Katsouridis v. JPMorgan Chase Bank, N.A. CA2/1 ( 2020 )

Filed 11/18/20 Katsouridis v. JPMorgan Chase Bank, N.A. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JAMES KATSOURIDIS, B300458
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC649815)
v.
JPMORGAN CHASE BANK, N.A.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Peter J. Mirich, Judge. Affirmed.
The Appellate Law Firm, Berangere Allen-Blaine; Law
Offices of Corey Evan Parker and Corey Evan Parker for Plaintiff
and Appellant.
Dunbar & Associates, Kevin T. Dunbar, Matt D. Derossi,
and Celina N. Price for Defendant and Respondent.
____________________________
Appellant James Katsouridis (Katsouridis) brought a
negligence action against respondent JPMorgan Chase
Bank, N.A. (Chase), seeking damages for injuries he allegedly
sustained at one of its branch locations. The case was tried
before a jury, which returned a defense verdict. The trial court
thereafter entered judgment in favor of Chase and against
Katsouridis.
On appeal, Katsouridis claims that the trial court “made a
series of [evidentiary] errors which, in their totality, denied [him]
a fair trial.” Specifically, Katsouridis contends the trial court
erroneously permitted Chase to refer to his original, unverified,
and superseded complaint; should not have excluded his accident
reconstruction expert; and erred in denying his motion to exclude
one of Chase’s expert witnesses. We conclude the trial court did
not abuse its discretion by allowing Chase to impeach
Katsouridis with the original complaint, determining that
Katsouridis’s expert could not offer testimony that would have
been helpful to the jury, and tacitly finding that Chase properly
designated its expert as a witness prior to trial. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On February 9, 2017, Katsouridis, through his attorney,
filed an unverified complaint for damages, alleging causes of
action for negligence and strict liability against Chase.1
Katsouridis alleged that on March 6, 2015, he visited one of
Chase’s branch locations in Redondo Beach. Katsouridis asserted
that he leaned against a work station and, “[w]ithout warning[,]
1 On July 11, 2017, the trial court struck Katsouridis’s
cause of action for strict liability pursuant to the parties’
stipulation.
2
the work station . . . came partially off the floor and began to rock
back and forth causing [Katsouridis] to lose his balance and
violently fall to the ground.” Katsouridis sought general and
special damages arising from this incident.
On February 20, 2019, Katsouridis, through new counsel,
filed an unverified first amended complaint that reasserted his
negligence cause of action. The pleading omitted the allegation
that Katsouridis fell to the ground during the incident, and
instead averred that, “[w]ithout warning[,] the workstation that
[Katsouridis] was leaning against moved backward causing [him]
to lose his balance and slip backward.”
Prior to trial, Katsouridis moved for an order barring Chase
from mentioning the original complaint, and for a ruling
preventing a defense medical expert, Dr. Kendall Wagner, from
testifying at trial because Chase purportedly failed to designate
him properly as an expert. In turn, Chase moved to preclude
Katsouridis’s accident reconstruction expert, Richard Mumper,
on the ground that he had repeatedly failed to appear for a
pretrial deposition.
The trial court denied Katsouridis’s motion to preclude
Chase from mentioning the original complaint, reasoning that,
“[i]f [Katsouridis] testifies,” the allegations of the prior pleading
“are admissible in terms of impeaching [him].” The trial court
also denied Katsouridis’s motion to exclude Dr. Wagner, but did
not explain its reasoning for doing so.
The trial court initially deferred ruling on Chase’s motion
to exclude Mumper’s testimony in order to allow the parties to
arrange for his deposition before he would be called to the
witness stand. After defense counsel showed the trial court
3
surveillance video of the incident,2 however, the court decided to
bar Mumper from testifying because it “question[ed] . . . whether
[the] expert [would] be able to really provide testimony that is
sufficiently beyond common and ordinary experience and
knowledge such that [his] testimony would be helpful to the trier
of fact.”3 In rendering this decision, the court also suggested that
exclusion was proper because the court had found, based on the
parties’ representations, that Mumper had elected to conduct a
site inspection in a different matter rather than appear for a
belated deposition while the trial was in recess.
The case proceeded to trial on July 15, 2019. On
July 19, 2019, the jury returned a special verdict in which it
found that Chase was not “negligent in the use or maintenance of
[its] property.” Accordingly, the trial court entered judgment in
favor of Chase and against Katsouridis. Katsouridis timely
appealed the judgment.
