Filed 10/26/26 Falbo v. Parisi CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
TONY FALBO et al.,
Plaintiffs and Appellants,
A170845
v.
WILLIAM PARISI, (Sonoma County
Super. Ct. No. SCV264737)
Defendant and Respondent.
Tony Falbo and Corina Falbo (the Falbos) brought this wrongful death
suit against William Parisi (Parisi), who was turning right at an intersection
in a truck when he hit and killed their 20-year-old daughter on her bicycle.
After a lengthy trial, a jury found Parisi was not negligent, and the Falbos
appeal the judgment entered in his favor. We affirm.
BACKGROUND
The undisputed facts are relatively few. On October 30, 2018, at about
12:20 p.m., 20-year-old Sidney Falbo (Sidney) was riding her bicycle on the
western sidewalk of Stony Point Road in Santa Rosa, California on her way
to attend junior college classes. She was headed north toward an intersection
with a highway offramp, where there were signaled crosswalks running
north/south and east/west across Stony Point Road. Parisi, driving a
commercial dump truck, had exited the highway and was stopped on the
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offramp facing eastbound at the intersection, waiting at a stoplight to turn
right (i.e., southbound) onto Stony Point Road. When the light turned green,
he scanned for hazards, pulled into the intersection and began turning right.
Moments later, Parisi’s truck ran over Sidney in the east/west crosswalk on
Stony Point Road. Parisi stopped the truck and found her body with no
pulse, pinned under his rear tires between the rear axles of his truck. He got
back into the truck, released the brake and let the truck roll back off her
body. He had not seen her. He was not under the influence of any
substances and had not been using his cell phone. After the accident, he
moved the damaged bicycle out of the path of traffic. The accident scene was
scattered with debris including a shoe, the bicycle seat, Sidney’s bag and her
cell phone; and there were skid marks on the ground.
As we will discuss, virtually everything else about the collision was
disputed, including where Sidney was located when Parisi began his turn;
which direction she was facing; whether she stopped at all before crossing the
street; and Parisi’s precise body movements as he scanned his surroundings
before and during the turn.
The case proceeded to a jury trial lasting almost four weeks, not
including voir dire and jury selection. Seven witnesses testified regarding
liability. Four were percipient witnesses: Parisi, who testified for five days;
another motorist, John Fortunati, who saw Sidney riding her bicycle past him
and heading in the direction of the intersection moments before the accident;
Fortunati’s wife Belinda who was with him in their car but saw only the
collision’s aftermath; and a motorist named Gloria Hernandez, the only
person who witnessed the actual collision. Hernandez testified that she saw
Sidney before the collision stopped on the sidewalk at some distance from the
yellow pad at the entrance to the crosswalk, not lined up in a position ready
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to cross the street. Hernandez testified that Parisi and Sidney moved at the
same time but then testified the truck driver “moved first to turn, and when
he was turning she took off,” “when she took off, he was already turning” and
“she took off when he was doing the turn.” Construing the evidence in the
light most favorable to the judgment (see Eng v. Brown (2018) 21 Cal.App.5th
675, 683; Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529,
532, fn. 1), Hernandez’s testimony indicates that Parisi had already begun to
turn when Sidney “took off” into the intersection.
In addition to these four percipient witnesses, the jury heard from a
police investigator, Officer Ken Ferrigno; an accident reconstruction expert
proffered by the defense, Dr. Eric Rossetter, who proffered two possible
scenarios as to how Sidney entered the crosswalk and was killed, one in
which she stopped before entering the intersection and the other in which she
did not. He opined that Parisi could not have avoided hitting her in either
scenario. In addition, the jury heard testimony by a trucking safety expert,
Michael Ashley, who testified (in videotaped deposition testimony presented
during the Falbos’ case-in-chief) about blind spots created by stickers on the
windows and by part of the truck’s frame (its A-pillar, which runs at the
windshield from the roof of the cab down to the hood). He opined that those
items would require a driver to rock his body forward or backward to see
around the blind spots and make a safe turn. We will discuss the trial
evidence further as relevant below.
The jury deliberated for about three-and-a-half hours, asked no
questions and returned a verdict finding that Parisi was not negligent. Given
that finding, the jury did not decide remaining liability issues, including
whether Parisi’s negligence had been a substantial factor in causing Sidney’s
3
death, or questions relating to whether Sidney herself had been
comparatively negligent.
DISCUSSION
I.
Dr. Eric Rossetter’s Expert Opinions and Animations
The Falbos assert the trial court abused its discretion in permitting
defense accident reconstruction expert Dr. Eric Rossetter to testify because
his opinions were speculative, lacked foundation and do not meet the
standard for admissible expert testimony. Relatedly, they contend the court
erred in admitting into evidence video animations depicting Dr. Rossetter’s
accident reconstruction scenarios. Their briefing somewhat conflates these
two matters, but we will address each separately and begin with Dr.
Rossetter’s testimony.
A. Legal Principles and Standard of Review
Trial courts have a duty to act as a gatekeeper to exclude speculative
expert testimony. (Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747, 753 (Sargon).) The sources of this duty are
Evidence Code sections 801 and 802. (See Sargon, at pp. 769-771.)
Evidence Code section 801 “governs judicial review of the type of
matter” upon which the opinion is based. (Sargon, supra, 55 Cal.4th at
p. 771.) It limits expert testimony to a subject “that is sufficiently beyond
common experience that the opinion of an expert would assist the trier of
fact” and is “[b]ased on matter . . . that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to which his
testimony relates.” (Evid. Code, § 801, subds. (a) & (b); see also Sargon, at
pp. 769-770.) Under this provision, the trial court may determine whether
the matter is of a type on which an expert may reasonably rely and whether
4
the matter relied on reasonably supports the particular opinion offered. (See
Sargon, at p. 770.) “ ‘[T]he expert’s opinion may not be based “on
assumptions of fact without evidentiary support [citation], or on speculative
or conjectural factors.” ’ ” (Ibid.) “ ‘[T]he matter relied on must provide a
reasonable basis for the particular opinion offered, and . . . an expert opinion
based on speculation or conjecture is inadmissible.’ ” (Ibid.)
Evidence Code section 802 “ ‘governs judicial review of the reasons for
the opinion.’ ” (Sargon, supra, 55 Cal.4th at p. 771.) It provides that “[a]
witness testifying in the form of an opinion may state . . . the reasons for his
opinion and the matter . . . upon which it is based, unless he is precluded by
law from using such reasons or matter as a basis for his opinion” and that
“[t]he court in its discretion may require that a witness before testifying in
the form of an opinion be first examined concerning the matter upon which
his opinion is based.” (Evid. Code, § 802.) “This means that a court may
inquire into, not only the type of material on which an expert relies, but also
whether that material actually supports the expert’s reasoning. ‘A court may
conclude that there is simply too great an analytical gap between the data
and the opinion proffered.’ ” (Sargon, at p. 771.)
Taken together, these provisions require the trial court to “act[] as a
gatekeeper to exclude expert opinion testimony that is (1) based on matter of
a type on which an expert may not reasonably rely, (2) based on reasons
unsupported by the material on which the expert relies, or (3) speculative.”
(Sargon, supra, 55 Cal.4th at pp. 771-772.)
