Opinion
E072880
10-25-2021
OSCAR ESPARZA et al., Plaintiffs and Appellants, v. WIN DISTRIBUTION, INC., et al., Defendants and Appellants.
Clark Hill, David L. Brandon and Dean A. Olson for Defendants and Appellants. The Dominguez Law Firm, Oliver A. Taillieu, Maura Taillieu; Esner, Chang & Boyer, Stuart B. Esner and Kevin K. Nguyen for Plaintiffs and Appellants.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC1512318. L. Jackson Lucky IV, Judge. Affirmed.
Clark Hill, David L. Brandon and Dean A. Olson for Defendants and Appellants.
The Dominguez Law Firm, Oliver A. Taillieu, Maura Taillieu; Esner, Chang & Boyer, Stuart B. Esner and Kevin K. Nguyen for Plaintiffs and Appellants.
OPINION
MENETREZ J.
Following a second jury trial after the first ended in a mistrial, Oscar and Cristal Esparza and Cristal's two minor children (collectively, plaintiffs) were awarded damages 1 for injuries resulting from a vehicular collision. While driving on a freeway, plaintiffs' car was struck from behind by a commercial truck driven by defendant Juan Serafio for defendant Win Distribution, Inc. (Win Distribution). Defendants appeal from the judgment. Plaintiffs filed a protective cross-appeal, seeking to challenge the order granting a mistrial at the conclusion of the first trial if the judgment entered after the second trial is reversed.
Because Oscar and Cristal have the same last name, we refer to them by their first names for ease of reference. No disrespect is intended.
Defendants argue that the judgment should be reversed because the trial court committed several prejudicial evidentiary errors. In the alternative, defendants argue that the trial court improperly denied their motion to tax costs from the first trial, which defendants claim resulted in an improper award of expert fees and prejudgment interest to plaintiffs. We conclude that the trial court did not commit any prejudicial error, and we therefore affirm the judgment, including the costs award. Because we affirm the judgment, we do not reach the merits of the cross-appeal.
BACKGROUND
A. The Collision
One morning in July 2015, plaintiffs were driving in a Mitsubishi Eclipse on the 91 freeway. Oscar was driving, Cristal was in the front passenger seat, and the two children were in the back seat. Plaintiffs were driving behind Dr. Jong-Tae Jinn, Ph.D., and Serafio was driving behind plaintiffs. Serafio was driving a two-axle Freightliner 2 commercial truck for Win Distribution. Serafio drove trucks professionally for about 30 years.
Dr. Jinn wanted to exit the 91 freeway onto the northbound 15 freeway. He testified that he unsuccessfully attempted to merge into the crowded exit lane for approximately one-half mile before the exit. He claimed to have braked while doing so, continuously reducing his speed from between 55 and 60 miles per hour to 20 miles per hour.
Oscar said that he was driving at roughly 55 miles per hour in light traffic conditions when the driver of the car in front of him "slammed on his brakes" and "came to a complete stop on the freeway," which Cristal confirmed. Oscar was able to come to a complete stop behind Dr. Jinn, leaving about four feet between their cars.
Serafio described the traffic on the 91 freeway as "normal," with most vehicles driving at roughly 55 miles per hour, but the traffic was heavier for the on-ramp for the 15 freeway. As Serafio approached the 15 freeway interchange, Serafio noticed Dr. Jinn's car for the first time as it braked and Dr. Jinn attempted to "jump" onto the 15 freeway after passing the entrance to the on-ramp. Serafio described what happened as follows: Because "'the lane was full, [Dr. Jinn] stopped, and when it stopped the one in front of me applied the brakes, because he saw [Dr. Jinn] stopped. And when I wanted to stop-but before that I looked to see if I could change lanes, and I saw that I couldn't, and I applied the brakes. And I hit him.'" There "wasn't much" time between Serafio's application of his brakes and his collision with plaintiffs' car, so Serafio did not slow down "very much" before the collision. Serafio believed that a following distance of 3 three car lengths was a sufficient distance for him to react to anything unexpected on the roadway.
