Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. SC097373 John L. Segal, Judge.
Law Offices of Kamal A. Bilal and George A. Bilal for Plaintiff and Appellant.
Gray Duffy, Jack M. Liebhaber and Brian M. Plessala for Defendants and Respondents.
ZELON, J.
Angela Araujo sued defendants for personal injuries suffered in an automobile accident. Though a jury found defendants primarily liable for the accident, the verdict led to a net recovery for defendants. Araujo appeals, claiming the trial court erred in excluding from evidence MRI films of her left shoulder and in denying a continuance of the trial. We affirm.
Factual and Procedural Background
Araujo filed suit on March 7, 2008, for personal injuries sustained in a March 12, 2006, automobile accident in which she was a passenger. Araujo claimed the accident led to left shoulder pain, in addition to other injuries. On March 13, 2006, osteopathic physician Dimitri Sirakoff examined Araujo, diagnosed her shoulder pain as a sprain or strain, and recommended Araujo undergo a MRI of her left shoulder. She had the MRI taken on May 15, 2006, at Dedicated Medical Imaging (DMI). Sirakoff believed the MRI confirmed a diagnosis of impingement syndrome with a possible rotator cuff tear, and referred her to an orthopedic surgeon, Michael Esposito, who reviewed the MRI and attempted various treatments before recommending surgery.
Araujo’s husband, Modesto Araujo, drove the car in which she rode. Defendant Dana Manan drove the other vehicle involved, which belonged to defendant Melissa Sherman.
Between May and October 2008, defendants’ counsel sent subpoenas requesting the MRI films to Esposito, DMI and Pacific Hospital of Long Beach, which handled billing for DMI. The three offices returned certificates of no records for the MRI films. According to DMI’s records, the MRI films were last checked out on June 28, 2006, to Esposito’s office and could not be duplicated.
Trial was set for Monday, February 23, 2009. At the final status conference on Wednesday, February 18, 2009, the defendants made several unopposed motions in limine, including a motion to exclude the MRI films and any reference to the MRI.
The following day, Araujo’s counsel moved ex parte to continue the trial, so that both sides could review a new set of MRI films Araujo had taken two days earlier and depose Araujo’s new doctor. The trial court denied the continuance, after weighing the prejudice to both sides and finding it “a close balance.” The court stated it would be unfair to defendants if, two days before trial, the court allowed both parties to “start again” after a year of discovery, in particular given that Araujo’s counsel knew about the missing MRI issue for several months and failed to file any pretrial documents or oppose the motions in limine.
On the first day of the trial, February 23, 2009, the court held an Evidence Code section 402 hearing on the MRI films, after plaintiff’s counsel advised the court that it had found the missing films. Marcia Martinez, the DMI office manager, testified that she had found a computer disk with the MRI file that morning, after receiving a phone call from plaintiff’s counsel reminding Martinez of her trial appearance. Martinez testified that she could have a copy of the films printed by the following afternoon.
The trial court reaffirmed its ruling on the motion in limine, noting the parties still did not have a copy of the films, despite the eight months Araujo’s counsel had to find an alternative copy once notified of its disappearance. Araujo not only had the burden to produce evidence, “but to comply with the rules to have it enough in advance so it’s not a surprise.”
On February 25, 2009, the jury found the defendants 51 percent responsible and Araujo’s husband 49 percent responsible for the accident. The jury found there was $3,000 in damages, awarding Araujo $1,530. An amended judgment was issued on April 28, 2009, providing a net recovery for defendants of $16,263, based on Araujo’s refusal of defendant’s January 23, 2009, Code of Civil Procedure section 998 offer to compromise the litigation for $15,000. Araujo appeals.
DISCUSSION
Araujo appeals on two grounds: that the trial court erred in excluding the MRI films; and that it erred in denying her a continuance of the trial. Defendants assert that Araujo’s appeal is untimely.