DISCUSSION
Katsouridis challenges three of the trial court’s evidentiary
rulings: (1) the denial of Katsouridis’s motion to preclude defense
counsel from referring to the original complaint; (2) the exclusion
2 In its brief, Chase states that an excerpt of the video was
shown to the jury at trial, a fact that Katsouridis does not dispute
in his reply brief. (See Rudick v. State Bd. of Optometry (2019)
41 Cal.App.5th 77, 89–90 (Rudick) [concluding that the
appellants made an implicit concession by “failing to respond in
their reply brief to the [respondent’s] argument on th[at] point.”].)
3 The trial court conditioned its ruling excluding Mumper’s
testimony on Chase’s agreement not to call its accident
reconstruction expert to testify at trial; Chase’s counsel acceded
to that condition.
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of Mumper’s testimony; and (3) the denial of Katsouridis’s motion
to exclude Dr. Wagner from trial. To prevail on these claims of
error, Katsouridis must demonstrate that the trial court abused
its discretion in rendering these decisions. (See Klem v. Access
Ins. Co. (2017) 17 Cal.App.5th 595, 606 [“We ‘review the trial
court’s evidentiary rulings for an abuse of discretion.’ ”]; Garrett
v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 187
[“A court abuses its discretion if its ruling is ‘ “so irrational or
arbitrary that no reasonable person could agree with it.” ’
[Citation.] A court’s discretion also is limited by the applicable
principles of law.”]; Yu v. University of La Verne (2011)
196 Cal.App.4th 779, 787 [“ ‘ “A judgment or order of the lower
court is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown.” ’ ”].) For the reasons
discussed below, we conclude that Katsouridis has failed to
demonstrate that the trial court’s evidentiary rulings were so
irrational or arbitrary that no reasonable person could agree with
them.
A. The Trial Court Did Not Abuse Its Discretion in
Allowing Chase to Impeach Katsouridis with the
Original Complaint
Katsouridis argues that the trial court abused its discretion
in permitting Chase to impeach Katsouridis with his original
complaint because “there is no evidence to support the concept
that Mr. Katsouridis either read or adopted the pleading.”
Katsouridis notes that the original complaint was filed by his
first trial counsel, whom Katsouridis later replaced. Katsouridis
also points out that when defense counsel asked him at trial
about the original complaint’s allegation that he fell to the
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ground during the incident, Katsouridis responded, “I never saw
that. I didn’t write that.”
Katsouridis’s argument that he could not be impeached
with his prior unverified pleading is unavailing. “[W]here a
pleading is superseded, the original pleading is not admissible as
direct evidence to establish a fact but may be offered for
impeachment.” (Staples v. Hoefke (1987) 189 Cal.App.3d 1397,
1412.) Further, “[i]t is presumed that even an unverified
pleading is filed with the consent of the client . . . .” (See ibid.;
see also id. at pp. 1412–1413 [concluding that although the trial
court erred in barring plaintiff from offering an unverified cross-
complaint to impeach defendant, the error was harmless under
the facts of that case].) Indeed, it is well established that an
attorney’s statements are generally imputed to his or her client.
(See 7 Cal.Jur.3d (2019) Attorneys at Law, § 204, fn. omitted
[“The relationship of attorney and client is one of agent and
principal, and thus is governed by the rules applicable to the
relationship of principal and agent, generally.”]; id., § 216,
fn. omitted [“In accordance with the attorney’s exclusive
authority concerning the conduct of proceedings on behalf of a
client, the client is normally bound by the attorney’s mistakes.”].)
Katsouridis does not cite any authority establishing that he
may circumvent this rule by terminating the attorney who filed
the original complaint and offering self-serving testimony that he
never personally read or adopted the original complaint.4
4 Katsouridis contends that Pleasant Hill v. First Baptist
Church (1969) 1 Cal.App.3d 384, “called into question” the rule
that a party’s prior unverified complaint may be used to impeach
that party. Pleasant Hill did not cast doubt on the rule that,
“ ‘where [a] party has testified in the action, a superseded
6
Nor does he claim that his attorney lacked the authority to
commence the instant action by filing the original complaint on
his behalf.5 (See also 7 Cal.Jur.3d, supra, Attorneys at Law,
§ 213, fns. omitted [“In the absence of proof to the contrary, it is
presumed that a licensed attorney appearing in litigation as a
representative of a party has the authority to appear for that
party and do all acts necessarily incidental to the proper conduct
of the case.”].)