A passenger in a another vehicle driving on the same stretch of the 91 freeway at the same time noticed a "truck traveling at a large rate of speed" approaching slowing traffic for the 15 freeway interchange, and the passenger testified that the truck "didn't slow down at all." The truck's speed was "significantly" "faster than everyone else on the road"; everyone else "was stopping for the traffic." Traffic was stopped when the truck "hit the car in front of him with major force," which the witness described as a "huge collision" and "very violent."
The collision propelled plaintiffs' car forward and crushed the rear seats forward while causing the front seats to "go rearward," that is, to recline. As a result, Oscar's head brushed against Cristal's daughter's head and then hit the seat belt retractor for the daughter's seat. Oscar's head then rebounded and hit the steering wheel, rendering him unconscious. Cristal stopped the car. With the help of a passerby, she got her children out of the car. About 15 to 20 minutes after the collision, Oscar woke up, was confused and dizzy, and had slurred speech.
Oscar, Cristal, and the children were all taken to the hospital by ambulance. The children sustained various abrasions and bruises, and one of them had a cut lip. Cristal suffered an injury to a spinal disk. Tests revealed that Oscar had bleeding in his brain. Oscar remained hospitalized for four to six days. Oscar did not believe that Dr. Jinn caused his injuries. 4
B. Investigating Officer
California Highway Patrol (CHP) Officer Jeremy Jarvis happened upon the scene of the collision and stopped to investigate. Officer Jarvis interviewed Oscar, Serafio, and Dr. Jinn. All three drivers said they were driving under 55 miles per hour. Oscar told Officer Jarvis that he stopped rapidly because "the car in front of him stopped suddenly." Dr. Jinn told Officer Jarvis that he was driving about 50 miles per hour, was not paying attention, and missed the transition for the 15 freeway, so he slammed on his brakes, veered to the right, and attempted to get onto the 15 freeway by "cut[ting] through the gore point." At trial, Dr. Jinn denied that he slammed on his brakes or attempted to drive through the gore point.
The gore point is the area separating two different roadways. The gore point where this collision occurred is an 80-foot triangle, which started where the exit lane to the 15 freeway split off from the 91 freeway. Driving through the gore point is illegal. Pylons placed on the borders of the gore point signaled to drivers that the gore point was inaccessible. According to Officer Jarvis, Dr. Jinn would have been unable "to maneuver through without stopping on that open lane of traffic." Officer Jarvis did not observe any skid marks created by Dr. Jinn's and plaintiffs' cars.
Officer Jarvis opined that Serafio's driving at an "unsafe speed for the prevailing conditions" in violation of Vehicle Code section 22350 was the "primary collision factor." Officer Jarvis did not believe that any other factors contributed to the collision, including Dr. Jinn's stopping in an open lane of traffic. 5
C. Accident Reconstructionist
A forensic engineer and accident reconstructionist concluded that Serafio's truck was traveling at approximately 38 miles per hour when it struck Estrada's car, which was stopped with the brakes not applied. GPS information showed that Serafio was traveling 50 miles per hour "on the approach to the collision." Serafio's following distance behind Oscar was at least 115 to 120 feet, which was "somewhat greater" than Serafio's estimate of three-car lengths. The accident reconstructionist opined that Serafio applied his brakes approximately 1.4 seconds before the collision and 3.2 seconds after Dr. Jinn braked but not immediately when Serafio noticed Dr. Jinn braking. The normal response time for braking in this circumstance is 1.2 to 1.6 seconds.
D. Trucking Safety Expert
Veryl Paul Herbert testified for plaintiffs as an expert on commercial trucking safety. According to Herbert, Serafio violated some commercial truck driving safety protocols. Serafio did not look "far enough down the road" or look at the vehicle in front of the vehicle he was traveling behind. Serafio's speed of 50 miles per hour was too fast and unsafe given various conditions, including that the lane next to him was transitioning onto a different freeway. A following distance of three car lengths at 50 miles per hour in a truck the size and weight of the one that Serafio was driving was "incredibly inadequate," unsafe, and a "far cry" from the following distance expected of commercial truck drivers.
Herbert concluded that the collision was preventable. Herbert had reviewed Officer Jarvis's testimony. Asked whether he "agree[d] with" Officer Jarvis's opinion 6 that Serafio's actions were "the primary and sole collision factor in this case," Herbert replied, "Wholeheartedly, yes." Asked whether Herbert "agree[d] with Officer Jarvis that Dr. Jinn [was] not a collision factor," Herbert testified that Dr. Jinn's "stopping in a travel lane" was a contributing factor to the collision, which Herbert did not consider an "associated" or "significant factor." Herbert elaborated that Dr. Jinn's "stopping in a travel lane may be, you know, it has to be some type of a factor but not elevated to the level of that what would be included as an associated factor or significant factor."
