Opinion
E073581
11-01-2021
KEVIN JIN et al., Plaintiffs and Appellants, v. RAFAEL VELASQUEZ, Defendant and Respondent.
Kevin Jin, Luke Jin, and Mary Lim, in pro. per., for Plaintiffs and Appellants. Farmer Case & Fedor, Maxine Dawn Harvey and Anthony T. Case for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. PSC1704197 L. Jackson Lucky, IV, Judge. Affirmed.
Kevin Jin, Luke Jin, and Mary Lim, in pro. per., for Plaintiffs and Appellants.
Farmer Case & Fedor, Maxine Dawn Harvey and Anthony T. Case for Defendant and Respondent.
OPINION
RAMIREZ P. J.
In 2015, there was an automobile collision on southbound Palm Drive on the way to Palm Springs. There were different versions of how the accident occurred, but the result was a complaint filed by plaintiffs Jin Kevin Yong Xuan, referred to as Kevin Jin, on behalf of himself and his minor son Luke Jin, against defendant Rafael Velasquez. Velasquez cross-complained against Kevin Jin for indemnification. The trial of liability was bifurcated from the damage portion. After hearing the competing versions of the accident, the jury returned a verdict finding defendant was not negligent, resulting in a judgment for defendant on plaintiff's complaint, and a determination that defendant's cross-complaint was moot. Plaintiffs appealed.
The precise nature of the claims raised in either the complaint or cross-complaint is unclear because the pleadings are not included in the record on appeal.
On appeal, plaintiffs seek to "fix the wrong jury verdict" arguing that (1) the trial court erred in excluding plaintiff's expert from testifying due to plaintiff's failure to timely designate the expert; (2) improper impeachment of plaintiff with deposition transcripts; (3) the defendant's testimony as to the circumstances of the collision was false; (4) the judgment was unfair because defense counsel and counsel for the cross-defendant (plaintiff) conspired in order to save the insurance company money; (5) the Korean interpreters made errors in translation of plaintiff's testimony that infected the outcome of the trial; and (6) the jury erred in finding defendant was not negligent. We affirm.
Because of plaintiffs' difficulty with the English language, we must make our best guess at the contentions, which are not expressed as assignments of error and include no legal argument.
Background
The trial was bifurcated so the following information relates to the liability portion only.
a. Plaintiff's Testimony
On August 19, 2015, at 6:15 a.m., plaintiff Kevin Jin headed south on Palm Drive in the direction of Palm Springs, to take his minor child, Luke, to school in his Jaguar vehicle. At that location, the speed limit on Palm Drive was 60 miles per hour. Up ahead, the road was barricaded due to high winds blowing sand, and Jin observed this as he went past a traffic signal. Realizing he would need to take a detour, he changed lanes from the number one lane to the number two lane, intending to move to the right hand side of the road in order to get onto the Interstate 10 freeway.
At first Jin testified that he usually drove in the left lane, but because of the barricade, he went into the number two lane and then he went into the number three lane. However, he then said that because there was traffic in the number three lane, Jin stopped his vehicle in the number two lane to await the opportunity to enter that lane. However, in his side rearview mirror, he saw a vehicle driving fast behind him change lanes from the number two lane into the number three lane briefly, and then return to the number two lane, where it collided with the right rear panel of plaintiff's vehicle.
b. Defendant's testimony
Defendant testified that he was driving to work on Palm Drive, coming from his home in Desert Hot Springs, driving his 1986 or 1988 truck at a speed of approximately 50 to 55 miles per hour. He was the number two lane. He approached the traffic signal at the crest of an incline, but he could not see plaintiff until after he reached the crest of the incline. Defendant was still driving in the number two lane and plaintiff was still in the number one lane when defendant first saw him, approximately 50 to 60, or possibly 65 feet ahead of defendant.
Plaintiff was trying to get into the number two lane, and defendant could see he was trying to cross all lanes of traffic to reach the freeway entrance. After he reached the other side of the incline, defendant saw plaintiff apply his brakes while still in the number one lane, and then suddenly change to the number two lane, where he stopped at a slight angle, unable to get all the way over to the number three lane.
Defendant was now approximately three car lengths behind plaintiff, and at 55 miles per hour, defendant could not avoid plaintiff's vehicle after plaintiff pulled in the number two lane in front of him. He struck the right rear side of plaintiff's vehicle.
c. Procedural Posture
Plaintiff filed a complaint against Velasquez and Velasquez cross-complained.During in limine motions as the matter came on for trial, defendant moved to exclude plaintiff's expert witness on the issue of Luke Jin's injuries due to Jins' failure to timely designate experts. Plaintiffs opposed the motion because the demand was untimely, and plaintiff had informally informed defendant that plaintiffs' treating physicians would testify as experts and had named them in the mandatory settlement conference statement. The trial court ruled that the treating physicians could testify as percipient witnesses to their observations but could not offer expert opinion.
