Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00114601 Steven L. Perk, Judge.
Law Offices of David J. Wilzig and David J. Wilzig for Plaintiff and Appellant.
Berman, Berman, Berman, Mark Lowary, and Howard Smith for Defendant and Respondent.
OPINION
IKOLA, J.
A jury returned a verdict in favor of defendant Alireza Panahpour in plaintiff Jill Cresap’s action for dental malpractice and other causes of action. Plaintiff contends the trial court abused its discretion by excluding evidence that defendant had made therapeutic injections on other female patients below the neckline and was on probation with the Dental Board of California for, inter alia, failing to keep complete dental records. We affirm the judgment.
FACTS
Defendant is a general dentist who practices “a whole body” approach to dentistry. For example, his practice includes nutrition counseling as it relates to dental health.
Around May of 2007, South Coast Medical Center for New Medicine (South Coast), which offers traditional and alternative holistic medical and dental care, hired defendant as an independent contractor (or, in defendant’s view, as an employee). Defendant worked there for about two years.
In July 2007, plaintiff (then 41 years old) began working at South Coast as director of administration. Before joining South Coast, plaintiff understood and believed in holistic medicine and knew that the South Coast dentist would have a holistic approach. Plaintiff worked at South Coast for less than a year.
In August 2007, plaintiff went to defendant for a dental examination and cleaning. On an X-ray, defendant observed a periapical cyst above plaintiff’s tooth No. 14. According to plaintiff, defendant said there was a “tumor” above her tooth which could be benign, but might be cancerous. Defendant said that in order to remove the tumor, he would have to extract tooth No. 14.
Defendant also recommended that all of plaintiff’s amalgam fillings be removed and replaced with composites, and gave her information on heavy-metal toxicity resulting from amalgam fillings. According to plaintiff, defendant said that because her amalgam fillings were old, they released “vapors” into her mouth whenever she chewed or ground her teeth. He disclosed to her, however, that this view of amalgam fillings is not accepted by the American Dental Association. Nonetheless, plaintiff decided to have her amalgam fillings removed.
Defendant had given a presentation at South Coast about mercury poisoning, where he advocated the removal of all mercury amalgam fillings. Plaintiff had attended defendant’s presentation, where she claimed to have learned that mercury is a dangerous toxin that can cause cancer, Alzheimer’s disease, Parkinson’s disease, and neurological problems. But at trial defendant testified it is his personal belief there is no connection between amalgam fillings and diseases; however, he advises patients to do their own research on the subject.
At first, defendant said he would charge plaintiff many thousands of dollars for the treatment plan. Plaintiff did not have the money to have the treatment done at that time. Ultimately, she learned that all her amalgam would be removed for no charge as her prize for receiving the highest score on the “mercury test.” The parties also agreed defendant would remove plaintiff’s tooth No. 14 without charge in return for plaintiff allowing him to videotape the extraction for marketing on You Tube. Prior to undergoing the amalgam removals and the extraction of tooth No. 14, plaintiff signed informed consent forms.
On two days in December 2007, defendant removed plaintiff’s amalgam fillings and tooth No. 14. On both days, defendant also performed neural therapy on plaintiff. According to plaintiff, defendant explained to her that neural therapy is “a treatment to break up scar tissue” to enhance healing. Plaintiff testified defendant injected scars on her face, right tonsils, lower back, right knee, left foot, and breasts (where she had scars due to breast reduction surgery), and in and below her navel. Plaintiff allowed defendant to inject her in areas below her jawline because she trusted him, believed him, and did not “know that he’s not allowed to do that.” Her expert testified that procaine injections are “grossly below the standard of care and... far outside the confines of accepted dental practice.”
Defendant testified that, in conjunction with surgeries or the removal of metal fillings, he customarily performs on all patients “therapeutic injections, trigger-point injections, [and] diagnostic injections” of procaine, a treatment known as neural therapy, to, inter alia, detoxify congested tissues, normalize neuro signals, and reduce trauma to the tooth. But he denied injecting scars in plaintiff’s body. He initially denied ever taking classes that spoke about referred pain from scars, but later recalled that he had indeed taken such classes. He denied injecting scars on plaintiff’s abdomen, lower back, right knee, or left foot. He testified he has “never done injections below the head and neck.” He testified it would be unacceptable behavior to inject a patient’s scar on her back. He testified that if a scar is infected, state law permits a dentist to inject it, but he would refer a patient to the “medical division.” He testified he gave plaintiff neural therapy injections in the acupuncture points of teeth Nos. 2, 3, 4, “and the surgery.” He admitted: (1) the breasts are an acupuncture point for tooth No. 14; (2) he always asks patients about scars all over their body; and (3) he has patients fill out a diagram showing the location of their scars.