But the court’s gatekeeping role is circumscribed. (Sargon, supra,
55 Cal.4th at p. 772.) The Supreme Court has warned that trial courts
“must . . . be cautious in excluding expert testimony.” (Ibid.) The court’s
“focus ‘must be solely on principles and methodology, not on the conclusions
5
they generate.’ ” (Ibid.) “The trial court’s preliminary determination
whether the expert opinion is founded on sound logic is not a decision on its
persuasiveness. The court must not weigh an opinion’s probative value or
substitute its own opinion for the expert’s opinion. Rather, the court must
simply determine whether the matter relied on can provide a reasonable basis
for the opinion or whether that opinion is based on a leap of logic or
conjecture.” (Ibid., italics added.) The court’s role is merely “ ‘to make
certain that an expert, whether basing testimony upon professional studies or
personal experience, employs in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant field.’ ”
(Ibid.)
As one court has explained, “the limited role of the evidentiary
gatekeeper” under Sargon does not mean the trial court must ensure an
expert’s opinion is entirely free of analytical gaps. (Garner v. BNSF Railway
Co. (2024) 98 Cal.App.5th 660, 679.) “[I]n many cases where the available
scientific evidence is limited or inconclusive, there will inevitably be some
analytical gap between the underlying data and the expert’s
ultimate . . . opinion. But Sargon should not be construed so broadly that the
gatekeeper effectively supplants both the expert’s reasonable scientific
judgment and the jury’s role.” (Ibid.) “In keeping the gate, it is not the trial
court’s proper function to second-guess the judgment of a qualified expert
who has provided a reasonable scientific explanation for his conclusions and
used a scientifically accepted methodology for reaching them based on the
available data, even if the data itself is inconclusive.” (Ibid.)
This is equally true of expert opinions that reconstruct past events.
Such opinions, including crime scene and accident reconstructions, are a
common and proper subject of expert testimony even though they entail an
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element of inherent uncertainty. As we explained in Osaze v. Aparicio-Gee
(Sept. 29, 2026, A173403) __Cal.App.5th __ [2026 WL 2921395, at *12]
(Osaze)), “it is not uncommon for accidents to happen without an eyewitness
seeing them and injuries to occur without known or definitive causation,
[and] [t]here are numerous cases in which causation has been disputed and
biomechanical testimony employed to aid juries in deciding whether or how
an accident caused injury.” (Ibid. & fn. 9.) “Fifty years ago, the court in one
such case stated, ‘The object of accident reconstruction is to reach
satisfactory—not infallible—conclusions as to the operational factors and
dynamic situation contributing to the collision. It is as impossible to
reconstruct an accident with absolute accuracy as for a witness to relate
precisely what occurred. Nevertheless, expert reconstruction often is more
accurate than statements of witnesses.’ [Citation.] That other factors may
account for an accident is ‘relevant to the weight of an expert’s opinion rather
than its admissibility if a proper foundation has been laid.’ ” (Id.
__ Cal.App.5th__ [2026 WL 2921395, at *13].) As many cases reflect, trial
courts do not abuse their discretion in admitting expert opinions
reconstructing past events as long as the expert is qualified and the opinion
is based on an adequate evidentiary foundation, accepted methods and
reasonable logic.1
1 See People v. Morales (2020) 10 Cal.5th 76, 100-101 (Morales)
[despite several analytical weaknesses, no error to admit expert crime scene
reconstruction testimony about sequence of multiple homicides where “at
least some evidence supported his conclusions”; fact that expert disagreed
with several coroners, did not view bodies, conducted tests without actual
homicide weapons and did not review any physical evidence “go to the weight
to be given the evidence, not its admissibility” and “[g]iven his qualifications,
he was permitted to interpret this evidence as he did”]; People v. Nelson
(2016) 1 Cal.5th 513, 537 [upholding admission of expert testimony
7
Furthermore, “[t]he reasonableness of an expert’s reliance is a question
of degree, and may well vary with the circumstances. Where . . . there is
little or no direct evidence upon which the expert can base an opinion, the
expert may have to turn to forms of circumstantial evidence on which he
might not otherwise rely. In such circumstances, the necessity for the
information dictates that courts accord to experts somewhat greater latitude
in sources of information than might otherwise be the case.” (Buckwalter v.
Airline Training Center (1982) 134 Cal.App.3d 547, 553-554.)
We review the trial court’s ruling excluding or admitting expert
testimony for abuse of discretion. (Sargon, supra, 55 Cal.4th at p. 773.) A
ruling constitutes an abuse of discretion only if it is “ ‘so irrational or
arbitrary that no reasonable person could agree with it.’ ” (Ibid.) “The
standard is a deferential one, and an appellate court may not substitute its
discretion for that of the trial court, even if it disagrees.” (San Francisco
Print Media Co. v. The Hearst Corp. (2020) 44 Cal.App.5th 952, 962
(San Francisco Print Media Co.).) Further, we do not independently assess
whether the trial court’s ruling withstands scrutiny under this standard of
review, judged by the applicable legal principles. Rather, consistent with the
reconstructing sequence of shootings; “questions regarding the validity or the
credibility of an expert’s knowledge are matters for the jury to decide
[citation] but do not provide a basis for excluding the expert’s testimony in
the first instance”]; People v. Robinson (2005) 37 Cal.4th 592, 631-632 [expert
testimony concerning likely body positions of shooter and victim supported by
adequate foundation where expert testified other positions would have been
more awkward]; Box v. California Date Growers Assn. (1976) 57 Cal.App.3d
266, 274-275 (Box) [affirming admission of accident reconstruction opinion];
see also, e.g., Hartt v. County of Los Angeles (2011) 197 Cal.App.4th 1391,
1404-1406, 1409 [defense verdict in wrongful death case involving collision
between bicyclist and pickup truck held supported by, inter alia, defense
accident reconstruction expert testimony].)
8
presumption we start with in every appeal that the trial court’s ruling is
correct (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), “[t]he appellant
has the burden on appeal to show an abuse of discretion.” (San Francisco
Print Media Co. at p. 963.)
B. Dr. Rosseter’s Testimony and Opinions
Before permitting Dr. Rossetter to testify, the court held a hearing out
of the jury’s presence under Evidence Code section 402 at which Dr. Rosseter
described the evidence on which he relied and his methodology and set forth
his conclusions. Following the hearing, the court permitted him to testify
and, after voir dire, qualified him as an expert in the field of accident
reconstruction. The Falbos do not challenge his expert qualifications on
appeal.
Testifying before the jury, Dr. Rossetter elaborated on the matters he
had discussed at the hearing.2 He explained that he reviewed and considered
physical evidence from the accident scene as documented in post-collision
photographs, body-camera recordings and a laser scan of the accident scene
taken by police (a FARO scan). A three-dimensional model created from the
scan, photographs, the traffic collision report and body camera footage
created an accurate diagram of the scene that reflected the locations of
various objects and laid out the pertinent physical evidence he relied on for
the accident reconstruction. This included some marks on the crosswalk, a
tire friction mark on the roadway, circular imprints on the ground, a purse, a
bicycle seat and “the rest positions” of the truck. The items were all depicted
to scale on the diagram, and there was a bar depicting the scale in feet. The
2The parties focus principally on his trial testimony rather than his
testimony at the 402 hearing.
9
model contained the physical evidence Dr. Rossetter relied on. There were
also the bicycle’s measurements and the truck’s dimensions that he
considered, which he derived from the laser scan. In addition, Dr. Rossetter
reviewed the traffic collision report, deposition testimony of the parties and
witnesses, and photographs of the truck’s exterior and interior taken during
the police’s mechanical inspection of the truck after the police had taken
possession of it. In addition, his office performed its own laser scan of the
intersection, and, using Google Earth, he measured the distance between the
accident site and the location where John Fortunati had seen Sidney ride
past him moments before. He also consulted published scientific literature
relating to the motion of trucks and bicycles, the titles of which he identified
for the jury.
