Opinion
A118724
5-9-2008
GLENDA WELCH et al., Plaintiffs and Respondents, v. BIG DOG CITY CORPORATION et al., Defendants and Appellants.
NOT TO BE PUBLISHED
Big Dog City Corporation (Big Dog) and Kingchee Cheng (Cheng) appeal from a judgment entered after a jury found them liable for personal injuries sustained by respondents in a motor vehicle accident. The trial court, in granting an in limine motion based on appellants insufficient discovery responses, precluded appellants from presenting any evidence or argument as to whether respondents were wearing their seatbelts at the time of the accident, and refused to instruct the jury on appellants comparative negligence defense. Appellants contend this was error. We agree, and we will reverse the judgment.
I. FACTS AND PROCEDURAL HISTORY
A. Complaint
Respondents Glenda and David Welch sued appellants Big Dog and Cheng, as well as other defendants, in connection with a motor vehicle accident occurring on August 12, 2005. Their complaint alleged inter alia that they were passengers in a vehicle driven by Cheng and owned by Big Dog, which collided with another vehicle at the intersection of 17th Street and Potrero Avenue in San Francisco. The injuries that respondents sustained in the accident were alleged to be the proximate result of the negligence of Big Dog and Cheng, as well as the negligence of the driver and owner of the other vehicle.
B. Affirmative Defense Based on Plaintiffs Negligence
Big Dog and Cheng answered the complaint, and each asserted affirmative defenses including the following: "Defendant alleges that plaintiffs were guilty of comparative negligence in and about the matters alleged in said complaint, to wit: that at said time and place plaintiffs failed and neglected to use any care or caution for plaintiffs own safety and protection and then and there negligently and carelessly conducted plaintiffs self; and that plaintiffs injuries and damages, if any, were proximately and legally caused and contributed by the negligence of said plaintiffs as aforesaid."
C. Discovery
1. Written Discovery
Respondents served several interrogatories and inspection demands upon Big Dog and Cheng. Form Interrogatory 15.1 requested all facts, witnesses, and documents supporting appellants affirmative defenses. Big Dog and Cheng each objected on the ground that "discovery and investigation has not yet been completed" and asserted that its answer to the complaint was "formulated to preserve any rights that it had in this litigation and does not necessarily reflect the facts or evidence as is known at this time," and purported to "reserve[] the right to supplement its response to this interrogatory in the future." Appellants gave no substantive response whatsoever to the interrogatory.
Special Interrogatory No. 4 asked Cheng for all facts supporting his affirmative defense of comparative negligence, and Special Interrogatory Nos. 5 and 6 requested identification of the corresponding witnesses and documents. On September 6, 2006, Cheng responded to each as follows: "Responding partys denial and affirmative defenses are supported by: [¶] (1) The traffic collision report prepared in conjunction with the incident; [¶] (2) The statements recorded in the traffic collision report; [¶] (3) All depositions, all discovery exchanged, and all pleadings filed by the parties in this case; and [¶] (4) Applicable United States and California Constitutional, statutory, and case law. [¶] At this time this answering defendant is without sufficient information upon which to base a full and complete response to this interrogatory. Discovery and investigation are incomplete and continuing, and responding party reserves the right to supplement this entire response." Cheng never supplemented his response.
The traffic collision report to which Cheng referred indicated that respondents were in the rear seat of a taxicab driven by Cheng—wearing seatbelts. As they were travelling north on Potrero Avenue in San Francisco, a southbound vehicle made a left turn at the intersection in front of them. The taxi, purportedly travelling at a high rate of speed, struck the other vehicle. According to the report, the driver of the other vehicle was at fault pursuant to Vehicle Code section 21801a [driver making left turn should yield right of way], and his action was the primary collision factor in the accident. The report indicated that Cheng was in apparent violation of Vehicle Code section 22350 [excessive speed].
A San Francisco Fire Department Patient Care Report included a narrative indicating that Mrs. Welch was lap belted in the rear passenger seat of the taxicab. A San Francisco General Hospital Medical Center Emergency Department form indicated that Mrs. Welch was "lapbelt restrained." San Francisco General Hospitals Trauma Service Consultation Record, also dated the day of the accident, refers to Mrs. Welch as the "lap belted rear passenger." Other medical records indicate that Mrs. Welch was seat-belted as well.
