Shaham v. Douglas CA2/4 ( 2022 )

Filed 4/21/22 Shaham v. Douglas CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
FARAHNAZ SHAHAM, B303333
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC644468)
v.
JUDITH DOUGLAS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Cary H. Nishimoto, Judge. Affirmed.
Law Office of Estivi Ruiz and Estivi Ruiz for Plaintiff
and Appellant.
Richardson, Fair & Cohen and Manuel Dominguez for
Defendant and Respondent.
INTRODUCTION
Appellant Farahnaz Shaham brought this action
against respondent Judith Douglas for injuries allegedly
caused by Douglas’s dog during an incident in August 2016.
After the case proceeded to trial on theories of negligence
and strict liability, the jury returned a defense verdict,
finding, inter alia, that Douglas’s dog did not cause Shaham
injury. On appeal from the judgment entered on the verdict,
Shaham contends: (1) the superior court (Judge Jon R.
Takasugi) abused its discretion in denying her ex parte
application to reopen discovery after the discovery cut-off
date; (2) the trial court (Judge Cary H. Nishimoto) erred in
excluding the proffered testimony of her expert and treating
physician about his most recent, midtrial examination of
Shaham, on the ground that the testimony exceeded the
scope of his deposition testimony; (3) the court erred in
failing to deliver strict liability instructions premised on
Civil Code section 3342 and Beverly Hills Municipal Code
section 5-2-111; (4) the court committed misconduct in
various forms throughout the trial; (5) Douglas’s counsel
committed misconduct in closing arguments; and (6) Shaham
was prejudiced by the cumulative effect of the asserted
errors. We conclude Shaham has forfeited many of her
contentions, and to the extent she has preserved others, she
has failed to show any prejudicial error. Accordingly, we
affirm.
2
PROCEEDINGS BELOW
A. Discovery
In December 2016, Shaham filed her complaint,
containing causes of action against Douglas for negligence
and strict liability; in support of the latter, Shaham alleged
that Douglas’s dog had an abnormally dangerous tendency.
Trial was initially scheduled to begin June 20, 2018.
Between the initial trial date and January 2019, the
superior court (Judge Marc D. Gross) continued trial four
times, at least twice at Shaham’s request. At the time of the
second continuance, the court ordered the discovery cut-off
date to be calculated from the continued trial date. (See
Code Civ. Proc., § 2024.020, subd. (a) [typically, discovery
must be completed “on or before the 30th day . . . before the
1
date initially set for the trial”].) The record does not reflect
whether the court similarly ordered an extension of the cut-
off date when it continued trial for a third and fourth time.
Assuming the court ordered the cut-off date to be calculated
from the continued trial date of February 19, 2019, discovery
closed in January 2019.
On the February 2019 trial date, the court (Judge
Takasugi) continued trial for a fifth time, again at Shaham’s
request. Rather than set a new trial date, the court
scheduled a “Trial Setting Conference” for April 10, 2019.
The record does not reveal what, if anything, was discussed
1
Undesignated statutory references are to the Code of Civil
Procedure.
3
regarding the discovery cut-off date. However, the minute
order stated, “All discovery and motion cut-off dates are to be
continued.”
In March 2019, Shaham filed a notice of substitution of
attorney, discharging her former attorneys and electing to
represent herself. At the April 2019 trial-setting conference,
the court granted Shaham’s oral motion to continue the
conference in order to allow her additional time to obtain
new counsel.
On the continued conference date of July 1, 2019, the
court scheduled trial to begin on October 16, 2019. The
minute order states: “The Court and parties confer regarding
the possible substitution of attorney Pedram Zivari on behalf
of plaintiff and the setting of Final Status Conference and
Trial dates. [¶] The Court and parties further confer
regarding extending discovery and motion cutoff dates,
which have been closed since January. The Court reviewed
Trial binders at the Final Status Conference in February.