Dr. Rosseter testified that in his opinion, the impact occurred just
forward of the truck’s rear tires, and that the truck had already begun its
turn and was “well through” the turn before the bicycle entered the
crosswalk. He determined that the point of impact was approximately in the
middle of the cross-walk (widthwise), about five to seven feet from either
edge.
He testified, based on physical evidence, that the bicycle traveled
underneath the body of the truck in a space just forward of the right rear
tires and was run over by the truck’s left side rear tires (i.e., the driver’s
side). And he testified that in his opinion, Sidney “ha[d] to be riding at some
speed as opposed to walking or being at a very low speed,” or else she would
have been run over by the right side tires instead.
His analysis of the truck’s movements worked backwards from the
point at which the truck came to rest and was based on physical evidence
including the skid marks found at the scene. Because there was no evidence
10
of tire friction marks on the curb, and no debris or friction marks on the
yellow pad of the sidewalk, he concluded that the truck did not drive over the
curb but turned with some distance between the tires and the curb.
He calculated Sidney’s path of travel working backwards from the point
of impact with the rear tires, based on data concerning acceleration speeds
and a reasonable speed of bicycle travel. He determined two possible
scenarios for her path of travel, both of which are at issue on appeal.
In the first scenario, Sidney was stopped on her bicycle near the push
button for the crosswalk and then accelerated into the crosswalk and the
truck. Based on scientific data, he assumed her acceleration rate was
0.13 G’s. As we will discuss below, his determination of the location where
she stopped and the direction in which she faced was based on the testimony
of eyewitness Gloria Hernandez, who testified she saw Sidney stopped near
the intersection before the collision.
Dr. Rossetter’s second scenario posited that Sidney was riding
northbound on the sidewalk, slowed down to make a right turn into the
crosswalk but did not stop before turning into the crosswalk. He
acknowledged that Hernandez testified she saw Sidney stopped before the
collision. However, in his view there was other evidence suggesting she did
not stop. He based this second scenario in part on the testimony of Parisi,
who never saw Sidney at the intersection before the collision. He also based
it on Fortunato’s testimony that when Sidney passed by him heading north
before the collision as he was waiting to exit a shopping mall and turn left
onto Stony Point Road, she was riding slowly, and that about 45 seconds
elapsed between the time he was stopped at the mall exit, turned left and
began driving and then heard his wife scream upon seeing the accident scene.
Based on Fortunati’s account, Dr. Rossetter estimated Sidney was riding
11
down the sidewalk at a relatively low speed of seven miles per hour and then
slowed down to five miles an hour through the right-hand turn into the
crosswalk until the point of impact. During the Evidence Code section 402
hearing held outside the jury’s presence, he elaborated in somewhat greater
detail that the distance between the shopping mall exit and the intersection
is approximately 388 feet, and “[s]o at low bicycle speeds, which is also
consistent with [Fortunati’s] testimony, that would take approximately
40 seconds.” Given that timing, the distance, and the fact that Sidney would
have had to have been riding at “some speed” when the collision happened in
order to have been hit by the rear tires on the driver’s side rather than the
passenger side, he concluded it was possible she hadn’t stopped before
turning.
Based on his calculations in this second scenario, the truck had already
been moving for about four to five seconds and had traveled approximately
22 feet at the time Sidney began turning right. “The bike starts the turn just
before the five-second mark.” About 2.8 seconds later, the bicycle and truck
collided, with Sidney having ridden about 21 feet into the road.3 He testified
that the evidence his second scenario was based on was “the evidence that
gives us the turn of the truck” as well as the testimony of Fortunati and
Parisi.
Based on the physical data and these assumed speeds and acceleration
rates, Dr. Rossetter then used a computer modeling program called 3D Studio
Max to generate visual animations of Sidney’s path of travel that depict “in
real time . . . where the bike is and where the truck is.” He also utilized a
3 He also testified the impact happened 2.2 seconds after she turned
into the crosswalk.
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simulation program called Virtual Crash. He testified both programs are
commonly used in his industry. He also validated the results by doing
separate calculations of time and travel distances to make sure the visual
animations matched his calculations.
Dr. Rossetter opined than in neither scenario could Parisi have stopped
in time to avoid the collision. His opinions were based on an assumption
about the time it takes someone to respond to an unexpected hazard, called
perception-reaction time. The typical figure used in the accident
reconstruction industry is 1.5 seconds. Based on that figure, he calculated in
the first scenario that the point at which the truck could have avoided the
collision was up until four seconds after the truck started moving and the
bicyclist’s time was “five seconds after the truck’s movement.” At four
seconds after it began moving, the truck would have been about 18 feet
through the turn and about 36 feet from the point of impact, traveling about
six miles an hour. At that point, the left front corner of the truck was at the
crosswalk line. But at that point, in his opinion, the bicycle had not yet
begun turning toward the cross-walk. He testified that five seconds into the
turn, the truck could have seen the bicycle (“there is something to react to”)
but could not have avoided the impact. He testified that had the bicyclist
been looking at the truck at the point five seconds after the truck began
moving, she would have had enough time to see, react, stop and avoid the
collision.
In the second scenario, the truck could not have stopped in time to
avoid the impact at five seconds, either. But in that scenario too, had the
bicyclist been looking at the truck five seconds after the truck began moving,
she would have had enough time to avoid the collision. Had the bicyclist seen
13
the truck at the point six seconds after it started moving , there would not
have been enough time to avoid impact which was only 1.2 seconds away.
On cross-examination, Dr. Rossetter acknowledged that he could not
say that either scenario more likely than not was what happened. But he
testified the two scenarios “bookends the possibilities” and that no other
possibilities “would affect the timing.” They “book-end[] what occurred,” he
testified. Or, as he put it during the section 402 hearing, “in the grand
scheme or things from what we know in this case, there are really two
[possibilities], which is, she doesn’t stop or she stops.”
Dr. Rossetter was cross-examined extensively about the bases for his
opinions. Without being exhaustive, it touched on matters such as the data
concerning trucks he relied on in forming his opinions, data he relied on
concerning bicycles, tire friction marks, deceleration rates, coefficients of
friction and other subjects. He was also cross-examined about things he did
not do, such as personally inspect either the truck or the bicycle, sit in the
truck to check its blind spots, measure Parisi’s eye height, or ascertain
whether the truck had an electronic data recorder to inspect. He also was
cross-examined extensively about whether his opinions were inconsistent
with the account of eyewitness Hernandez, a subject we address further
below.
C. Analysis
Judged by the above principles, the trial court did not abuse its
discretion in admitting Dr. Rossetter’s testimony about his two alternative
accident reconstruction scenarios. His opinions were neither “based on
matter of a type on which an expert may not reasonably rely,” “based on
reasons unsupported by the material on which [he] . . . relie[d],” nor
“speculative.” (Sargon, supra, 55 Cal.4th at pp. 771-772.) As Parisi argues,
14
Dr. Rossetter explained his methodology and had an adequate foundation to
opine on the matters he did based on his evaluation of extensive
documentation of the physical evidence of the accident scene, as well as data
from scientific literature that he utilized in the exercise of his professional
judgment. Parisi cites authority in which the admission of accident
reconstruction testimony was upheld under similar circumstances. (See Box,
supra, 57 Cal.App.3d at p. 275 [no error to admit expert testimony offered to
prove motorcycle was on a straight course before collision, not turning right,
where expert based his opinion on distance motorcycle traveled after
collision, point of rest of motorcyclist’s body, type and location of damage to
other vehicle, examination of same make and model of motorcycle and
inspection of accident scene].) The Falbos do not address this authority.