2. Deposition Testimony
The depositions of respondents were taken on September 12, 2006. When asked whether she had put on both the lap belt and the shoulder harness of the taxicabs safety restraint system, Mrs. Welch testified that she was wearing her lap belt. Mr. Welch testified that he did not know whether Mrs. Welch put on her seatbelt or if she was in a seatbelt after the collision. He noted, however, that after the accident the front seat was "broken down." As indicated by other evidence, the front seat was broken due to the force with which Mrs. Welch was thrown from her rear passenger seat into the back of the front seat.
The testimony was as follows: "Q. All right. So, at the airport you get in the cab, youre in the back seat, right? [¶] A. Yes. [¶] Q. And youre sitting behind the passenger seat? [¶] A. Yes. [¶] Q. And do you put your seat belt on? [¶] A. Yes. [¶] Q. Okay. Is that both the shoulder harness and the lap belt? [¶] A. I think it was just the lap belt."
Cheng also testified in deposition. When asked if Mr. and Mrs. Welch had their seat belts on at the time of the accident, Cheng testified, "I believe so."
3. Expert Witness Disclosure
In November 2006, Big Dog and Cheng retained Jay Mandell, Ph.D., as a biomechanical engineering expert.
On February 23, 2007, Big Dog and Cheng served their Disclosure of Expert Trial Witnesses and a supporting declaration. Dr. Mandell and another individual were listed as retained experts. The supporting declaration described Dr. Mandells qualifications as "a mechanical engineer who specializes in biomechanics, accident reconstruction and mechanical design analysis" and attached his curriculum vitae. The substance of Dr. Mandells testimony was described as follows: "Dr. Mandell is expected to testify regarding his review of photographs of the subject vehicles and of the accident site and review of discovery materials, accident reconstruction, his own tests and studies, forces involved in the subject accident, the biomechanics/body movements in the subject accident, forces, causation of injuries and related bio-mechanical and design issues. He will also be testify [sic] relating to the deposition and trial testimony of plaintiffs biomechanical and accident reconstruction experts."
4. Big Dogs Response to Respondents Supplemental Interrogatory
Respondents served a Supplemental Interrogatory on Big Dog, to which Big Dog responded as follows on March 8, 2007: "Defendant does not have any additional information responsive to this request." The record does not contain the Supplemental Interrogatory to which Big Dog was responding.
5. Dr. Mandells Deposition
Respondents took the deposition of Dr. Mandell on April 5, 2007. Among other things, Dr. Mandell testified that, notwithstanding the statements suggesting that Mrs. Welch was wearing a seatbelt, his opinion was that she was not wearing a seatbelt. He opined: "Well, I dont believe that Mrs. Welch was wearing her seatbelt. And I believe that if she had been wearing her seatbelt, that she would not have suffered—she would not have suffered any femur fractures and, in fact, its likely that her injuries would have been similar to those of her husband, who had what I would interpret as transient muscle soreness and soft tissue injuries that basically went away after a few months."
The next 17 pages or so of the deposition transcript set forth counsels questioning of Dr. Mandell on this opinion. To support his opinion that Mrs. Welch was not wearing her seatbelt, Dr. Mandell noted: (1) a NHTSA (National Highway Traffic Safety Administration) frontal crash test of the same model vehicle as the taxi (a 2001 Ford Crown Victoria) resulted in no significant leg damage to the front passenger or driver dummies, and a lapbelted passenger in the rear seat would be even less likely to suffer leg damage; (2) Mr. Welch did not sustain leg injuries; and (3) the force with which Mrs. Welch collided into the back of the seat in front of her.
