Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV816783
RUSHING, P.J.
Plaintiff Domenica Gonzalez-Lewis brought this action for damages for personal injuries, alleging that defendant Tan Lines, a business organization of unknown form, caused her to contract herpes. The jury returned a verdict for defendant, finding that plaintiff had failed to establish that defendant’s conduct was a cause of injury to plaintiff. On appeal plaintiff contends that the court erred by excluding expert testimony in her support, by admitting evidence that she had formerly contracted Chlamydia, by permitting the jury to determine the effect of a written release, and by failing to instruct the jury on certain points. We detect no prejudicial error, and affirm the judgment.
Although defendant’s precise capacity was apparently never pleaded, we note the testimony of one Alex Lesetar that he was at the time of the events in question, though no longer, “the owner of Tan Lines.” Asked whether he had “since formed a corporation,” he replied, “No. I sold the salon.” This suggests to us that the business was a sole proprietorship, and Tan Lines probably a fictitious business name.
BACKGROUND
On May 1, 2003, plaintiff filed her complaint alleging that on May 1, 2002, defendant “negligently maintained [its] tanning booth and negligently administered tanning treatment to Plaintiff resulting in Plaintiff suffering personal injuries.” Antoinette McGill appeared on the complaint as plaintiff’s attorney of record. Defendant answered with a general denial and several affirmative defenses. At some point Ms. McGill apparently withdrew as counsel, leaving plaintiff to appear in propria persona. On April 20, 2006, Attorney Michael Morrissey filed a written substitution of attorney, constituting himself plaintiff’s counsel of record.
Apparently the injuries actually occurred on May 2, 2002.
The matter went to trial on the theory that defendant injured plaintiff when, as a customer of its tanning salon, she was overexposed to ultraviolet rays in the gluteal region and infected in the same region, as she contended, with the herpes virus. After proceedings described more fully below, the jury returned a special verdict finding that defendant was negligent, but that defendant’s negligence was not a substantial factor in causing harm to plaintiff. The jury answered “Not Applicable” to the remaining questions, including the existence and applicability of “an agreement before the incident that plaintiff would not hold defendant responsible for plaintiff’s damages.” The court entered judgment on May 11, 2006. Plaintiff filed this timely appeal on July 10, 2006.
I. Exclusion of Expert Testimony
A. Background
At trial defendant moved to exclude any expert testimony plaintiff might offer. The basis for the motion was that plaintiff had failed to comply with the statutory requirements for disclosure of expert witnesses in that (1) defendant had served a demand to exchange designations of expert witnesses, under which plaintiff was required to designate experts by March 6, 2006; (2) although plaintiff’s designation bore a proof of service stating that it was served on March 6, the envelope was postmarked a week later, i.e., March 13, 2006; (3) Attorney Morrissey, who served the designation, was not then plaintiff’s attorney of record; and (4) the designation omitted the declaration required by Code of Civil Procedure section 2034.260 (§ 2034.260), subdivision (c).
The trial court granted the motion on three grounds: (1) Plaintiff’s designation dated March 6, 2006, was “a nullity because it was served by someone admittedly not counsel of record at the time,” (2) it was “incomplete and not compliant with Code of Civil Procedure § 2034.260(c),” and (3) it was “untimely pursuant to Code of Civil Procedure §§ 2034.010 et seq. and 1013(a)(3)(G).” Accordingly, the court ruled, plaintiff was “precluded from introducing evidence or testimony from any expert witnesses at trial, retained [or] unretained.”
