was that alternative means were available at a lesser cost, which, as just
discussed, is not controlling. (See
p. 243.) There was no showing the
costs invoiced by Counsel Press, to the extent they were dedicated solely to
the printing process, were unreasonable.
On this record, the court’s order taxing costs for printing and awarding
$439.35 was arbitrary.
DISPOSITION
The order of March 9, 2010
granting the motion to tax costs is reversed, and the trial court is directed
to enter a new order granting the motion in the sum of $1,227 and to award Diaz
$7,005.03 for costs on appeal in Diaz I, an
amount which includes $2,928.03 in printing costs. In all other respects, the judgment is
affirmed. The MTA defendants are to
recover their costs on appeal.
PERLUSS,
P. J.
We
concur:
JACKSON,
J.
SEGAL,
J.
the trial in this action, Code of Civil Procedure section 437c was amended,
effective January 1, 2012, to permit a party to move for summary adjudication of
a legal issue notwithstanding the limitations of subdivision (f), provided the
parties submit a joint stipulation identifying the issue to be decided and
declaring that a ruling on the issue will further the interests of judicial
economy and the court approves the stipulation.
(See Code Civ. Proc., § 437c, subd. (s)(1)-(4); Stats. 2011, ch. 419,
§ 3.)
counsel asked Dr. Goodman whether “Dr. Vargas, as [Diaz’s] treating physician,
refer[red] her to a psychiatrist.†The
court interjected, “That would be hearsay.
Can’t answer one way or another, because he wasn’t there to hear the
conversations that Dr. Vargas had with her way back in 2005 and before
that.†When Diaz’s counsel explained he
expected Dr. Goodman to refer to Diaz’s medical records to answer the question,
the court stated, “That doesn’t matter.
You’re asking a question that directly calls for hearsay.â€