The pleadings were not made part of the record on appeal. However, it is clear from the judgment that the complaint sounded in negligence and that the cross-complaint alleged indemnity, contribution and apportionment.
Thereafter, counsel for cross-defendant Kevin Jin, requested bifurcation of liability issues from the damages portion of the trial, and it was ordered. As a result of the bifurcation, no medical testimony would be offered during the liability portion of the trial. Regarding exhibits, defendant made an oral motion to exclude evidence of plaintiffs' medical records for lack of foundation and authenticity, and because the wife of plaintiff Kevin Jin had made handwritten notes on the documents. Because medical testimony would be limited to observations, defendant argued for exclusion of the documents. The court, unhappy that this motion had not been made in writing, denied the motion but ruled the records would have to be redacted, and that it would consider the adequacy of foundation for the admission of the records at the time of presentation of the evidence.
The court also granted a motion in limine to exclude evidence not disclosed during discovery, specifically, plaintiffs' exhibit numbers 11, 12, and 13, which pertained to treatment records, including acupuncture treatments, and Luke Jin's school records. The ruling was made without prejudice in the event plaintiffs' counsel could show they were turned over in discovery.
Later, after jury selection was complete, the court revisited the issue of excluding evidence for failure to provide discovery, after doing more research. The court concluded the sanction was too harsh where the exclusionary sanction is intended for parties who repeatedly and willfully fail to provide discovery. The court concluded there may be other reasons to exclude the evidence when actually proffered, but it vacated its ruling excluding them for discovery violations.
In the liability portion of the trial, both plaintiff and defendant testified to differing accounts of the incident as described above. At the conclusion of the testimonial phase of trial, the jury took the matter under submission with instructions to respond to certain questions relating to liability for negligence. The jury returned a verdict finding that defendant was not negligent. On July 3, 2019, judgment was entered in favor of defendant against plaintiffs that plaintiffs take nothing by their complaint, which rendered the cross-complaint moot.
Plaintiff's appealed.
Discussion
Plaintiffs make several contentions on appeal, all lacking in legal discussion supported by citation of authority (see Cal. Rules of Ct., rule 8.204(a)(1)), covering a variety of complaints unrelated to the assignments of error, and most unsupported by the record. The issues and arguments are not articulate, making it difficult to address the individual issues cogently. We address only those contentions related to the plaintiffs' assignments of error and do not address ancillary matters.
1. The Court's Ruling that Plaintiffs' Medical Witnesses Could Not Testify as Experts was Proper and Did Not Prejudice Plaintiffs.
Plaintiffs' first argument refers to the in limine ruling that their treating physicians could not testify as experts. The trial court had made the ruling after determining, based on the admission of plaintiffs' counsel that he did not respond to defendant's request for Designation of Experts, pursuant to Code of Civil Procedure section 2034.230. Plaintiff contends the court was unfair and biased against plaintiffs in making this ruling and refers to information outside the record regarding Luke Jin's visual problems that manifested sometime after the collision. Plaintiffs argue, without authority, that medical records are "considered as witnesses for medical matters." We disagree.
First, the trial court did not completely or absolutely exclude the medical records. Instead, due to plaintiffs' failure to comply with discovery in timely designating their experts, the medical records could be admitted only to the extent they recorded the observations of the treating doctors, with the caveat that they would only be admissible with the proper foundation. Because the records were relevant only to the damages portion of the trial, they were irrelevant on the question of liability, which found no negligence on the part of defendant, so plaintiffs were not prejudiced by the ruling.
Second, the court properly ruled that the treating physicians would not be permitted to offer expert testimony due to the plaintiffs' failure to designate them as experts. Code of Civil Procedure section 2034.230 provides for discovery of information concerning each other's expert witnesses by making a demand for a mutual and simultaneous exchange of a list of expert witnesses, including the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial. (Code of Civ. Proc., § 2034.230, subd. (a); Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 416.) Code of Civil Procedure, section 2034.260, subdivision (c) provides for the mutual and simultaneous production of all discoverable reports and writings.
Here, plaintiff's counsel acknowledged that no formal response to the discovery demand was provided, explaining that he thought the informal exchanges between counsel satisfied the spirit if not the letter of the law. Code of Civil Procedure, section 2034.300 provides that, with certain exceptions, "on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] (a) List that witness as an expert under Section 2034.260 . [¶] (b) Submit an expert witness declaration. [¶] (c) Produce reports and writings of expert witnesses under Section 2034.270. [¶] (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410)." (Cottini v. Enloe Medical Center, supra, 226 Cal.App.4th at p. 417.)
