Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County., Michael S. Mink, Judge., Los Angeles County Super. Ct. No. EC034003.
Murphy, Pearson, Bradley & Feeney, James A. Murphy, Peter J. Linn and Steven A. Kronenberg for Defendant and Appellant.
Pine & Pine, Norman Pine, Beverly Tillett Pine; Law Offices of John E. Sweeney, John E. Sweeney and Angela M. Powell for Plaintiffs and Respondents.
ASHMANN-GERST, J.
Appellant Palma Vincenti (Vincenti) injured respondent Robert Steven Porter (Mr. Porter) in a vehicle on pedestrian accident while Vincenti was driving a 1993 Grand Jeep Cherokee (incident). Mr. Porter, a fire captain, and his wife Maria Porter (collectively the Porters) sued Vincenti for negligence and prevailed. On appeal, Vincenti contends that the judgment must be reversed. In her view, she was improperly precluded from proving her defense, which was that the incident occurred because the Jeep Grand Cherokee malfunctioned and accelerated, and because third parties negligently failed to retrofit her vehicle with a brake transmission shift interlock. According to Vincenti, the trial court erred when it excluded the following three items of evidence: information about other incidents of unwanted acceleration involving Jeep Grand Cherokees; the expert testimony of Walter Salyer (Salyer) that unwanted acceleration occurs at relatively high rates in the Jeep Grand Cherokee; and portions of the deposition of Robert Banta (Banta) in which he stated that if a brake transmission shift interlock had been installed, the incident would not have occurred. Finally, Vincenti argues that the trial court erred when it denied her motion for a new trial.
Vincenti’s Jeep Grand Cherokee is sometimes referred to as “the vehicle.”
As explained by the Porters in the statement of facts in their respondents’ brief on appeal, a brake transmission shift interlock “is a device installed in automatic transmissions that requires the operator to step on the brake before the vehicle can be shifted from Park to Drive.”
We find no error and affirm.
FACTS
The incident
On the date of the incident, September 26, 2001, Mr. Porter had been employed by Los Angeles County for 33 years. For three of those years he was a fire captain. A woman came to his fire station to purchase tickets for a special day at an amusement park for public servants. After the transaction, at about 9:00 p.m., Mr. Porter decided to walk the woman to her car because it was dark outside and he was concerned about her safety. When he stepped out of the station, Mr. Porter noticed a white Jeep Grand Cherokee parked across the street from the fire station. He heard the vehicle’s engine revving up and down and thought someone was playing around. After walking the woman to her car, he headed back to the fire station.
Vincenti was behind the wheel of her Jeep Grand Cherokee. She was having a conversation with her son on her cell phone. The cell phone was mounted in a cradle, and she spoke through a microphone in the ceiling. The vehicle was in park but the engine was running. As she was saying goodbye to her son, she shifted the vehicle into gear.
Mr. Porter heard squealing tires. The vehicle’s headlights went on. Then the vehicle turned and crashed into Mr. Porter. He was pinned between the vehicle and the wall of the fire station.
The investigation by the Los Angeles County Sheriff’s Department
With respect to the incident, Deputy Sheriff Walter Wiley was the traffic sergeant and P.M. Watch Sergeant. He and Deputy Sheriff Shinagawa took photographs of the vehicle, and measured and documented skid marks, gouge marks, points of rest of the vehicle, damage to the fire station, and damage to the vehicle. There was no evidence that Vincenti applied her brakes prior to impact. Rather, it showed that the vehicle was accelerating up until impact.
Vincenti claimed that she put her foot on the brake but had no control. Deputy Wiley concluded that Vincenti made a U-turn while talking on her cell phone, accelerated and hit Mr. Porter and the fire station. He opined that the accident was caused by Vincenti stepping on the wrong pedal.
Detective Adam Ellison of the Los Angeles County Sheriff’s Department inspected the vehicle the next morning and did not find anything that could cause a driver to lose control. Subsequently, the vehicle was inspected by Larry Paustian (Paustian), a civilian accident reconstructionist employed by the California Highway Patrol. He put the vehicle on jack stands and removed the tires and wheels. He examined the brakes and found that they were in good working condition. He then examined the suspension system, cooling system, fuel system, engine transmission, transfer case, drive axle, and drive shaft. He did not find anything that would take control away from the driver or inhibit the vehicle’s normal operation. The accelerator pedal was bent inward. This led him to opine that Vincenti’s foot was probably on the accelerator pedal when the vehicle hit the fire station.
The pleadings
The Porters sued Vincenti for negligence and loss of consortium on the following allegations: Due to Vincenti’s negligence, she collided with Mr. Porter and pinned his legs between the bumper of her vehicle and the wall of the Crescenta Valley Fire Station. Mr. Porter suffered injury and is permanently disabled. As well, Maria Porter has been deprived of comfort and support.
The Porters also sued DaimlerChrysler Motors Corporation (Daimler), DaimlerChrysler Corporation, Inc., and Feliz Ford doing business as Star Chrysler Jeep (Feliz) for negligence and strict products liability based on the allegations that Vincenti’s Jeep Grand Cherokee malfunctioned and accelerated due to the vehicle’s design and manufacture. Rusnak DaimlerChrysler Center, Inc. (Rusnak) was substituted for a Doe.
