Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Lake County Super. Ct. No. CV044857
Marchiano, P.J.
Defendant Upper Lake Union High School District appeals from the judgment on a jury verdict awarding plaintiff Justin Sallinen $250,000 in a personal injury suit. Defendant contends that the court should have granted its motion for new trial on the ground of surprise. (Code Civ. Proc., § 657, subd. (3).) The surprise was defendant’s discovery during trial that a key defense witness had given a pretrial statement to plaintiff that contradicted his trial testimony. Surprise justifying a new trial is that “which ordinary prudence could not have guarded against.” (§ 657, subd. (3).) The trial court determined, and we agree, the surprise here could have been avoided through ordinary prudence. Accordingly, the court did not err in denying the new trial motion, and we affirm the judgment.
All subsequent statutory references are to the Code of Civil Procedure.
I. BACKGROUND
Plaintiff was injured during a football practice at Upper Lake High School on September 18, 2002. He was running with the football when he was hit simultaneously on the left side of his left knee, and from the front. He suffered a fractured femur, a torn anterior cruciate ligament (ACL) in the knee, and torn meniscus in the knee. The fracture was successfully repaired by orthopedic surgeon Thomas Kilkenny in operations performed in September 2002 and March 2003, and the meniscus injury healed on its own. However, surgery on the ACL in July 2003 was not entirely successful, and Kilkenny and orthopedic surgeon Paul Axtell opined for plaintiff that he was in need of another ACL operation at the time of trial in 2006. Plaintiff’s father testified that he had been unable to pay most of plaintiff’s medical bills, and that he could not afford the additional surgery plaintiff needed.
The issue at trial was whether the ACL injury occurred when plaintiff was hit during the football practice, in which case defendant was not liable for the injury, or the injury occurred later that day when he fell while attempting to walk to a phone to call for a ride home. Defendant faced liability under the latter scenario given the undisputed evidence that plaintiff was left in the locker room after practice by the coaches, who went home without ensuring that he had transportation home or to a doctor.
Conflicting expert testimony was presented on how the ACL injury likely occurred. Kilkenny opined that the fracture probably happened during practice, and the ACL injury during the fall after practice. Axtell agreed with Kilkenny that the injuries probably occurred at separate times, but he testified at trial that he could not identify the order in which they occurred, and he said in his deposition that it was more likely that the ACL injury occurred during practice. Dr. Lawrence Guinney opined for the defense that all of plaintiff’s injuries probably occurred when he was hit during practice.
Plaintiff testified at trial that he was left alone in the locker room after practice, and attempted to walk from the locker room, through the gymnasium, to a phone in front of the gym where he could call his father for a ride. When he reached 10 feet inside the gym his leg collapsed, his knee popped, he fell on his butt, and he felt much worse pain than he had experienced on the football field. In his deposition, plaintiff said that he got 10 feet into the gym when he realized that he could not walk all the way through it and attempted to sit down. He was in the process of sitting down when his knee popped and went sideways. Plaintiff said at trial that, after he fell, he slid across the length of the deserted gym on his butt, and pounded on the front door and yelled. Another student, Jeremy Treadaway, was outside waiting for a ride and opened the door. Treadaway brought a picnic table over to the phone outside the gym and put plaintiff on the table so that plaintiff could call his father.
Treadaway testified as a defense witness that he and plaintiff were left alone in the locker room after practice, and that he helped plaintiff to the front of the gym without any mishap. Treadaway said that they walked around the outside of the gym rather than through it because volleyball or cheerleading practice was usually being held there. Plaintiff put his arm around Treadaway’s shoulder, Treadaway put his arm underneath plaintiff’s, and plaintiff hopped on his uninjured leg to the front of the gym. Upper Lake Union High girls volleyball coaches Francis Cronin and Marcella Psalmonds testified for the defense that the junior varsity and varsity teams practiced in the gym, and Psalmonds said that the varsity would have practiced from 4:15 or 4:30 p.m. to 6:00 or 6:30 p.m. on the day plaintiff was injured. Psalmonds said that boys were not allowed in the gym during practice, and had to go around the gym to get from the locker room to the front of the school.
On cross-examination, Treadaway was asked whether he had been interviewed by investigators after plaintiff was injured, and he said that he had been interviewed twice, once when he was at the Nice Fire Department doing public service, and once at his home. He was interviewed by different people on those occasions, which were several months apart. He did not recall telling the interviewers a different story than the one he told in court. On redirect examination, Treadaway said that he gave a recorded statement at the firehouse, and did not remember whether the statement at his house was recorded. He recalled the interviewer at his house taking notes, but he could not remember the interviewer saying that the statement was being recorded. He did not remember the name of the interviewer, and the interviewer did not say whom he represented. Treadaway said that he and his parents and sister “were discussing it the other day actually, because we were—we had remembered this and remembered that there had been somebody at the house giving me an interview, and we could not remember his name or what it was about . . . .”