Rebecca Montano (defendant’s dental assistant at South Coast) and Jeanette Ibanez (South Coast’s dental manager) were present when defendant removed plaintiff’s tooth No. 14. Ibanez videotaped parts of the tooth extraction. Montano testified that after a surgery, defendant usually performed neural surgery on acupuncture points on the face and sometimes inside the mouth and on patients’ scars. She could not recall how many scars plaintiff had on her body or where defendant injected plaintiff’s body. She did not see defendant inject plaintiff anywhere below the collarbone.
There was also testimony, however, that Montano did the videotaping.
Defendant’s extraction of the cyst above tooth No. 14 caused a tear leading into plaintiff’s sinus. Within three days of the surgery, plaintiff developed a dry socket. The tear between plaintiff’s mouth and sinus developed into a hole; her sinus became infected. In order to close the hole, plaintiff saw several ear, nose and throat specialists, two oral surgeons, and an endodontist, and underwent many surgeries. She incurred costs of over $46,000.
In connection with her first visit to an oral surgeon, plaintiff obtained her dental chart/folder from Ibanez of South Coast and made copies of the two documents defendant told her she would need. Plaintiff never saw the folder again after that day. She testified she did not steal it from South Coast and that she had at one point filled out paperwork for defendant describing the scars on her body. Breeanna Roach, who worked with defendant at South Coast, testified that the last person she saw with plaintiff’s dental records was defendant. Montano testified that after defendant was terminated by South Coast, she retrieved for defendant about 16 boxes of his “stuff” from the office. She did not see any patient records in the boxes into which she looked, but she did not see what was in all the boxes. Ibanez testified she did not know what happened to the charts of plaintiff or any of defendant’s patients, but thought South Coast’s director might know. South Coast’s director testified she did not keep track of dental records and would not know if something was missing.
In July 2009, plaintiff sued defendant for dental malpractice, lack of informed consent, medical battery, sexual battery, battery, intentional misrepresentation, and negligent misrepresentation.
Plaintiff’s suit included other codefendants and causes of action.
The jury returned a verdict in defendant’s favor.
DISCUSSION
On appeal plaintiff contends her fraud and sexual battery claims against defendant depended largely on each party’s credibility, and that the court abused its discretion by excluding evidence defendant injected other female patients below the neck and was on probation for failing to keep adequate records.
Under Evidence Code section 1101, subdivision (a), character evidence is generally inadmissible when offered to prove a person’s conduct on a specified occasion. Under section 1105, “[a]ny otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom.” “‘Habit’ or ‘custom’ is often established by evidence of repeated instances of similar conduct.” (People v. Memro (1985) 38 Cal.3d 658, 681, fn. omitted, overruled on another point in People v. Gaines (2009) 46 Cal.4th 172, 181, fn. 2.) “‘“Habit” means a person’s regular or consistent response to a repeated situation.’” (Memro, at p. 681, fn. 22.)
All statutory references are to the Evidence Code.
“The Evidence Code provides a vocabulary for what is generally called ‘laying the foundation’ for admissibility of particular evidence.” (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 49, p. 83.) Under section 400, a “‘preliminary fact’ means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.” Under section 401, “‘proffered evidence’ means evidence, the admissibility or inadmissibility of which is dependent upon the existence or nonexistence of a preliminary fact.”
Generally, the “standard of review of any ruling by a trial court on the admissibility of evidence is abuse of discretion” (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111), including on the trial court’s rulings on in limine motions (Condon-Johnson & Associates, Inc. v. Sacramento Municipal Utility Dist. (2007) 149 Cal.App.4th 1384, 1392). “However, when the issue is one of law, we exercise de novo review.” (Ibid.) The challenger’s “burden is to demonstrate the court’s ‘discretion was so abused that it resulted in a manifest miscarriage of justice.’” (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 456, disapproved on another point in People v. Freeman (2010) 47 Cal.4th 993, 1006, fn. 4.) “A judgment cannot be set aside on the ground that the court erroneously excluded evidence unless the substance, purpose and relevance of the excluded evidence were made known to the court by an offer of proof or by other means.” (Gordon, at p. 1113.) Under section 354, a judgment may not be reversed for the erroneous exclusion of evidence unless the errors resulted in a miscarriage of justice and it appears of record that: “ (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination.”
