The trial court did not abuse its discretion in excluding the defendants' experts when defendants stipulated that their experts could be called only to rebut the factual bases for the opinions of plaintiff's experts and there was no showing that they were going to do so, said the Second District Court of Appeal in Tesoro del Valle Master Homeowners Association v. Griffin (Oct. 3, 2011, B222531), __ Cal.App.4th __ [2011 DJDAR 16109].
Plaintiff timely disclosed its expert witnesses, but defendants filed their disclosure three weeks late. The trial court granted plaintiff's motion to strike the defendants' designation. "As a means of resolving [plaintiff's] motion to preclude [defendants] from offering any expert testimony," the parties stipulated that defendants could call plaintiff's experts, and could call their own experts to rebut the factual bases for opinions offered by plaintiff's experts, but could not call their own experts to offer rebuttal opinions.
At trial, defendants wanted to call their experts to offer rebuttal opinions. On appeal they argued that the trial court abused its discretion by not permitting their experts to offer their opinions.
First, said the court of appeal, by stipulating not to offer expert witness opinions, defendants waived any claim that the court abused its discretion by enforcing the stipulation. Second, the stipulation conferred no more rights on defendants than they would otherwise be entitled to by statute, which permits a party to call an expert witness to impeach another party's expert. Under Code of Civil Procedure §2034.310, an undesignated impeachment witness may testify only to the falsity or nonexistence of any fact used as a foundation for the other expert's opinion, and may not offer testimony that contradicts that opinion. Since there was no indication that the proposed testimony satisfied the statutory requirements, the rebuttal experts were properly excluded.
Sunday, November 27, 2011
Sunday, November 20, 2011
Not Up to the Challenge
A peremptory challenge to a judge is not effective until it is accepted by the court, and the dismissal of the party making the challenge before the court can act renders the challenge moot, said the Fourth District Court of Appeal in Frisk v. Superior Court (Oct. 28, 2011, G045591), __ Cal.App.4th __ [2011 DJDAR 15894].
Plaintiff Northwest Surgical Development Company, Inc., sued defendant Frisk, alleging that he diverted more that $650,000 from the company for his personal benefit and the benefit of co-defendant Avanti Skin Co. The case was assigned for all purposes to Judge Horn, who considered and granted a temporary restraining order against Frisk. Frisk was served with the complaint and he vigorously opposed a preliminary injunction. Pending the continued hearing on the injunction application, plaintiff served Avanti Skin, which promptly filed a challenge against Judge Horn pursuant to C.C.P. §170.6.
Three days later, plaintiff dismissed the causes of action against Avanti Skin. Four days after that, the peremptory challenge came on for hearing before Judge Perk, who declined to accept the challenge because Avanti Skin was no longer a party to the action. Frisk objected to Judge Horn's subsequent refusal to recuse himself and filed a petition for writ of mandate.
The court of appeal denied the petition, finding that the challenge was not duly and properly made by a party. Acknowledging that there is authority for the proposition that a peremptory challenge takes effect immediately upon filing, the appellate court concluded that this authority has been trumped by subsequent cases holding that a challenge is not effective until it is accepted by the court and the case is assigned to another judge. Since Avanti Skin was not a party to the action when the motion to disqualify came before Judge Perk, it could not assert that it believed it could not receive a fair trial, and the motion was properly dismissed.
Plaintiff Northwest Surgical Development Company, Inc., sued defendant Frisk, alleging that he diverted more that $650,000 from the company for his personal benefit and the benefit of co-defendant Avanti Skin Co. The case was assigned for all purposes to Judge Horn, who considered and granted a temporary restraining order against Frisk. Frisk was served with the complaint and he vigorously opposed a preliminary injunction. Pending the continued hearing on the injunction application, plaintiff served Avanti Skin, which promptly filed a challenge against Judge Horn pursuant to C.C.P. §170.6.