As to the latter factor, Dr. Mandell also noted the position of the front seat as depicted in a photograph after the accident: "Its pushed forward and permanently deformed. Thats from her body hitting the seat, which is indicative of her not wearing a belt. . . ." The transcript of his deposition further reads in part: "Q. . . . Youre saying that she couldnt have been wearing her seatbelt because her injuries were too severe? [¶] A. Because of the way she crashed into the seat in front of her and then suffered these injuries. She wouldnt have crashed into the seat in front of her if she were wearing her belt unless, of course, as you suggest, that the belt had failed." Based on Mrs. Welchs injuries, Dr. Mandell concluded that "its overwhelmingly more probable that she wasnt wearing a belt than that that seatbelt failed."
D. Plaintiffs Motion in Limine No. 4
Motion in Limine No. 4 to "Exclude Seatbelt Affirmative Defense," dated April 16, 2007, sought to preclude Dr. Mandells testimony, and any other evidence and argument, that Mrs. Welch was not wearing a seatbelt. Respondents based their motion on Code of Civil Procedure section 2023.030, which authorizes a variety of sanctions for discovery abuses. Primarily, respondents argued that appellants did not specifically allege any failure to wear a seatbelt in their comparative negligence affirmative defense, disclose the seatbelt defense in their discovery responses, or specify in their expert witness disclosure that Dr. Mandell would testify regarding Mrs. Welchs use of her seatbelt. As a separate and independent ground for the motion, respondents contended that appellants had destroyed the taxicab, and it was thus unavailable for inspection.
The motion was heard on April 17, 2007, the day before trial. Focusing on the sufficiency of respondents discovery responses, the court queried: "I mean, my question is was there specificity in the response, the discovery response stating particularly seat belt?" Appellants acknowledged that the word "seatbelt" did not appear in their responses. But, they argued, they had alleged comparative negligence as an affirmative defense, and they never withdrew that defense. Appellants further contended that whether Mrs. Welch was wearing her seatbelt was an issue throughout the litigation, in light of the fact that the impact jolted Mrs. Welch onto the front seat of the cab, and questions concerning respondents use of the seatbelts arose in depositions. Appellants also pointed out that Mrs. Welchs treating physician, Dr. Regan Hansen, acknowledged in deposition that he was told, perhaps by Mr. Welch three weeks after the accident, that Mrs. Welch had not been seatbelted.
Respondents counsel retorted that Dr. Hansen was unsure where he got that information, but he thought it came from Mr. Welch; Mr. Welch would deny that he said it. The transcript of Dr. Hansens deposition indicated that there was an entry in his chart on August 30 that Mrs. Welch was not wearing her seatbelt in the accident. The doctor believed he was told this by Mr. Welch, because Mrs. Welchs "recollection was very poor of the actual events."
After taking the matter under submission, the court granted the motion with the following statement: "Now, as to the seat belt affirmative defense, the Court in that instance is going to grant, and thats the Courts rulings." The court subsequently clarified that there could be no evidence of the use or non-use of the seatbelts: "Thats correct. Were not going to hear about that." The ruling was reflected in the courts Minute Order simply as follows: "Plaintiffs motion # 4 granted."
E. Jury Trial
The case against Big Dog and Cheng was tried to a jury beginning on April 18, 2007, as scheduled.
1. Testimony
David Welch and Glenda Welch, 71 years old, hailed a taxicab to take them from San Francisco International Airport to their hotel. The cab, a 2001 Ford Crown Victoria, was owned by Big Dog and driven by Cheng. As they sat in the back seat of the cab, Cheng drove them to San Francisco, speeding and weaving in and out of traffic.
As Cheng drove them northbound on Potrero Avenue near the intersection with 17th Street in San Francisco, a 2001 Acura was traveling southbound on Potrero Avenue. The driver of the Acura waited in the left turn lane for northbound traffic to clear and then, while the light was green, made a left turn or U-turn onto eastbound 17th Street. In the middle of the turn the Acura driver noticed Chengs taxicab approaching "very fast" and realized he would not be able to finish the turn before the taxicab hit the side of his car. Cheng, who also had a green light, applied his brakes but was unable to stop the cab before it hit the Acura near the passenger side door.