Prior to trial, defendant filed eight motions in limine. His motion in limine No. 2 asked the court to exclude improper character evidence, such as evidence of irrelevant and collateral “prior medical malpractice lawsuits as well as prior alleged bad acts constituting dental malpractice, sexual harassment, and sexual battery.” Plaintiff opposed the motion on the basis, inter alia, that habit and custom evidence are admissible and that defendant practices neural therapy on all his patients, “injecting scars on all parts of a patient’s body to clear neural pathways to facilitate healing from dental treatment.” Plaintiff’s opposition and her counsel’s declaration did not specify any witnesses or written evidence she would adduce to prove the foregoing assertion.
Defendant’s motion in limine No. 3 asked the court to exclude evidence “related to Dental Board proceedings regarding the Defendant’s dental care or treatment of patients.” In opposition, plaintiff alleged defendant “has a history of ‘lost’ records of other dental patients.” She argued, inter alia, that defendant never told her he “was on probation the entire time he treated” her and had “failed to comply with the requests by the board to keep... complete dental records.” Plaintiff’s opposition (her counsel apparently did not submit a declaration) failed to specify any witnesses or written evidence she would adduce to prove the foregoing assertions. We note that the Board’s accusation against defendant did not assert he lost patients’ records. Rather, the cause for discipline for unprofessional conduct included an allegation that defendant “failed to keep clear, legible and complete dental treatment records”; and the negligence cause for discipline included an allegation that the Board received from defendant “duplicate and incomplete records for his treatment of” a specific patient.
In December 2006, prior to working at South Coast, defendant stipulated, in response to an accusation filed against him by the Dental Board of California, Department of Consumer Affairs (the Board), to the following: (1) defendant admitted the truth of a cause for discipline for unlicensed namestyles; and (2) he agreed the Board could establish a factual basis for — and he gave up the right to contest — causes for discipline for incompetence, gross negligence and repeated acts of negligence; for false, fraudulent or misleading statements; for obtaining fees by misrepresentation; and for unprofessional conduct. As a result, effective in March 2007, defendant’s dental license was revoked, the revocation was stayed, and he was placed on probation for two years.
Defendant’s motion in limine No. 5 asked the court to exclude evidence of other lawsuits or claims against him. Plaintiff’s written opposition alleged that defendant’s denial of several of her allegations regarding his dental treatment was “directly contravened by other patients of Defendant who have been the victims of precisely the same type of ‘dental’ treatment.” As with defendant’s motion in limine No. 2, plaintiff alleged that defendant practices neural therapy on all his patients, “injecting scars on all parts of a patient’s body to clear neural pathways to facilitate healing from dental treatment.” Again, plaintiff’s opposition and her counsel’s declaration failed to specify any witnesses or written evidence she would adduce to prove the foregoing assertions.
In her written opposition to defendant’s motion in limine No. 7 concerning defendant’s alleged sexual harassment of two women, plaintiff stated she did not intend to introduce such evidence of sexual harassment. Plaintiff clarified, however, “so that there be no confusion or attempts by Defendant to expand the scope of his Motion after-the-fact, Plaintiff does intend to offer evidence to support her sexual battery claim of instances of identical treatment rendered by [defendant] to other dental patients which represent his habitual, regular and customary treatment of female patients with neural therapy injections into scars below the jawline in purported treatment of their dental complaints.” (Italics added.) As with defendant’s motions in limine Nos. 2 and 5, plaintiff alleged that defendant practices neural therapy on all his patients and injected “scars on all parts of a patient’s body to clear neural pathways to allegedly facilitate healing from dental treatment, ” including injections in “intimate regions” of female patients’ bodies. She stated: “The witnesses who Plaintiff may call to support her claim of sexual battery will testify as to their own experiences of dental treatment at the hands of [defendant]. Their testimony will be based on personal knowledge.” But once again, plaintiff’s opposition and her counsel’s declaration failed to specify any witnesses or written evidence she would adduce to prove the foregoing assertions.