We agree with Parisi that the Falbos’ criticisms of Dr. Rossetter’s
opinions at most go to the weight of his testimony and were matters for the
jury to evaluate but do not affect the admissibility of his testimony.
They contend, first, that the court abused its discretion in allowing
Dr. Rossetter to testify because he could not say that either of his two
scenarios was more likely than not what happened, and suggesting
“possibilities” does not meet the standard for expert opinion. They assert
that reversal is compelled on this ground under Waller v. FCA US LLC (2020)
48 Cal.App.5th 888 (Waller).
We do not agree. Waller was a consumer protection action involving a
defective truck that experienced intermittent losses of power. The trial court
excluded the opinion of an expert proffered by the plaintiff that a possible,
but not probable, cause of the power loss was a faulty fuel pump relay, on the
ground that the expert’s testimony would not aid the jury. (Waller, supra,
48 Cal.App.5th at p. 895.) The expert was, however, permitted to testify
15
about another possible cause, which was a software problem that interfered
with the radiator cooling fan’s operation. (See id. at pp. 891, 896.)
The appellate court held the trial court did not abuse its discretion in
excluding the expert’s opinion about the fuel pump relay. It articulated two
reasons. First, it held the trial court could reasonably conclude the expert’s
opinion would not “assist the trier of fact” (Evid. Code, § 801, subd. (a)).
(Waller, supra, 48 Cal.App.5th at p. 895.) Quoting authority that addresses
the standard for proving causation in a personal injury case (see Jones v.
Ortho Pharma. Corp. (1985) 163 Cal.App.3d 396, 401, 404 [affirming nonsuit
for defense]), Waller reasoned, “ ‘[t]here can be many possible “causes,”
indeed, an infinite number of circumstances which can produce an injury or
disease. A possible cause only becomes “probable” when, in the absence of
other reasonable causal explanations, it becomes more likely than not that
the injury was a result of its action. This is the outer limit of inference upon
which an issue may be submitted to the jury.’ ” (Waller, at p. 895, quoting
Jones, at p. 403.) Because the expert’s opinion would not support a finding
the fuel pump relay caused the loss of power, Waller explained, it was
properly excluded. (Waller, at p. 895.)
Second, Waller reasoned that the expert’s opinion about the fuel pump
relay as a possible cause was not supported by any “rational explanation”
(specifically, as to why the problems persisted after a repair bypassed the fuel
pump relay) (see Waller, supra, 48 Cal.App.5th at pp. 890, 895-896), but
instead just rested on “circular reasoning” (id. at p. 896).
Waller does not compel reversal. First, as Parisi asserts,
Dr. Rossetter’s ultimate opinion was that it was more likely than not that the
accident happened in only one of two ways, neither more likely than the
other, but in neither could Parisi have avoided the collision. Unlike in
16
Waller, he was not opining on one of an infinite number of possible scenarios;
he rendered an opinion that ruled out any other possibilities, based on his
analysis of the physical evidence, timing and witness testimony. Unlike in
Waller, such an opinion could be helpful to the jury, and the Falbos do not
contend otherwise.4 In parsing the two scenarios separately and attacking
them both individually, the Falbos ignore the overall context and purpose for
which they were offered.
Second, Waller involved an expert for the plaintiff, i.e., the party who
bore the burden of proof to establish the elements of his claim. Dr. Rossetter,
though, was an expert for the defense. Under the instructions, the Falbos
had the burden of proving Parisi was negligent; Paris was not required to
prove he was not negligent. The Falbos cite no authority that a defense
expert is precluded from offering opinions about possibilities. Furthermore,
we see nothing categorically improper for a defendant to introduce evidence
that may create doubt in a jury’s mind about whether the plaintiff has proved
his or her liability theory by a preponderance of the evidence, even if the
defense evidence might not by itself conclusively disprove an element of the
plaintiff’s cause of action.5
4 The jury was instructed that “[n]egligence is the failure to use
reasonable care to prevent harm to one’s self or to others. A person can be
negligent by acting or by failing to act. A person is negligent if that person
does something that a reasonably careful person would not do in the same
situation or fails to do something that a reasonably careful person would do
in the same situation.”
5 Levin v. United Air Lines, Inc. (2008) 158 Cal.App.4th 1002, cited by
the Falbos, does not support the Falbos’ contention that the burden of
persuasion somehow shifted to Parisi to disprove his own negligence. It
recites the principle that, “In a civil action for false arrest, once a plaintiff
establishes an arrest without a warrant, followed by imprisonment and
17
Next, the Falbos assert the court abused its discretion in admitting
Dr. Rossetter’s testimony because his two accident scenarios were
speculative. They rely principally on Solis v. Southern Cal. Rapid Transit
Dist. (1980) 105 Cal.App.3d 382 (Solis), a pre-Sargon case that held that a
trial court prejudicially erred by allowing an accident reconstruction expert
for the defense to proffer an opinion that a pedestrian was not in the
crosswalk at the time she was struck by a bus, because the opinion lacked an
adequate foundation. (Solis, at pp. 384, 387, 389.) The appellate court noted
that “[m]any decisions have excluded such expert testimony attempting to
work backward from the point of rest, where under the circumstances of the
case too many variables were involved, so as to make the opinion based
primarily upon conjecture and speculation.” (Id. at p. 389.)
Here again, Solis is distinguishable. In that case, the expert’s opinion
was based on several factors that were “variable and uncertain.” (Solis,
supra, 105 Cal.App.3d at p. 390.) One was his determination of the bus’s
speed which was a “crucial” aspect of his opinion: he analyzed the bus’s
speed based on an experiment he conducted that “lacked adequate foundation
and was not conducted under conditions substantially similar to those on the
date of the accident.”6 (Solis, at p. 390.) The other problem was that his
damages, the burden shifts to the defendant to show a justification for the
arrest.” (Id. at p. 1018.)
6 In the experiment, the expert tracked the bus’s speed while the same
bus driver who had been involved in the accident drove the bus through the
intersection repeatedly. The experiment was conducted more than two years
after the accident, under substantially different weather conditions (on a
clear day with dry pavement, not heavy rain and wet pavement); there was
no showing the bus was in the same mechanical condition as before and no
showing the speedometer was accurate or that it could be accurately read (it
displayed speeds in increments of five miles an hour); and the bus driver said
18
opinion was based on assumptions about where both the bus and the victim’s
body came to rest, based on photographs of the bus and body after the
accident. (Id. at pp. 389, 390.) But “after the actual impact the place the bus
came to rest was still within the control of the driver to some extent” and
there was evidence that the plaintiff had taken a few steps backwards before
falling down. (Id. at p. 390.) The appellate court stated that, “[b]ecause of
the relatively slow speed of the bus and the short distances involved in
determining whether plaintiff was or was not within the crosswalk, small
differences in the driver’s assumed perception time and reaction time
crucially affected the conclusion.” (Ibid.) In other words, the appellate court
seemed to suggest, since the expert’s starting assumption was not reliable
neither was the reconstruction based upon it.