Three days later, plaintiff dismissed the causes of action against Avanti Skin. Four days after that, the peremptory challenge came on for hearing before Judge Perk, who declined to accept the challenge because Avanti Skin was no longer a party to the action. Frisk objected to Judge Horn's subsequent refusal to recuse himself and filed a petition for writ of mandate.
The court of appeal denied the petition, finding that the challenge was not duly and properly made by a party. Acknowledging that there is authority for the proposition that a peremptory challenge takes effect immediately upon filing, the appellate court concluded that this authority has been trumped by subsequent cases holding that a challenge is not effective until it is accepted by the court and the case is assigned to another judge. Since Avanti Skin was not a party to the action when the motion to disqualify came before Judge Perk, it could not assert that it believed it could not receive a fair trial, and the motion was properly dismissed.
Wednesday, November 16, 2011
Hiding In Plain Smell
[Note: Subsequent to this post the Supreme Court granted review. See "Supreme Court to Revisit 'Plain Smell' Doctrine," posted Jan. 29, 2012.]
The Second District Court of Appeal issued a peremptory writ in Robey v. Superior Court (Oct. 24, 2011, B231019), __ Cal.App.4th __ [2011 DJDAR 15551] directing the lower court to vacate its order denying the defendant's motion to suppress the results of a warrantless search of a package that emanated the smell of marijuana.
FedEx notified the police that a package was consigned for shipment that reeked of marijuana. The police seized the package and took it to the station, where it continued to smell of marijuana, as recognized by two officers trained in identifying controlled substances. They opened the package, which contained (surprise!) marijuana. When the defendant showed up at FedEx, asking why his package had not been delivered, he was arrested.
The police should have obtained a warrant, said the court of appeal. Although the odor gave them probable cause, there were no exigent circumstances justifying a warrantless search. The court rejected the People's theory that the seizure was permissible under an extension of the "plain view" exception to the warrant requirement, concluding that it was bound by California Supreme Court precedent holding that "'[i]n plain smell,' ... is plainly not the equivalent of 'in plain view.'"
The court also rejected the argument that the discovery of the marijuana was inevitable because FedEx would have opened the package and turned over its contents to the police. This theory, it said, was speculative, since it could not determine from the record whether the carrier would have opened the package, thrown it out or returned it to the defendant. Finally, the court found that the defendant did not abandoned the package when he presented it to the shipper, since he had obtained a packing slip with a tracking number and even returned to FedEx to ask about the package.
The Second District Court of Appeal issued a peremptory writ in Robey v. Superior Court (Oct. 24, 2011, B231019), __ Cal.App.4th __ [2011 DJDAR 15551] directing the lower court to vacate its order denying the defendant's motion to suppress the results of a warrantless search of a package that emanated the smell of marijuana.
FedEx notified the police that a package was consigned for shipment that reeked of marijuana. The police seized the package and took it to the station, where it continued to smell of marijuana, as recognized by two officers trained in identifying controlled substances. They opened the package, which contained (surprise!) marijuana. When the defendant showed up at FedEx, asking why his package had not been delivered, he was arrested.
The police should have obtained a warrant, said the court of appeal. Although the odor gave them probable cause, there were no exigent circumstances justifying a warrantless search. The court rejected the People's theory that the seizure was permissible under an extension of the "plain view" exception to the warrant requirement, concluding that it was bound by California Supreme Court precedent holding that "'[i]n plain smell,' ... is plainly not the equivalent of 'in plain view.'"
The court also rejected the argument that the discovery of the marijuana was inevitable because FedEx would have opened the package and turned over its contents to the police. This theory, it said, was speculative, since it could not determine from the record whether the carrier would have opened the package, thrown it out or returned it to the defendant. Finally, the court found that the defendant did not abandoned the package when he presented it to the shipper, since he had obtained a packing slip with a tracking number and even returned to FedEx to ask about the package.
Sunday, November 13, 2011
You Didn't Say What?