After the defense rested, plaintiff advised that he wanted to call an investigator as a witness to introduce a taped statement given by Treadaway in February 2004 that contradicted his trial testimony. Defendant urged that the statement be excluded as inadmissible hearsay, or because plaintiff’s responses to pretrial discovery requests had indicated that no such statement existed. In 2003, defendant served form interrogatories asking whether plaintiff had obtained any recorded statements from witnesses in the case, and plaintiff responded by identifying several such statements. In 2006, after plaintiff obtained Treadaway’s recorded statement, defendant served a supplemental interrogatory asking plaintiff to update his previous answers, and plaintiff responded that he was “unaware of any later-acquired information.” In 2003, defendant served a request for production of documents, including any witness statements; in response, plaintiff agreed “to comply fully with this demand.” In 2006, defendant asked plaintiff for a supplemental production of documents, and the documents plaintiff produced did not include Treadaway’s statement. Plaintiff’s counsel admitted that the supplemental discovery responses erroneously failed to mention Treadaway’s statement; the defense did not allege that the omission was intentional.
The court indicated that it was inclined to admit Treadaway’s 2004 statement because it went “to the very guts” of his trial testimony, and ordered a six-day continuance to enable the defense to contact Treadaway concerning the matter. It was agreed that if Treadaway’s 2004 inconsistent statement was admitted the defense would be permitted to introduce the consistent statement it obtained from him in 2003. When trial resumed after the continuance, defense counsel advised that he had spoken with Treadaway, and decided not to call him back to the stand. The court ruled that Treadaway’s statements were admissible, and tapes of the statements were played for the jury.
In his 2004 statement to plaintiff’s investigator, Treadaway said he helped carry plaintiff from the football field, left him on a bench in the junior varsity locker room, went to get changed, and did not see him again until they were out in front of the gym. Treadaway said he assumed that plaintiff walked through the gym to the front of the school because he did not see plaintiff “walk through the varsity room and out around the side.” Treadaway said that he put a picnic bench next to the phone in front of the gym so that plaintiff could sit and make a call, and that he left when his mother arrived after plaintiff said that he did not need a ride.
Plaintiff was on the junior varsity team, Treadaway was on the varsity, and the varsity and junior varsity had separate locker rooms.
In his 2003 statement to defendant’s investigator, Treadaway said that he and plaintiff were alone in the locker room around 6:45 p.m. or 7:00 p.m. when he noticed that plaintiff was having trouble standing up, and he asked plaintiff if he needed help walking out of the locker room to the front of the gym. Plaintiff said, “Yes,” they put their arms around each other, and he helped plaintiff hop on his good leg out of the locker room and around the gym to the front, where he helped plaintiff call his father.
In closing arguments to the jury, plaintiff’s counsel reviewed the discrepancies in Treadaway’s statements, and stated that in many years of practice he had “very seldom . . . seen . . . two absolutely conflicting statements coming from the same person.” Counsel submitted that the defense had called “basically two liars to testify. One is Treadaway. . . . Dr. Guinney not much further behind him.”
After judgment was entered on the jury verdict for plaintiff, defendant moved for a new trial on the grounds that the court erred in admitting Treadaway’s prior inconsistent statement, and that admission of the statement constituted unavoidable surprise within the meaning of section 657, subdivision (3).
In his declaration in support of the motion, defense counsel stated that he relied on plaintiff’s discovery responses in preparing for trial. Had the responses been accurate, he would have done “something different with respect to calling Jeremy Treadaway as a witness,” and had he received Treadaway’s 2004 statement, he “definitely would not have called him as a witness.” (Underlining omitted.) In his declaration opposing the motion, plaintiff’s trial counsel stated that it was his practice to object to discovery of witness statements on the ground that they were protected by the attorney work product doctrine, and thus that he would not have produced Treadaway’s statement even if he had known about it when he provided plaintiff’s supplemental discovery responses. Defense counsel declared that “[e]ven if I had been told that there was an objection to a request that would have alerted me to do something different to protect the district’s interest. As it was, I had no reason to think that Jeremy Treadaway had given a statement to any person other than representatives of the school district.” Defense counsel noted that the only reason he called the volleyball coaches as witnesses was to bolster Treadaway’s testimony.