Assuming without deciding that Solis’s analysis was appropriately
deferential and remains good law following Sargon, it is distinguishable.7
The Falbos identify no similar problems with Dr. Rossetter’s analysis,
including, crucially, the starting point for his analysis (i.e., his assessment of
where the point of impact occurred). On the contrary, Dr. Rossetter testified
that the point of impact occurred in the middle of the crosswalk, which he
determined based on tire friction marks left on the ground that were caused
by Sidney getting dragged after hitting the truck’s rear wheels, as
corroborated by evidence of tire marks on her body. Nor were Dr. Rossetter’s
the bus wasn’t able to reach the same speeds as before. (Solis, supra,
105 Cal.App.3d at pp. 386, 388-389, 390.)
7 Parisi also notes that Solis relies on dated precedent from the 1930’s,
an era when “accident reconstruction was a relatively new field.” (Box, supra,
57 Cal.App.3d at p. 274; see Solis, supra, 105 Cal.App.3d at p. 389, citing
Johnston v. Peairs (1931) 117 Cal.App. 208; Rudat v. Carithers (1934)
137 Cal.App. 92; Fishman v. Silva (1931) 116 Cal.App. 1.)
19
opinions based on faulty experiments conducted under dissimilar conditions,
as in Solis. At most, Solis reflects a decision in which the appellate court
concluded as a matter of law based on case-specific facts that the matter
relied upon by an expert did not “provide a reasonable basis for the opinion”
but instead was “based on a leap of logic or conjecture.” (Sargon, supra,
55 Cal.4th at p. 772.) The same is not true here.8
Finally, the Falbos assert Dr. Rossetter’s opinions about both scenarios
were unsupported by the evidence. The problem with his scenario in which
Sidney stopped before crossing the intersection, they argue, is that it
“contradicts” the testimony of eyewitness Hernandez, in that they assert
Hernandez testified Sidney was stopped facing east (i.e., in the direction of
travel to cross the intersection) whereas Dr. Rossetter opined Sidney would
have been stopped facing north (i.e., in the direction from which she had been
traveling on the sidewalk, towards the intersection).
8 For the first time in their reply brief, the Falbos cite additional
authorities. None reverses the admission of expert testimony in
circumstances similar to those here. (See People v. McWhorter (2009)
47 Cal.4th 318, 361-363 [no error to exclude defense expert opinion that
victims’ cause of death was possibly due to carbon monoxide leak from broken
water heater vent where there was no evidence vent was broken, defense
expert had not inspected water heater and “no facts were known about the
model, age, size of the water heater”]; Pedeferri v. Seidner Enterprises (2013)
216 Cal.App.4th 359, 374-375 [abuse of discretion to admit expert toxicology
opinion resting on assumption for which there was no evidentiary basis and
rested on circular reasoning]; People v. Wright (2012) 4 Cal.App.5th 537, 541-
542, 545-547 [expert opinion that sex offender suffered from mental disorder
entailing sexual interest in pubescent children held purely “speculative” and
not supported by the record because diagnosis depends on whether victims
appear pubescent yet expert knew only victims’ ages; expert’s diagnosis “was
based on pure speculation and conjecture about the victims’ physical and
sexual development” and “did not possess any evidentiary value”].)
20
Factually, this argument is unsupported by the record. Although some
of Hernandez’s testimony supports this argument, not all of it does.
Hernandez did not clearly, unequivocally and consistently testify Sidney was
stopped facing in an easterly direction; her testimony was qualified,
somewhat contradictory and subject to different inferences on that issue.
Specifically, Hernandez marked up several photographs of the
intersection indicating Sidney’s estimated location (Exhibits 16 and 19),
including one with an arrow pointing east (Exhibit 19), which is some
evidence Sidney was facing east. But Hernandez testified neither markup
was precisely accurate. In particular, she testified the one with the easterly
arrow (Exhibit 19) was intended to depict “[w]here she was going” but also
testified “it’s confusing” and “for me, it’s really hard to tell you that’s the
mark where she was at.”9 On direct examination, Hernandez testified
Sidney’s bicycle was facing the same direction as Parisi’s truck and in the
direction of two other bicyclists who had already crossed the street. On cross-
examination, though, she testified she saw Sidney stopped some distance
away from the yellow pad at the entrance to the crosswalk, not lined up in a
position ready to cross the street, not at or on the yellow pad and not even
close enough to the corner as to be waiting to cross. That testimony put
Sidney slightly south of the corner, not necessarily facing east. Further, she
also testified on cross-examination “[t]he bike was not moving, was pointing
towards the crosswalk” (italics added), which could reasonably be construed
to mean Sidney was facing north (“towards the crosswalk”) given her
testimony about Sidney’s location some distance from the crosswalk (i.e., to
9 She testified the other one (Exhibit 16) was her “best estimate” of
Sidney’s “general area” when stopped, although not “a hundred percent”
accurate.
21
the south of it). Hernandez testified everything happened “too fast,” “within
a matter of seconds,” between the time she saw Sidney stopped near the
intersection, the truck began to make its turn and when Sidney began to
move, and that she never actually saw Sidney enter the crosswalk because
her view was blocked by the truck making its turn. A jury could weigh the
reliability of her observations and the strength of her recollections, and
although it could conclude Sidney was facing east based on Hernandez’s
testimony it was not required to do so.
Dr. Rossetter testified that Hernandez gave “various versions” in her
deposition and her trial testimony about the direction Sidney faced, and that
one of the diagrams Hernandez marked up (Exhibit 16) appeared to depict
Sidney facing in a northerly direction. Dr. Rossetter also testified he based
his opinion about Sidney’s northerly orientation on Hernandez’s testimony
that Sidney was not immediately in front of the yellow pad at the crosswalk
but some distance away from it to the south; he explained during the
preliminary hearing that, based on that testimony, Sidney would likely have
been facing north not east or else she would have been lined up to cross the
street across a strip of grass separating the sidewalk from the street. That
opinion had an evidentiary basis, and the trial court did not err in allowing it.
(Cf. People v. Robinson, supra, 37 Cal.4th at pp. 631-632 [expert opinion that
victim was shot execution-style while kneeling supported by adequate
foundation where expert testified other body positions of both victim and
shooter would have been more awkward given location of gunshot wounds].)10
10 The Falbos assert Dr. Rossetter admitted his scenario contradicted
Hernandez’s eye-witness account. This misstates the record. They cite to his
testimony at the Evidence Code section 402 hearing in which he
acknowledged some of Hernadez’s deposition and trial testimony that Sidney
was facing east but “then there’s also testimony that contradicts that from
22
Furthermore, even if Hernandez had been clear, unequivocal and
consistent about the direction in which Sidney faced while stopped, the
Falbos cite no authority that an expert opinion is categorically inadmissible if
it conflicts with eyewitness testimony or other evidence. Under Sargon, the
question is whether the opinion itself is supported by an adequate foundation
and rests on accepted methodology and sound logic which, as explained, Dr.
Rossetter’s opinions were. Juries decide whether and to what extent to
believe eyewitnesses. Juries also decide the appropriate weight to accord an
expert’s opinion and its persuasiveness, taking into account any weaknesses
exposed on cross-examination including conflicts with other witnesses. (See,
e.g., Morales, supra, 10 Cal.5th 76, 96, 100-101 [upholding admission of
expert opinion reconstructing sequence of homicides that expressly disagreed
in some respects with coroners and other witnesses and was not based on
firsthand view of bodies or weapons].) The admissibility question turns on
“whether the matter relied on can provide a reasonable basis for the opinion.”
(Sargon, supra, 55 Cal.4th at p. 772, italics added.) Simply put, conflicts
between an expert’s opinion that is otherwise supported by an adequate
foundation and the testimony of an eyewitness are the reason for trials. (See,
e.g., Osaze, supra, __Cal.App.5th __ [2006 WL 2921395, **10-16] [holding
that trial court erred under Sargon in excluding expert opinions decedent
likely tripped over uneven door threshold because opinions conflicted with
sole eyewitness’s testimony that decedent did not trip at threshold and that
Ms. Hernandez,” which he went on to explain was her testimony about
Sidney’s distance from the yellow pad that supported an inference Sidney
was facing north or else she would have been lined up to cross over a grassy
area.