Responsively, Vincenti pleaded affirmative defenses for comparative negligence and apportionment of fault and alleged that the Porters’ damages were caused by the misconduct of third parties.
Vincenti and her husband cross-complained against Daimler and Feliz for strict products liability, negligence, breach of implied warranty, fraud and concealment, indemnity, comparative indemnity, declaratory relief and loss of consortium. Rusnak was later substituted in for a Doe. As alleged, Vincenti’s Jeep Grand Cherokee was “defective and unsafe for its intended purposes in that it had an inherent undisclosed defect which rendered the vehicle prone to an intermittent unintended sudden acceleration.” Daimler cross-complained against Vincenti for indemnity and declaratory relief. The County of Los Angeles (County), Mr. Porter’s employer, filed a complaint in intervention against Vincenti and 10 Doe defendants because it was self-insured with respect to the workers’ compensation liability for Mr. Porter’s injuries.
Daimler’s motion in limine
On May 20, 2004, Daimler served the parties with a motion in limine (motion #3) to preclude Vincenti from putting on evidence or referring to other incidents of unwanted acceleration. Motion #3 argued, in relevant part: (1) Vincenti “cannot show the requisite foundation to establish [that other incidents of unwanted acceleration] occurred under factual circumstances ‘substantially similar’ to the accident [involving Vincenti and Mr. Porter];” and (2) Any “attempt to introduce evidence of [other incidents of unwanted acceleration] would require a series of mini-trials . . ., which would be unduly time consuming.”
Motion #3 is stamped “received” on May 20, 2004. It was not file-stamped until April 25, 2005. The Porters contend that they filed a joinder and, as proof, advert to pages 1541-1542 of the clerk’s transcript. Those pages, however, do not support their contention; those pages come from Vincenti’s May 28, 2004 ex parte application to extend time to file opposition to, inter alia, motion #3. It does not reference a joinder by the Porters.
Banta’s deposition testimony regarding brake transmission interlock devices
Banta worked for Daimler as an investigative engineer. His specialty was incidents of unwanted acceleration. In 1991, Daimler started developing brake transmission shift interlock technology as a solution. That technology was placed in all Jeep Grand Cherokees built in 1996 or later, and it was made available as a retrofit to models from years prior to 1996 through a customer satisfaction campaign. Banta testified: “A dealer has an obligation as part of his operating requirements . . . to perform any outstanding recalls or campaigns.” The obligation comes from a book called “The Warranty, Policy and Procedures Manual.”
According to Banta, the brake transmission shift interlock device reduced incidents of unwanted acceleration up to 60 percent. He was not aware of any incidents of unwanted acceleration involving parked vehicles that were equipped with brake transmission interlock devices.
Daimler’s good faith settlement
Daimler, as well as Rusnak and Feliz, settled with the Porters and the County and subsequently filed motions for a determination of good faith settlement. Their motions were granted.
The reverse bifurcation of damages, the damages trial, and the damages finding
On Vincenti’s motion, the trial court ruled that damages would be tried before the issue of liability. In a special verdict, a jury awarded the Porters $31,049.34 for medical expenses, $282,740 for loss of past earnings, and $681,211 for loss of future earnings. Also, the jury awarded the Porters $1 million for general pain, suffering and emotional distress.
The schedule for pretrial events and the liability trial
At a hearing on November 29, 2004, the trial court set the final status conference for April 8, 2005, and the trial for April 18, 2005. The trial court informed the parties: “I want to handle all the motions in limine on the [final status conference] date, which I don’t normally do but I do in larger cases. So make sure you file them giving proper notice to each side and to the [trial court] in advance so I can review them.”
Subsequent in limine motions
On March 21, 2005, the Porters served a joinder in all the motions in limine previously filed by Daimler, including motion #3. The Porters served motion in limine number 5 (motion #5) on March 29, 2005. It, like motion #3, sought to preclude evidence of other incidents of unwanted acceleration involving Jeep Grand Cherokees.
The joinder is stamped received by the trial court on March 22, 2005, but file-stamped April 25, 2005.
Vincenti states that motion #5 was filed on March 29, 2005. The motion is dated March 29, 2005, but stamped “received” on March 30, 2005. It was not file-stamped until April 25, 2005.
The final status conference and continuance of the liability trial
On April 8, 2005, Vincenti filed an opposition to motion #5. The sole objection was that the motion was untimely pursuant to the Superior Court of Los Angeles County, Local Rules, rule 7.9(h) (rule 7.9(h).) Vincenti’s opposition did not reference the Porters’ prior joinder in motion #3.
The trial court attended to various matters, but it did not rule on the motions in limine. Those were continued to the trial date. On the trial date, April 18, 2005, prospective jurors were unavailable. The trial date, and the motions in limine, were continued to April 25, 2005.
The ruling on motions #3 and #5
On April 25, 2005, the trial court stated: “Either party intending to rely on accidents . . . other than the accident in the case as other similar accidents is required by law to bring [an] Evidence Code section 402 motion. They must sustain the burden of showing the product is substantially similar to the product involved [and that] the accident or incident is substantially similar to the circumstances of this case. . . . No Evidence Code section 402 motion was ever filed in this case.” In response, Vincenti’s counsel stated: “Unfortunately in our case the experts for [the Porters] relied upon other incidents. . . . And, therefore, it is impossible not to bring those other matters in.”