B. Service by Counsel Not Yet of Record
In attacking and defending this ruling, the parties devote most of their attention to the court’s first ground, i.e., that plaintiff’s expert designation was a “nullity” because Attorney Morrissey had not formally substituted himself into the action as plaintiff’s counsel of record. We do not believe this is the strongest of the three legs on which the ruling stands. Defendant cites no case concerning service of a designation of experts, or similar notice, by an attorney who has neglected to file a substitution of counsel and thereby formally make himself counsel of record in place of his client in pro per. The cases cited by defendant are concerned with the power of an attorney other than counsel of record to appear for a party. (Wells Fargo & Co. v. City and County of San Francisco (1944) 25 Cal.2d 37, 42-43 [trial court properly entered judgment on application of attorney who was associated by counsel of record and who referred to self as “ ‘one of the attorneys for plaintiff’ ”]; Epley v. Califro (1958) 49 Cal.2d 849, 853-854 (Epley) [in absence of substitution of attorneys, answer filed by attorney defendant ostensibly for himself and other defendants, after a law firm had appeared for all defendants, was presumptively unauthorized as to other defendants, such that action against those defendants was properly dismissed for want of prosecution].) Moreover, as defendant concedes, more recent decisions have retreated from, or as defendant says, “carved exceptions to,” the notion that an improperly substituted attorney is powerless to act for a party. Unfortunately, counsel for defendant alludes to these cases while declining to cite them. Presumably they include Baker v. Boxx (1991) 226 Cal.App.3d 1303, 1308, where the defendants argued that service of process on them was ineffective because the served pleading, an amended complaint, had been filed by an attorney not formally substituted into the action as counsel of record. In refusing to apply the doctrine invoked here by defendant, the court wrote, “Where the actual authority of the new or different attorney appears, courts regularly excuse the absence of record of a formal substitution and validate the attorney’s acts, particularly where the adverse party has not been misled or otherwise prejudiced. (E.g., Crocker National Bank v. O’Donnell (1981) 115 Cal.App.3d 264, 268-269, . . . [terming failure to file substitution a ‘technical objection’]; In re Marriage of Warner (1974) 38 Cal.App.3d 714, 719-720 . . .; Carrara v. Carrara (1953) 121 Cal.App.2d 59, 62, . . . [irregularity in substitution does not oust jurisdiction].)” (Id. at p. 1309.) The court went on to distinguish Epley, supra, 49 Cal.2d 849, and explicitly repudiate the proposition, seemingly adopted by the court below, that “a new attorney’s failure to file a substitution of attorneys will irrevocably disempower—in respondents’ term, render ‘a nullity’—the pleadings he files.” (Id. at p. 1310.)
Defendant justifies this failure on the rationale that reliance on those cases would constitute a “new argument” which plaintiff, not having cited them in her brief, cannot now assert. But an appellant does not offer “new argument” merely by citing authority contrary to a respondent’s position. Indeed, a respondent’s (or other party’s) own failure to cite known, arguably controlling adverse authority is at best questionable conduct, and at worst a breach of professional ethics. (See Rules Prof. Conduct, rule 5-200; Schaefer v. State Bar of California (1945) 26 Cal.2d 739, 747-748; Southern Pacific Transp. Co. v. Public Utilities Com’n. (9th Cir. 1983) 716 F.2d 1285, 1291, quoting Code of Professional Responsibility DR 7-106(B)(1) [“ ‘In presenting a matter to a tribunal, a lawyer shall disclose . . . legal authority in the controlling jurisdiction known to him to be directly adverse to the position of his client and which is not disclosed by opposing counsel.’ ”]; Amer. Bar Assn., Model Rules of Professional Conduct, rule 3.3(a)(2) [to same effect].)
Defendant asserts that these cases do not apply here because the conduct of plaintiff’s counsel was prejudicial to defendant. We fail to see how. Defendant complains that it received plaintiff’s expert designation too near the trial date and discovery cutoff to depose experts designated by plaintiff. To the extent this is true, it is attributable to tardiness, not to the absence of a formal substitution of attorneys. Defendant asserts that the problems caused by tardiness “were exacerbated by the service of a ‘disclosure’ by previously unknown counsel.” This is a mere abstraction thinly clothed in rhetoric that lends it, at best, an illusion of substance. We need not linger over the question, however, for the court’s ruling is readily sustained on the trial court’s stated alternative ground: that the designation was not in fact served within the time allowed.
C. Untimeliness
Code of Civil Procedure section 2034.210 (§ 2034.210) authorizes any party to “demand[] that all parties simultaneously exchange information concerning each other’s expert trial witnesses . . . .” The demand must specify a date of exchange “50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date . . . .” (Code Civ. Proc., § 2034.230, subd. (b).) All parties must exchange expert designations on or before this date, either at a meeting of their attorneys, “or by a mailing on or before the date of exchange.” (§ 2034.260, subd. (a).) The designation shall either list all persons whose expert opinion the designating party expects to offer at trial, or state that the party does not intend to offer any expert testimony. (Code Civ. Proc., § 2034.260, subd. (b).) Subject to specified exceptions, if a party unreasonably fails to designate a witness as an expert, the trial court shall, “on objection of any party who has made a complete and timely compliance with Section 2034.260, . . . exclude from evidence the expert opinion of [the undesignated] witness . . . .” (Code Civ. Proc., § 2034.300.) However, a party who has failed to make timely disclosure may move for “leave to submit that information on a later date.” (Code Civ. Proc., § 2034.710, subd. (a); see Code Civ. Proc., § 2034.300.)