23
experts’ opinions created triable issue of fact concerning cause of fall that
precluded summary judgment for defense].) On the Falbos’ view, no expert
could proffer an opinion unless it was supported by all the evidence. That is
not the standard articulated by Sargon.
We also do not agree that Dr. Rossetter’s testimony about the other
scenario in which Sidney did not stop before entering the street should have
been excluded for lack of an adequate evidentiary foundation. The
evidentiary foundation for this second scenario was less substantial than
Dr. Rossetter’s opinion about the scenario in which Sidney stopped before
crossing the street. Unlike the first scenario, this no-stop scenario
contradicted the account of Hernandez, who testified that Sidney had
stopped. Nevertheless, there was some circumstantial evidence, albeit slight,
that provided an evidentiary foundation for Dr. Rossetter’s no stopping
opinion: as noted above, it included Parisi’s testimony he never saw Sidney
at the intersection, and the timing, speed and distance calculations
Dr. Rosseter made based on Fortunati’s testimony about Sidney’s slow speed
when he saw her pass in front of his car at the mall exit, Fortunati’s
testimony that about 45 seconds elapsed from start to finish, the distance
between the mall exit and the intersection, and the location of the point of
impact. We cannot say the court’s ruling allowing this testimony was “ ‘so
irrational or arbitrary that no reasonable person could agree with it.’ ”
(Sargon, supra, 55 Cal.4th at p. 773.) Although there is certainly room for
disagreement as to whether this circumstantial evidence adequately
supported the no stopping scenario, we cannot substitute our judgment for
that of the trial court in assessing that question. (See Morales, supra,
10 Cal.5th at pp. 99-100 [“[i]t was not unreasonable to conclude [crime scene
reconstruction expert’s] opinions had an adequate foundation” even though
24
evidentiary foundation for opinions about two of four killings was “less
substantial” than opinions about other killings and expert “did not always tie
this evidence directly to his sequencing conclusions” because “at least some
evidence supported his conclusions”]; see also San Francisco Print Media Co.,
44 Cal.App.5th at p. 962.)
Further, even if the court had erred in admitting this part of
Dr. Rosseter’s testimony, the Falbos have failed to demonstrate that it
prejudiced them. The Falbos argue only that they were prejudiced by the
admission of all of Dr. Rossetter’s testimony and do not argue in the
alternative that Dr. Rossetter’s testimony about the no-stop scenario alone
was prejudicial. We have determined there was no error in admitting
Dr. Rossetter’s testimony about the scenario in which Sidney was stopped
facing north before turning. And Parisi asserts that even if Dr. Rossetter had
been precluded from offering his no-stop scenario, the Falbos were not
prejudiced because “the jury would still have heard Dr. Rossetter’s
independent conclusion based on his first scenario that Parisi could not have
stopped in time to prevent the collision.” The Falbos do not respond to that
assertion, which is an implicit concession of its merit. (See Rudick v. State
Bd. of Optometry (2019) 41 Cal.App.5th 77, 89-90.)
Without a demonstration of how the admission of Dr. Rosseter’s
testimony about the no stopping scenario alone was prejudicial, we cannot
reverse. “A court’s error in excluding evidence is grounds for reversal only if
the appellant demonstrates a miscarriage of justice, that is, that a different
result would have been probable had the error not occurred.” (Major v. R.J.
Reynolds Tobacco Co. (2017) 14 Cal.App.5th 1179, 1202; see also Zhou v.
Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1480; Cal. Const.,
art. VI, § 13; Evid. Code, § 354; Code Civ. Proc., § 475.) “[T]he appellant
25
bears the duty of spelling out in his brief exactly how the error caused a
miscarriage of justice.” (Paterno v. State of California (1999) 74 Cal.App.4th
68, 106.) When an appellant does not do this, we will not reverse a ruling
even if it is wrong. (See, e.g., ibid. [“undeveloped” prejudice argument held
insufficient to support reversal]; DiRaffael v. California Army National
Guard (2019) 35 Cal.App.5th 692, 718 [failure to explain how various
procedural errors affected outcome held insufficient to demonstrate
prejudice].) That is the case with respect to any error in the admission of
Dr. Rossetter’s second scenario.
D. The Video Animations
As noted, Dr. Rossetter generated several video animations of his two
scenarios that were admitted into evidence and played extensively for the
jury. The Falbos assert the videos were wrongly admitted because they do
not accurately depict the truck’s turn, “thereby erroneously making it appear
that Sidney ran into the truck.”
We review the admission of a computer animation for abuse of
discretion. (People v. Duenas (2012) 55 Cal.4th 1, 20-21.) A computer
animation is not itself substantive evidence but, rather, is “demonstrative
evidence offered to help a jury understand expert testimony or other
substantive evidence.” (Id. at p. 20.) Like other demonstrative evidence, “[a]
computer animation is admissible if ‘ “it is a fair and accurate representation
of the evidence to which it relates . . . .” ’ ” (Ibid.) However, “where the
animation illustrates expert testimony, the relevant question is not whether
the animation represents the underlying events . . . with indisputable
accuracy, but whether the animation accurately represents the expert’s
opinion as to those events.” (Id. at p. 21.)
26
Here, Dr. Rossetter testified that the animations accurately illustrate
his accident reconstruction analyses and opinions. The only way in which the
Falbos suggest they do not is that they do not adequately depict that Parisi
made a “buttonhook” turn (i.e., swung out to the left in a wide turn before
turning right). But, as Parisi notes, Dr. Rossetter was precluded from
testifying as to whether the reconstruction scenarios he developed included a
buttonhook turn because the Falbos objected to that line of inquiry, and the
court sustained their objections.11 The Falbos do not respond to this point,
again, implicitly conceding its merit. (See Rudick v. State Bd. of Optometry,
supra, 41 Cal.App.5th at pp. 89-90.) Having precluded Dr. Rossetter from
addressing whether he concluded a buttonhook turn was used and, if so,
whether the animations accurately portrayed it, they invited any error in the
admission of the animations on this basis. (See Transport Ins. Co. v. TIG Ins.
Co. (2012) 202 Cal.App.4th 984, 1000 [“ ‘one whose conduct induces or invites
the commission [of] error by the trial court is estopped from asserting it as a
ground for reversal on appeal’ ”].)
In their reply brief, moreover, the Falbos expressly concede that
admissibility of the animations turns on the admissibility of Dr. Rossetter’s
underlying opinions, which we have upheld. They acknowledge that “the
fundamental basis for the admissibility of such animations is the
admissibility of the opinions” they depict, but assert that “Rossetter’s
11 The Falbos objected on the ground that the subject was “completely
outside the scope” of opinions Dr. Rossetter had proffered prior to trial, and
“there is no testimony whatsoever about consideration of a button hook” turn.
The court agreed, and precluded Parisi from examining Dr. Rossetter “about
button hook movements.” Despite this ruling, Dr. Rossetter did confirm that
his animations depicted the truck turning into the far left lane of Stony Point
Road, i.e., making a wide turn.
27
opinions do not fairly represent the evidence . . . are . . . entirely speculative
and therefore inadmissible” and therefore “the demonstrative evidence
depicting those opinions, i.e., the animations, are similarly inadmissible.” In
substance, their challenge is to Dr. Rossetter’s opinions, and we have rejected
those challenges. Thus, they have shown no abuse of discretion in the
admission of his illustrative video animations depicting his conclusions. (See
People v. Duenas, supra, 55 Cal.4th at p. 22 [upholding admission of
computer animation; “[a]lthough 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, not with the
accuracy with which the animation depicted those conclusions”].)