At the April 2010 pretrial hearing, plaintiff’s counsel differentiated between sexual harassment and sexual battery, and argued: “We’re talking about prior or former or current patients of [defendant] who have undergone this same type of injection in intimate parts of their body as [plaintiff] did. And [defendant] denies that he’s ever done that.” “We should be... entitled to bring in a patient... who will say, I received exactly the same kind of treatment. That’s proving the sexual battery, not necessarily a sexual harassment claim.”
The court granted defendant’s motion in limine No. 2 “unless there’s some foundation that I don’t see right now.” The court granted defendant’s motions in limine Nos. 3 and 5 without explanation. The court denied motion in limine No. 7, but stated it had not heard “sufficient foundational basis for its admission under 1101(b), ” so it would “see what happens....”
Trial took place in April and May of 2010. At trial, after plaintiff’s counsel asserted in her opening statement that defendant “has a history of patient record loss, ” the court and counsel discussed (outside the jury’s presence) whether plaintiff could introduce evidence showing defendant has a custom and practice of losing dental files. The court ruled such evidence was not admissible under section 1101, subdivision (b) as proving a common plan or scheme, explaining “I have not heard the foundation for that, ” (italics added) but that the evidence would be admissible if defendant made an inconsistent statement accusing plaintiff of stealing her own file. Defense counsel stated defendant would not accuse plaintiff of losing or stealing her records. The court ruled the evidence was inadmissible, stating it did “not see, one, the relevancy of it; two, the foundation of it as a specific instance of conduct offered to prove character or actions in conformity therewith.” Defendant did not make an offer of proof regarding the evidence he was prepared to proffer as the foundation, if any, for the admission of the evidence under section 1101, subdivision (b), thereby failing to establish its relevancy as a common plan or scheme, or as a habit or custom under section 1105.
Later, during examination of defendant under section 776, plaintiff’s counsel asked him whether he “ever had a patient’s file lost before?” Defense counsel objected on the ground of relevance. The court sustained the objection. Plaintiff’s counsel moved on without making an offer of proof to establish the relevance of an answer to that question. Defendant had already admitted that plaintiff’s chart was lost.
Plaintiff’s counsel subsequently asked defendant whether he told plaintiff he was “going to inject the scars in her body in order to aid in healing after the removal of her mercury amalgams.” Defendant replied he had “never done it.” After defendant denied injecting scars on plaintiff’s abdomen, lower back, right knee or left foot, plaintiff’s counsel asked defendant whether he had “made trigger-point injections below the jawline of patients before.” Defense counsel objected on the ground of relevance. The court sustained the objection. Plaintiff’s counsel made no offer of proof as to how an answer to that question might be relevant. And during the reminder of the trial, plaintiff’s counsel made no additional offer of proof of specific witnesses or written evidence he wished to introduce to impeach defendant’s testimony on this point or to establish a foundation for admission of evidence establishing a common plan or scheme under section 1101, subdivision (b), or habit and custom under section 1105.
Based on the foregoing, plaintiff has failed to meet her burden to show the court abused its discretion by making the disputed evidentiary rulings. She failed to make an offer of proof as to the foundation for proffered evidence that would show defendant has a habit of injecting patients below the neckline and losing their records. She did not apprise the court with any specificity of what evidence she planned to introduce. Under section 354, subdivision (a), the proponent of the excluded evidence must have conveyed to the court the “substance” of the evidence. “The substance of evidence to be set forth in a valid offer of proof means the testimony of specific witnesses, writings, material objects, or other things presented to the senses, to be introduced to prove the existence or nonexistence of a fact in issue.” (United Sav. & Loan Assn. v. Reeder Dev. Corp. (1976) 57 Cal.App.3d 282, 294.) “The offer of proof must be specific in its indication of the purpose of the testimony, the name of the witness, and the content of the answer to be elicited. The judge may properly reject a general or vague offer that does not indicate with precision the evidence to be presented and the witnesses who are to give it.” (3 Witkin, Cal. Evidence, supra, Presentation at Trial § 402, pp. 491-492.) The court properly rejected plaintiff’s vague offers here.
DISPOSITION
The judgment is affirmed. Defendant shall recover his costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J.O’LEARY, J.