The trial court clarified that experts could explain that they studied the problem of unwanted acceleration due to prior complaints, but they could not discuss the specifics of those complaints. Vincenti’s counsel, however, was concerned about showing that the Porters’ experts were biased. The trial court pointed out that if other incidents of sudden acceleration came out during impeachment, “the jury is going to know there was another accident and it may come in, but we are not going to talk about that accident and compare it, ‘Well, if it happened here, this is proof it is [the] same problem here.’ You cannot do it.” At this point Vincenti’s counsel averred: “All I am talking about is referring to the name, ‘Did you do this testing in the Santosa case,’ not getting into the facts of the case. ‘Is that where you base your evidence that you are presenting here in this case from the testing you did in that case?’” At that point the trial court explained: “[I]t is hard for me to know until I start hearing the testimony during the trial specifically without [an Evidence Code section 402] hearing. Both experts that are coming in here to testify have obviously done testing on cars which have been involved in other accidents, and I am not trying to preclude that.”
In a brief summation of its ruling, the trial court noted that “[t]here could be 1,000 different things which I have to determine before I can use other similar incidents,” and identified this as the reason for precluding evidence of other incidents. It went on to state: “If it comes up by the fact, ‘Well, didn’t you testify in these other cases,’ and you are impeaching him, if it comes in, it comes in. I can’t anticipate—A motion in limine is always subject to change, but basically you are not going to be able to lay out a bunch of cases for either side.”
Due to the trial court’s ruling, the Porters argued that Salyer should be precluded from testifying because his expert opinion was based on other incidents of unwanted acceleration. Vincenti’s counsel argued that Salyer should be permitted to testify because he did a complete data analysis for a case in Chicago, Illinois that had five weeks of in limine arguments. The trial court asked: “How do we know the data has anything to do with the situation that is involved in this trial?” When Vincenti’s counsel indicated that the data involved other incidents of unwanted acceleration, the trial court stated: “That is not enough.”
In part, Salyer based his expert opinion on customer complaints of unwanted acceleration known as CAIR reports.
Vincenti’s counsel requested an opportunity “to lay the foundation to qualify [Salyer] as an expert witness before this motion that [the Porters] file late is granted.” The trial court expressed concern that the motions in limine lasted five weeks in Chicago. It noted that the attorneys in Chicago “didn’t walk in with a jury waiting . . . and say, ‘We want to go through every one of these [other incidents of unwanted acceleration].’” According to the trial court, it did not know whether, for example, the other incidents of unwanted acceleration involved the same model of Jeep Grand Cherokee or the same parts (specifically the power control module). “What I am saying,” explained the trial court, “is that if [Salyer’s] opinion is based upon [other incidents of unwanted acceleration], there has to be a determination made as to which of those [incidents of unwanted acceleration] he can base his opinion on and whether they’re similar. He could have 200 which have nothing at all to do with this case or they might all be exactly the same.”
Vincenti’s counsel asked: “So what should we do? Take this up in [an Evidence Code section 402] hearing?” The trial court replied: “What you do is you set this for a hearing about two months ago.”
The next day the trial court stated: “In view of the fact that the [trial court] has never made a determination as to whether the proffered [other incidents of unwanted acceleration] meet the standards for admissibility under California law, the [trial court] cannot deem it reliable hearsay and thus it cannot be used as a basis for [Salyer’s] opinion as to the cause of the accident.” Based on this, the trial court excluded Salyer’s opinion to the extent it was based on other incidents of unwanted acceleration involving Jeep Grand Cherokees.
The liability trial
The Porters’ case
Aside from testimony from Mr. Porter and the people who investigated the incident, the Porters called experts to rebut Vincenti’s contention that the incident was caused by a vehicle malfunction.
The Porters called Noshirwan K. Medora (Medora), an electrical engineer, to discuss the defense’s “backfeed” theory of the incident. According to that theory, liquid got onto pins in the 60-way connector for the power control module and conducted electricity, which caused the cruise control to go to wide open full throttle, which caused an unintended acceleration.
Medora explained that for the cruise control to go to wide open throttle, three solenoids in the cruise control servo have to be pulled in. That would require a minimum of 140 milliamps for each. If a conductive liquid got into the 60-way connector, and if 140 milliamps passed among those pins, they would lose their tin coating and the underlying copper would be revealed. Also, there would be evidence of a chemical reaction where the pin and contaminant met. The pins from Vincenti’s Jeep Grand Cherokee still had tin coating. Medora did not otherwise see visible damage or evidence of an electrical event.
Medora was asked if there was any contaminant that could have caused the cruise control to go to wide open throttle. He stated that there was nothing other than battery acid. He ruled out battery acid being the cause because it would have corroded everything. If a contaminant got into the power control module, the engine would have stalled.