Here the trial court was entitled to find that plaintiff did not serve a designation of expert witnesses on or before the disclosure deadline of March 6, 2006. The service was purportedly accomplished by mail, as reflected in a “proof of service by mail” patterned after Code of Civil Procedure section 1013a, subdivision (3) (§ 1013a(3)). We accept plaintiff’s contention that a declaration conforming to that provision gives rise to a presumption of valid service by mail. However, we cannot accept plaintiff’s contention that this presumption was dispositive here.
Code of Civil Procedure section 1013a provides in part, “Proof of service by mail may be made by one of the following methods: [¶] . . . [¶] (3) An affidavit setting forth the exact title of the document served and filed in the cause, showing (A) the name and residence or business address of the person making the service, (B) that he or she is a resident of, or employed in, the county where the mailing occurs, (C) that he or she is over the age of 18 years and not a party to the cause, (D) that he or she is readily familiar with the business’ practice for collection and processing of correspondence for mailing with the United States Postal Service, (E) that the correspondence would be deposited with the United States Postal Service that same day in the ordinary course of business, (F) the name and address of the person served as shown on the envelope, and the date and place of business where the correspondence was placed for deposit in the United States Postal Service, and (G) that the envelope was sealed and placed for collection and mailing on that date following ordinary business practices. Service made pursuant to this paragraph, upon motion of a party served, shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit.”
To begin with, the proof of service did not comply with section 1013a because it was not signed. To trigger the presumption invoked by plaintiff requires an “affidavit” reflecting service. (§ 1013a(3).) An affidavit is “a written declaration under oath.” (Code Civ. Proc., § 2003.) To be “under oath” for these purposes requires that the document be accompanied by the certification of a notary public that the affiant appeared before him and swore to the truth of the document. (See Palm Springs Alpine Estates, Inc. v. Superior Court (1967) 255 Cal.App.2d 883, 888.) In lieu of this requirement, any matter required to be shown by affidavit may be established with “like force and effect” by “the unsworn statement, declaration, verification, or certificate, in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her,” and states the date and place of execution, or the date of execution and that it is made under the laws of the State of California. (Code Civ. Proc., § 2015.5.) The statute expressly contemplates that the certification under penalty of perjury will be followed by the declarant’s signature. (Ibid.)
Here the proof of service bears no signature, but only the symbol “/s/.” In our experience this symbol is typically used on a copy of a document to signify that the original has been signed. When such a copy is questioned, and the signature is essential to the document’s effectiveness, the proponent must obviously come forward with the original, or a signed copy. Here no signed copy was ever made part of the record. The common meaning of “signature” in this context is “[t]he name (or special mark) of a person written with his or her own hand as an authentication of some document or writing.” (15 Oxford English Dict. (1989), p. 456.) California law used to define the term similarly, i.e., “any name, mark, or sign, written with intent to authenticate any instrument or writing.” (Former Code Civ. Proc., § 17, subd. (1), as enacted 1872.) In 1903 the statute was amended to omit the reference to “name” and “sign,” but also to limit the circumstances in which a “mark” constituted a valid signature. (Stats. 1903, ch. 123, § 1, p. 134.) The code presently provides, “[S]ignature or subscription includes mark, when the person cannot write, his or her name being written near it by a person who writes his or her own name as a witness; provided, that when a signature is by mark it must, in order that the same may be acknowledged or may serve as the signature to any sworn statement, be witnessed by two persons who must subscribe their own names as witness thereto.” (Code Civ. Proc., § 17, subd. (a), italics added; see Civ. Code, § 14 [same]; In re Moore’s Estate (1949) 92 Cal.App.2d 120, 122 [requirement that “one who cannot write may make his mark, implies that a subscription must be hand written, if the subscriber can write; otherwise he may make his mark. But whoever witnesses the mark must himself write the name of the maker of the mark, as well as his own name as witness. No other exception is provided.”].)
