Pierce v.
Shapow











Filed 10/19/10
Pierce v. Shapow CA2/3











NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS





California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
THREE






>

DOUGLAS PIERCE, Plaintiff and Appellant, v. MORRIS SHAPOW et al., Defendants and Respondents.

B211786 (Los Angeles County Super. Ct. No. SC082913)

Appeal
from a judgment of the Superior Court of Los Angeles
County, John A. Kronstadt, Judge. Affirmed.

Law Offices of Martin L. Stanley and
Martin L. Stanley for Plaintiff and Appellant.

Carroll, Kelly, Trotter, Franzen
& McKenna, Mark V. Franzen, Jennifer L. Sturges and David P.
Pruett for Defendants and Respondents.



_______________________________________

Plaintiff Douglas Pierce (plaintiff)
appeals from a judgment entered on a jury's special verdict in favor of
defendants Morris Shapow and Wellness
Medical Center
(hereafter, Shapow, the clinic, and collectively, defendants). Plaintiff's complaint alleges he was sexually
battered by Shapow during a physical therapy treatment Shapow administered at
the clinic.

As
a basis for this appeal, plaintiff contends he was severely prejudiced when the
trial court permitted defendants to elicit an opinion from defendants' expert
witness psychiatrist regarding plaintiff's credibility. The opinion was based on plaintiff's history
of being the victim of childhood sexual
abuse. Plaintiff further contends
defendants never followed statutory procedure for introducing such
evidence. He asserts there has been a
miscarriage of justice.

Our
review of the record on appeal convinces us that plaintiff's own trial strategy
opened him up to the line of questioning of which plaintiff now complains, and
that there was no prejudice from defendants' failure to strictly follow the
statutory requirements for attacking plaintiff's credibility. We will therefore affirm the judgment.

>BACKGROUND
OF THE CASE

1. Allegations
in the Complaint

According
to plaintiff's first amended complaint
(complaint), defendants are health care providers practicing physical therapy
and are licensed by the State of California. Defendant Shapow is employed by defendant
clinic. The complaint alleges that, on October 14, 2003, plaintiff saw
Shapow for an evaluation for outpatient physical therapy for fibromyalgia. According to the complaint when plaintiff
told Shapow he was experiencing the most pain in his right hip, Shapow had
plaintiff pull down his pants and underwear about three to four inches and lie
face down on a table. Shapow showed
plaintiff a device which Shapow described as new technology for pain
relief. Shapow applied the device to
plaintiff's right hip and the device was â€