Accident reconstructionists for both respondents and appellants estimated Chengs speed to be 10 to 30 miles per hour over the 25-mile-per-hour speed limit. Dr. Mandell estimated that if Cheng braked at all before impact, the taxis speed before braking was perhaps 40 miles per hour. Respondents expert witness, Richard Stuart, concluded that Cheng was travelling between 40-50 miles per hour at the time of impact and faster before applying his brakes. If Cheng had been driving at the speed limit, Stuart opined, the accident would not have happened.
Cheng sustained essentially no injuries in the accident. David Welch suffered soft tissue neck injuries and complained of neck pain, back pain, and bruises, but was symptom-free at the time of trial. The cost of his treatment was $615.
Glenda Welch suffered much more severe injuries. She struck the back of the front passenger seat with such force that the seat broke. She sustained fractures to her right hip and left femur and a broken thumb. She underwent several surgeries, hospitalization, and treatments resulting in expenses of $178,003.56. She endures constant pain, an awkward gait, and severe physical deconditioning.
As a result of the courts ruling on Motion in Limine No. 4, several witnesses whose testimony pertained to the seatbelt issue were eliminated by the parties (appellants withdrew EMT Andrew Baron and Officer J. Buckley; respondents withdrew witnesses Patricia Poleries and Dan Borg). Dr. Mandell was admonished not to discuss the seatbelt issue. No witness testified regarding Mrs. Welchs use of her seatbelt or its possible effect on the extent of her injuries.
2. Jury Instructions
Appellants requested jury instructions concerning their affirmative defense of contributory or comparative negligence, including CACI Nos. 405, 406 and 712 (failure to wear seatbelt). Based on the courts ruling on Motion in Limine No. 4, CACI Nos. 405 and 712 were refused and CACI No. 406 was withdrawn. A modified version of CACI No. 406, directing the jury to assign the percentage of responsibility to the persons it found to have been substantial factors in causing respondents harm, was later given without reference to Mrs. Welchs own possible responsibility. The negligence of respondents was not discussed in closing arguments.
3. Jurys Questions
During their deliberations, the jury presented questions about respondents use of their seatbelts. Among a number of their inquiries was the following: "The jury would like to know whether or not Glenda and/or David Welch were wearing seatbelts at the time of the accident." A further request followed: "We, The Jury in the above-entitled action, request the following: to know where the responsibility lies for the passengers in the cab to wear seatbelts when the cab is in motion. Is the driver required to ask his passengers to wear seatbelts." The trial court replied: "To the Jury: You have received all the evidence that has been admitted & no further evidence can be provided." The courts response was based on its ruling on Motion in Limine No. 4.
The jury also asked: "Please clarify the definition of `same harm as it is written in CACI 430 [Causation: Substantial Factor]. Does `same harm mean that the same extent of injuries would have occurred or that any general injuries would have occurred at all?" (Underscoring in original.) The trial court responded in writing: "Per your question `same harm relates to the extent of the injuries resulting from the automobile accident." The jury also requested a copy of the police report. The trial court provided the jury with only a diagram from the report.
F. The Verdict
The jury found that Big Dog and Cheng were 50 percent at fault and the driver and owner of the Acura were 50 percent at fault. The jury awarded $1,492,000 to Mrs. Welch and $150,615 to Mr. Welch, resulting in net awards (after set-offs) of $760,733.03 and $75,384.50, respectively. Judgments were entered on May 11, 2007.
G. Appellants New Trial Motion
Appellants filed a motion for a new trial on May 31, 2007, contending the court erred in its ruling on Motion in Limine No. 4. Appellants presented declarations from three jurors, who stated that the seatbelt issue was very significant and, if evidence had been presented that Mrs. Welch was not wearing her seatbelt, it would have affected how they apportioned liability in the case. Appellants trial counsel, Roger Agen, later submitted a declaration explaining the subject interrogatory responses and claiming that he had no intent to deceive.
The court sustained respondents evidentiary objections to the juror declarations and the declaration of Roger Agen, and denied Big Dogs and Chengs motion for a new trial.
This appeal followed.
