Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC070325., Michael Harwin, Judge.
Panish, Shea & Boyle, Adam K. Shea, Deborah S. Chang for Plaintiffs and Appellants.
Law Offices of Kolar & Associates, Elizabeth L. Kolar, Jeanne L. Tollison for Defendant and Respondent.
ARMSTRONG, Acting P. J.
Plaintiffs Susan Ryvkin and her children, Alisha and Zachary, sued defendant Terry York Motor Cars, Ltd. dba Land Rover of Encino for the wrongful death of Leon Ryvkin, their husband and father. The jury returned a verdict for defendant. Plaintiffs moved for a new trial based on newly discovered evidence and an irregularity in the proceedings, to wit: defendant's failure to provide certain materials in response to plaintiffs' discovery requests. The trial court determined that the purported newly discovered evidence which flowed from the belatedly produced documents would not have altered the verdict, and denied the motion. We conclude that plaintiffs failed to establish the statutory requisites to their entitlement to a new trial, and so affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Leon Ryvkin died in a rollover accident after the right rear tire on his wife's new Land Rover Discovery II sport utility vehicle (the SUV) failed. The SUV had been serviced by defendant less than 48 hours before the accident. At trial, plaintiffs sought to prove, through expert testimony, that defendant had negligently failed to detect that the SUV's right rear tire was severely underinflated, and that that tire condition directly caused the rollover accident. Defendant presented expert witnesses to establish both that it was not negligent, and that, in any event, Mr. Ryvkin's conduct was the exclusive cause of his injuries. That conduct included his (1) failure to use a seatbelt; (2) oversteering and braking in response to the tire failure; (3) driving a car that he was unfamiliar with; and (4) failing to properly maintain the vehicle's tire pressure. The jury returned a special verdict in which it determined that defendant was negligent, but that its negligence was not a substantial cause of the harm suffered by plaintiffs.
Actually, this was the second trial of this matter. The first trial ended in a hung jury.
In the middle of presenting its case-in-chief, plaintiffs' attorneys learned that defendant had failed to produce discovery responsive to requests for production. Consequently, in the midst of the trial, the parties were engaged in discovery, which resulted in the production of 12 "Technical Information Bulletins" applicable to Discovery II series vehicles such as the SUV.
For one reason or another, plaintiffs made no use of the late-discovered documents provided by defendant during trial. After the trial had concluded, however, plaintiffs provided their negligence expert, Gerald Rosenbluth, with copies of these documents. According to the declaration that he submitted in support of plaintiffs' motion for new trial, one of those bulletins, Technical Information Bulletin No. 70/02/04/NAS entitled "ABS Sensor Replacement" (the TIB) provided him with new information important to an understanding of what caused the accident. Mr. Rosenbluth stated that, based upon the TIB, he further investigated the ABS issue, consulted with David Soenarie, a former service technician and manager at several Land Rover dealerships, and changed his opinion about the cause of the accident.
Plaintiffs moved for a new trial based on newly discovered evidence pursuant to Code of Civil Procedure section 657, subdivision (4) and on an irregularity in the proceedings which deprived plaintiffs of a fair trial in accordance with Code of Civil Procedure section 657, subdivision (1). After hearing the evidence and arguments on the motion, the trial court denied the motion, stating: "There have been now two lengthy trials on this matter. The court has heard and considered all the evidence. During trials, both sides make elections as to how they're going to proceed. They use the evidence which comes, some of which came later than others. But the court is satisfied that there was sufficient evidence for the jury to reach the verdict it did. The court is not satisfied that further production would have altered the verdict...."
Plaintiffs challenge that ruling on appeal. Although an order denying a motion for a new trial is not appealable, its propriety may be reviewed upon an appeal from the judgment. (Code Civ. Proc., § 906; Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.)
STANDARD OF REVIEW
Our Supreme Court stated the standard of review of an order denying a new trial motion as follows: "[A] trial judge is accorded a wide discretion in ruling on a motion for new trial and... the exercise of this discretion is given great deference on appeal.... However, we are also mindful of the rule that on an appeal from the judgment it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party..., including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error is prejudicial." (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872, emphasis in original.) After conducting such a review, we are satisfied that the trial court properly determined that plaintiffs failed to establish good cause for a new trial.
DISCUSSION
We begin our discussion by noting that plaintiffs do not seek review of any ruling made by the trial court prior to entry of judgment on the jury's verdict. Thus, there is no claim of error concerning the conduct of the trial itself or the propriety of the court's entry of judgment. Our review is limited to the merits of plaintiffs' post-judgment motion for new trial.