E. Oscar's Neurologist
Plaintiffs' neurologist, Dr. H. Ronald Fisk, M.D., underwent emergency surgery on the day he was scheduled to testify, so he was unavailable to appear at trial. Over defendants' objection, Dr. Fisk's testimony from the first trial was admitted under Evidence Code section 1291 (further unlabeled statutory citations are to this code), and his testimony at a deposition taken after that trial was admitted under Code of Civil Procedure section 2025.620.
At a hearing on the matter, the court reserved ruling on whether the deposition testimony was admissible. The parties have not provided a citation to the record for the trial court's ruling on the issue. The deposition testimony was admitted, however, and the parties do not dispute that it was admitted under Code of Civil Procedure section 2025.620.
At the first trial, Dr. Fisk testified that he had first evaluated Oscar several months after the collision. On the basis of that evaluation and Oscar's medical records, Dr. Fisk concluded that Oscar suffered from several injuries to his brain, including a moderate traumatic brain injury with a moderate-to-severe injury to the right frontal lobe. Dr. Fisk 7 opined that the functioning of Oscar's brain would worsen over time and that Oscar's brain would age "significantly faster" than it would have without the injury. Dr. Fisk expected to see problems affecting Oscar's daily activities starting in Oscar's 50s and 60s. Dr. Fisk had reviewed the "neurological aspects of the life care plan" prepared for the first trial and agreed with it. (The contents of that life care plan were not related during Dr. Fisk's testimony, and the parties have not indicated whether it was otherwise admitted at the second trial.)
Dr. Fisk evaluated Oscar twice after the first trial. In a deposition taken before the second trial, Dr. Fisk testified that the "fundamental opinion" he offered at the first trial had "changed in a major way." When he testified at the first trial, Dr. Fisk explained that he was not certain about what Oscar's "future held in terms of a need for daily care." After evaluating Oscar two more times following the first trial, Dr. Fisk believed to a reasonable degree of medical probability that Oscar would "more likely than not" "require 24/7 care" beginning at age 60.
F. Plaintiffs' Other Evidence About Oscar's Medical Condition and Future Needs
Dr. Marcel Ponton, Ph.D., a clinical neuropsychologist, reviewed Oscar's medical records and conducted neuropsychological tests to assess Oscar's cognitive functioning. On the basis of those test results and imaging of Oscar's brain, Dr. Ponton diagnosed Oscar with a diffuse, moderate-to-severe traumatic brain injury, a mild neurocognitive disorder, a pain disorder with chronic pain, and a mood disorder. Dr. Ponton opined that the damage is permanent and that the injuries will accelerate the aging process of Oscar's brain. Oscar will require lifetime neurocognitive therapy. 8
Oscar's neuropsychiatrist testified that he had concluded to a reasonable degree of medical certainty that starting around the age of 60 Oscar would "really need more help" and could "end up in more of a residential program because of his problems."
G. Defendants' Witnesses
Defendants called only the following witnesses to testify: a clinical neuropsychologist, a neurologist, a psychiatrist, a physician certified in brain injury medicine, a life care planner, and an economist. Defendants' medical experts testified that Oscar suffered from a mild-to-moderate traumatic brain injury. They also testified that Oscar would require ongoing care throughout his lifetime but not fulltime daily care.
H. The Verdict and Postjudgment Proceedings
The jury returned a special verdict finding that Win Distribution and Serafio were negligent and that their negligence was a substantial factor in causing plaintiffs' harm. The jury was instructed that Dr. Jinn was negligent and found that his negligence was not a substantial factor in causing harm to plaintiffs.