II. DISCUSSION
Respondents based Motion in Limine No. 4 on Code of Civil Procedure section 2023.030, which provides for a variety of potential sanctions for the misuse of the discovery process, including monetary sanctions, issue sanctions, evidence sanctions, terminating sanctions, and contempt sanctions. (See Code Civ. Proc., § 2023.010 [defining misuses of the discovery process].) In light of the trial courts statements at the in limine hearing, the basis of its preclusion order was that appellants did not specifically refer to seatbelts in their discovery responses. We therefore consider (1) the sufficiency of appellants discovery responses and (2) the scope of the sanction imposed.
Respondents also based their Motion in Limine No. 4 on arguments that the comparative negligence affirmative defense did not mention seatbelts, appellants expert witness disclosure did not explicitly state that Dr. Mandell would testify regarding Mrs. Welchs use of her seatbelt, and appellants had destroyed the taxicab. The fact that the affirmative defense did not include the word "seatbelts" is not, in itself, a sufficient basis for precluding appellants from attempting to prove the affirmative defense. Respondents do not contend that Dr. Mandells testimony should have been precluded based on an inadequate expert witness disclosure under Code of Civil Procedure sections 2034.210 and 2034.230. Nor do they contend any longer that the in limine motion should have been granted based on their theory that the destruction of the taxi constituted spoliation of evidence. To the extent they urge that these circumstances reflected appellants deceit in their discovery responses, we address the matter post.
A. Sufficiency of Appellants Discovery Responses
Under the discovery rules, sanctions may be imposed where (1) there was a failure to comply with the discovery rules and (2) the failure was willful. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 (Vallbona).) The decision whether to grant or deny a discovery sanction is within the sound discretion of the trial court, the exercise of which shall not be disturbed on an appeal unless arbitrary, capricious or whimsical. (Pate v. Channel Lumber Co. (1997) 51 Cal.App.4th 1447, 1454 (Pate).)
The sum and substance of Big Dogs discovery responses was that it had no information on which to base its comparative negligence defense. In response to contention interrogatories, Big Dog represented that it had no facts, witnesses, or documents that would support the defense, and its response to respondents supplemental interrogatory represented that it had no "additional information responsive to this request."
The upshot of Chengs discovery responses was that he would rely on the traffic collision report (which said that Mrs. Welch had her seat belt on) and depositions, pleadings, and discovery in the case. Despite reserving his right to amend his responses, he never did.
Given that appellants made their expert disclosures on February 23, 2007, it can be inferred that they knew by then that Dr. Mandell would opine that Mrs. Welch was not wearing her seatbelt and that the severity of her injuries was largely due to her failure to do so. Big Dogs supplemental response, served about two weeks later, did not disclose this contention or any fact on which it could be based. Nor did Cheng ever disclose that he intended to base his affirmative defense on Mrs. Welchs failure to wear a seatbelt, or any specific deposition testimony or documents. His statement that he was relying on all the discovery and pleadings in the case and all the laws of the land was plainly insufficient. The trial court did not abuse its discretion in concluding that appellants committed discovery abuse by failing to provide timely and adequate (e.g., non-evasive) interrogatory responses.
The court did not expressly find that appellants discovery abuse was willful, but such a finding is implicit in the courts decision to impose the sanction. We need not decide whether there was substantial evidence to support such a finding, because we reverse the ruling due to the nature and breadth of the sanction imposed.
B. Breadth of Sanction
While the choice of what sanction to impose is within the trial courts discretion, that discretion is not unlimited. The record must disclose a reasonable basis for the courts decision. (People v. Jacobs (2007) 156 Cal.App.4th 728, 736, 738.) Moreover, a trial courts discretion is necessarily circumscribed by the law it purports to enforce — here, the Discovery Act (Code Civ. Proc. § 2016.010 et seq.). (Ibid.) In the context of the Discovery Act, sanctions imposed for a discovery abuse should not place the other party in a better position than if the discovery had been proper. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793 ["The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery."].) Furthermore, punishment is not a proper objective for a discovery sanction. (McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210, 211 ["In the particular matter of witness or evidence preclusion sanctions, California cases have affirmed the trial courts discretion to impose such sanctions when the offender has engaged in a long history of abuse of process, but have reversed severe sanctions that are disproportionate to the sanctioned conduct."].) We must therefore determine the extent of the prejudice caused by the appellants discovery abuse, and then decide whether the sanction was a reasonable attempt to cure that prejudice, based on the record and any findings or rationale offered by the court.