In a prosecution for various sex offenses, People v. Miranda (Oct. 18, 2011, B224163), __ Cal.App.4th __ [2011 DJDAR 15403], the Second District Court of Appeal concluded that evidence of a prior report of sexual abuse involving the victim was properly excluded at trial despite a determination that the report was false.
The victim's grandfather was charged with several sex offenses committed after he crept into the bed of the 15-year-old, who suffered from severe communication and physical difficulties caused by cerebral palsy. At trial, defendant unsuccessfully offered to introduce evidence that the victim had previously made an allegation of sexual abuse against her father, which was determined by the Department of Public Social Services to be unfounded.
Although false reports of molestation or rape are relevant to attack the credibility of the victim, said the court, the trial court did not abuse its discretion in excluding the evidence. The report was made by the victim's mother, who was involved in a custody dispute with the father, and there was no indication that the victim had made any statements about the alleged abuse. The conclusion that the claim was unfounded was an opinion of a social worker, and the admissibility of this opinion was doubtful. Considering these circumstances, and the fact that the issue had the potential to confuse the jury and consume an undue amount of time, the evidence was properly excluded.
The victim's grandfather was charged with several sex offenses committed after he crept into the bed of the 15-year-old, who suffered from severe communication and physical difficulties caused by cerebral palsy. At trial, defendant unsuccessfully offered to introduce evidence that the victim had previously made an allegation of sexual abuse against her father, which was determined by the Department of Public Social Services to be unfounded.
Although false reports of molestation or rape are relevant to attack the credibility of the victim, said the court, the trial court did not abuse its discretion in excluding the evidence. The report was made by the victim's mother, who was involved in a custody dispute with the father, and there was no indication that the victim had made any statements about the alleged abuse. The conclusion that the claim was unfounded was an opinion of a social worker, and the admissibility of this opinion was doubtful. Considering these circumstances, and the fact that the issue had the potential to confuse the jury and consume an undue amount of time, the evidence was properly excluded.
Sunday, November 6, 2011
If He Can Read What They Wrote
[Note: Subsequent to this post the Supreme Court granted review. See, "Review Granted in People v. Gray," posted Feb. 23, 2012.]
A doctor may testify about treatment performed by other doctors as reflected in medical records prepared in the ordinary course of a hospital's business without violating a defendant's rights under the Confrontation Clause of the United States Constitution, according to the Third District Court of Appeal in People v. Davis (Oct. 12, 2011, C061536), __ Cal.App.4th __ [2011 DJDAR 15195].
Defendant was charged with assault with a deadly weapon and mayhem after he put out a fellow inmate's eye with a toilet brush. At trial, the People introduced the medical records from the hospital where the victim was treated and a physician testified as to his treatment and that of other doctors as reflected in the records. Defendant contended that the records were "testimonial" out-of-court statements and that he was denied his right to confront all of the preparers of the records.
Since the records were made in the ordinary course of the hospital's business of treating patients and were created for medically-related purposes, and not for litigation, they were not testimonial under Melendez-Diaz v. Massachusetts (2009) __ U.S. __ , 129 Sup.Ct. 2527, 174 L.Ed.2d 314, said the court. They were not affidavits and were not generated to create an out-of-court substitute for trial testimony. Whether or not they were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial is irrelevant, said the court, because this is not the test for determining if a statement is testimonial. The reports lacked the solemnity or formality associated with testimonial statements and were properly admitted.
A doctor may testify about treatment performed by other doctors as reflected in medical records prepared in the ordinary course of a hospital's business without violating a defendant's rights under the Confrontation Clause of the United States Constitution, according to the Third District Court of Appeal in People v. Davis (Oct. 12, 2011, C061536), __ Cal.App.4th __ [2011 DJDAR 15195].
Defendant was charged with assault with a deadly weapon and mayhem after he put out a fellow inmate's eye with a toilet brush. At trial, the People introduced the medical records from the hospital where the victim was treated and a physician testified as to his treatment and that of other doctors as reflected in the records. Defendant contended that the records were "testimonial" out-of-court statements and that he was denied his right to confront all of the preparers of the records.