We review the evidentiary and continuance rulings for abuse of discretion. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1322; Jurado v. Toys ‘R’ Us (1993) 12 Cal.App.4th 1615, 1617.) “‘An abuse of discretion occurs when, in light of applicable law and considering all relevant circumstances, the court’s ruling exceeds the bounds of reason. [Citations.]’ [Citations.]” (Cotton v. StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, 444; see also Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.)
I. Untimely appeal
As a threshold matter, we first address the untimely appeal claim. Defendants argue in their brief that Araujo filed an untimely appeal, a claim to dismiss that we previously denied. On appeal, they assert that the 60-day window for Araujo’s appeal began with the court clerk’s service of entry of the trial judgment on March 5, 2009, and closed more than 40 days before Araujo filed on June 19, 2009.
Unless otherwise provided by law, a notice of appeal must be filed on or before the earliest of three dates: (1) 60 days after the court clerk serves a notice of entry of judgment or a file-stamped copy of the judgment on the appealing party, (2) 60 days after the appealing party serves or is served by the opposing party with a notice of entry of judgment, or (3) 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a).) “If a notice of appeal is filed late, the reviewing court must dismiss the appeal.” (Cal. Rules of Court, rule 8.104(b).)
At issue is the effect of the April 28, 2009, amended judgment filed in compliance with Code of Civil Procedure section 998. An amended judgment resets the clock for a party to file an appeal if it substantially changes the original judgment. (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222 (Torres) [citing Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2006) ¶ 3:56, pp. 3–24 to 3–25].) The new period begins with the entry of the amended judgment. (Torres, supra, 154 Cal.App.4th at p. 222.)
While a post-judgment award of attorneys’ fees is not a substantial modification to change the appeal window (Torres, supra, 154 Cal.App.4th at p. 222), a monetary change in recovery that materially affects the parties’ rights can be. (Stone v. Regents of University of California (1999) 77 Cal.App.4th 736.) In Stone, a new judgment, identical to the first but directing defendants to pay for plaintiff’s defense “materially affected their rights” and therefore substantively changed the terms of the judgment. (Id. at p. 744 [modification required defendants to pay an additional nine months of plaintiff’s legal expenses].)
Under Code of Civil Procedure section 998, subdivision (e), if a plaintiff rejects a pretrial offer made by a defendant and recovers less in damages at trial than the offer amount, defendant’s costs from the time of the offer shift to the plaintiff. “If the costs awarded... exceed the amount of the damages awarded to the plaintiff the net amount shall be awarded to the defendant and judgment or award shall be entered accordingly.” (Code Civ. Proc., § 998, subd. (e).) Based on defendants’ January 23, 2009, offer to compromise for $15,000, the amended judgment effectively reversed Araujo’s $1,530 recovery from trial and awarded the defendants a net recovery of $16,263. Because such a statutory reversal of recovery is treated as a change in prevailing parties (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1112) for purposes of the appeal it is a significant change in the judgment that materially affected the parties’ rights. As a result, the April 28 amended judgment substantially changed the judgment and, in doing so, reset the appeals clock.
II. Exclusion of MRI films was not an abuse of discretion
Araujo claims the trial court abused its discretion by granting defendants’ motion in limine No. 6, which excluded the MRI films and any reference to the MRI from evidence. We disagree.
The court has an inherent power to curb abuses and promote fair process that extends to the preclusion of evidence. (Peat v. Superior Court (1988) 200 Cal.App.3d 272, 289; see also Castaline v. City of Los Angeles (1975) 47 Cal.App.3d 580, 592 [court has a “basic power to insure that all parties receive a fair trial” by precluding evidence]; Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.) “One of the principal purposes of civil discovery is to do away with ‘the sporting theory of litigation – namely, surprise at the trial. [Citation.]” (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274 (Thoren) [citing Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 561].)