Some confirmation of this usage appears in guidelines concerning the electronic storage of documents in courts or agencies in other jurisdictions. (See Signature Demonstration Symbol [as of Sept. 6, 2007]; In the Matter of Electronic Filing in Designated Civil Matters, Maricopa County Superior Court, Administrative Ord. No. 2005-091, p. 3 [as of Sept. 6, 2007]; Ord. of March 21, 2002, in United States v. Hamdi (E.D.Va.) Criminal No. 01-455-A, p. 2 [as of Oct. 17, 2007].)
Defendant’s original objection to plaintiff’s designation included the observation that the proof of service was “conspicuously unsigned.” Plaintiff’s counsel has never met this objection or even acknowledged it. Without a signature, the proof of service could not trigger the presumption of valid service on which plaintiff relies for his claim of error.
Even if the proof of service bore a signature, error would not appear, because any presumption of valid service was dispelled by evidence of invalid (late) service. Presumptions fall into two classes: the conclusive and the rebuttable. (Evid. Code, § 601.) Conclusive presumptions are irrefutable and, not surprisingly, rare. (See Evid. Code, §§ 622-624.) The vast majority of presumptions are rebuttable, and these in turn are divided into two categories: those affecting the burden of production, and those affecting the burden of proof. (Evid. Code, § 601.) As will be seen, the distinction is significant because a rebuttable presumption affecting the burden of production disappears from the case upon the introduction of substantial controverting evidence. (Evid. Code, § 604.)
A presumption of valid service cannot be viewed as one affecting the burden of proof. Presumptions affecting the burden of proof must “implement some public policy other than to facilitate the determination of the particular action in which the presumption is applied, such as the policy in favor of establishment of a parent and child relationship, the validity of marriage, the stability of titles to property, or the security of those who entrust themselves or their property to the administration of others.” (Evid. Code, § 605; see Cal. Law. Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foll. § 605, p. 62 [“What makes a presumption one affecting the burden of proof is the fact that there is always some further reason of policy for the establishment of the presumption”].) Because such a presumption is based on policy rather than pragmatism or empirical experience, it may not reflect, and may even run contrary to, expected probabilities. The Law Revision Commission gives, as an example, the presumption that where a worker is injured while employed by one who has failed to secure workers’ compensation coverage, the injury is the result of the employer’s negligence. (Cal. Law. Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foll. § 605, p. 63; see Lab. Code, § 3708.) This presumption does not rest on a legislative judgment that one who fails to secure insurance is actually more likely to be negligent than one who secures it. Indeed, the contrary might be expected; certainly an uninsured employer would have a motive to take greater care than an insured one to avoid injuring his employees. But the rationale for the presumption is not experiential; it is normative and coercive. The law presumes negligence not because the absence of coverage makes it more likely, but because the employer’s failure would otherwise thwart the policy of ensuring swift and sure compensation for injured workers. (See Cal. Law. Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foll. § 605, p. 63.)
In contrast, a presumption affects the burden of production if it “implement[s] no public policy other than to facilitate the determination of the particular action in which the presumption is applied.” (Evid. Code, § 603.) Such a presumption is created to “dispense with unnecessary proof of facts that are likely to be true if not disputed.” (Cal. Law. Revision Com. com., 29B West’s Ann. Evid. Code (1995 ed.) foll. § 603, p. 57.) It typically rests on an “underlying logical inference” either that the presumed fact usually follows from the predicate facts, or that the person against whom the presumption operates is in the best position to present controverting evidence, and should be required to do so if he wishes to contest the point. (Ibid.)
Although the Evidence Code does not explicitly classify the presumption of valid service arising under section 1013a, all indications are that such a presumption affects the burden of production, not proof. It operates solely to facilitate the resolution of particular disputes and rests not on any normative or coercive rationale but upon the common sense expectation that letters placed in a mailbox, or in a reliable stream of business correspondence en route to a mailbox, will arrive shortly in the custody of postal authorities and be duly delivered by them. The presumption merely converts this common experience into a legal rule, which operates by default where there is no basis to dispute the fact and timeliness of service. Moreover, two comparable presumptions are explicitly classified as affecting the burden of production: the presumption that a letter “correctly addressed and properly mailed” is “received in the ordinary course of mail” (Evid. Code, § 641), and the presumption that facts stated by a registered process server in a return of service are true (Evid. Code, § 647). We have little doubt that the presumption invoked by plaintiff must be similarly classified.