The jury awarded $9,956,719 total damages to Oscar, comprising economic damages of $4,656,719 (approximately $500,000 for past loss and over $4 million for future loss) and noneconomic damages of $5.3 million ($800,000 for past loss and $4.5 million for future loss). The jury awarded $1 million to Cristal in noneconomic damages, and a total of $85,000 to both children. Dr. Jinn had settled before trial, and the trial court reduced Oscar's economic damages by $47,000 to account for his portion of that settlement. Cristal agreed to reduce her future damages award to avoid a new trial. 9
The trial court awarded plaintiffs $79,198 in attorney fees under Code of Civil Procedure section 2033.420, finding that defendants did not have a reasonable belief that they would prevail at trial as to certain issues raised in plaintiffs' requests for admissions. Plaintiffs filed a memorandum of costs, which defendants moved to tax. The trial court granted the motion in part and denied it in part, awarding plaintiffs $188,057.53 in ordinary costs. With the award of costs, the court concluded that Oscar's judgment exceeded his $10 million offer of compromise under Code of Civil Procedure section 998 and awarded him $366,976.42 in expert witness fees and $2,072,704.10 in prejudgment and postjudgment interest.
DISCUSSION
A. Investigating Officer's Testimony on Causation
Defendants argue that the trial court abused its discretion by admitting Officer Jarvis's testimony on the cause of the collision because the subject matter "was well within the province of the jury." We conclude that any error was harmless.
A judgment shall not be set aside for the erroneous admission of evidence "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13; § 353.) "'In civil cases, a miscarriage of justice should be declared only when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] In making this assessment 'we are not to look to the particular ruling complained of in 10 isolation, but rather must consider the full record in deciding whether a judgment should be set aside.' [Citation.] 'The appellant bears the burden of establishing that the error was prejudicial.'" (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 799.)
Assuming for the sake of argument that the trial court abused its discretion by allowing Officer Jarvis to testify about the cause of the collision, defendants have failed to carry their burden of demonstrating that it was reasonably probable that the jury would have reached a more favorable result absent the admission of that testimony. Defendants claim that the admission of Officer Jarvis's testimony was prejudicial for several reasons: (1) In plaintiffs' counsel's opening statement, counsel previewed what Officer Jarvis's testimony on causation would be; (2) Herbert (plaintiffs' trucking safety expert) purportedly testified that "he relied on Officer Jarvis's testimony that the primary and sole collision factor was Serafio's actions and that [Dr. Jinn] was not a factor"; and (3) it is reasonably probable that absent Officer Jarvis's testimony the jury would have reached a different result on the basis of Serafio's testimony, which defendants claim supports "a finding that [Dr. Jinn], not Serafio, was the cause of the accident."
None of those arguments demonstrates prejudice, because defendants mischaracterize Herbert's testimony. Herbert never stated that he relied on Officer Jarvis's testimony in any way. Instead, Herbert testified that he had reviewed Officer Jarvis's testimony in the case. Herbert was then asked if he agreed with Officer Jarvis's opinion that Serafio's actions were "the primary and sole collision factor" to which he responded, "Wholeheartedly, yes." Herbert's testimony demonstrates that on the basis of 11 his own independent assessment and analysis he believed that Serafio was the primary cause of the collision, not that he used Officer Jarvis's opinion in forming his opinion. Herbert thus provided an expert opinion wholly independent of Officer Jarvis's opinion that Serafio was "the primary and sole collision factor."
Defendants do not explain how it might be reasonably probable that the jury would have reached a different result absent Officer Jarvis's testimony on causation even though the record contains Herbert's independent expert testimony that Serafio was the primary cause of the collision. Nor can we imagine such an explanation, particularly given the other evidence supporting the same conclusion: Oscar was able to come to a complete stop behind Dr. Jinn without leaving skid marks; Serafio admitted that he did not brake immediately upon noticing Dr. Jinn's brakes; the accident reconstructionist concluded that Serafio braked later than is normal under the circumstances; and a percipient witness testified that Serafio was traveling much faster than surrounding traffic and was not slowing down. In addition, defendants did not present any evidence on causation.
Given the independent expert testimony that Serafio caused the collision, the other evidence that Serafio alone caused the collision, and the lack of any countervailing evidence on causation presented by defendants, we conclude that defendants have failed to carry their burden of demonstrating that they were prejudiced by the admission of Officer Jarvis's testimony on causation. 12
B. Dr. Fisk's Unavailability at the Second Trial
Defendants argue that the trial court abused its discretion by admitting Dr. Fisk's testimony from both the first trial and a deposition taken after the first trial. We conclude that the arguments lack merit.