Code of Civil Procedure section 657, subdivision (4), authorizes the trial court to grant a motion for new trial on the ground of "[n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at trial." A party seeking a new trial on this basis must establish that "(1) the evidence is newly discovered; (2) he or she exercised reasonable diligence in discovering and producing it; and (3) it is material to the... party's case." (Plancarte v. Guardsmark (2004) 118 Cal.App.4th 640, 646.) "'Material' in this context means 'likely to produce a different result.'" (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161, internal citations omitted.)
"The claim of newly discovered evidence as a ground for new trial is uniformly looked on by the courts with distrust and disfavor because the policy of the law requires a litigant to exhaust every reasonable effort to produce at his trial all existing evidence on his behalf. [Citations.] It is also well settled that an appellate court rarely interferes with the decision of a trial court on the grounds of newly discovered evidence and that the exercise of the court's discretion in granting or denying a motion for a new trial on that ground will not be disturbed except in a case of manifest abuse." (South Santa Clara etc. Dist. v. Johnson (1964) 231 Cal.App.3d 388, 407; see also 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 31-34, pp. 615-619.) Thus, plaintiffs face a daunting burden in their quest for reversal of the trial court's order.
Here, the newly discovered evidence which plaintiffs maintain is material to their case is the information provided to Mr. Rosenbluth by Mr. Soenarie concerning ABS wiring problems in the Discovery II series vehicles which changed the expert's opinion concerning the cause of the accident. As an experienced Land Rover service technician, Mr. Soenarie had worked for several Land Rover dealerships, including defendant, and was familiar with Land Rover policies, procedures and technical bulletins in use at the time the SUV was serviced, as well as the specific complaint recorded by defendant's service representative when Mrs. Ryvkin brought the SUV in for service two days before the accident: "ABS, T/C lights on all the time & brakes go onto ABS on normal braking." According to Mr. Soenarie, "This description relates to a very serious safety problem that necessitates careful analysis, diagnosis, and repair," and is a condition which "was known by Land Rover to occur in Discovery II vehicles throughout the country." Mr. Soenarie stated that the condition was caused by "electrical failures in the wiring or link harnesses related to the ABS system." He further explained: "An electrical problem in this wiring results in multiple and serious failures within the ABS because the components do not receive proper voltages. The voltages received could be either excessive or insufficient. As a result, the brake system can be seriously compromised and cause a pulsating feedback at the brake pedal under normal braking conditions when the ABS would not normally activate. [¶]... [¶] If these wiring issues were not resolved, the ABS could become hyperactive under normal driving conditions, leading to erratic hydraulic brake pressure[] in all four wheels, and the uncontrollability of the vehicle." According to Mr. Soenarie, the TIB provided to plaintiffs during trial, and which was disseminated to all authorized Land Rover dealerships in June of 2004, 18 months after the accident, "confirmed the occurrence of electrical failures within the Discovery II ABS which was already known to us...."
Defendant disagrees with this characterization of the TIB, stating that it simply explains that ABS sensors were newly available as a replacement part, so that replacement of the sensors could be completed without replacement of the entire wheelhub, which was previously required.
Based on the information provided by Mr. Soenarie, plaintiff's negligence expert, Mr. Rosenbluth, offered a modified opinion of the cause of the accident: While he had initially believed that the accident was attributable solely to the catastrophic failure of the right rear tire, he came to believe that it was the combination of the tire failure together with faulty electrical wiring of the ABS component, which caused the vehicle to behave erratically, become uncontrollable and roll over, an outcome no driver could avoid.
On this record, plaintiffs have not demonstrated reasonable diligence in discovering and tendering this new evidence. Plaintiffs received the critical TIB from defendant on May 22, 2008, the day after Mr. Rosenbluth concluded testifying at trial. They waited nearly four weeks to forward to their expert this documentation which they had fought tooth and nail to acquire in the midst of trial. Plaintiffs offer no reason for this delay. We understand that at the time these materials were produced, counsels' attention was focused on the all-consuming demands of the trial. However, their failure to put these materials in the hands of the one person who is intimately familiar with the facts of the case and could determine whether or not they have any bearing on the issues being litigated before the litigation ends indicates a lack of diligence.
Moreover, while it may very well be that Mr. Rosenbluth's belated review of the TIB caused him to further analyze whether an electrical problem in the vehicle's ABS contributed to the accident, it is nevertheless clear that the ABS was implicated in the rollover from the beginning. Indeed, plaintiffs themselves state that they "never adequately addressed" the significance of Mrs. Ryvkin's complaint to the service technician two days before the accident that "brakes go onto ABS on normal braking." "This portion of the customer's complaint, therefore, was left unaddressed and unresolved, and the jury was left with no explanation as to its connection or relevance to the decedent's loss of control of the vehicle."