We review the trial court's ruling on a motion to exclude an expert's opinion for abuse of discretion. (Cottini v. Enloe Medical Center, supra, 226 Cal.App.4th at p. 422, citing Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 955-950.) Having failed to object to defendant's demand for exchange of expert witnesses before the production date, compliance with the request was mandatory, and the court was authorized to exclude plaintiff's experts' reports as well as their testimony. (Cottini, supra, 226 Cal.App.4th at pp. 426, 427.)
The issue is nevertheless moot in light of the bifurcation of the liability issue from that of damages. The expert testimony of plaintiff's experts was relevant only to damages. In order to get to the damages phase of the trial, the jury would have had to find that defendant was negligent, and that defendant's negligence was a substantial factor in causing harm to both plaintiffs. But that did not happen. The jury found defendant was not negligent. Therefore, plaintiffs were not prejudiced by the ruling.
2. Impeachment Using the Transcript of Plaintiff's Deposition Transcript Was Proper.
Plaintiff argues it was improper to allow defense counsel to use the statements in his deposition transcript to impeach him. We disagree.
"A witness examined by one party may be cross-examined upon any matter within the scope of the direct examination by each other party to the action in such order as the court directs." (Evid. Code, § 773, subd. (a).) "The credibility of a witness may be attacked or supported by any party, including the party calling him." (Evid. Code, § 785.) The right of cross-examination, even in civil proceedings, is assured by the Fourteenth Amendment of the United States Constitution as a minimal requirement. "'"All parties must be . . . given [an] opportunity to cross-examine witnesses . . . and to offer evidence in explanation or rebuttal." [Citation.]' [Citation.]" (Antelope Valley Groundwater Cases (2021) 62 Cal.App.5th 992, 1061.)
A function of cross-examination is to test a witness's credibility. "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: . . . (h) A statement made by him that is inconsistent with any part of his testimony at the hearing." (Evid. Code, § 780.)
Trial testimony may be impeached by inconsistent deposition testimony. (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 271.) Plaintiff has not provided any authority to the contrary. Because plaintiff took the stand and offered testimony on direct examination by his counsel, the defendant was entitled to cross-examine him and introduce evidence impeaching his testimony. Plaintiff was properly subject to cross-examination and impeachment. There was no error.
3. Whether Defendant's Testimony as to the Circumstances of the Collision was False.
Plaintiff argues that the defendant testified falsely requiring reversal. The jury found otherwise, and we are not permitted to second guess the jury.
The "determination of the credibility of a witness and the weight to be given his testimony lie exclusively within the province of the jury." (Bruce v. Ullery (1962) 58 Cal.2d 702, 710-711.) "[The] jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material. [Citations.]" (Nevarov v. Caldwell (1958) 161 Cal.App.2d 762, 777.)
"[W]e do not reweigh the evidence, but rather determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment." (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465, citing Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398.)
The jury in this case found the defendant's testimony more credible and we cannot disturb that finding, except in reviewing the sufficiency of the evidence to support the judgment. Because plaintiff raises that as a separate issue below, we do not address it here.
4. Whether the Judgment was Unfair Because Defense Counsel and Counsel for the Cross-Defendant (Plaintiff) Conspired in Order to Save the Insurance Company Money.
Plaintiff argues that defense counsel and cross-defendant's counsel conspired against him to save the insurance company money. We disagree.
To prove a civil conspiracy there are specific elements a plaintiff must prove. "The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy, (2) damage resulting to plaintiff, and (3) from a wrongful act done in furtherance of the common design." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1062, citing Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 44.) "[A] civil conspiracy does not give rise to a cause of action unless an independent civil wrong has been committed." (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1062.)
Civil conspiracies involve a common plan or design. (AREI II Cases (2013) 216 Cal.App.4th 1004, 1021, citing Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) Aside from plaintiff's subjective disappointment in the outcome, no evidence was presented at trial of any common plan or design, much less a common plan to commit a specific tort. The term "bad faith" populates plaintiff's discussion, but there is no legal discussion of bad faith and no evidence of bad faith was introduced at trial.
This argument is meritless.
5. Whether Errors Made by the Korean Interpreters Infected the Outcome of the Trial.
Plaintiff argues that the Korean interpreters were not qualified and made errors in translation. Plaintiff argues that the mistakes require reversal. We disagree.
It is true that in a few instances, the Korean interpreter misinterpreted a word. On the first occasion, plaintiff's counsel, fluent in Korean, informed the court that the plaintiff had testified, in Korean, that the accident had occurred in lane number two, but that the interpreter mistranslated plaintiff's testimony, indicating it had occurred in lane number three. This was corrected on the record.