Plaintiff fired her attorneys on the eve of Trial and the Court
continued the matter for plaintiff to retain another attorney
2
and address medical concerns.[ ] In light of defendant’s
objection, the Court declines the plaintiff’s request to reopen
discovery. [¶] As a result, attorney Pedram Zivari informs
the Court that he will not file a substitution of attorney on
behalf of plaintiff. [¶] . . . [¶] Discovery and motion cut-off
2
The record does not reveal the nature of Shaham’s medical
concerns mentioned in the minute order.
4
dates remain closed.” On the October 2019 trial date, after
Shaham had retained her trial counsel (J. Owen Murrin),
the court deemed the parties ready for trial, and the case
was transferred to the trial court (Judge Nishimoto).
B. Trial Evidence
In this section, we summarize not only the evidence
admitted at trial, but also the trial court’s comments and
evidentiary rulings that Shaham characterizes as judicial
misconduct. We note that many of the court’s other
evidentiary rulings were in Shaham’s favor; the court
sustained numerous evidentiary objections made by
Shaham’s counsel, and overruled objections made by
opposing counsel.
1. The Parties’ Dogs
At the time of the August 2016 incident, Shaham lived
in Beverly Hills with her dog Tyson. Douglas lived nearby
with her dog Truffle.
Truffle, a former racing greyhound, was seven years
old and weighed 55 to 60 pounds at the time of the August
2016 incident during which he allegedly caused Shaham
3
injury. Over Shaham’s counsel’s objections, the court
3
When Douglas’s counsel asked Shaham whether she had
weighed 135 pounds near the time of the August 2016 incident,
Shaham’s counsel interjected to request that Douglas’s counsel
identify the document to which he was referring. The court
(Fn. is continued on the next page.)
5
admitted into evidence several photos of Truffle, including a
photo in which he was wearing a costume featuring green
toy antlers. With respect to the costume photo, Shaham’s
counsel objected, “The horns [sic] are not natural to the dog,
so I think it’s defective and misleading.” Implicitly
overruling the objection, the court joked, “Well, maybe the
4
dog grew those.”
Douglas testified that she had seen Shaham’s dog,
Tyson, unleashed in their neighborhood on several occasions,
including once in a grassy area in front of Shaham’s house,
separated from the house by the sidewalk. When Shaham’s
counsel asked Douglas to confirm that the grassy area was
Shaham’s private property, the court sustained an objection,
commenting that even a homeowner’s property rights do not
explained that Douglas’s counsel was “simply asking questions
without referring to anything specific,” and asked Shaham’s
counsel to sit down, commenting, “You apparently don’t
understand.” Shaham’s counsel renewed his request that the
document be identified, stating he did not know what it was. The
court commented, “[W]hen you announce ready for trial, you’re
supposed to know all this.” Shaham’s counsel did not object to
the court’s comments, which Shaham characterizes as
misconduct on appeal, or request a curative instruction.
4
When Shaham’s counsel renewed his objection outside the
presence of the jury, the court elaborated on its reasoning for
overruling the objection, explaining that Douglas was entitled to
present the evidence of her choice to rebut Shaham’s allegation
that Truffle had an abnormally dangerous tendency. Shaham’s
counsel raised no objection to the jocular manner in which the
court had overruled the objection in the jury’s presence.
6
extend to the middle of the street or the middle of the
adjacent alley. After a recess, the court informed the jury
that it wanted to correct an implication made by Shaham’s
counsel’s in opening statements, when counsel “drew a
diagram on the board and said that the defendant’s dog ran
down plaintiff’s property through the alley [beside her
house], and the incident occurred on plaintiff’s property.”
The court informed the jury that the alley beside Shaham’s
house was public property. Shaham’s counsel did not object.5
Douglas called animal control officer Carlos Alarcon,
who authenticated records concerning Shaham’s dog Tyson.
During cross-examination, the court took its lunch recess.
After the recess, outside the presence of the jury, Douglas’s
counsel and Alarcon informed the court that Alarcon had
been confronted in the hallway by Shaham’s mother (a
witness for Shaham). The court and Shaham’s counsel
questioned Shaham’s mother, who admitted approaching
and speaking to Alarcon during the recess, but denied
confronting him. After the jury was brought in, the court
5
At the end of the next day, outside the presence of the jury,
Shaham’s counsel objected that the court “became an expert
witness” when it “gave testimony” on the property issue. The
court disagreed, stating that it was required by law to ensure
counsel did not mislead the jury about the law, and repeating its
understanding of the law. The court exited the courtroom while
Shaham’s counsel was attempting to continue the discussion.