The foregoing establishes that plaintiffs and their expert knew that the ABS equipment was apparently malfunctioning in some way when Mrs. Ryvkin took the SUV to defendant on January 16, 2003: The ABS indicator lighted on the vehicle's dashboard, alerting to an issue with this component, and Mrs. Ryvkin specifically complained to defendant about unexplained activation of this feature of the SUV. Thus, plaintiffs had every reason to consult with an experienced Land Rover service technician such as Mr. Soenarie to determine what, if any, role the ABS system played in this accident. Instead, plaintiffs chose to rely solely on the tire failure to explain to the jury the cause of the accident. It was not until after the jury had rejected plaintiffs' causation evidence that they pursued this second theory concerning defective ABS wiring. The requirement of reasonable diligence found in Code of Civil Procedure section 657 does not permit the granting of a new trial under these circumstances.
We note as well that the vehicle was available after the accident, so that plaintiffs were free to test the SUV to determine whether the ABS malfunctioned at the time of the accident, contributing to the rollover of the vehicle. And while Mr. Soenarie's declaration supports the conclusion that the SUV suffered from a problem found in other Discovery II series automobiles, evidence of a malfunction unique to the Ryvkin's SUV would have provided the causal link that plaintiffs were seeking to establish – that is, that the ABS malfunction coupled with the failed tire rendered the SUV uncontrollable, resulting in the rollover. Evidence specific to the SUV was fully available to plaintiffs independent of any action or inaction on the part of defendant. Or to state the matter conversely, even had the manufacturer never prepared the subject TIB, the ABS component would have contained a wiring problem (assuming plaintiffs' theory is correct). In sum, we conclude that plaintiffs have failed to establish that, had they exercised reasonable diligence, they would not have discovered the information included in Mr. Soenarie's post-trial declaration.
Plaintiffs argue an alternative ground for new trial: an irregularity in the proceedings which prevented them from having a fair trial. Defendant responds that this ground for granting a new trial was not presented to the trial court, and thus is not reviewable on appeal.
The crux of plaintiffs' argument on their motion for new trial was the newly discovered evidence consisting of Mr. Soenarie's declaration and Mr. Rosenbluth's revised opinion concerning the cause of the rollover. The only mention of an irregularity in the proceedings was in a footnote. After stating that "Plaintiffs' counsel were forced to expend as much time and effort on battling for the production of these documents as they did on the trial itself," there appears a footnote which reads: "In light of these circumstances, Plaintiffs would also be entitled to a new trial on the ground of irregularity in the proceedings preventing them from obtaining a new trial. CCP § 651(1) [sic]; see also Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1162, n. 5.)" Thus, plaintiffs argued that the same facts and law which support the grant of a new trial for newly discovered evidence support the grant of a new trial for an irregularity in the proceedings. They did not argue below that a new trial would be warranted based on an irregularity in the proceedings even if they failed to establish proper grounds for a new trial based on newly discovered evidence. Thus, they cannot argue on appeal that the trial court erred in denying a new trial on this second, independent ground because they did not request a ruling on the separate ground of an irregularity in the proceedings.
The cited language states: "In light of the above discussion [concluding that the appellants were entitled to a new trial on the ground of newly discovered evidence which ought to have been but was not produced by respondent in discovery], it should be clear [the appellants] were also entitled to a new trial on the ground of irregularity in the proceedings preventing them from obtaining a fair trial. § 657, subd. (1)."
In any event, the argument lacks merit. Plaintiffs' contention on appeal is that "In the present case, the concealment of responsive documents and discovery abuses by Defendant deprived the Plaintiffs of their fundamental right to fully investigate the evidence, conduct meaningful pretrial discovery, and have a fair trial on all the merits." As we have seen, however, plaintiffs had every opportunity to fully investigate the cause of the accident. Defendant's failure to produce the TIB during the pretrial discovery process did not deprive plaintiffs of a fair trial.
As we have indicated above, the late-produced TIB was neither the smoking gun plaintiffs would have us believe, nor the sole source of the information which plaintiffs belatedly argue was crucial to their case. That being said, the TIB was directly responsive to plaintiffs' discovery requests, and should have been timely produced to plaintiffs. Defense counsel's claim that the documents were not relevant and that defendant thus had no obligation to produce them was unfounded. (Sherman v. Kinetic Concepts, Inc., supra, 67 Cal.App.4th at p. 1162.) Although we do not condone this lapse, it is clear to us that defendant's failure to produce the TIBs during the normal course of discovery had no effect on the outcome of the trial.
DISPOSITION
The judgment is affirmed.
We concur: MOSK, J., KRIEGLER, J.