Richard Keefer (Keefer), a mechanical engineering expert, testified that he worked on at least a couple dozen cases involving incidents of unwanted acceleration in Jeep Grand Cherokees. To evaluate the defense theory of why Vincenti’s vehicle accelerated, he loosened the power control module connector on a Jeep Grand Cherokee and introduced various liquids to it by spraying and flooding. Even under extreme test conditions, liquid did not turn on the cruise control. None of the tests he performed caused a rise in RPMs or triggered a wide open throttle. Contrary to the defense theory that the power control module was overly exposed to the elements, Keefer found that the power control module was “quite a well-protected area.”
Vincenti’s case
The trial court precluded Salyer from testifying “under . . . [Evidence Code section 352], and the fact that . . . it’s not relevant because his testimony is basically just a summation, based on both sides, and the [trial court] has reviewed it and it adds little, if nothing, and it’s an undue consumption of time and total confusion of the issues and irrelevant.”
Vincenti indicated that she wanted to read a portion of Banta’s deposition into the record. This apprised the Porters of Vincenti’s plan to possibly argue that the incident was caused by a dealer’s negligent failure to install a brake transmission shift interlock. The Porters’ counsel objected on the grounds that this defense was not pleaded as an affirmative defense, Banta was not designated as an expert by Vincenti, the expert disclosures did not address brake transmission shift interlocks, and there was no expert evidence that a brake transmission shift interlock would have prevented the incident. According to Vincenti’s counsel, Banta testified in his deposition that the dealer had an obligation to install a brake transmission shift interlock, and this was relevant to Vincenti’s affirmative defense of negligence of others. Vincenti’s counsel argued that if the jury believed that Vincenti mistakenly hit the accelerator instead of the brake when she shifted into gear, then they should be informed that a brake transmission shift interlock would have prevented the vehicle from accelerating.
Subsequently, the trial court reviewed Banta’s deposition and ruled that portions should be excluded because they violated the spirit of the in limine ruling on other incidents of unwanted acceleration, and because they would cause undue consumption of time and confuse the jury.
Colloquy continued, however, regarding whether Vincenti should be permitted to introduce Banta’s testimony about brake transmission shift interlocks. The Porters’ counsel contended that they would be prejudiced by the evidence because they had been deprived of the opportunity to retain their own experts to counter Banta. He pointed out that Vincenti’s responses to interrogatories did not identify the absence of a brake transmission shift interlock as an alternative cause of the incident. The trial court stated to the Porters’ counsel: “So it is your position, then, that because of the failure to plead it or actually present any expert testimony on it as to proximate cause, that the [brake transmission shift interlock] defense should not be allowed, if they are even trying to establish it.” The Porters’ counsel indicated his agreement.
The Porters’ counsel stated that if Vincenti’s counsel would stipulate “that her foot was on the brake at the time the transmission was engaged, then [brake transmission shift interlock] is not a defense.” Vincenti’s counsel replied: “We are not going to assert it.” Vincenti’s counsel then stated: “I asked [Keefer] about the [brake transmission shift interlock] and he said it was irrelevant because her foot was on the brake. Her testimony was that her foot was on the brake at the time the transmission was engaged, and there is no testimony to the contrary.”
Later in the proceedings the trial court stated that the brake transmission shift interlock had to be raised as an affirmative defense to permit the Porters to conduct discovery, retain experts and otherwise respond. The trial court tentatively excluded Banta’s evidence on that defense and asked for argument. Vincenti’s counsel did not object to the ruling.
As her first witness, Vincenti called a forensic mechanic named Robert Nocivelli (Nocivelli).
Nocivelli testified that he inspected Vincenti’s vehicle in July 2003. When he removed the power control module, the connector was loose and he found dirt and moisture. The power train control module is a computer that regulates various functions of a vehicle. According to Nocivelli, when mechanics installed a new power control module in Vincenti’s vehicle in 1999, they did not install it properly.
Vincenti also called David J. Bizzak (Bizzak), a mechanical engineer, as an expert. He testified that he began working on incidents of unwanted acceleration in 1995. Since then he examined about 20 Jeep Grand Cherokees that were 1991 to 1995 models.
Bizzak testified that he was contacted regarding “an accident that occurred in a hospital parking garage in Pittsburgh. It was a 1995 Jeep Grand Cherokee with [a] V8 engine. The operator . . . got in her vehicle, started it up and as she pulled out of the parking lot, it sped forward and crashed into an I-beam support in the garage.” He examined the vehicle and discovered that after the accident the accelerator pedal was on the floorboard. When asked to explain the import, he stated that “in order for the accelerator pedal to be depressed, the cruise control had be to holding the accelerator pedal.” Bizzak eventually investigated and analyzed nine vehicles in the Pittsburgh area that were involved in incidents of unwanted acceleration in 1993 to 1995 Jeep Grand Cherokees.
Bizzak informed the jury that the 1996 Jeep Grand Cherokee contained a new power control module and connector. Also, the design of the cruise control system was changed. After these modifications, the number of reported incidents of unwanted acceleration dramatically decreased.
Next, Bizzak testified about a man named Mr. Fenton. Mr. Fenton owned a Jeep Grand Cherokee and experienced several incidents of unwanted acceleration. The cruise control servo, cruise control switches and power control module were purportedly repaired, but the problem persisted. Mr. Fenton then made a video of his Jeep Grand Cherokee to document the problem. The video was played for the jury three times. According to Bizzak, in the video it is clear that the “cruise control servo was pulling the throttle open without the operator intending it to do so.”