The next morning, the court asked Shaham’s counsel whether he
had anything he wanted to put on the record, but counsel did not
revisit the property issue.
7
permitted Douglas’s counsel to elicit Alarcon’s testimony
that Shaham’s mother approached him in the hallway
“talking about God and only God knows and to watch out,”
and that he walked away from her. Shaham’s counsel did
not object.6
2. The August 2016 Incident
Shaham testified that on August 18, 2016, she exited
the back gate of her house, took several steps down the
adjacent alley to the sidewalk, and then noticed her
unleashed dog Tyson behind her. She grabbed Tyson by his
collar. After hearing a noise, she looked up and saw
Douglas’s dog Truffle coming toward her, trailing a leash
that had been dropped by Ivonn Gomez (Douglas’s
dogwalker). Gomez called out a warning to be careful,
causing Shaham to believe Truffle was “going to do
something” to her. Shaham considered whether she should
run back through the nearby gate to her house, but decided
to stand still, holding Tyson. As Truffle approached,
Shaham began jumping to avoid him. Shaham
acknowledged that Truffle did not bite or even touch her.
6
At the end of the day, and again the next morning,
Shaham’s counsel asked the court to instruct the jury to
disregard Alarcon’s testimony about the confrontation, arguing
the testimony was irrelevant. Implicitly rejecting the request,
the court observed, “The credibility of witnesses is always an
issue.”
8
While jumping, Shaham soon felt a shooting pain in
her left leg, after which she continued jumping on her right
leg. She claimed it took three or four minutes for Gomez to
reach her and take hold of Truffle’s leash. Shaham informed
Gomez that she was injured, and asked for Gomez’s contact
information. She later learned she had torn a muscle in her
left calf, which she attributed to Truffle’s “attacking” her.
She testified that her calf injury had caused her a bunion
and ongoing pain in her foot, knee, and hip.
Gomez testified that she inadvertently dropped
Truffle’s leash when she stepped out of Douglas’s house to
walk Truffle (along with another dog). She followed Truffle,
but each time she attempted to take hold of his leash, he
walked away. When she saw Shaham and her unleashed
dog Tyson on the sidewalk, she called out, asking Shaham to
hold Tyson. Shaham did so at first, but let go of Tyson and
started jumping when Truffle approached Tyson. Both dogs
sniffed each other, but were calm. Quickly following Truffle,
Gomez reached Shaham in 10 to 20 seconds, and took up
Truffle’s leash. Shaham told Gomez that she was hurt and
that Gomez would pay. After asking for Gomez’s contact
information, Shaham said she was going to call the police.
Shaham told Gomez, “‘This has never happened to me in all
the years I’ve been here’” and “‘I’m a citizen.’” Offended,
Gomez informed Shaham she was also a citizen.
9
3. Medical Evidence
a. P.T. Israel
Physical therapist Brooke Israel was called by Douglas,
out of order, before Shaham called any witness in her case-
in-chief. Israel testified that she provided physical therapy
to Shaham from August 2018 to January 2019. The physical
therapy primarily treated an injury to Shaham’s left calf,
which Shaham reported had been caused by a dog attack,
and secondarily treated residual injuries and pain in other
areas of her body. Over the course of her physical therapy
sessions, Shaham reported that her pain was improving, and
ultimately reported that she no longer had any pain in her
left calf. On cross-examination by Shaham’s counsel, Israel
testified that Shaham still had residual problems at the time
of her last session, and that she believed Shaham had not
been malingering.
b. Dr. Collins
Between June 2017 and July 2018 (before Shaham
began receiving physical therapy from Israel), neurologist
Robert Collins, M.D., conducted four examinations of
Shaham for the purpose of treatment.7 In response to a
7
Although Dr. Collins testified that he examined Shaham
for the purpose of treatment, he also testified that Shaham’s
examinations took place in the office of her then-current attorney,
that he had similarly examined about five of that attorney’s other
clients, and that he prepared certain reports only because he
knew Shaham was involved in litigation.