As noted, a presumption affecting the burden of production ceases to operate when substantial evidence to the contrary is introduced. (Evid. Code, § 604 [such a presumption “require[s] the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption”].) Thus, although the factfinder always remains free to draw “any inference that may be appropriate” (ibid.), once evidence is presented supporting an inference contrary to the presumption, the presumption drops away and becomes wholly irrelevant. (See Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1481 [upon credible evidence that document was never received, presumption of receipt from mailing “ceased to exist”].)
Here, substantial evidence supported the trial court’s finding that plaintiff’s expert witness disclosure was not deposited in the United States mail on March 6, as the declaration of service recited. First and most obviously, the envelope containing the disclosure was postmarked March 13, fully a week later. This would appear sufficient by itself to “support a finding” that the presumed fact (valid service on March 6) did not exist. (Evid. Code, § 604.) Any doubt of its sufficiency is dispelled by plaintiff’s striking failure to defend its claim of valid service with any concrete evidence beyond the original declaration of service—which, as we have noted and defendant promptly pointed out, was not signed. Although plaintiff’s counsel offered various explanations for the late arrival of the letter, all but one of them were unsworn, and all of them were strikingly vague, if not evasive. In his first letter to defense counsel, Mr. Morrissey wrote as follows: “My paralegal, Tracey McCarroll, is also my wife and . . . we . . . [sometimes] work from our home office which is located in Cupertino Foothills/Santa Cruz Mountain Range. This winter we have experienced mud/landslides, downed trees, snow and other weather related problems that have caused substantial road delays and closures on the main mountain road to our house. Our mailbox is part of one of several community mailboxes on the main road to our house and is where we deposit mail for pickup when we work from our home office. I don’t know when the U.S. Postal Service picked up the mail, when it was postmarked or why there was such a delay, however, do know [sic] that it was deposited for mailing on March 6, 2006 as indicated on the proof of service.”
Indeed, section 1013a(3) provides that, “upon motion of a party served,” service under that paragraph shall be “presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained in the affidavit.” (Italics added.) Here of course the discrepancy was seven days. Plaintiff contends that the presumption of invalid service never took effect here because defendant never filed a “motion” to invoke it. The meaning of the “motion” requirement is far from self-evident, and we have found no published authority addressing it. Plaintiff assumes that it requires a motion dedicated to its invocation, but it may only require that it be expressly invoked under circumstances allowing the opposing party an opportunity to respond. Here defendant did not file a dedicated motion, but did cite the presumption in its motion to exclude expert testimony, thereby affording plaintiff ample opportunity to respond. We need not decide whether the absence of a dedicated motion precluded reliance on the presumption, because even without it the evidence was more than sufficient to dispel any presumption of valid service and to support a finding that service was not properly made within the allotted time.
As unsworn hearsay, these statements only furnished evidence to the extent that they might be offered against plaintiff. Moreover, they were remarkably inadequate as a basis for a finding of timely and proper service. Among the matters conspicuously missing were (1) a direct statement that Ms. McCarroll, or any other identified person, in fact deposited the documents in the mail on March 6; (2) a description of the “ordinary course of business” by which documents promulgated in counsel’s home office would be deposited in the mail; (3) an explanation for the absence of a sworn statement by Ms. McCarroll, or anyone else, concerning the actual mailing of the document; and (4) any concrete evidence of delayed pickups or deliveries by the postal service on that or any other particular date.
Counsel’s appellate demonstration is pervaded by reliance on his own unsworn assertions, including not only those before the trial court but those wholly outside any record properly before us. Illustrative is the following paragraph, entirely unsupported by record citations, in his opening statement of “facts”: “Domenica [i.e., plaintiff] was initially represented by Antoinette McGill. The case was originally set for trial on March 14, 2005. Just prior to the trial Domenica and Ms. McGill decided that they would go separate ways. Domenica substitute in pro per. A few months prior to the reset trial date, this writer and his colleague Robert A. Machado substituted in as Domenica’s attorneys of record. The substitution was sent to the trial court in early 2006 using a 2005 form. The clerk did not ‘officially’ file the substitution or return it, and it sits in the file. Since the file was incomplete and fearful of missing dates, this writer consulted the Santa Clara County Superior Court website to determine if there was any trial date or any other hearing dates approaching. Domenica was not receiving notices from the court as she had moved and the court only had her prior address.”