1. Relevant Proceedings
When Dr. Fisk became unavailable to testify because of a medical emergency, plaintiffs orally moved to admit Dr. Fisk's testimony from the first trial and from his deposition taken after that trial. Defendants objected to the admission of any of Dr. Fisk's prior testimony. As to the prior trial testimony, Defendants argued that the testimony was inadmissible under section 1291 because Dr. Fisk's opinion about Oscar's need for future care changed after the trial, so defendants did not have a meaningful opportunity to cross-examine Dr. Fisk on that opinion during the first trial. Defendants argued that Dr. Fisk's deposition testimony was inadmissible under section 1291 and Code of Civil Procedure section 2025.620 on the ground that defendants did not have a meaningful opportunity to cross-examine Dr. Fisk during his deposition, because that is not the purpose of an expert deposition.
The trial court rejected defendants' arguments and found the prior trial testimony admissible under section 1291 and the deposition testimony admissible under Code of Civil Procedure section 2025.620. In rejecting defendants' argument about the prior trial testimony, the trial court acknowledged that Dr. Fisk's "opinions may have been slightly different in the previous trial, and the issues may have been slightly different." The court 13 nevertheless found that the differences were not "meaningful" and concluded that the testimony was admissible because "it's the same trial" with "the same issues."
2. Prior Trial Testimony of Dr. Fisk
Section 1291 provides that "former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness" and "[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing." (§ 1291, subd. (a)(2).) "'[A] determination of similarity of interest and motive . . . should be based on practical considerations and not merely on the similarity of the party's position in the two cases.'" (Wahlgren v. Coleco Industries, Inc. (1984) 151 Cal.App.3d 543, 546 (Wahlgren).) We review for abuse of discretion the trial court's determination of whether there existed a similarity of interest and motive to cross-examine in the two proceedings. (People v. Sanders (1995) 11 Cal.4th 475, 525 (Sanders).)
Defendants appear to make two arguments against the admissibility of Dr. Fisk's testimony from the first trial. First, defendants argue that they did not have a meaningful opportunity to cross-examine Dr. Fisk at the first trial because they could not then cross-examine him on the changed opinions he later expressed at his deposition. Second, defendants argue that because Dr. Fisk's opinions changed after the first trial, they did not have a similar interest and motive to cross-examine him at the two trials-their interest and motive at the second trial was to discredit Dr. Fisk's new opinions, which did not exist at the time of the first trial. 14
Both arguments lack merit. First, at the first trial defendants had a full opportunity to cross-examine Dr. Fisk on his then-existing opinions. Section 1291 does not require that defendants also be given, at the first trial, an opportunity to cross-examine Dr. Fisk on opinions that he did not yet hold, and defendants cite no authority to the contrary. Dr. Fisk's later development of different opinions does not show that defendants were given an inadequate opportunity to cross-examine him at the first trial on the opinions he held at that time. Second, defendants' interest and motive at both trials was the same, namely, to discredit Dr. Fisk's opinions in order to minimize their liability.
Sanders, supra, 11 Cal.4th 475, on which defendants rely, is not to the contrary. In that case, the Supreme Court held that prior testimony from a suppression hearing was properly excluded at trial because the People's interest and motive at trial were to attack the witness's veracity, but the People's interest and motive at the suppression hearing concerned only whether law enforcement had relied in good faith on the information provided by the witness, independent of its truth. (Id. at pp. 525-526.) There was no such shift in motive from the first trial to the second trial in this case. At both trials, defendants' interest and motive was to attack Dr. Fisk's credibility and to discredit his opinions. 15
Defendants also cite Wahlgren, supra, 151 Cal.App.3d 543. It too fails to support defendants' arguments, because its analysis was based on the difference in interest and motive between deposition and trial. (Id. at pp. 546-547.) It consequently has no tendency to show that Dr. Fisk's testimony from the first trial should not have been admitted at the second trial under section 1291.
Given the similar interest and motive that defendants had at both trials, and given that defendants had a full opportunity to cross-examine Dr. Fisk at the first trial, we conclude that the trial court did not abuse its discretion by admitting the prior trial testimony of Dr. Fisk.
