Filed 10/12/17 Gunawardena v. Antracoli CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Plaintiff Dilip Gunawardena appeals from a defense judgment, entered after a jury trial, in a vehicle personal injury case. Plaintiff raises a single issue on appeal—that the trial court erred in admitting evidence of a videotaped deposition. We affirm.[1]

On September 26, 2011, plaintiff and defendant John Antracoli were involved in a low speed, rear-end collision. Plaintiff’s car sustained minimal damage, and plaintiff initially said he had “just a few bruises, arms, legs. Nothing to write home about.” However, after he moved his car off the freeway and onto a parking lot, he claimed he “experienced this terrible, terrific, horrible, stab of neck pain,” when he turned his head to the right. He was taken by ambulance to Stanford Hospital and examined; X-rays showed no broken bones. Although his neck pain persisted, the last time plaintiff sought medical treatment for the injury was November 29, 2011.

Two years later, in September 2013, plaintiff sued defendant for damages for injuries he claimed he suffered during the collision.

Defendant retained expert Dr. Paul Mills, an orthopedic surgeon, who conducted an independent medical examination of plaintiff. Dr. Mills produced three reports, which were provided to plaintiff. Dr. Mills stated there were no objective findings of an injury and that “it’s more likely than not . . . that no significant injury occurred to ligaments, tendons, bones, joints, [or] nerves.”

Trial was initially set to begin on November 10, 2014, but due to many continuances, did not commence until August 2, 2016.[2]

In the interim, Dr. Mills informed defendant he was retiring from medical/legal work and would no longer be available to testify after November 2015. In order to preserve Dr. Mills’ testimony, defendant gave notice, on August 5, 2015, that he was going to take a videotaped deposition that would be used at trial in lieu of live testimony. The deposition took place September 17. Defendant then filed, on October 30, a notice of intent to use the deposition testimony at trial.

Plaintiff did not object to the deposition notice. Nor did he appear at the deposition, where he would have had the opportunity to voir dire and cross-examine Dr. Mills. Nor did he object to the notice of intent to use the deposition testimony at trial.

Plaintiff filed no motions in limine prior to the original trial date, November 10, 2014. Nor did he file any motions prior to the continued trial dates, May 26, 2015 and July 6, 2015. Just prior to the third continued trial date, he finally filed a number of motions, including one to bar Dr. Mills “from asserting that there has been no evidence presented by plaintiff on various subjects.”[3]

The day before trial finally commenced in August 2016, the court heard and ruled on all motions in limine. As to plaintiff’s motion to exclude Dr. Mills’ testimony, the court ruled Dr. Mills could testify and give his medical opinion. At this point, defense counsel reminded the court that Dr. Mills would be testifying via video deposition and explained why Dr. Mills was unavailable. Plaintiff then claimed, for the first time, that the videotape should be excluded because it was “after the date that discovery closed” (i.e., after October 10, 2014). Defense counsel then explained the deposition was not “discovery,” but had preserved the testimony of his own expert, as permitted under Code of Civil Procedure section 2025.620, subdivision (d). The court agreed, and allowed the videotaped testimony.

During trial, plaintiff testified on his own behalf but did not call any witnesses. Defendant called two witnesses, accident reconstructionist Robert Lindskog and orthopedic surgeon Dr. Mills (via videotape).

The jury returned a special verdict in defendant’s favor, finding that defendant’s negligence in causing the rear-end collision was not a substantial factor in causing plaintiff’s claimed injuries. The trial court thereupon entered judgment for defendant.

Code of Civil Procedure section 2025.620, subdivision (d), provides that, “Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under Section 2025.220 reserved the right to use the deposition at trial, and if that party has complied with subdivision (m) of Section 2025.340.” As the trial court ruled, defendant duly complied with the requirements of this section. Defendant served plaintiff, on August 5, 2015, with a “Notice of preservation of trial testimony by video recorded deposition” pursuant to Code of Civil Procedure section 2025.620, subdivision (d), informing plaintiff that defendant intended to use the video “in lieu of live testimony,” that the videotaped recording would take place on September 17, over a month later, and that the proceedings would have a stenographic recording. Despite being given proper and ample notice, plaintiff made no objection, nor did he appear at the deposition. Defendant then duly filed, on October 30, 2015, a notice of intent to offer the videotaped deposition of Dr. Mills at trial into evidence.

The provision in the Code of Civil Procedure to preserve testimony is designed precisely for the kind of circumstances that occurred here—where years passed after the first scheduled trial date and a party’s witness became unavailable due to retirement. The trial court acted well within its discretion in allowing the videotaped deposition testimony. (See People v. Hamilton (2009) 45 Cal.4th 863, 930 [rulings on admissibility of evidence are reviewed for abuse of discretion].)

The judgment is affirmed.

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Banke, J.

We concur:

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Humes, P.J.

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Dondero, J.

A149357, Gunawardena v. Antracoli