At the hearing on defendant’s motion to exclude expert testimony, counsel for plaintiff asserted for the first time—albeit at the remove of inaccurate self-attribution—that he himself had deposited the envelope in the mailbox. Thus he inaccurately paraphrased his own letter to defense counsel as saying, “[L]ook, I dropped it in the mailbox at the end of our street, we did have heavy rains, maybe something happened, I don’t know.” Had anyone ever stated under penalty of perjury, “I dropped it in the mailbox” on a specified date, a more difficult case would be presented. So far as we can discern, however, no such sworn statement was placed before the trial court. The only statement offered on plaintiff’s behalf under oath appears to be the declaration of counsel in opposition to defendant’s motion to exclude expert testimony. It contains such ringing hearsay equivocations as, “In response to [defense counsel’s] letter I wrote to them . . . explaining that it was possible that a pickup from a mail depository could have been late,” and that in a subsequent letter, “I reiterated the possibility that the mail may have been delayed . . . .”
In view of these facts we can detect no error in the trial court’s finding that plaintiff did not make a timely disclosure of experts.
D. Unreasonableness
Plaintiff notes that to justify an order precluding expert testimony, it must appear not only that the party failed to make timely disclosure, but that he did so “unreasonably.” (Code Civ. Proc., § 2034.300.) She suggests that any failure in this respect was not “unreasonable” because she “had been in pro per for a number of months,” she “had moved,” and defendant “did not serve her at her new address.” She also offers the assertion that she had “just found an attorney.” The trial court did not abuse its discretion in finding, as it impliedly did, that any failure by her and her new attorney to receive timely actual notice of the demand to designate experts was the result of their own unreasonable neglect in failing to keep the court and defendant apprised of a current address.
Counsel for plaintiff has also repeatedly cited the statement in his second letter to defendant’s counsel, “If you still object or require additional information, please let me know so that we can remedy this situation by motion prior to the trial.” This was an apparent allusion to the provision empowering a party who has failed to make timely disclosure to move for “leave to submit that information on a later date.” (Code Civ. Proc., § 2034.710, subd. (a); see Code Civ. Proc., § 2034.300.) Plaintiff in fact never sought such relief. Counsel seems to imply that this failure is justified by defendant’s failure to “let [him] know” that it still objected to his expert designation. But defendant had already made plain, in two successive letters, its view that “your purported 2034 Designation was both improper and untimely,” and its intention to “move to exclude the testimony of any experts and plaintiff’s medical treaters at trial pursuant to . . . § 2034.300.” Plaintiff’s counsel could not cast the ball back in defendant’s court merely by embroidering upon his prior assertions and then asking defendant to “let [him] know” if it still objected.
E. Prejudice
Plaintiff argues somewhat tortuously that defendant suffered no prejudice from the delayed disclosure of experts. We need not address the point because plaintiff herself fails entirely to demonstrate on appeal that the order precluding expert testimony was prejudicial to her. We cannot ordinarily reverse a judgment for error in the exclusion of evidence unless “[t]he substance, purpose, and relevance of the excluded evidence was made known to the [trial] court by the questions asked, an offer of proof, or by any other means.” (Evid. Code, § 354, subd. (a).) Plaintiff’s expert disclosure named four doctors, all of whom had apparently treated plaintiff. We are directed to no point in the record at which plaintiff set out the anticipated “substance” of these doctors’ testimony, i.e., what they were actually expected to say. Indeed there is no indication that plaintiff’s attorney knew what they might say. He presumably hoped to elicit testimony from them supporting his claims of proximate causation, but in the absence of a representation to the court as to what they would actually say, it is impossible for us to conclude that the exclusion of their testimony was prejudicial.
More broadly, no ordinary error will justify reversal unless the reviewing court, after examining the record, finds it “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) Here there is simply no basis for a conclusion that denial of defendant’s motion to exclude expert testimony would have been reasonably likely to produce a more favorable verdict. The parties seem agreed that the pivotal issue in the case was whether plaintiff’s herpes could have been caused by defendant’s conduct in overexposing her to ultraviolet rays and maintaining, as she contended, inadequate hygiene in the tanning bed she used. There is no indication that any of the witnesses named in plaintiff’s disclosure was qualified to testify on that subject or that their testimony, if allowed, would have improved the chances of a verdict in plaintiff’s favor.