3. Deposition Testimony of Dr. Fisk
We review for abuse of discretion the trial court's admission of the posttrial deposition testimony of Dr. Fisk under Code of Civil Procedure section 2025.620. (Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 265-266.) The statute provides that at trial "any part or all of a deposition may be used against any party who was present or represented at the taking of the deposition" if certain conditions are met and the testimony is otherwise admissible under the rules of evidence. (Code Civ. Proc., § 2025.620, subd. (a).) It further provides that "[a]ny party may use for any purpose the deposition of any person or organization, including that of any party to the action," if the trial court finds that the deponent is unavailable to testify at trial as a result of a physical illness. (Code Civ. Proc., § 2025.620, subd. (c)(2)(C).)
Defendants argue that the court's "ruling ignored the fundamental difference between depositions of fact witnesses and of experts," because "[w]hen deposing fact witnesses, a party's objective is to obtain testimony and admissions that may be used in trial, . . . but when deposing expert witnesses, the goal is to 'expose the opponent[']s theory of the case, and how well [the] expert can present it.'"
Defendants' argument fails because Code of Civil Procedure section 2025.620 does not distinguish between fact witnesses and expert witnesses, and defendants cite no 16 authority for the proposition that it should be applied as if it did. When interpreting a statute to determine the Legislature's intent, we look first to the language of the statute. (Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1147 (Olson).) "'If the statute's text evinces an unmistakable plain meaning, we need go no further.'" (Ibid.)
The plain language of Code of Civil Procedure section 2025.620 draws no distinction between lay witnesses and expert witnesses. Rather, the statute allows the "deposition of any person" to be used for "any purpose" if the trial court finds the deponent unavailable to testify at trial because of a physical illness. (Code Civ. Proc., § 2025.620, subd. (c).) "[A]ny person" necessarily encompasses any type of witness (ibid.), lay (or "fact") or expert. We need look no further than the statute's text because it "'evinces an unmistakable plain meaning.'" (Olson, supra, 42 Cal.4th at p. 1147.)
Defendants argue that we should look beyond the plain language of the statute to "other relevant statutory construction rules," such as looking at other provisions of the Civil Discovery Act that distinguish between lay and expert witnesses. While it is true that "the 'plain meaning' rule does not prohibit a court from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute" (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735), defendants do not cite any specific statutory provisions that create an inconsistency. Moreover, as our Supreme Court has explained, "the requirement that courts harmonize potentially inconsistent statutes when possible is not a 17 license to redraft the statutes to strike a compromise that the Legislature did not reach." (State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 956.)
Because the clear and unambiguous language of section 2025.620 of the Code of Civil Procedure applies to expert witnesses, we conclude that the trial court did not abuse its discretion by admitting Dr. Fisk's deposition testimony at trial after the trial court determined that Dr. Fisk was unable to appear at trial as the result of a physical illness.
C. Cross-Examination of Dr. Ponton
Defendants argue that the trial court abused its discretion by not allowing cross-examination of Dr. Ponton concerning Oscar's medical records on which Dr. Ponton relied in reaching his opinion. We conclude that defendants have not carried their burden of demonstrating that the alleged error was prejudicial.
On direct examination, Dr. Ponton testified that he was aware that Oscar had received treatment at a neurocognitive treatment center called Learning Services. Dr. Ponton acknowledged that Oscar had benefitted from neurocognitive therapy in general and had done "very well" at Learning Services in learning new strategies to cope with the cognitive aspect of his injury. On redirect examination, he noted that the reports from Learning Services indicated that Oscar was improving and getting better. But he added that the reports were consistent with Oscar's general pattern of initially showing improvement and then declining over time, which is why Dr. Ponton opined that every doctor recommended that Oscar needed "a lifetime of care."
On cross-examination, defendants asked Dr. Ponton whether the Learning Services records stated that Oscar was performing at an exemplary level on a particular 18 date. Plaintiffs' counsel objected to the question as eliciting case-specific hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665, 676 (Sanchez). The trial court heard argument from the parties outside of the presence of the jury. The trial court determined that it was bound by People v. Malik (2017) 16 Cal.App.5th 587, 596-598 (Malik), which held that Sanchez applies to the cross-examination of an expert. The trial court explained: "[I]f you're going to impeach with case specific hearsay as opposed to, say, a treatise, you're going to have to prove it up," that is, "prove up the underlying fact." When defendants resumed questioning Dr. Ponton, they asked if on another specified date the records from Learning Services indicated that Oscar had reported to Learning Services how well he was doing controlling his irritability. The trial court sustained plaintiffs' hearsay objection to the question. Defendants did not attempt to admit Oscar's Learning Services records or other medical records.