Since the records were made in the ordinary course of the hospital's business of treating patients and were created for medically-related purposes, and not for litigation, they were not testimonial under Melendez-Diaz v. Massachusetts (2009) __ U.S. __ , 129 Sup.Ct. 2527, 174 L.Ed.2d 314, said the court. They were not affidavits and were not generated to create an out-of-court substitute for trial testimony. Whether or not they were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial is irrelevant, said the court, because this is not the test for determining if a statement is testimonial. The reports lacked the solemnity or formality associated with testimonial statements and were properly admitted.
Wednesday, November 2, 2011
Let It Ride
The trial court did not abuse its discretion in awarding the defendant $167,570 in expert witness fees after plaintiff refused defendant's C.C.P. §998 offer of $10,000 plus a waiver of costs and defendant prevailed at trial, said the Second District Court of Appeal in Adams v. Ford Motor Co. (Sept. 29, 2011, B225791), __ Cal.App.4th __ [2011 DJDAR 15491].
Plaintiff Adams and her three children sued Ford, several other automobile manufacturers and auto parts distributors (the "automotive defendants"), and others involved in the construction trade (the "construction defendants") after her husband died of mesothelioma, a cancer associated with asbestos exposure. Plaintiffs contended that the decedent was exposed to asbestos while working in construction and while conducting routine maintenance on his vehicles, and sought $150,000 in medical expenses, $1 million in loss of earnings and $1 million in general damages. They settled with the construction defendants for $7,500 and $20,000, and with all automotive defendants except Ford for amounts ranging from $2,000 to $70,000 (Volkswagen was dismissed when its summary judgment motion was granted). Plaintiffs received a total of $179,250 from these settlements.
Shortly before trial, Ford offered to settle for $10,000 plus a waiver of costs. The offer expired, the case went to trial and the jury returned a verdict for Ford. The court awarded costs to defendant in the amount of $185,741.82.
The settlement offer was reasonable, said the court, given that the defendant prevailed at trial, the amount was within the range of other settlements in the case (especially considering that it included a waiver of costs) and the likelihood that the plaintiffs would prevail at trial was low. Since the offer was made by a defendant, the court had the discretion to award expert witness fees incurred both before and after the offer was rejected. Although initially concerned about the amount of the fees, the trial court asked for supplemental briefing and concluded that the fees were reasonable. The trial judge was in the best position to make this determination, said the appellate court, and the judgment was affirmed.
Plaintiff Adams and her three children sued Ford, several other automobile manufacturers and auto parts distributors (the "automotive defendants"), and others involved in the construction trade (the "construction defendants") after her husband died of mesothelioma, a cancer associated with asbestos exposure. Plaintiffs contended that the decedent was exposed to asbestos while working in construction and while conducting routine maintenance on his vehicles, and sought $150,000 in medical expenses, $1 million in loss of earnings and $1 million in general damages. They settled with the construction defendants for $7,500 and $20,000, and with all automotive defendants except Ford for amounts ranging from $2,000 to $70,000 (Volkswagen was dismissed when its summary judgment motion was granted). Plaintiffs received a total of $179,250 from these settlements.
Shortly before trial, Ford offered to settle for $10,000 plus a waiver of costs. The offer expired, the case went to trial and the jury returned a verdict for Ford. The court awarded costs to defendant in the amount of $185,741.82.
The settlement offer was reasonable, said the court, given that the defendant prevailed at trial, the amount was within the range of other settlements in the case (especially considering that it included a waiver of costs) and the likelihood that the plaintiffs would prevail at trial was low. Since the offer was made by a defendant, the court had the discretion to award expert witness fees incurred both before and after the offer was rejected. Although initially concerned about the amount of the fees, the trial court asked for supplemental briefing and concluded that the fees were reasonable. The trial judge was in the best position to make this determination, said the appellate court, and the judgment was affirmed.
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