Trial counsel became plaintiff’s cocounsel after plaintiff provided his initial discovery responses and obtained the statement from Treadaway.
Defense counsel further declared that student Calvin Bowers, who also participated in the practice on the day plaintiff was injured, had given the defense a recorded statement indicating that “after [plaintiff] left the locker room dressing area he fell outside the locker room door but was not injured.” Plaintiff’s counsel declared that plaintiff had obtained a statement from Bowers that was inconsistent with the account Bowers gave defendant. At the hearing on the motion for new trial, defense counsel made an offer of proof that, if he had received accurate discovery responses, he probably would have called Bowers as a witness instead of Treadaway. He said that he would not have called both of them as witnesses given their contradictory testimony.
In the order denying the new trial motion, the court explained its reasoning as follows:
“During trial defendant moved for an order ruling Exhibit 21 [Treadaway’s taped statement to plaintiff’s investigator] inadmissible as a discovery sanction. Such a sanction is known as an evidence sanction. As a general rule, evidence and other nonmonetary discovery sanctions are not imposed absent the following two prerequisites: (1) there must be a failure to comply with a court order, and (2) the failure must be willful. There are exceptions to the first prerequisite in cases involving egregious discovery violations. [Citations.]
“In this case the court concludes there was not a failure to comply with a court discovery order and there was not an egregious discovery violation. Moreover, the court concludes that the discovery violation was not an effort to gain a tactical advantage at trial and was not willful.
“8 Witkin, Cal. Proc. 4th (1997) Attack [on Judgment in Trial Court], § 30, p. [536], observes that the ground of ‘accident or surprise’ in support of a motion for new trial ‘has been regarded with suspicion [from] an early date [citation omitted], and the motion is seldom successful.’ In that same section, the treatise observes that ‘the moving party is usually unable to overcome one of two major obstacles,’ the first obstacle being a showing ‘that the surprise had a material effect on the case, so that a different result might be reached on a retrial.’. . . [The second major obstacle is that] ‘[t]he moving party must show that he was diligent in seeking to protect himself against the event; if “ordinary prudence” would have avoided the surprise, the motion will be denied.’ Without addressing the first major obstacle, this court notes that Jeremy Treadaway testified at trial that he was interviewed twice after the event, once at the Nice Fire Department and once at his home. Defendant’s attorney could have interviewed Jeremy Treadaway before trial and asked him who he had talked to about the events in question. In doing so the defense would have been alerted to the existence of at least one interview other than the recorded interview obtained by the district’s investigator in June 2003. In this court’s experience, it is common for witnesses to give statements before trial that are inconsistent with their trial testimony. Ordinary prudence calls for the interview of potential trial witnesses prior to trial to avoid such ‘surprise’ inconsistent statements. See Wade v. De Bernardi (1970) 4 Cal.App.3d 967, 971 [Wade].”
II. DISCUSSION
Defendant advances two arguments against the court’s decision. First, defendant contends that it was not required to determine prior to trial whether Treadaway had given plaintiff a statement because it was entitled to rely on plaintiff’s discovery responses indicating that no such statement had been furnished. Defendant argues that, in ruling otherwise, the court improperly demanded “hypervigilant conduct” of defense counsel rather than the mere ordinary prudence required by section 657, subdivision (3). Second, defendant argues that it could not have avoided being surprised by Treadaway’s inconsistent statement even if it had asked him about other statements prior to trial. Defendant submits that Treadaway’s trial testimony shows how he would have responded to questions about his prior statements, and observes that Treadaway said he did not recall giving a different story than he gave at trial.
The threshold question on the issue of ordinary prudence is the scope of appellate review. Defendant argues that the trial court’s determination is subject to our de novo review; plaintiff contends that the decision is reviewable only for an abuse of discretion. In Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161 (Sherman), the court wrote: “The standard for review of a new trial motion is stated by our Supreme Court in City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872 [Decker]: ‘[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. [Citations.] However [i]n our review of [an] 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 was prejudicial.’ (Original italics.)” A new trial motion will be denied if no “error” enumerated in section 657 is established (§ 657, subds. 1-7), or if the error is not prejudicial (§ 657 [error must “materially affect[] the substantial rights of [the] party”]), and we read the quoted passage in Decker to mandate independent appellate review only as to the issue of prejudice.