The trial court permitted plaintiff to call another treating physician, Karl Keene, from whom she elicited testimony, over defendant’s objection, bearing on causation. Dr. Keene testified that while he had not seen a case of herpes contracted from a tanning bed, he had seen patients who contracted it from inanimate objects. He had one elderly patient who contracted herpes from a young relative in the home, where the only contact was using the same toilet. When he diagnosed plaintiff’s herpes infection, he did not form the opinion that she had contracted it through coitus or other sexual activity. He said that a herpes infection on the upper buttocks, like plaintiff’s, is not usually caused by sexual activity. It is therefore impossible to say that the court’s ruling deprived plaintiff of her only means of establishing causation. Evidence of causation was in fact placed before the jury. To hold the alleged error prejudicial would require a finding that testimony of indeterminate tenor from other treating physicians would have made it reasonably likely that plaintiff would have persuaded the jury on that issue. The record furnishes no basis for such a finding. The ruling under challenge therefore would not warrant reversal even if it appeared to be erroneous—which, we repeat, it does not.
II. Admission of Chlamydia Evidence
Plaintiff filed a motion in limine to “exclude[e] any reference to any prior or current sexually transmitted disease that Plaintiff may have had or has . . . .” The stated grounds of objection were that any such evidence was irrelevant or, if relevant, likely to be more prejudicial than probative. Defendant responded by mischaracterizing the motion as one to “have evidence of plaintiff’s sexual history precluded from trial . . . .” At no time did defendant even acknowledge, let alone address, the actual tenor of plaintiff’s motion. This of course should have been a red flag to the court; a party with a sound position can ordinarily meet his opponent’s contentions on their own terms, without finding it necessary to refashion them into something more easily attacked.
Nor indeed has defendant ever articulated any basis on which to justify the admission of evidence that plaintiff had, at some point in the past, contracted a sexually transmitted disease. At the hearing on the motion counsel contended that such evidence was “very probative of the fact that Plaintiff was sexually promiscuous,” that “[s]he had multiple sexual partners before this incident,” “that she was exposing herself to a certain lifestyle,” and that “she continued to expose herself.” In fact of course, a single episode of sexually transmitted disease proves none of these things. It proves only that plaintiff had some prior sexual contact with someone. It says nothing whatever about the extent of such contact or the number of partners. Counsel’s argument was therefore a recital of potential prejudicial effects, not a demonstration of probative value.
Counsel for plaintiff made it clear that he was “not trying to exclude her sexual history,” but only “to exclude the one disease . . . .” He asserted that there would be no evidence linking Chlamydia causally to herpes, and challenged defense counsel to suggest otherwise. Defense counsel instead noted that plaintiff had not deposed defense experts, and was therefore “speculat[ing]” as to what the evidence on that point might be. This of course is backwards; until there was at least some credible affirmative suggestion of relevance, plaintiff’s objection was quite sound. Defendant’s coy suggestion that there might be testimony to tie the challenged evidence into the case could have justified the deferral of a ruling on the motion, or conceivably even the admission of the evidence subject to a motion to strike. It could not justify overruling the objection, which is what the court proceeded to do.
In the event, defendant called an expert who, as predicted, said nothing whatever about any connection between herpes and Chlamydia; indeed he did not mention, and was not asked about, the latter disease. The only evidence bearing on that issue was testimony by the treating physician, Dr. Keene, that Chlamydia does not “have anything to do with herpes,” that “[t]he one doesn’t cause the other,” and that “[t]hey don’t run around together.”
As for plaintiff’s “sexual history,” the following facts were elicited apart from any reference to Chlamydia: Prior to the events at issue here, she had two boyfriends, who were her only two sexual partners. She was first sexually active at around the age of 15.
Plaintiff’s contraction of Chlamydia might have been relevant to show that she had had sexual contact prior to the date of the alleged tort, but that fact was not disputed, and there was no risk whatever that the jury might suppose plaintiff had not had sexual partners. Beyond the bare fact of some unspecified prior sexual contact, her contraction of that disease proved nothing whatsoever. We therefore cannot view the trial court’s admission of the challenged evidence as anything other than an abuse of discretion.
Again, however, we are unable to conclude that the error affected the outcome. Plaintiff makes no attempt to demonstrate any concrete means by which the evidence of Chlamydia might have affected the jury’s analysis of the issue it found dispositive, i.e., whether defendant’s negligence caused plaintiff’s injuries. To be sure, defense counsel alluded in argument to plaintiff’s “prior sexually transmitted disease . . . [C]hlamydia.” But this was only part of a larger attempt to depict plaintiff as promiscuous, ostensibly to refute any inference of causation, but quite possibly, as plaintiff asserts, to “prejudice the plaintiff” (or more precisely, prejudice the jury against her). We doubt the success of this tactic, but more importantly, we doubt that it was substantially furthered by the evidence of Chlamydia as distinct from the other evidence concerning plaintiff’s sexual history. She testified without objection that she had sexual contact with two named persons prior to the events at issue here. The further evidence that she contracted Chlamydia from one of them added no probative value, but it also carried little additional prejudicial effect.