The parties vigorously debate whether evidentiary or issue sanctions can be imposed unless the sanctioned party previously disobeyed an order compelling discovery. While a prior order is generally required for the imposition of evidentiary or issue sanctions, such sanctions have been upheld without a prior order where the sanctioned party wrongfully claimed that a witness or documents did not exist and the deceit was not discovered until trial. (See Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 278 & fn. 14; Pate, supra, 51 Cal.App.4th 1447; Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270.) Rather than insisting upon a bright line requirement for a prior order, the essential question is whether the sanction was an abuse of discretion under the entirety of the circumstances.
Under the circumstances of this case—and without by any means excusing appellants failure to comply with their discovery obligations—we do not find that appellants transgressions caused significant prejudice to respondents. From the outset of the litigation, respondents should have expected that appellants might contend Mrs. Welch was not wearing her seatbelt. As respondents counsel has acknowledged, "questions regarding the use of seatbelts arise[] in every motor vehicle accident case," and here appellants alleged an affirmative defense of comparative negligence and asked respondents in deposition whether they were wearing their seatbelts. Moreover, the evidence disclosed that, upon the taxis impact with the other vehicle, Mrs. Welch collided with the seat in front of her with such force that it broke. The fact that she flew forward with such force, while her husband did not, suggested at least the possibility that appellants would claim Mrs. Welch was not wearing her seatbelt after all.
Respondents counsel argued that he thought seatbelt use was no longer an issue once Mrs. Welch testified that she used her lapbelt and Cheng testified that he believed she was seat-belted as well. However, Mrs. Welchs claim that she wore her lapbelt was still subject to cross-examination at trial, and appellants could argue that her recollection was inconsistent with the physical evidence. While Cheng testified in deposition that he believed Mrs. Welch was seat-belted, the record discloses no foundation for such testimony: although there may well be some basis for Chengs belief, it is not apparent from the excerpt of Chengs deposition transcript, since it does not explain how Cheng, while driving in the front seat, could know that a passenger sitting behind him was wearing her lapbelt when he struck another vehicle. Furthermore, it seems to us that counsel might have reconsidered his conclusion when he received appellants expert witness disclosure, which indicated that a biomechanical expert was going to testify concerning the "biomechanics/body movements in the subject accident" and "causation of injuries," particularly given the force with which Mrs. Welch struck the seat in front of her, the nature of her injuries, and evidence in her treating physicians records that Mrs. Welch was not wearing her seatbelt. We note as well that, based on the excerpt from Dr. Mandells deposition that was submitted to the trial court, respondents counsel began questioning Dr. Mandell about any information he had received concerning the seatbelts in the taxi before Dr. Mandell actually mentioned his opinion that Mrs. Welch was not wearing her seatbelt.
In any event, respondents undisputedly learned of Dr. Mandells belief that Mrs. Welch was not wearing her seatbelt (and his opinion that she would not have suffered broken femurs if she had) at his deposition on April 5, 2007. At that point, there were still 13 days before trial was set to begin. While respondents argue that there was no time to obtain evidence to rebut Dr. Mandells seatbelt claim or to hire their own expert on the issue, the record does not support their argument.
According to respondents own assertions elsewhere in their briefs, there was evidence to rebut Dr. Mandells opinion: in addition to Mrs. Welchs recollection and Chengs testimony, the traffic collision report stated that Mrs. Welch was wearing her seatbelt; the San Francisco Fire Departments extraction report identified Mrs. Welch as the lap-belted right rear passenger; and a number of other medical records state that Mrs. Welch was seat-belted. Such evidence, respondents have stated, "would have certainly gone a long [way] in convincing a jury on this issue." And yet, all of this evidence was ostensibly attainable by respondents before the trial commenced. Certainly the traffic collision report was available; in fact, it was disclosed as a matter on which Cheng based his affirmative defense. Respondents fail to show that the other evidence purportedly refuting Dr. Mandells opinion could not have been obtained in the 13 days between Dr. Mandells deposition testimony and the commencement of trial. Similarly, respondents argued in their motion in limine — before trial — that Dr. Mandells opinion was unpersuasive because he never inspected the taxicab and admitted in deposition that he could not state whether Mrs. Welchs injuries were caused by a failure to wear her seatbelt or the seatbelts mechanical failure. Thus, accepting counsels representation that Dr. Mandells seatbelt opinion was a complete surprise, respondents already had evidence and arguments to counter it, with several days left before trial.