Katsouridis, moreover, does not dispute Chase’s assertion
that he stated in verified interrogatory responses that he fell to
the ground during the incident, an admission that further
undermines Katsouridis’s assertion he did not adopt a nearly
identical allegation included in the original complaint. (See
Rudick, supra, 41 Cal.App.5th at pp. 89–90.)
pleading may be offered for the purpose of impeachment. . . .’ ”
(See id. at pp. 417–419.) Rather, Pleasant Hill opined that
barring a party from offering such a pleading “ ‘as direct evidence
to establish a fact in issue’ ” would “not represent prevailing
authority.” (See id. at pp. 418–419.)
5 In fact, Katsouridis’s opening brief suggests that he
intended to allege in the original complaint that he fell to the
ground. Specifically, Katsouridis contends, “Upon receipt of
discovery, including the surveillance video provided by the
Defense, Mr. Katsouridis realized that his memory was
inaccurate and that he did not, in fact, fall, but did lose his
balance when the check writing desk moved. He, therefore,
filed an amended complaint on February 20, 2019.” (See also
Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 [“ ‘[B]riefs
and argument . . . are reliable indications of a party’s position on
the facts as well as the law, and a reviewing court may make use
of statements therein as admissions against the party.’ ”].)
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In sum, Katsouridis fails to establish that the trial court
abused its discretion in permitting Chase to impeach him with
the original complaint.
B. The Trial Court Did Not Abuse Its Discretion in
Excluding Mumper’s Testimony
Katsouridis contends that “the trial court, having viewed
the video of the incident, decided that the accident reconstruction
evidence was unnecessary and made the independent, tactical
decision to exclude [Mumper’s] testimony.” Katsouridis contends
that, “[b]y basing its decision on its own view of the evidence
already before it, the trial court stopped being a neutral arbiter
and, instead, entered the province of plaintiff’s counsel.”
Katsouridis’s characterization of the trial court’s decision is
unavailing. Fairly construed, the trial court’s ruling excluding
Mumper reveals the court did not usurp counsel’s prerogative,
but instead found that, in light of the video of the incident, the
accident reconstruction expert’s testimony would not assist the
trier of fact. In barring Katsouridis’s expert witness from
testifying at trial, the trial court stated it was “questioning[,] . . .
whether . . . [Katsouridis’s accident reconstruction] expert will be
able to really provide testimony that is sufficiently beyond
common and ordinary experience and knowledge such that their
testimony would be helpful to the trier of fact.” The trial court
opined that the jury “should be able to make” its decision “by
taking a look at the video.”
“ ‘ “The decisive consideration in determining the
admissibility of expert opinion evidence is whether the subject of
the inquiry is one of such common knowledge that men of
ordinary education could reach a conclusion as intelligently as
the witness or whether, on the other hand, the matter is
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sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.” [Citations.]’ [Citation.]”
(People v. Brown (2001) 96 Cal.App.4th Supp. 1, 36 (Brown);
Evid. Code, § 801, subd. (a) [“If a witness is testifying as an
expert, his testimony in the form of an opinion is limited to such
an opinion as is: [¶] (a) Related to a subject that is sufficiently
beyond common experience that the opinion of an expert would
assist the trier of fact[.]”].) The trial court’s statements indicate
it found that Mumper’s testimony would not assist the jury and
therefore was inadmissible expert opinion.
Katsouridis does not explain why the trial court erred in
deciding that an accident reconstructionist would not aid the jury
given the existence of the video of the incident. (See Brown,
supra, 96 Cal.App.4th Supp. at p. 36.) Indeed, Katsouridis
did not even include a copy of the video in the appellate record,
let alone argue why even though it had the video, the jury
nonetheless needed the assistance of an accident
reconstructionist. Further, because the record reveals at least
one permissible basis for the trial court’s ruling, we need not
reach Chase’s argument that Mumper was properly excluded as a
sanction for Katsouridis’s failure to produce him for a deposition.
(See Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956 [“[I]f a judgment is correct on any
theory, the appellate court will affirm it . . . .”].)
C. The Trial Court Did Not Abuse Its Discretion
in Denying Katsouridis’s Motion to Exclude
Dr. Wagner’s Testimony
Katsouridis contends that Chase did not properly
designate Dr. Wagner as an expert because, “[r]ather than
providing . . . counsel with a pleading, and appending
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Dr. Wagner’s curriculum vitae, as is required, defense counsel
simply added him to the witness list with no additional
information.” In particular, Katsouridis contends that he
“received none of the[ ] things” that Chase was required to
disclose pursuant to Code of Civil Procedure section 2034.260,
subdivision (c). He further claims that, “[b]y ruling that
Dr. Wagner could testify without both proper disclosure under
the Code of Civil Procedure and a pretrial deposition, the court
abused its discretion and Mr. Katsouridis was unfairly
prejudiced.”