Finally, citing People v. Rivera (2011) 201 Cal.App.4th 353, the Falbos
assert the court abused its discretion in admitting the animations under
Evidence Code section 352. Again, we disagree.
As the Supreme Court explained in rejecting a challenge to the
admission of expert crime scene reconstruction testimony under
Evidence Code section 352, “Evidence is not ‘unduly prejudicial’ under the
Evidence Code merely because it . . . casts [an individual] in a bad light, or
merely because [a party] contests that evidence and points to allegedly
contrary evidence. Instead, undue prejudice is that which ‘uniquely tends to
evoke an emotional bias against a party as an individual, while having only
slight probative value with regard to the issues.’ ” (People v. Robinson, supra,
37 Cal.4th 592, 632, fn. omitted.)
Here, the animations depicting Dr. Rossetter’s opinions were relevant
and helpful to the jury as an aid to understanding his testimony, and the
Falbos articulate no way in which they tend to invoke an emotional bias.
They are brief animations (all 11 seconds or less) depicting the vehicular
28
movements of a generic truck and a generic female bicyclist that are not
detailed, not graphic, end at the point at which the bicyclist heads into the
passenger side of the turning truck and disappears, do not depict the truck
actually running over the bicyclist, and do not depict Sidney’s body or the
collision’s aftermath. These animations in no way resemble the
demonstrative evidence held erroneously admitted in People v. Rivera, which
involved a live reenactment in court by the defendant of how he strangled his
victim that was highly inflammatory and had “exceedingly negligible
probative value, if any, on the issues.” (Rivera, supra, 201 Cal.App.4th at
p. 365.) The court did not abuse its discretion under Evidence Code
section 352 in admitting them.
II.
Sufficiency of the Evidence
The Falbos also argue that the jury’s finding that Parisi was not
negligent is not supported by substantial evidence.
This argument is confusing and somewhat defies characterization.
Despite several broad argument headings in their opening brief suggesting a
challenge to the sufficiency of the evidence based on all the evidence admitted
at trial, it appears that what they are really arguing is that there was
insufficient evidence to sustain the verdict only if one disregards
Dr. Rossetter’s expert testimony. They state in the introduction of their
opening brief that “the judgment in Parisi’s favor must be reversed if
Rossetter’s evidence was not admissible.” The first argument in their
opening brief is an overarching argument heading stating broadly that “the
evidence fails to support the jury’s verdict exonerating Parisi,” but that
argument encompasses two sub-arguments: an argument that the court
abused its discretion in admitting Dr. Rossetter’s evidence, and a separate
29
argument asserting that “the undisputed evidence compellingly demonstrates
Parisi’s negligence and that the verdict is not supported by substantial
evidence.” (Italics added.) The latter argument, which relies almost entirely
on the testimony of plaintiff’s trucking safety expert, Michael Ashley, does
not discuss or mention any of Dr. Rossetter’s testimony or opinions. In their
reply brief, the Falbos’ analysis of the evidence is captioned under an
argument heading stating that “there is no admissible evidence supporting
the jury’s verdict.” (Italics added.) Confusingly, it purports to respond to
Parisi’s arguments at pages 48-56 of the respondent’s brief, which
encompasses both an argument that the Falbos were not prejudiced by the
admission of Dr. Rossetter’s testimony or animations and an argument that
the jury’s verdict is supported by substantial evidence, including
Dr. Rossetter’s testimony. Yet the Falbos’ discussion of the evidence in their
reply brief again does not discuss Dr. Rossetter’s testimony. Further, it
concludes with the assertion that “absent Rossetter’s evidence, the fact that
Parisi didn’t ‘see’ Sidney did not relieve him of the responsibility for the
injuries she sustained when he failed to yield the right of way to her.” (Italics
added.)
The Falbos’ attack on the sufficiency of the evidence to support the no
negligence verdict fails for multiple reasons.
First, the briefing is inadequate for us to consider this issue. To
demonstrate error, “ ‘an appellant must supply the reviewing court with some
cogent argument supported by legal analysis and citation to the record.’ ”
(United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142,
164.) When an appellant fails to “convince us, by developing his arguments,
stating the law, and calling out relevant portions of the record, that the trial
court committed reversible error,” the appellant has not demonstrated error.
30
(See Bishop v. The Bishop’s School (2022) 86 Cal.App.5th 893, 910; see also
Paglia & Associates Construction, Inc. v. Hamilton (2023) 98 Cal.App.5th
318, 327 [“Appellants may not enlist the court as their legal assistant to
develop arguments they merely suggest. The duty to present legal analysis
belongs to the parties”].) Yet the Falbos do not clearly and cogently explain
why, based upon all of the evidence—including Dr. Rossetter’s testimony, the
jury was compelled to find that Parisi was negligent. As explained, they do
not address Dr. Rossetter’s testimony, and it is not our role to develop such
an argument for them or piece one together from isolated points made in the
briefing.
Second, the Falbos have not analyzed this issue in terms of the law
upon which the jury was instructed. They have not cited or discussed the
jury instructions on this issue at all. It is well-settled that an appellate court
must “review the sufficiency of the evidence to support a verdict under the
law stated in the instructions given, rather than under some other law on
which the jury was not instructed.” (Bullock v. Philip Morris USA, Inc.
(2008) 159 Cal.App.4th 655, 674-675.) Absent a claim of instructional error,
“for an appellate court to review a verdict under a rule of law on which the
jury was not instructed would allow reversal of a judgment on a jury verdict,
requiring a retrial, even though neither the jury nor the court committed
error.” (Id. at p. 675; see also Null v. City of Los Angeles (1988)
206 Cal.App.3d 1528, 1535 [“Where a party to a civil lawsuit claims a jury
verdict is not supported by the evidence, but asserts no error in the jury
instructions, the adequacy of the evidence must be measured against the
instructions given the jury”].) Because the Falbos have made no attempt to
explain how the evidence is insufficient under the instructions, they also fail
to demonstrate error.
31
Nor is their argument appropriately tailored to our standard of review.
As the party with the burden of proof below, the Falbos face a burden that is
“heavy, perhaps insurmountable . . . on appeal.” (Lincoln v. Lopez (2022)
77 Cal.App.5th 922, 929.) “ ‘ “[W]here the issue on appeal turns on a failure
of proof at trial, the question for a reviewing court becomes whether the
evidence compels a finding in favor of the appellant as a matter of law.
[Citations.] Specifically, the question becomes whether the appellant’s
evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a
character and weight as to leave no room for a judicial determination that it
was insufficient to support a finding.’ ” ’ ” (Ibid.) The Falbos argue at some
length that the testimony of their trucking safety expert, Michael Ashley,
established Parisi’s negligence as a matter of law because it was
“uncontradicted.” Principally, they assert Ashley opined it would be
negligent for a driver to make a turn of this nature without rocking one’s
body forward and backward to check for blind spots, that based on the
expert’s review of Parisi’s deposition testimony and Parisi’s statement to
police, Parisi did not do so, and Ashley testified that assuming Parisi’s
account was accurate and complete, it would be a breach of the standard of
care and therefore negligent. But even assuming that, under the applicable
instructions which the Falbos have not analyzed, such testimony constitutes
substantial evidence that Parisi was negligent and thus would support a
finding in their favor on this issue, the Falbos make no attempt to show that
Ashley’s expert testimony satisfies this daunting standard. In other words,
they have not demonstrated that, as a matter of law, the jury was compelled
to accept it and could not disbelieve him or discount the weight or validity of
32
his opinions for any reason. Further, the jury was instructed that it did not
have to accept any expert’s testimony.12
Relatedly, the Falbos have not shown that the jury was compelled as a
matter of law to find that the factual predicate for Ashley’s opinions was
proven. The jury viewed video footage of Parisi’s statement to police upon
which the trucking expert relied (Exhibit 215.1M), he was not asked if he
rocked his body back and forth (as Parisi confirmed in his trial testimony),
and it was up to the jury to decide if the general answers he gave and the
gestures he made in that interview confirmed definitively that he never
rocked his body. We have reviewed that video, and in our view a jury
reasonably could find that they do not definitively rule out a rocking motion.