To also require de novo review of the determination of whether an error occurred would leave no room for trial court discretion to deny new trial motions, in contravention of numerous cases. (E.g., Fassberg Construction Co. v. Housing Authority of Los Angeles (2007) 152 Cal.App.4th 720, 752 [reviewing denial of a new trial motion; trial court has “broad discretion” and its decision is “accorded great deference on appeal”]; Ashcraft v. King (1991) 228 Cal.App.3d 604, 616 [same]; Price v. Giles (1987) 196 Cal.App.3d 1469, 1472 [same]; Stark v. City of Los Angeles (1985) 168 Cal.App.3d 276, 288 [same]; see also Mercedes-Benz Credit Corp. v. Johnson (2003) 110 Cal.App.4th 53, 59 [the “trial court did not abuse its discretion by denying [the] motion for a new trial based on surprise”]. Thus, in a case like the one at bench where the trial court does not reach the issue of prejudice because it finds no error that could warrant a new trial, the decision should be reviewed only for an abuse of discretion.
ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, citing Sherman, supra, 67 Cal.App.4th 1152, states that “[w]hen the court has denied a motion for a new trial . . . we must determine whether the court abused its discretion by examining the entire record and making an independent assessment of whether there were grounds for granting the motion.” (Id. at p. 832, italics added.) While we disagree with the italicized language insofar as it suggests that we can freely second guess a trial court finding that none of the section 657 grounds for granting a new trial has been established, the disagreement is immaterial to our decision because we independently concur in the finding made here.
We share the trial court’s view that it was incumbent on defendant, as a matter of ordinary prudence, to interview Treadaway prior to trial about all statements he may have provided. (Cf. Wade, supra, 4 Cal.App.3d at pp. 971-972 [party seeking new trial on ground of surprise should have verified that witness’s testimony would be favorable before calling witness to the stand]; Haning et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2007) [¶] 8:440, p. 8-121 (rev. #11999) [final preparations for trial should include reviewing all prior statements and testimony with witnesses].) We appreciate that it may not be feasible or reasonably necessary to interview all potential witnesses before trial about their prior statements. However, Treadaway was an independent witness whose testimony was central to defendant’s case, and what happened here shows why plaintiff’s discovery responses did not obviate the need to inquire about other statements he may have given. As this case illustrates, mistakes can occur in discovery and the court has discretion to admit improperly withheld evidence. Given the potential admissibility of undisclosed evidence and the importance of Treadaway’s testimony, defendant should have asked him before trial if he had furnished any statements other than the one he provided to the defense.
Defendant concedes that admission of Treadaway’s statement was not a clear abuse of that discretion, and has not challenged the evidentiary ruling on appeal.
Defendant contends that asking Treadaway before trial about other statements would not have changed the outcome because Treadaway’s trial testimony showed that he could not recall giving conflicting stories. However, as defendant acknowledged in briefing below, simply learning of the existence of a second statement would have changed the defense strategy. Defense counsel wrote that “had he known or even reasonably suspected that there was an impeaching statement obtained from the other side, or that Treadaway had been state mentized, he would not have done what he did.” When the additional statement was revealed at trial, there was a single followup question regarding potential inconsistencies, but had the statement been revealed before trial, the followup would likely have been far more thorough. That point was, again, effectively conceded below when the defense explained how it would approach a retrial using Bowers, rather than Treadaway, as the percipient witness: “One thing is for sure,” defendant stated, “if we have a new trial Calvin Bowers will be an important witness and he will either be deposed or grilled ahead of time because now the defense knows that the plaintiff interviewed him and took a statement from him. The defense did not know that regarding Jeremy Treadaway.”
Treadaway’s trial testimony confirms that the defense would have learned about his other statement had it inquired about such statements before trial as it should have done. In that event, the defense would have known that plaintiff’s discovery responses were inaccurate, would have “deposed or grilled” Treadaway about the statement, and would not have been blindsided by it at trial. Thus, the trial testimony does not show that the surprise in question could not have been avoided with ordinary prudence.
Moreover, the court gave defense counsel a continuance to confer with Treadaway, who had been excused as a witness, and recall him to explain the discrepancies and enlighten the jury as to what in fact occurred on the afternoon of September 18, 2002. Defendant’s counsel opted not to recall him, but rather relied on the prior consistent statement obtained in 2003 well before the 2004 inconsistent statement.
We note that defendant’s counsel did not make a motion for a mistrial when he learned of the statement.
Under all the circumstances, we cannot say that the result was a “miscarriage of justice.” (Cal. Const., art. VI, § 13.)
III. CONCLUSION
The judgment is affirmed.
We concur: Stein, J., Swager, J.