Respondents urge that there was no time before trial to obtain an expert witness to combat Dr. Mandells opinion, and respondents counsel represented at the in limine hearing: "I would have gotten a biomechanical engineer if I felt that there was going to be a seat belt defense." Respondents made no showing, however, that counsel ever tried to obtain an expert witness to rebut Dr. Mandells seatbelt opinion in the 13 days between Dr. Mandells deposition and the trial date. Indeed, respondents made no showing of any attempt to address the prejudice of appellants discovery abuse, other than to file a motion in limine for issue sanctions, to be heard the day before trial.
Furthermore, even if respondents lacked sufficient time to retain an expert and mount a rebuttal in regard to the seatbelt issue, they failed to demonstrate that an issue sanction was necessary. For example, respondents did not explain why it would be inadequate to simply postpone the trial to permit respondents to obtain and prepare an expert witness to counter the testimony of Dr. Mandell. Since appellants should have disclosed their seat belt contention or underlying facts by no later than March 8 (the date of Big Dogs response to the supplemental interrogatory) rather than at Dr. Mandells deposition on April 5, respondents should have had notice of the seat belt defense 41 days ahead of trial rather than 13 days. Ostensibly, therefore, a 28-day continuance would have placed respondents in as good a position (in terms of their ability to counter Dr. Mandells opinion) as if appellants had complied with their discovery obligations. As further assurance that the prejudice of appellants discovery abuse was remedied, respondents could have been allowed to reopen Dr. Mandells deposition at appellants expense, and further monetary sanctions could have been imposed against appellants and their counsel for any attorney fees or other expenses respondents incurred as a result of appellants failure to comply with their discovery obligations. The court might have even precluded Dr. Mandell from testifying to his seatbelt opinion, while still permitting appellants to examine Mrs. Welch on her seatbelt use and argue to the jury the significance of the fact that Mrs. Welch collided so forcefully with the seat in front of her. Respondents made no showing that any of these lesser sanctions would be insufficient to cure the harm of appellants discovery abuse.
Given the relatively minor prejudice arising from appellants discovery abuse and respondents failure to show the need for an issue sanction, the courts preclusion of all evidence and argument concerning Mrs. Welchs use or non-use of her seatbelt was overly harsh. It placed respondents in a better position than if appellants had timely disclosed their contention that Mrs. Welch was not wearing her seatbelt, and put appellants in a worse position than if they had never disclosed Dr. Mandells opinion concerning Mrs. Welchs use of her seatbelt, because it precluded appellants from using and arguing evidence that was known to the parties long before their discovery abuse. For example, had it not been for the trial courts in limine order, appellants might have referred at trial to the undisputed facts of the accident—that Mrs. Welch flew against the back of the front seat—and argued that she must not have had her seatbelt on at all, even without Dr. Mandells opinion. Appellants could have examined Mrs. Welchs treating physician, Dr. Hansen, as to any statements made by Mr. or Mrs. Welch regarding her seatbelt use. If Mrs. Welch repeated her deposition testimony that she was wearing her lap belt, appellants could have tested her credibility on cross-examination and argued that her recollection was inconsistent with the physical evidence. In other words, appellants could have submitted evidence that might have warranted an instruction on their comparative negligence defense. The trial court thus deprived appellants of their primary affirmative defense.
In short, the sanction imposed by the trial court was disproportionate to the disadvantage occasioned by appellants transgressions. We are mindful, of course, that we cannot simply substitute our view of the evidence for that of the trial court, and we recognize as well that the trial courts discretion in these matters is broad. But the record in this matter leaves us no room to reconcile the sanction with the discovery abuse, particularly since the trial court made no findings and gave no persuasive rationale for the sanction it imposed. The record, as presented to us on appeal, is therefore devoid of any reasonable basis for the scope of the sanction, and we must conclude that it constitutes an abuse of discretion.