Code of Civil Procedure section 2034.210 provides in
pertinent part: “After the setting of the initial trial date for the
action, any party may obtain discovery by demanding that all
parties simultaneously exchange information concerning each
other’s expert trial witnesses to the following extent: . . . [¶] . . . If
any expert designated by a party . . . is a party or an employee of
a party, or has been retained by a party for the purpose of
forming and expressing an opinion in anticipation of the
litigation or in preparation for the trial of the action, the
designation of that witness shall include or be accompanied by an
expert witness declaration under Section 2034.260.” (See
Code Civ. Proc., § 2034.210, subd. (b); see also id., subd. (c).)
In turn, Code of Civil Procedure section 2034.260,
subdivision (c) provides that the aforementioned expert witness
declaration shall be “signed only by the attorney for the party
designating the expert” and “contain all of the following: [¶] (1) A
brief narrative statement of the qualifications of each expert. [¶]
(2) A brief narrative statement of the general substance of the
testimony that the expert is expected to give. [¶] (3) A
representation that the expert has agreed to testify at the trial.
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[¶] (4) A representation that the expert will be sufficiently
familiar with the pending action to submit to a meaningful oral
deposition concerning the specific testimony, including an opinion
and its basis, that the expert is expected to give at trial. [¶] (5) A
statement of the expert’s hourly and daily fee for providing
deposition testimony and for consulting with the retaining
attorney.” (See Code Civ. Proc., § 2034.260, subd. (c).) Further,
subdivision (b)(1) provides that an “exchange of expert witness
information” must include “[a] list setting forth the name and
address of a person whose expert opinion that party expects to
offer in evidence at the trial.” (See id., § 2034.260, subd. (b)(1).)
Chase states that more than three months before the trial,
it served upon Katsouridis a designation of expert witnesses that
identified Dr. Wagner, along with an expert witness declaration
concerning that witness. The record confirms that in connection
with its opposition to Katsouridis’s motion in limine, Chase’s
counsel submitted a declaration that authenticated the expert
witness designation and stated that the designation was served
on Katsouridis on April 1, 2019.
The expert witness designation identified Dr. Wagner as
one of Chase’s retained expert witnesses and provided an address
for this witness. Attached to the designation was an expert
witness declaration executed by Chase’s counsel, which provided
in pertinent part: “Dr. Wagner’s medical specialty is orthopedic
surgery”; “Dr. Wagner will testify at trial as to the nature and
extent of [Katsouridis’s] physical injuries, treatment, causation of
injury and complaints, future care, the reasonableness and the
necessity of the treatment and the reasonableness of the medical
charges from an orthopedic perspective”; and “Dr. Wagner will be
familiar enough with the case to give a meaningful deposition at
11
the rate of $1,00.00 [sic] per hour if held in his office[;]
Dr. Wagner’s deposition rate if held outside of his office or if
videotaped is $1,200.00 per hour.” Furthermore, attached to the
designation and the declaration was a proof of service indicating
that they were served on Katsouridis’s counsel on April 1, 2019.
Katsouridis does not explain why, notwithstanding this
evidence in the record, the trial court should have found that
Chase failed to designate Dr. Wagner properly as an expert
witness. Further, Katsouridis does not cite any authority for the
proposition that defense counsel had to provide Dr. Wagner’s
curriculum vitae, and we observe that no such disclosure is
required by Code of Civil Procedure section 2034.260. (See
Code Civ. Proc., § 2034.260, subds. (a)–(c).)
Admittedly, Katsouridis did not depose Dr. Wagner. Yet, in
his reply brief, Katsouridis does not dispute Chase’s assertion
that Katsouridis never sought to depose Dr. Wagner, meaning
that he “implicitly concede[s]” this point. (See Rudick, supra,
41 Cal.App.5th at pp. 89–90.) Nor does he claim that Chase was
obligated, sua sponte, to produce Dr. Wagner for a deposition.
For these reasons, we conclude that Katsouridis failed to
discharge his burden of showing that the trial court abused its
discretion in denying his motion to exclude Dr. Wagner from
testifying at trial.
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DISPOSITION
The judgment is affirmed. JPMorgan Chase Bank, N.A. is
awarded its costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
FEDERMAN, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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