In Sanchez, our Supreme Court held: "When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert's opinion, the statements are hearsay." (Sanchez, supra, 63 Cal.4th at p. 686.) Case-specific hearsay statements may not be related by an expert "unless they are independently proven by competent evidence or are covered by a hearsay exception." (Ibid.) Malik held that the Sanchez rule applies to cross-examination of expert witnesses. (Malik, supra, 16 Cal.App.5th at pp. 597-598.)
We may not reverse a judgment on the basis of the erroneous exclusion of evidence unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; § 354.) "'A miscarriage of justice . . . occurs . . . when it appears reasonably probable 19 that were it not for the error a result more favorable to the appellant could have been obtained.' [Citation.] 'Prejudice is not presumed and the burden is on the appellant to show its existence.'" (Candelaria v. Avitia (1990) 219 Cal.App.3d 1436, 1444.)
Defendants argue that case-specific hearsay on which an expert witness relied should be admissible on cross-examination to impeach the witness, and defendants attempt to distinguish or otherwise limit Malik. We need not decide whether defendants' argument is sound, because even assuming that the trial court abused its discretion by prohibiting defendants from using case-specific hearsay to cross-examine Dr. Ponton, defendants have not carried their burden of demonstrating prejudice.
Defendants' entire argument concerning prejudice consists of a single paragraph, in which defendants contend that "[h]ad [defendants] been provided the opportunity to cross-examine Dr. Fisk regarding his updated and altered opinions, and been able to demonstrate that Dr. Ponton's opinions were contradicted by the very documents on which he relied, they might very well have 'destroyed' those experts in front of the jury, who then would have rejected the majority of [plaintiffs'] damages: [Oscar's] future medical care." Defendants do not argue that the alleged error in limiting cross-examination of Dr. Ponton was prejudicial on its own. Rather, they argue that, taken together, the alleged errors in admitting Dr. Fisk's prior testimony and limiting cross-examination of Dr. Ponton were prejudicial. But we have already concluded that the trial court did not err by admitting Dr. Fisk's prior testimony. Defendants' sole argument concerning the prejudicial impact of the limitation on cross-examination of Dr. Ponton therefore fails. 20
D. Motion to Tax Costs
After closing arguments in the first trial, the trial court granted defendants' motion for a mistrial on the ground that plaintiffs' counsel had violated a court order by referring in closing argument to plaintiffs' settlement with Dr. Jinn and telling the jury that any amount awarded to plaintiffs from defendants would be set off against that settlement. After the second trial, defendants moved under Code of Civil Procedure section 128.5 for attorney fees and the costs of the first trial as a sanction against plaintiffs and their counsel for the conduct that caused the mistrial. The judge who presided over the first trial denied the request for sanctions, finding that plaintiffs' counsel's conduct was not frivolous or undertaken in bad faith. The court explained that plaintiffs' counsel's remarks during closing argument were "taken in response to the perception that defendants were making an argument regarding the Jinn settlement/Jinn liability. It was not for a purpose justifying sanctions."
Because the mistrial resulted from plaintiffs' counsel's remarks, defendants argue that plaintiffs should not have been allowed to recover the costs of both trials. At one point in their opening brief, defendants appear to suggest that plaintiffs should not recover costs from the first trial, but ultimately defendants' position is that plaintiffs can recover costs from one trial or the other but not both: "The pre- or post-mistrial costs must be deducted; [plaintiffs] cannot recover both." We conclude that the trial court did not err. 21
1. Relevant Proceedings
After the second trial, plaintiffs filed a memorandum of costs, seeking costs totaling approximately $2.5 million. Plaintiffs requested expert fees and prejudgment interest for Oscar because he obtained a more favorable judgment than his $10 million pretrial offer to compromise under section 998 of the Code of Civil Procedure, which defendants had refused. Defendants moved to tax costs (Cal. Rules of Court, rule 3.1700(b)), arguing that the costs incurred after the first trial were not reasonably necessary to the conduct of the litigation under Code of Civil Procedure section 1033.5, because the first trial would have been the only trial if plaintiffs' counsel had not committed misconduct during closing argument. Relying on Mullin v. Rousseau (1931) 112 Cal.App. 719 (Mullin), defendants argued in the alternative that plaintiffs were not entitled to the costs incurred before and during the first trial, because of the mistrial.
