Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo, No. CV081051, Charles S. Crandall, Judge.
William J. Carlyle, in pro. per., for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Alberto L. Gonzalez, Acting Sr. Assistant Attorney General, Richard Rojo, Supervising Deputy Attorney General, David Adida, Deputy Attorney General for Defendants and Respondents.
COFFEE, J.
William J. Carlyle appeals from a judgment entered in favor of respondents, the State of California (State) and Roberto Guevara, following a jury trial. Appellant contends that the trial court erred by (1) refusing to compel further discovery from respondents; (2) excluding proposed expert opinion testimony; and (3) denying his motion to amend the complaint to add another defendant during trial and his request to question that proposed additional defendant. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On November 28, 2007, Roberto Guevara, a member of the National Guard, worked at the Guard's Grizzly Youth Academy. That morning, he drove the academy's truck, a 2006 Blue Bird 48 PAX, to take students to job sites in San Luis Obispo.
At about 11:00 a.m., Guevara was driving the Guard truck in the parking lot at Sinhsheimer Park in San Luis Obispo. He honked twice, checked the truck's side and rear view mirrors, saw no vehicles, and started to back the truck up slowly, at a speed of five or fewer miles per hour. He heard the truck's reverse alarm beep. The truck moved back just a few feet, when it collided with appellant's 1994 Mazda.
Before the accident, appellant noticed Guevara's truck ahead of his Mazda. He moved his Mazda until it was about 10 or 15 feet behind the truck. He saw the truck backing toward him, but there was another car behind his Mazda. The truck then backed into his Mazda. Appellant drove the Mazda away from the scene after the collision. The estimated cost of repairing it was $2,741.06.
Appellant submitted a claim for damages relating to the accident. After settlement attempts failed, and a related federal action was removed to state court, appellant filed this action in state court seeking damages for negligence, loss of use, and unfair business practices. Before trial, appellant challenged respondents' failure to respond to form interrogatories and special interrogatories. The trial court conducted multiple proceedings relating to discovery issues and issued rulings compelling respondents to respond. They responded to the form interrogatories but did not respond to the special interrogatories. Appellant requested further discovery orders from the court. It declined to issue further discovery orders and set the case for jury trial. The jury returned a special verdict and found that respondent Guevara was not negligent.
DISCUSSION
Discovery Issues
Appellant argues that the trial court abused its discretion by failing to compel respondents to provide adequate responses to interrogatories where respondents abused the discovery process. We disagree.
"'In reviewing an order of a superior court granting discovery, we recognize at the threshold that "the discovery statutes vest a wide discretion in the trial court in granting or denying discovery" and "such exercise [of discretion] may only be disturbed when it can be said that there has been an abuse of discretion."' [Citations.]" (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186.) We find no such abuse here.
Appellant's challenge to the trial court's discovery rulings concerns form interrogatories that appellant served on Guevara on April 16, 2009, and special interrogatories he served on the State on June 3, 2009. He moved to compel respondents to answer the interrogatories and the court issued orders compelling responses. Appellant complains that the responses provided by respondents were inadequate, and that Guevara failed to sign his interrogatories as required by Code of Civil Procedure, section 2030.250, subdivision (a).
Appellant "has the burden of proof on appeal." (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003.) "[A]n appellant '"must affirmatively show error by an adequate record.... Error is never presumed.... 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent....' (Orig. italics.)" [Citation.]' [Citations.]" (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.) Where the record is incomplete, we must presume that the trial court correctly relied on matters that are not before us. (Pringle, supra, at p. 1003.)
Appellant has not shown an abuse of discretion. The appellant's appendix includes only part of respondent's response to the form interrogatories (pages 1, 2, 20, 21, 22, 32, and 34). Most pages of that response are missing from the record. The record of proceedings relevant to the special interrogatories is also incomplete. At the end of proceedings on April 20, 2010, appellant inquired about the special interrogatories, as follows: "I'm sorry. I don't remember anything said about the special interrogatories. Are they not to be answered?" The trial court responded, "Mr. Carlyle, I'm doing the best I can. This pretrial discovery conference was about the form interrogatories only. I dealt with the special interrogatories earlier. I don't really want [to] revisit or spend time with you about it. ¶] I'll see you... at the readiness conference."