The cases on which respondents rely are inapposite, because they involved discovery abuses that came to light during trial, not two weeks before trial. In Thoren v. Johnson & Washer, supra, 29 Cal.App.3d 270, the court precluded the plaintiff from calling a witness who had never been disclosed in discovery, despite being known to plaintiff and his counsel. The ruling was upheld, because the plaintiffs deliberate failure to list the witness had seriously impeded the defendants ability to prepare for trial. (Id. at p. 275.) As the court explained, "the falsity of the [interrogatory] answer was not discovered until a jury had been impaneled, a situation militating against solution of the problem by a continuance." (Ibid. Italics added.) In Deeter v. Angus (1986) 179 Cal.App.3d 241, plaintiffs sought to introduce at trial an audiotape of a telephone conversation that had not been disclosed in discovery, despite discovery requests that called for disclosure of such evidence. (Id. at pp. 253-255.) In Vallbona, supra, 43 Cal.App.4th 1525, the defendant had claimed in discovery that he could not locate key documents because they had been stolen, but at trial he announced that he had found the documents and attempted to introduce them into evidence. (Id. at p. 1544.)
Pate, supra, 51 Cal.App.4th 1447, is distinguishable not only because the discovery abuse was concealed until trial, but also because the sanctioned party was expressly found to have perpetrated intentional concealment. There, the defendants had produced documents in discovery and assured the plaintiff that they had no others. At trial, however, after plaintiffs had rested their case, a defense witness produced a box of additional documents. The trial court found that defendants had " `played fast with the rules of discovery" and " `played games "with the plaintiff regarding documents that the defendants knew or should have known were relevant. It further found that the defense had made "an `absolute and deliberate attempt to thwart discovery for the purpose of gaining a tactical advantage at . . . trial. " (Id. at pp. 1453-1454.) The court recognized that, where discovery abuses become apparent before trial, the trial court has options besides suppression of evidence to deal with the abuse and ensure a fair trial. (Id. at p. 1455.) But because the wrongdoing was not discovered until after trial had begun, the jury was impaneled, and the plaintiffs had rested their case, the sanction was "an appropriate means to redress the disadvantage caused plaintiff by defendants abuse of discovery procedures." (Ibid.)
Here, by contrast, appellants discovery abuse came to light approximately two weeks before trial, and the trial court made no finding that appellants had deliberately attempted to thwart discovery for the purpose of obtaining an unfair advantage at trial.
In their brief in this appeal, respondents repeatedly suggest that the trial court made findings of intentional concealment. In one instance, respondents assert: "The trial court therefore properly concluded Appellants were intentionally concealing the seatbelt defense issue in order to gain some tactical advantage and prevent Respondents from properly preparing for trial." The court made no such finding. Nor does the record establish that appellants engaged in a course of intentional deceit, as opposed to inadvertence or just plain sloppiness. Indeed, it is difficult to see how appellants would have hoped to gain much advantage over respondents by failing to mention the seat belt defense in their interrogatory responses, since their expert witness would be disclosing his opinion in deposition before trial anyway.
In the final analysis, the order granting Motion in Limine No. 4 and precluding all evidence and argument regarding whether Mrs. Welch was wearing her seatbelt was an abuse of discretion. This abuse of discretion resulted in a miscarriage of justice, as it deprived appellants of their comparative negligence defense and was the basis for the trial courts refusal to instruct the jury on the potential comparative negligence of Mrs. Welch. Based on the record, it is reasonably probable a result more favorable to appellants would have been reached without the error. We must therefore reverse the judgment.
In connection with appellants new trial motion, the trial court sustained respondents objections to the juror declarations and the declaration of appellants counsel. We do not rely on these declarations in rendering our opinion. We therefore need not review the trial courts rulings in this regard.
III. DISPOSITION
The judgment is reversed.
We concur.
JONES, P. J.
STEVENS, J.