The trial court granted in part and denied in part defendants' motion. The court was not aware of any authority for defendants' argument that, because of the mistrial, plaintiffs could not recover the costs of the second trial. The court further concluded that plaintiffs could recover costs from the first trial as well because, unlike in Mullin, defendants were not awarded the costs of the first trial to penalize plaintiffs for their attorney's conduct.
2. Analysis
"The right to recover any of the costs of a civil action 'is determined entirely by statute.'" (Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1014.) In general, unless otherwise provided by statute, "a prevailing party is entitled as a matter of 22 right to recover costs in any action or proceeding." (Code Civ. Proc., § 1032, subd. (b).) Section 1033.5 of the Code of Civil Procedure lists the costs that are allowable and not allowable under Code of Civil Procedure section 1032. (Code Civ. Proc., § 1033.5, subds. (a), (b).) "Allowable costs shall be reasonable in amount" and "reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation." (Code Civ. Proc., § 1033.5, subd. (c)(2)-(3).) Items not specifically mentioned in section 1033.5 "may be allowed or denied in the court's discretion." (Code Civ. Proc., § 1033.5, subd. (c)(4).)
A party seeking to challenge the costs claimed by the prevailing party may move to strike or tax costs. (Cal. Rules of Court, rule 3.1700(b).) "In ruling upon a motion to tax costs, the trial court's first determination is whether the statute expressly allows the particular item and whether it appears proper on its face." (Foothill-De Anza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 29-30.) We analyze whether a party whose counsel's misconduct resulted in a mistrial but prevailed at a second trial can recover costs from both trials. This presents a question of law on undisputed facts, which we independently review. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1374.)
Defendants argue that "[c]osts incurred due to attorney misconduct are not reasonably necessary because misconduct implies dishonest, deceptive or reprehensible conduct." The argument fails because the judge who presided over the first trial determined that plaintiffs' counsel's conduct was not dishonest, deceptive, or reprehensible-it was an honest mistake. 23
Defendants reliance on Mullin, supra, 112 Cal.App. 719, is similarly misplaced. In both Mullin and the present case, the plaintiff prevailed at a second trial after the first trial resulted in a mistrial because of misconduct by the plaintiff's counsel. (Id. at pp. 721, 730-731.) Costs for both trials were awarded to the plaintiff after she prevailed at the second trial, and the defendants' motion to tax costs from the first trial was denied. (Id. at pp. 730-731.) But in Mullin the costs of the first trial had already been charged to the plaintiff after the first trial as a penalty for the attorney's misconduct. (Ibid.) The subsequent award of the costs of the first trial to the plaintiff after she prevailed at the second trial therefore operated as an order reconsidering the prior costs award, which the appellate court concluded was improper. (Id. at p. 731.)
As the trial court here correctly concluded and plaintiffs argue on appeal, Mullin, supra, 112 Cal.App. 719 is inapposite because the costs of the first trial were never awarded to defendants as a penalty for plaintiffs' counsel's conduct. On the contrary, after the second trial, the judge who presided over the first trial denied defendants' request for sanctions. Because the trial court never sanctioned plaintiffs (or their counsel) by awarding defendants costs for the first trial, the order awarding plaintiffs costs for both trials did not amount to reconsideration of a previous order.
None of the authorities that defendants cite supports the proposition that the trial court erred by awarding plaintiffs the costs of both trials, even though the first trial resulted in a mistrial because of plaintiffs' counsel's conduct. We consequently conclude that the trial court did not err by denying defendants' motion to tax costs of either the first or the second trial. Because we reach this conclusion, we need not address defendants' 24 argument that once the costs of one of the trials are deducted, plaintiffs cannot recover expert witness fees and prejudgment interest.
DISPOSITION
The judgment is affirmed. Plaintiffs shall recover their costs of appeal.
We concur: SLOUGH Acting P. J. RAPHAEL J. 25