Documents in the record, including minute orders, indicate that the court considered appellant's requests concerning the special interrogatories in unreported proceedings on several dates, including April 6, March 30, and March 11. Appellant has not provided this court with a record to consider the oral proceedings for those dates. (See Cal. Rules of Court, rule 8.120(b) ["If an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of these oral proceedings in the form of one of the following: (1) A reporter's transcript;... (2) An agreed statement; or (3)A settled statement"].)
In summary, we lack a complete record of the form interrogatory responses, and the oral proceedings concerning the special interrogatories. Absent a complete record, we must presume that the trial court correctly relied on matters that are not before us in issuing the challenged discovery rulings. (See Pringle, supra, 73 Cal.App.4th at p. 1003.)
Expert Opinion
Appellant also contends that the trial court erred by excluding the expert opinion of John R. Caudill, a San Luis Obispo Police Department field technician, that Guevara was "at fault, " and responsible for the collision. We disagree.
"A trial court's determination that expert testimony is admissible is reviewed for an abuse of discretion. [Citations.]" (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1168.) "A police officer with proper training and experience in the investigation of traffic accidents and the submission of reports on the facts and causes of such accidents may give expert testimony as to the point of impact when his opinion derives from an examination of the physical evidence or indicia at the scene. [Citation.] But it is error to receive such evidence when the expert's opinion as to the point of impact is founded on statements made to him by other persons. [Citation.]" (Kalfus v. Fraze (1955) 136 Cal.App.2d 415, 423.)
Several hours after the November 28, 2007, accident, Guevara went to the police station to the file an accident report. Caudill spoke with Guevara in the lobby, contacted appellant to obtain his statement, and prepared an accident report. His report concluded that Guevara caused the collision by backing when it was unsafe to do so. The trial court questioned Caudill about the basis for his conclusion. It determined that Caudill did not investigate the accident scene, or take photographs of the vehicles, and that his conclusion was based only on the statements of Guevara and appellant. In excluding the opinion, the trial court also noted that "because of [Caudill's] position [his opinion] could have more weight than, say, a lay opinion on the subject." It further noted that Caudill had taken a "late" report away from the accident scene in the police station lobby and reached his conclusion without having determined matters such as "what the condition of the vehicle was, whether there were warning lights flashing, things like that." It also observed that Caudill's opinion "really [went] to... the ultimate question that the jury is asked to decide in this case, " and excluded his opinion pursuant to Evidence Code section 352 because its probative value was substantially outweighed by the danger that it would confuse and mislead the jury.
The trial court properly excluded Caudill's opinion which was based solely on the statements of the drivers. (See Kalfus v. Fraze, supra, 136 Cal.App.2d at pp. 422-423.) It properly exercised its discretion in ruling that the probative value of the evidence was outweighed by the danger that it would confuse and mislead the jury. (Evid. Code, § 352.)
The Denial of Appellant's Requests to Add Major John Oberg as a Defendant During Trial and His Request to Question Oberg
Appellant sought to amend the complaint to add Oberg as a defendant "in place of Doe." Respondent objected that the State "as a nonperson entity, [was] entitled to be represented by a human being at trial and Mr. Oberg is that person." When asked why Oberg had been selected as the State's representative at trial, its counsel explained that he was "in charge of the [Grizzly] Youth Academy, " the outfit that "Guevara works for." The trial court explained to appellant that Oberg was "somebody who is named as a client representative, " and asked appellant why he thought Oberg was a new defendant. Appellant responded that Oberg was on the witness list. The court declined the motion to amend the complaint because it saw "no reason to allow it" where Oberg was "simply someone who [was] added as a client representative" who "would not be called as a witness" by respondent. Appellant further asserts that he was not allowed to examine Oberg.
Neither the record references nor the authorities cited by appellant support his contentions that the court erred by denying his request to amend his complaint to name Oberg as a defendant, or to examine him. We treat appellant's failure to develop those contentions or cite any persuasive authority to support them as "a waiver of the issue on appeal." (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007-1008.)
DISPOSITION
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.