Furthermore, Parisi testified at trial that he was trying to show the officer
how he was looking as he turned and that although it was “pretty close,” he
didn’t describe it “exactly.” He testified it was his custom and practice to
move his body if his vision was obstructed, and that he did so on that
occasion. He testified that, “I’m sitting up high in the seat, usually looking to
my left and right and leaning.” As Parisi argues, the jury was entitled to
believe his testimony which, according to plaintiff’s trucking expert, would
comply with the standard of care.
12 The jury was instructed, “You do not have to accept an expert’s
opinion. As with any other witness, it is up to you to decide whether you
believe the expert’s testimony and choose to use it as a basis for your
decision. You may believe all, part or none of any expert’s testimony. [¶] In
deciding whether to believe an expert’s testimony, you should consider the
following: The expert’s training and experience, the facts the expert relied on
and the reasons for the expert’s opinion.”
33
III.
The Award of Expert Witness Fees
Finally, the Falbos challenge the court’s award of expert witness fees to
Parisi.
Before trial, Parisi made a one million dollar statutory offer to
compromise under Code of Civil Procedure section 998 (hereafter,
section 998). After the jury returned its verdict (on March 4, 2024), Parisi
filed a verified memorandum of costs on March 29, 2024, that included
$163,533.67 in expert witness fees. The court entered judgment on the jury’s
verdict, on April 23, 2024. The judgment is silent on the subject of costs.
On April 12, 2024, the Falbos filed a motion to tax Parisi’s costs in
which they challenged the recovery of his expert witness fees under
section 998, on the grounds the offer was invalid under section 998 because it
was a joint unallocated offer and the expert witness fees were excessive.13 On
June 25, 2024, the Falbos filed a notice of appeal from the April 23, 2024
judgment; the notice of appeal also states that it is from “[a]ny subsequent
orders or judgments that the Court may issue, including but not limited to:
[¶] . . . [a]ny order that the Court may issue on the Memorandum of Costs
(Summary), and Plaintiffs’ Motion to Tax Costs (filed April 12, 2024, hearing
thereon June 28, 2024)).”
The Falbos’ motion to tax costs proceeded to a hearing on July 11, 2024,
at which the court did not then rule, instead granting the Falbos’ request for
supplemental briefing. It held a second, unreported hearing on August 2,
13 They also argued that the verified cost memorandum by itself was
an insufficient basis to award costs under section 998 because Parisi had
provided “no information about their 998 Offer and has not provided a copy of
same to the Court.”
34
2024. On August 28, 2024, the court entered a written order upholding the
validity of the section 998 offer and awarding Parisi $118,533.67 in expert
witness fees under section 998, representing a nearly 30 percent reduction in
the amount he had sought.
The Falbos now challenge the award, reprising the objections they
raised below: They assert the offer is invalid as a matter of law and that the
trial court abused its discretion in awarding an unreasonably excessive
amount of expert witness fees.
We lack jurisdiction to decide these issues because the Falbos did not
file a notice of appeal from the court’s August 28, 2024 order awarding expert
witness fees. The court’s order was entered after judgment was entered on
April 23, 2024. Postjudgment orders are separately appealable. (Code Civ.
Proc., § 904.1, subd. (a)(2).) “[W]hen a party intends to challenge the
judgment and a postjudgment order related to costs, the normal procedure is
to file separate appeals from the judgment and the postjudgment order,”
because “the postjudgment order ordinarily constitutes a final order
regarding a matter collateral to the judgment” that is separately appealable.
(Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1316.)
The Falbos assert we do have jurisdiction, citing the exception to this
general rule announced in Grant v. List & Lathrop (1992) 2 Cal.App.4th 993
(Grant) that “when a judgment awards costs and fees to a prevailing party
and provides for the later determination of the amounts, the notice of appeal
subsumes any later order setting the amounts of the award.” (Id. at p. 998).
They contend that under Grant, a separate notice of appeal was not required
because the order awarding expert witness fees was subsumed within their
June 25, 2025 notice of appeal from the April 23, 2024 judgment.
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Fish v. Guevara (1993) 12 Cal.App.4th 142 (Fish) declined to extend
this exception to an award of expert witness fees under section 998 (see Fish
at pp. 147-148), and the parties disagree as to whether Fish was correctly
decided. The Falbos urge us to part ways with Fish and hold that an “appeal
of a section 998 order is subsumed within a previous judgment that expressly
reserves inclusion of a cost award.” (But see Pfeifer v. John Crane, Inc.,
supra, 220 Cal.App.4th at pp. 1317-1318 [agreeing with Fish and dismissing
appeal from postjudgment award of expert witness fees under section 998].)
It is unnecessary to decide this question. Even if, contrary to Fish,
Grant applies to orders awarding costs under section 998, Grant does not
apply here. That is because, unlike in both Grant and Fish, the judgment in
this case does not award costs to Parisi nor provide for a later determination
of their amount. (See Grant, supra, 2 Cal.4th at p. 996; Fish, supra,
12 Cal.App.4th at pp. 144, 147.) The judgment is silent on that issue, and the
entire subject (both entitlement and amount) was determined later. (See,
e.g., DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43-44 [Grant inapplicable
to postjudgment award of attorney fees because the judgment “said nothing
about fees”]; Robinson v. City of Yucaipa (1994) 28 Cal.App.4th 1506, 1517
[Grant inapplicable because “the judgment did not award attorney fees or
costs”]; accord, Nellie Gail Ranch Owners Assn. v. McMullin (2016)
4 Cal.App.5th 982, 1009; Colony Hill v. Ghamaty (2006) 143 Cal.App.4th
1156, 1171-1172.)
Finally, the Falbos do not argue that the reference in their notice of
appeal to the court’s future decision on costs is sufficient to confer jurisdiction
over the court’s later award of expert witness fees. We nonetheless have
considered that question and agree with Parisi that we lack jurisdiction over
the award of expert witness fees despite the inclusion of such language. A
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notice of appeal is invalid and cannot be treated as a premature but timely
filed appeal if it is “filed before a trial court announces its intended decision.”
(Spears v. Spears (2023) 97 Cal.App.5th 1294, 1299-1300; accord, Silver v.
Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 691; see Cal.
Rules of Court, rule 8.104(d).) Here, the Falbos filed their notice of appeal
containing this language before either of the two hearings on the cost issues
had taken place, before the parties had submitted their supplemental
briefing, and at a time when the court had not announced any decision on
costs, not even a tentative one. For this reason, it does not confer jurisdiction
to review the trial court’s later award of expert witness fees. (See Silver, at
p. 691 [postjudgment attorney fee award held unreviewable where notice of
appeal specified order on attorney fee motion but was filed before hearing
and ruling on motion]; Spears, at p. 1300 [premature notice of appeal held
invalid].) They appropriately do not ask us to exercise jurisdiction on this
basis.
Because the Falbos did not timely appeal from the court’s postjudgment
order awarding expert witness fees, we lack jurisdiction to review it.
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs.
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STEWART, P. J.
We concur.
RICHMAN, J.
DESAUTELS, J.
Falbo v. Parisi (A170845)
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