Bizzak explained that Nocivelli and he authored a paper on sudden accelerations in 1993 to 1995 Jeep Grand Cherokees. They concluded that the incidents were “caused by a contamination in the 60-way connector that caused pins 33 and 53 to ground, such that with the cruise control on, the servo would energize.” The paper was based on an analysis of a vehicle involved in an incident of unwanted acceleration and information culled from the international car wash association. But after Bizzak talked to Salyer, Bizzak changed his theory. Bizzak learned that the unwanted acceleration problem encompassed 1991 to 1995 Jeeps, and that they occurred even with the cruise control off. He decided that the only way there could be unwanted acceleration when the cruise control was off was if the 60-way connector was contaminated with moisture or liquid, and if that moisture or liquid then conducted electricity.
According to Bizzak, Mr. Fenton was the only person to document unwanted acceleration in a 1991 to 1995 Jeep Grand Cherokee. Statistically speaking, Bizzak testified that an incident of unwanted acceleration in Jeep Grand Cherokee might happen once if a vehicle was driven for 10,000 years. Liquid contamination is a low probability event.
Vincenti’s counsel read portions of Banta’s deposition. He investigated 200 to 300 incidents of unwanted acceleration. Daimler was aware of more than 1,000 incidents involving 1991 to 1995 Jeep Grand Cherokees. According to Banta, unwanted acceleration was investigated by the governments of the United States and Canada, and by JAMA in Japan. They all concluded, as did Banta, that driver error was the cause.
The jury verdict regarding liability
In a special verdict, the jury found that Vincenti was negligent, her negligence was a substantial factor in the Porters’ injuries and that there was no third party negligence involved.
Posttrial matters
Vincenti moved for a new trial, arguing: The trial court should have conducted an evidentiary hearing regarding other incidents of unwanted acceleration; and it was improper for the trial court to exclude the expert testimony of Salyer and portions of the Banta’s deposition.
The motion was denied.
This timely appeal followed.
STANDARD OF REVIEW
We review a trial court’s exclusion of evidence, as well as its exercise of discretion in controlling and regulating its calendar, for an abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717; Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 497.) The denial of a motion for new trial is also subject to review for an abuse of discretion, but with the following addendum: we are required to “determine independently whether the error on which the new trial motion is based is prejudicial. [Citation.]” (Plancarte v. Guardsmark (2004) 118 Cal.App.4th 640, 645.) When called upon to interpret statutes, our review is de novo. (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)
DISCUSSION
Vincenti contends: (1) the trial court erred in denying Vincenti’s request for an evidentiary hearing regarding other incidents of unwanted acceleration in Jeep Grand Cherokees; (2) the trial court abused its discretion in excluding testimony and evidence from Salyer and Banta; (3) the trial court abused its discretion in precluding Vincenti from arguing the affirmative defense that the negligence of others caused the incident; and (4) the trial court abused its discretion in denying Vincenti’s motion for new trial. These contentions lack merit.
1. The trial court acted within its discretion to manage the proceedings before it when it denied Vincenti’s request for an evidentiary hearing regarding other incidents of unwanted acceleration.
On April 25, 2005, the day of trial, the trial court heard the Porters’ motions in limine and essentially ruled that Vincenti waived the right to a hearing on the admissibility of other incidents of sudden acceleration by not making a motion under Evidence Code section 402 and requesting a hearing two months prior to trial to prove substantial similarity.
In assigning error to the trial court’s ruling, Vincenti argues that motion #5 was untimely because rule 7.9(h) required that it be filed on March 21, 2005 so it could be heard at the final status conference on April 8, 2005; Vincenti requested an evidentiary hearing as soon as the admissibility of the other incidents of unwanted acceleration was disputed; that the jury venire was assembled was not proper grounds for denying an evidentiary hearing—the trial court could have dismissed the jury venire, transferred it to another department, or allowed jury selection and then proceeded with the evidentiary hearing during a short continuance.
In defense of the judgment, the Porters contend that Vincenti had ample opportunity to request a hearing because the admissibility of other incidents of unwanted acceleration was raised in joinders to motion #3 on May 24, 2004, and March 21, 2005, and in motion #5 served on March 29, 2005; the Porters’ joinders and motion #5 were not untimely pursuant to rule 7.9(h); even if the joinders and motion #5 were untimely pursuant rule 7.9(h), that rule is not jurisdictional and the trial court had the authority to rule; the timing of the joinders and motion #5 did not prejudice Vincenti; the trial court had broad inherent authority to conclude that Vincenti waived the right to a time-consuming evidentiary hearing under Evidence Code section 402 when a jury was waiting; on appeal Vincenti argues that the jury should have been allowed to hear about other incidents of unwanted acceleration, but below all Vincenti argued was that other incidents of unwanted acceleration were relevant to establish a foundation for the opinions of the defense experts; a wealth of information about other incidents of unwanted acceleration was introduced at trial in connection with the testimony and impeachment of experts, so Vincenti’s claim of prejudice lacks merit; if Vincenti wanted to introduce other incidents of unwanted acceleration, she had the option of requesting a limited hearing on a few of those other incidents, but she never made such a request; though the trial court said the in limine ruling was subject to change, Vincenti made no attempt to revisit the issue.