Here, the trial court did not abuse its discretion by limiting Araujo’s reliance on physical evidence not produced in discovery. The court granted the motion in limine at the final status conference after Araujo failed to oppose the motion, and then upheld its ruling when plaintiff sought an Evidence Code section 402 hearing. Defendants’ motion relied on Thoren, supra, 29 Cal.App.3d 270, where the appeals court upheld the exclusion of the testimony of a witness whose name was willfully omitted from an answer to an interrogatory during discovery. The Thoren court focused on the “unfair surprise at trial” that occurs when a party deprives another of the opportunity to scrutinize the truth of a witness’ claims. (Id. at p. 274.) Defendants claimed they were “unable to have said MRI reviewed by a radiologist” and therefore were not “prepared to cross-examine on this issue.”
Thoren recognizes the inherent power of the trial court to ensure a fair trial through the exclusion of evidence not produced in discovery. (Thoren, supra, 29 Cal.App.3d at pp. 273-275.) In Thoren, the court found willful behavior. Here, in light of the eight-month delay between the discovery of the problem and the partial attempt to resolve it, the trial court, we will respect the trial court’s implied findings of willfulness. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) Here, the proof of Araujo’s injuries and damages depended in large part on the credibility of plaintiff’s doctors’ diagnoses, which were at odds with that of the defendants’ experts. Visual proof of a tear might bolster Araujo’s doctors’ testimony, at the expense of fairness to defendants, who searched for the films for almost nine months and would likely not have the chance to have their witnesses examine the MRI films before Araujo introduced them. Further, the exclusion did not completely foreclose Araujo’s theory of liability as it did not preclude Araujo and her witnesses from testifying to the underlying injury and the doctors’ diagnoses based on their physical exams.
The court also did not abuse its discretion in its ruling on the Evidence Code section 402 hearing with the custodians of records, after Araujo’s counsel told the court that DMI had found the lost MRI films. DMI’s office manager, Martinez, testified during the hearing that she had found a disk that morning containing a file of the May 15, 2006, MRI films and could have a copy printed the following afternoon at the earliest. Martinez could only recall speaking with Araujo’s counsel that morning, which the court reasonably interpreted as a last-ditch attempt by Araujo to make up for eight months of lost time. Noting a ruling in either direction would cause some prejudice to one party, the trial court stated it was “fall[ing] back on the rules” and what is fair. The court focused on Araujo’s obligation to produce evidence in advance of trial to avoid surprise, rather than introducing “new evidence in middle of the trial.”
Araujo argues the court erred in excluding the MRI films on a number of grounds: (1) the court precluded Araujo “from trying [the] case on a theory consistent with existing evidence, even though the pretrial evidence [was] contrary to the theory”; (2) the plaintiff was blameless for record-keeping error; (3) excluding the MRI was highly prejudicial to plaintiff; (4) allowing the MRI would have allowed more discovery for both parties; and (5) the trial court erroneously relied on surprise. None of these arguments demonstrates an abuse of discretion.
Araujo relies on Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659 (Kelly), to argue the MRI exclusion prevented her from arguing a theory of liability in the case. In Kelly, the trial court granted a motion in limine on a disputed issue that “completely foreclosed the plaintiffs from pursuing the only factual theory of liability supported by the evidence.” (Kelly, supra, 49 Cal.App.4th at pp. 667-668.) Kelly had been injured in an elevator in her office, but could not remember in which of two elevators the injury occurred. The elevator company’s motion in limine precluded her from introducing any evidence about the larger elevator, which was undergoing repairs at the time for the same type of misleveling that injured Kelly. (Kelly, supra, at pp. 665-667.)
Here, in contrast, the exclusion focused on one isolated piece of evidence, not a disputed issue that foreclosed Araujo’s case. Nothing in the motion in limine prevented Araujo and her doctors from presenting evidence that she suffered a shoulder injury as a result of the accident. They did so, at length, focusing on physical examinations of Araujo and treatments short of surgery that proved ineffective.
Araujo’s insistence she was blameless in the MRI’s disappearance is also irrelevant in determining prejudice. There is no suggestion in the record that Araujo lost the MRI films. The trial court did, however, highlight the absence of evidence indicating Araujo made any efforts to find the missing MRI films until immediately before the trial.