Plaintiff notes that under Civil Code section 46, “it is a tort to impute unchastity to a woman or a loathsome disease.” The statute codifies the rule of “slander per se,” in which oral defamation is actionable without proof of special damage only if it involves specified imputations. (See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 552, pp. 807-808.) As codified, these include a “present[ly] exist[ing] . . . infectious, contagious, or loathsome disease” (Civ. Code, § 46, subd. (2)), or “impotence or a want of chastity” (id., subd. (4)). There was no evidence here that plaintiff suffered a “presently existing” disease other than herpes, which of course was not the object of her objection. In any event, any modern rationale for the inclusion of diseases in the imputations that will support a slander judgment without proof of damage must be found less in any sense of moral opprobrium or social aversion than in the likelihood that such an imputation may cause persons hearing it to avoid its object out of concern for their own health. As for want of chastity, “[t]wo strong objections” have been lodged against its inclusion in modern definitions of slander per se. (R. Smolla, Westlaw Law of Defamation Database (as updated April 2007) Defamation, § 7:18.) One of these—that it unjustifiably discriminates between men and women—does not apply to California’s statute. (See 5 Witkin, supra, Torts, § 552, pp. 807-808.) The other, however, applies with full force: “[M]any forms of sexual activity once regarded as particularly egregious are today thought of in many quarters as not justifying special legal condemnation.” (Ibid.) More precisely, the “want of chastity” which may once have produced widespread opprobrium is now much less likely to do so in many if not most segments of society.
In any event, to assume that imputations of unchastity and (present) loathsome disease are injurious for purposes of defamation law does not establish that evidence of such characteristics has a prejudicial effect when erroneously introduced in a personal injury trial. Here evidence of arguable “unchastity” was admitted without objection. There is simply no basis to conclude that the erroneous admission of evidence of a “loathsome disease” significantly increased the risk that the jury would be induced to decide the case on an improper basis.
III. Submission of Release to Jury
Plaintiff’s third charge of error is that the trial court erred by permitting the jury to consider a defense based upon plaintiff’s execution of a membership form containing language by which defendant sought to disclaim liability for “any injury to person or property caused in any way by the use of its services or its premises.” As defendant points out and indeed plaintiff seems to acknowledge, the jury never reached this issue because it disposed of the case by finding that defendant’s negligence did not cause plaintiff’s injuries. This rendered harmless any error with respect to the release. Plaintiff’s only suggestion to the contrary is that it is “conceivable . . . that the jury considered the release on the issue of causation.” Many things are conceivable, but for the claimed error to warrant reversal, it would have to appear reasonably probable that it affected the outcome. (People v. Watson, supra, 46 Cal.2d at p. 836.) Here it affirmatively appears that it did not. If we were reversing on other grounds, it might be appropriate to reach other claimed errors, even though harmless, for the trial court’s guidance on retrial. Since we are not, there is simply no occasion to consider this alleged error.
IV. Business and Professions Code
Finally, plaintiff “mention[s]” an unspecified instructional error involving the duties of tanning salons under Business and Professions Code sections 22701 through 22708. Plaintiff then acknowledges that “it is unclear whether” the suggested error “had anything to do with the jury’s determination” and that “since the jury did find negligence it probably is of no moment.” We agree, and are therefore baffled by plaintiff’s even “mention[ing]” it. We also note that plaintiff asserts it under a separate argumentative heading even though it is not among the “issues on appeal” enumerated at an earlier point in the brief. On this point plaintiff offers, literally, nothing to review. No error is shown.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.
Needless to say, it is “patently improper” to assert in an appellate brief facts not reflected in the record or subject to judicial notice. (Estate of Feeney (1982) 139 Cal.App.3d 812, 817; see Cal. Rules of Court, rule 8.204(a)(2)(C); Stolman v. City of Los Angeles (2003) 114 Cal.App.4th 916, 927.) All such matters are outside the universe of the appeal, and to the extent the asserting party relies on them, they poison and defeat his own arguments. Such reliance is thus not only improper, but futile, if not self-defeating.