We address these issues below.
a. Evidence Code sections 402 and 403.
Indeed, as Vincenti informs us, Evidence Code section 402, subdivision (a) provides that when “the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined” as provided in Chapter 4, Article 2 of the Evidence Code. Under subdivision (b) of Evidence Code section 402, the trial court “may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury.” As provided in Evidence Code section 403, subdivision (a), the “proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the [trial court] finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact when: [¶] . . . The relevance of the proffered evidence depends on the existence of the preliminary fact.”
The upshot of Evidence Code sections 402 and 403 is that once the Porters disputed the relevance of other incidents of unwanted acceleration, Vincenti bore the burden of establishing that they were sufficiently similar to the incident of September 26, 2001, to be admissible.
b. Rule 7.9(h).
Pursuant to rule 7.9(h), the parties in a case assigned to a judge for all purposes “shall file and serve any trial preparation motions and dispositive motions, other than summary judgment motions, including motions in limine or bifurcation motion, with timely statutory notice so as to be heard on the day of this final status conference. . . . At this conference, the court will also consider, inter alia, major evidentiary issues and special verdict issues.” (Italics added.)
The Porters were obligated to file and serve their joinder in motion #3 and their separate but parallel motion #5 within the time limits prescribed by Code of Civil Procedure section 1005.
c. Timeliness of the Porters’ joinder in motion #3 and their separate motion #5.
The Porters’ joinder in motion #3, and their separate motion #5, were served by mail on March 21, 2005, and March 29, 2005, respectively and originally scheduled to be heard on April 8, 2005. Neither the joinder nor motion #5 were filed-stamped until April 25, 2005. Pursuant to Code of Civil Procedure section 1005, subdivision (b), the papers had to be served and filed 21 days before the scheduled hearing, which fell on Saturday, March 19, 2005. Therefore, the joinder and motion #5 should have been filed and served on March 18, 2005. But the Porters’ failure to properly file and serve the motions does not end the inquiry.
d. Effect of defective service.
Though Vincenti complains that she did not receive statutory notice, she does not contend that this deprived the trial court of the power to consider motion #3 and motion #5 and then grant them.
We note that, in general, a party who was notified of a motion and attends the hearing “cannot be heard to complaint of alleged insufficiency of the notice.” (De Luca v. Board of Supervisors (1955) 134 Cal.App.2d 606, 609.) To object to improper notice and preserve the issue for appeal, a party must demonstrate defective service and “the inability to prepare a proper response.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 698.) “‘It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]’” (Id. at p. 697.) Vincenti’s written opposition to motion #5 ignored motion #3 and, furthermore, it did not contend that she was unable to prepare a proper response. More importantly, Vincenti’s counsel appeared and argued the merits of the motions at the April 25, 2005 hearing, without initially objecting to service. Only after motions #3 and #5 were granted and the parties were discussing Salyer did Vincenti’s counsel suggest that the motions were belated. Even then, Vincenti’s counsel did not contend that it was impossible to request a hearing at an earlier date. Based on the foregoing facts, it was proper for the trial court to consider motions #3 and #5.
e. Denial of an evidentiary hearing.
The trial court denied an evidentiary hearing regarding the admissibility of other incidents of unwanted acceleration on the grounds that Vincenti unreasonably delayed making her request. To this, Vincenti responds by asserting that she made the request as soon as the dispute arose and that, in any event, the trial court had a choice of more appropriate alternatives.
We start with a statement of the trial court’s powers. “Trial courts have the inherent power to control the proceedings before them [citation] and to adopt suitable methods of practice [citation] to the extent its orders do not conflict with any statute and are not inconsistent with law. [Citations.]” (Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal.App.4th 536, 542–543.) If a course of proceeding is not established by statute, “any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.” (Code of Civ. Proc., § 187.) As a result, trial courts “have inherent equity, supervisory and administrative powers . . . [that] are derived from the state Constitution and are not confined by or dependent on statute. [Citation.]” (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377.) In sum, “[a] court has inherent power to exercise reasonable control over all proceedings connected with the litigation before it.” (Mowrer v. Superior Court (1969) 3 Cal.App.3d 223, 230.)
Filtered out, the question presented is this: Did the trial court abuse its discretion under its inherent authority to control the proceedings before it by denying Vincenti evidentiary hearing? Case law provides that “[t]he appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citations.]” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479.)
To establish an abuse of discretion, Vincenti contends that “the request [for an evidentiary hearing] was made at the time the issue of the admissibility of the [other incidents of unwanted acceleration] became disputed, and thus was timely and properly made under [Evidence Code section 402].” This contention, however, cuts against the record. In motion #3, Daimler disputed the relevance of other incidents of unwanted acceleration on May 20, 2004, and argued that a hearing to establish their admissibility would result in unduly time consuming mini-trials. The Porters served a joinder in motion #3 on March 21, 2005. They served motion #5 about a week later on March 29, 2005. Vincenti was well aware of the dispute prior to April 25, 2005. In fact, Vincenti served an opposition to the motions on April 8, 2005, opting to object to timeliness without opposing the merits. Her written opposition did not offer proof regarding the relevancy of the other incidents of unwanted acceleration, nor did it request an evidentiary hearing even though the trial court indicated that it wanted to handle difficult motions in limine prior to trial. We cannot accede to Vincenti’s contention that her request was timely on the date of trial.