Araujo next claims exclusion of the films was highly prejudicial to her, more so than the prejudice to defendants in admitting the evidence. While Araujo was limited in her presentation of evidence, her doctors nonetheless had great leeway to discuss their examinations and diagnoses of her shoulder problems, save for the contents of the MRI. By contrast, allowing the films into evidence might have undermined the testimony of defendants’ expert witness, Dr. Steven Kay, who would have had no opportunity to review them. Kay relied on a thorough review of Sirakoff’s notes and diagnoses to question Araujo’s doctors’ conclusions and highlight multiple inconsistencies between the diagnoses and reasonable medical expectations.
In arguing that inclusion of the MRIs would have lead to more discovery for all parties, Araujo simply ignores the time constraints in which the motions took place. Araujo compares the case to Campain v. Safeway Stores, Inc. (1972) 29 Cal.App.3d 362, a personal injury suit in which the Court of Appeal held the trial court erred by allowing evidence of the plaintiff’s loss of future earnings, despite her multiple pretrial assertions that she would not seek such damages. Drawing on the court’s conclusion that Safeway was entitled to further discovery and a new trial, Araujo argues that defendants, too, would have benefited from consideration of the MRI films and additional discovery. Campain does not, however, indicate that the courts should perpetuate continuing cycles of last-minute production, but rather holds that a party has a right to a new trial when it reasonably relied on a pretrial position sought to be abandoned at trial. (Id. at p. 366.)
Here, Araujo also disregards the practical reality that, at the final status conference, no party knew that DMI had a computerized copy of the film. Given the certificates of no records produced by all third parties subpoenaed, there was no evidence on the record for the court to believe the films could be found, much less in the three days before trial. By the time of the Evidence Code section 402 hearing, the day the DMI employees found the disk, trial had already begun. According to Martinez, the copy would require another day to print. Further discovery would have been impossible without a mid-trial disruption.
On her final point, Araujo quotes language from Kelly, supra, 49 Cal.App.4th at p. 676, citing Witkin, that “unfair surprise” is not grounds for exclusion of evidence on Evidence Code section 352 grounds, and asserts in the alternative that no surprise existed. Here, Araujo misunderstands the grounds for the objection to the evidence, which was based on the medical offices’ failure to produce evidence, and did not request a ruling under Evidence Code section 352. The trial court never engaged in a balancing of probative value against prejudice, focusing instead on ensuring fairness at trial.
As discussed above, the court had the inherent discretion in this situation to exclude the MRIs to maintain fairness. Contrary to Araujo’s claim that knowledge of the MRI’s existence was enough to negate any surprise, the trial court appears to have given credence to defendants’ claim that without production of the MRI films they would be unable to conduct a substantive cross-examination of Araujo’s doctors about the MRI’s contents.
III. If the court did err, any error was harmless
Even if the trial court did err, the error was harmless. Where a trial court improperly excludes evidence, reversal is not required unless “it is reasonably probable a more favorable result would have been reached absent the error.” (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.)
Araujo fails to demonstrate that the jury would have reached a more favorable outcome without the error, and the record would not support such a finding. Not all evidence of the MRI was excluded. In fact, the record shows the trial court allowed Araujo a great deal of latitude in discussing the MRI. Under direct examination, for instance, Sirakoff directly testified that he sent Araujo to have an MRI taken. He testified that he saw the MRI report. He then spoke at length about the purpose and role of the MRI in diagnosis. After explaining that MRIs can detect tears in tissue, he then testified that he diagnosed a tear in Araujo’s shoulder and recommended surgery. He also said Esposito saw the MRI films and agreed with his diagnosis. Araujo then testified that Sirakoff had sent her to DMI for the MRI and that she discussed the films with the doctors.
Sirakoff’s own testimony further undermines the argument that introduction of the MRI films would have led to a more favorable outcome. He discounted the MRI’s importance in diagnosis, repeating that the physical examination forms the basis of diagnosis, and the MRI simply confirms the diagnosis. He also stated MRIs do not always recognize tears.