On cross-examination, the defense went back into the matter of whether the collision occurred in lane number two or in lane number three, pointing out that in plaintiff's deposition testimony he had testified the collision occurred in lane number three. At this point, the Korean interpreter stated he had difficulty translating plaintiff's statement in the deposition transcript into Korean; the deposition transcript, which reported in English, indicated plaintiff testified he was "able to move the lane." The interpreter had difficulty translating that into Korean in the trial. On redirect, plaintiff blamed the translator at the deposition for the inconsistency.
Later, during defendant's testimony, after the court recessed, counsel for cross-defendant addressed the court to request that Ms. Lim be cautioned about addressing counsel directly because counsel did not represent the guardian ad litem. This the court did. In response, Ms. Lim complained at length and in a nonsequential manner about how her husband, plaintiff Keven Jin, who did not "know fully in English," had been abused in the deposition because of the interpreter there, then proceeded to discuss the arbitration where she acted as interpreter, and how she was called into the deposition to translate. She also complained her husband was not properly represented by the insurance company because, as well as we can determine, there was disagreement between the insurance attorney and plaintiff's previous attorney during the deposition. She continued at some length until the court interrupted to remind her that counsel for the cross-defendant did not represent her and that she, Ms. Lim, could not communicate directly with counsel.
On the final day of trial, a new Korean interpreter was present. During an off-the-record discussion, the court raised an issue about an email received by the court from the previous interpreter, Mr. Lin. In the email, Mr. Lin stated he had made an error of translation by interpreting plaintiff's testimony. According to the email, plaintiff testified that "after the impact [he] lost his 'awareness,' but the interpreter translated it as 'after the impact, I lost my consciousness.'"
Government Code, section 68561, subdivision (a), provides that "Except for good cause as provided in subdivision (c), a person who interprets in a court proceeding using a language designated by the Judicial Council pursuant to subdivision (a) of Section 68562 shall be a certified court interpreter, as defined in Section 68566, for the language used." However, a "court may, for good cause, appoint an interpreter for a language designated by the Judicial Council who does not hold a court interpreter certificate." (Gov. Code, § 68561, subd. (c).)
At the inception of the trial, the court mentioned there was a paucity of certified Korean interpreters and found good cause to appoint a Korean interpreter, Mr. Lin, who was provisionally qualified but not certified. Although the California Constitution insures the appointment of an interpreter for an accused in a criminal case (Cal. Const., art.I §14), and Evidence Code section 752 requires the appointment of an interpreter for a witness who is not fluent in English, there is no requirement that an interpreter be appointed for a civil litigant. (Jara v. Municipal Court for San Antonio Judicial District (1978) 21 Cal.3d 181, 185, 186.) For this reason, unless the translation related to matters of substance, any error is harmless.
None of these matters involved an interpretation error that prejudiced plaintiff. On the stand, plaintiff complained that the deposition transcript was not accurate, after he was impeached with his prior inconsistent statement that the collision occurred in lane number three. However, even in the trial, plaintiff testified that he changed lanes to lane number three, before testifying that he was stopped in lane number two because of traffic in lane number three. Plaintiff did not object to that translation, which conflicts with his other testimony.
A party is guaranteed a fair trial, not a perfect, trial. (People v. Guerra (2006) 37 Cal.4th 1067, 1112 [overruled on a different ground by People v. Rundle (2008) 43 Cal.4th 76, 151], citing People v. Snow (2003) 30 Cal.4th 43, 78, citing United States v. Pisani (2d Cir. 1985) 773 F.2d 397, 402.) There was no prejudice attributed to the interpretation of plaintiff's testimony. The problem was with the credibility of the testimony itself.
6. Substantial Evidence Supports the Jury's Verdict.
Plaintiff argues that the jury was unfair in finding defendant was not negligent. We disagree.
"We review the jury's findings of fact for substantial evidence." (Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1000, citing Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 452.) "Under the substantial evidence standard of review, we review the entire record to determine whether there is substantial evidence supporting the jury's factual determinations [citations]. The issue is not whether there is evidence in the record to support a different finding, but whether there is some evidence that, if believed, would support the findings of the trier of fact. [Citation.]" (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 170; see also, Verrazono v. Gehl Co. (2020) 50 Cal.App.5th 636, 652.)
The jury viewed the trial, heard all the testimony, observed plaintiffs' behavior in the courtroom, and determined that defendant was not negligent. It was reasonable for the jury to conclude that plaintiff abruptly changed lanes from the number one lane to the number two lane, in front of defendant's vehicle, which was a mere three to four car lengths behind plaintiff, on a section of roadway where the speed limit is 60 miles per hour. It was for the jury, and the jury alone, to determine the weight and credibility of the witnesses.
Because there is substantial evidence to support the judgment, no reversal is required.
Disposition
The judgment is affirmed. Defendant is entitled to costs.
We concur: McKINSTER, J. RAPHAEL J.