At the November 29, 2004 hearing, the trial court stated that it wanted to handle the motions in limine at the final status conference and have sufficient time in advance to prepare. Then the trial court added: “If you feel there are not any[,] or [if the motions are] just standard ones—I don’t know if there are going to be any that we need to work up and prepare.”
In our view, the trial court acted within its discretion when it denied Vincenti’s request for an evidentiary hearing. The issue had been looming for almost a year due to motion #3, but Vincenti never informed the trial court she would need an evidentiary hearing. The trial court was concerned that Salyer, for example, might base his opinion on 200 incidents of unwanted acceleration that may or may not be similar to the incident involving Vincenti and Mr. Porter. Vincenti’s counsel never disabused the trial court of this notion, nor did Vincenti’s counsel suggest that a hearing could be pared down and made manageable. The prospect of a hearing involving 200 or more incidents of unwanted acceleration threatened to exponentially expand the time and expense of the proceedings without warning. And, pivotally, Vincenti’s counsel specifically told the trial court that all he was “talking about is referring to the name [of a case],” and that he did not plan on “getting into the facts of [each] case” of the other incidents of unwanted acceleration. Because the trial court expressly stated that experts could testify that they did testing on cars, and because Vincenti did not argue that the jury should hear the facts of other incidents of unwanted acceleration, the trial court had no notice that its ruling would be attacked as improper.
Vincenti argues that the trial court could have dismissed the jury venire, transferred the jury venire to another department, or granted a short continuance after jury selection. But none of these alternatives were suggested to the trial court below, which precludes Vincenti from arguing this point on appeal. (Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1 [“it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial”].)
The parties’ other arguments are moot.
2. The trial court acted within its discretion when it excluded testimony from Salyer.
According to Vincenti, the testimony that Salyer would have offered was admissible, and the erroneous exclusion of that testimony requires that this matter be remanded for a new trial.
We disagree.
a. Expert testimony.
An expert’s opinion must be related “to a subject that is sufficiently beyond common experience [so it will] assist the trier of fact” and must be based on a matter known or made known to the expert, “whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Evid. Code, § 801.) “A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter . . . upon which it is based. . . . The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.” (Evid. Code, § 802.)
“Expert testimony as to facts may be necessary where the facts from which conclusions are to be drawn are peculiarly within the expert’s knowledge and are not a matter of common knowledge as to which an ordinary witness may competently testify.” (1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, § 27, p. 556.) Furthermore, an expert may base an opinion on hearsay. But “the trial court may exclude from the expert’s testimony ‘any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value.’ [Citation.]” (People v. Pollock (2004) 32 Cal.4th 1153, 1172.)
b. Salyer’s advocated testimony was not admissible.
Vincenti argues that the trial court erred in excluding Salyer’s testimony based on other incidents of unwanted acceleration because “an expert witness may state on direct examination both the reasons for his or her opinion and the matters on which it is based” and “[e]xpert witnesses are specifically permitted to state on direct examination that they have reviewed, considered, and relied on inadmissible evidence of a type upon which experts reasonably rely.” Vincenti goes on to argue that “because the [trial court] did not conduct an evidentiary hearing regarding the admissibility of [other incidents of unwanted acceleration], no determination of reliability was made. . . . Because this information is the type that an expert may reasonably rely upon, the trial court erred in excluding his testimony.”
These arguments are unavailing.
First, the record is devoid of evidence establishing that the other incidents of unwanted acceleration provided Salyer with the type of information an expert could reasonably rely upon in forming an opinion about what caused the incident involving Vincenti and Mr. Porter. This dearth is owed to Vincenti’s waiver of the right to an evidentiary hearing. Consequently, she never met her burden under Evidence Code section 402 to establish that the other incidents of unwanted acceleration were substantially similar.
Second, the trial court precluded Salyer from testifying on more than one ground. In particular, his opinion was precluded because the trial court considered it irrelevant, confusing and an undue consumption of time on the grounds that it was no more than a summary of the other experts’ testimony. Because Vincenti makes no mention of these grounds, and impliedly acquiesces, we presume absence of error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Last, we fail to see how the trial court’s order could have caused prejudice. Deputy Wiley, Deputy Shinagawa, Paustian and Detective Ellison provided testimony establishing that the physical evidence was consistent with the scenario that Vincenti’s foot was on the accelerator, not on the brake. Medora and Keefer provided support for this scenario by testifying as to why Vincenti’s backfeed theory of the incident was not viable. From the jury verdict, it is undisputable that the jury believed these witnesses and accepted this scenario. Moreover, even though the jury did not hear the specifics, the jury heard that the various experts reviewed and investigated countless incidents of unwanted acceleration involving Jeep Grand Cherokees. As a result, the jury knew that other incidents occurred.