IV. Continuance of Trial
Araujo also claims the trial court abused its discretion at the February 19, 2009, ex parte hearing in which it denied counsel’s request for a continuance. We disagree.
Trial courts have broad discretion to grant or deny continuances. “Although continuances of trials are disfavored, ” absence of evidence may constitute good cause for a continuance if the moving party shows by affidavit that the expected evidence is material and that he or she used due diligence to procure it. (Cal. Rules of Court, rule 3.1332, subd. (c)(6) [good cause includes a “party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts”]; Code Civ. Proc., § 595.4.) However, a continuance upon the mere assertion that a party feels that he or she might be able to discover favorable evidence is not a matter of right. (Wiler v. Firestone Tire & Rubber Co. (1979) 95 Cal.App.3d 621, 628.)
The record supports a finding that Araujo’s counsel did not show an adequate level of due diligence to establish good cause. At the trial court, Araujo relied on Jurado v. Toys ‘R’ Us, supra, 12 Cal.App.4th at p. 1617, where the appellate court reversed the trial court’s denial of a short continuance after plaintiff’s two treating doctors failed to appear to testify at a slip-and-fall personal injury trial. Jurado’s counsel had subpoenaed the doctors three months in advance. When he attempted to contact both doctors before trial, he discovered that one had left for a European vacation and the other had moved without leaving any forwarding information. The court held counsel had made diligent efforts and the doctors’ failure to appear fell outside of counsel’s reasonable expectations. (Id. at p. 1618; cf. Mahoney v. Southland Mental Health Assoc. (1990) 223 Cal.App.3d 167, 172 [no good cause when counsel had four months’ notice of change in attorneys before requesting a continuance].)
By comparison, the disappearance of the MRI films did not catch Araujo off-guard. The parties received certificates of no records beginning in late May 2008, more than eight months before the trial date; by October, all the third parties had denied possessing the films. Although Araujo’s counsel claimed in a declaration that his paralegal made numerous calls to track down the MRI films, the trial court correctly noted there was no evidence of such efforts. Araujo’s counsel filed no pretrial documents, never deposed the custodian of records at DMI, and failed even to oppose the defendants’ motion in limine concerning the MRI films. In the trial court’s words, “there was nothing from the plaintiff for months and months, and now two days before trial, you want to say, ‘I want to start again.’”
At the subsequent Evidence Code section 402 hearing, Araujo’s counsel showed DMI’s Martinez what he stated were two subpoenas for records from his office. These were not in the record at the time of the continuance hearing the week before. Araujo’s counsel did not state their dates for the record during the 402 hearing and they are not in the record before us.
Even had Araujo’s counsel shown due diligence, the trial court properly weighed the factors in deciding on a continuance dictated by the California Rules of Court. Under California Rules of Court, rule 3.1332(d), in ruling on an application for continuance, “the court must consider all the facts and circumstances that are relevant to the determination, ” including the “proximity of the trial date;” the “court’s calendar and the impact of granting a continuance on other pending trials;” the “availability of alternative means to address the problem that gave rise to the motion or application for a continuance;” the “prejudice that parties or witnesses will suffer as a result of the continuance;” and “[w]hether the interests of justice are best served by a continuance.” (Cal. Rules of Court, rule 3.1332(d)(1), (4), (5), (7) & (10).)
The trial court concluded that, while “close, ” the balance tipped to moving forward with the trial as scheduled. Not only was the trial set to begin two days from Araujo’s application, the court’s calendar could not accommodate the two-week delay sought because it was then booking trials five months in advance. The court noted, however, that Araujo had existing alternatives, as Esposito had seen the first MRI and could testify at trial to his opinion of her shoulder condition. The new MRI, on the other hand, might prove “speculative, ” as the condition of Araujo’s shoulder may have changed in the three years since the accident. Given Araujo had months of notice about the missing MRI films and still could use Esposito’s testimony, the court found that delaying the trial to introduce new evidence and a new expert would prove unfair to defendants, who had made efforts to subpoena evidence and depose Esposito well in advance.
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.