3. The trial court acted within its discretion when it excluded testimony from Banta regarding whether a brake transmission shift interlock should have been installed in the vehicle, and when it precluded Vincenti from asserting an affirmative defense based on that testimony.
Vincenti asserts that Banta’s testimony was critical to both the jury’s understanding of her vehicle as well as her affirmative defense that the negligence of others caused the accident at issue. Based on this, Vincenti relies on Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938 (Andrews) and argues that the trial court prejudicially abused its discretion and caused an irregularity in the proceedings by excluding parts of Banta’s deposition.
In Andrews, the plaintiff sued a city and six police officers for, inter alia, violation of civil rights. The city filed a motion in limine to preclude evidence of citizen complaints regarding the violent and abusive behavior of one of the officers. The motion was granted, inter alia, on the grounds that each episode of the officer’s misconduct would prompt a mini-trial. (Andrews, supra, 205 Cal.App.3d at pp. 941–947.) The Andrews court reversed. It stated that though the trial court was worried about retrying every misconduct episode, it never asked plaintiff’s counsel how many incidents he intended to offer, or the nature of the proof. The court noted that, “if the [trial] court intended to base its exclusionary ruling upon consumption of time on collateral matters, it did not exercise its discretion in an informed manner, as section 352 [of the Evidence Code] requires.” (Andrew, supra, at p. 947.)
Simply put, Andrews is not relevant to our analysis. There, the trial court excluded evidence based on undue consumption of time. Here, the trial court excluded evidence regarding brake transmission shift interlocks because the Porters’ counsel objected, Vincenti’s counsel provided no opposition, Vincenti’s interrogatory responses and affirmative defenses did not identify the absence of a brake transmission shift interlock as an alternative cause of the incident, Banta was not designated as an expert regarding brake transmission shift interlock devices, and the Porters had been deprived of the opportunity to obtain discovery and retain experts. Moreover, it is noteworthy that the trial court was unclear whether Vincenti was asserting the absence of a brake transmission shift interlock as a defense, and Vincenti’s counsel, at one point, even stated, “We are not going to assert it.” He went so far as to volunteer that Keefer said the absence of a brake transmission shift interlock was irrelevant because Vincenti’s foot was on the brake.
Next, Vincenti argues that evidence that Daimler developed the brake transmission interlock device to prevent unwanted acceleration was admissible to prove it was on notice of incidents of unwanted acceleration and therefore had a duty to retrofit all vehicles, including her 1993 Jeep Grand Cherokee. But the trial court concluded that allowing the defense would be unfair to the Porters. Therefore, evidence regarding the issue of duty was irrelevant.
Vincenti acknowledges that her negligence of others affirmative defense did not allege the absence of a brake transmission shift interlock device as the cause of the incident. However, she argues that it was not required to. And further, she asserts that “the Porters retained [Daimler’s] experts for the liability phase [of] trial, including James Bilenda and [Banta] (whose deposition as a Person Most Knowledgeable had been taken in June 2004), . . . and thus the Porters knew or should have known that the absence of a [brake transmission shift interlock device] would be raised as part of [Vincenti’s] case.” Finally, she points out that the special verdict form included a question regarding the negligence of others and argues that evidence on that issue should have been admitted.
Vincenti directs our attention to Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592 (Ludgate), a case in which the trial court granted a motion for judgment on the pleadings. In Ludgate, the court explained that “‘a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action. [Citation.]’ . . . ‘The particularity required in pleading facts depends on the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff; less particularity is required where the defendant may be assumed to have knowledge of the facts equal to that possessed by the plaintiff. [Citation.]’ [Citation.] There is no need to require specificity in the pleadings because ‘modern discovery procedures necessarily affect the amount of detail that should be required in a pleading.’ [Citation.]” (Id. at p. 608.) Ludgate identified the applicable test as one of fair notice. (Ibid.)
Ludgate does not provide Vincenti with any assistance. It was a judgment on the pleadings case, which makes it distinguishable. In any event, Vincenti’s pleading does not pass the fair notice test. It did not apprise the Porters of the nature, source and extent of an affirmative defense that was equivocally raised only during trial. Too, we reject the contention that the Porters were on notice of Vincenti’s affirmative defense because they retained Banta. The only reasonable indication of Vincenti’s theory of the case was her pleading and discovery responses, and neither of those gave the Porters the fair notice to which they were entitled.
Given the foregoing, the trial court did not abuse its discretion.
4. Denial of Vincenti’s motion for a new trial.
We are provided the following argument pertaining to the motion for new trial: “The trial court denied [Vincenti’s] motion for a new trial, in which she identified the same errors in the trial court’s decisions provided in [Vincenti’s] opening brief. The trial court’s erroneous ruling[] . . . on the motion for new trial . . . constitute[s] error warranting reversal of the judgment.” From this we glean that Vincenti’s argument regarding the motion for new trial is simply a repeat of her argument regarding the trial court’s earlier rulings.
Insofar as we have concluded that the trial court made permissible rulings before and during trial, all issues are resolved.
DISPOSITION
The judgment is affirmed.
The Porters shall recover their costs on appeal.
We concur: BOREN, P. J., CHAVEZ, J.