10
demand from Douglas to exchange expert information,
Shaham designated Dr. Collins as an expert witness. On
January 10, 2019, Douglas took Dr. Collins’s deposition. The
record does not include the deposition transcript. On Friday,
October 18, 2019, after the case had been transferred for
trial, voir dire commenced but was not completed. Over the
weekend, Dr. Collins examined Shaham again, without
notice to Douglas. On Monday, October 21, voir dire was
completed.
The next day, Shaham called Dr. Collins to testify. Dr.
Collins testified about his four pre-deposition examinations
of Shaham, during which he had diagnosed Shaham with,
inter alia, a muscle tear in her left calf. After Dr. Collins
testified about his final pre-deposition examination,
Shaham’s counsel asked Dr. Collins if he had examined
Shaham more recently, and he responded that he had.
Douglas’s counsel objected, commenting, “That was the last
visit that was taken, so it’s Kennemur.”8 Shaham’s counsel
8
In Kennemur v. State of California (1982) 133 Cal.App.3d
907 (Kennemur), the Court of Appeal upheld the exclusion of
certain expert testimony under the expert discovery statutes then
in effect (later repealed and replaced in substantively similar
form), in part because the testimony exceeded the scope of what
the expert had testified to at his deposition. (See id. at 918-920;
cf. Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1523-1524
[“‘The overarching principle in Kennemur . . . is clear: a party’s
expert may not offer testimony at trial that exceeds the scope of
his deposition testimony if the opposing party has no notice or
expectation that the expert will offer the new testimony, or if
(Fn. is continued on the next page.)
11
responded, “He’s a treating physician. He saw her last
Saturday at the facility.” After confirming that the
examination had not been addressed at Dr. Collins’s
deposition, the court sustained the objection, ruling that Dr.
Collins could neither “express any opinion” based on the
midtrial examination nor “discuss the facts” concerning it.
Shaham’s counsel made no offer of proof concerning Dr.
Collins’s excluded testimony.
Dr. Collins opined, on the basis of his pre-deposition
examinations and MRIs he had viewed during his deposition,
that the August 2016 incident caused Shaham’s injuries,
including the muscle tear in her left calf. He further opined
that Shaham would continue to need medical care for her
injuries, and that she was permanently disabled in a manner
that would affect her work as a dental hygienist. On cross-
examination, Dr. Collins acknowledged he had opined at his
deposition that Shaham likely would not have injured
herself during the August 2016 incident had her dog Tyson
been leashed, as she would not have needed to stoop to hold
the dog. Shaham introduced no medical records from Dr.
9
Collins or her other doctors.
notice of the new testimony comes at a time when deposing the
expert is unreasonably difficult’”].)
9
Shaham’s attempts to introduce medical records during her
direct examination were rejected on hearsay grounds. She does
not assign error to this evidentiary ruling on appeal.
12
c. Dr. Snibbe
Douglas’s medical expert, orthopedic surgeon Jason
Snibbe, M.D., testified that he had examined Shaham for
purposes of the litigation in August 2018. Dr. Snibbe agreed
that Shaham had torn a muscle in her left calf, and testified
that this injury was consistent with her report of twisting
her body during the August 2016 incident. However, he
testified that the tear had healed by the time he examined
Shaham, and opined that she would not need future
treatment for her calf.
On cross-examination, Dr. Snibbe testified that he did
not recall whether he took notes during his examination of
Shaham. He further testified that he had reviewed only the
medical records provided by Douglas’s counsel, without
asking for more, and that he had not reviewed any records
from Shaham’s physical therapist or from one of her non-
testifying doctors. The court sustained objections to
Shaham’s counsel’s argumentative and often repetitive
questions to Dr. Snibbe regarding the notes he did not recall
taking and the records he admittedly had not reviewed or
requested.
After Douglas rested her case, the court asked if
Shaham would call any rebuttal witness, and Shaham’s
counsel said he would like to confer briefly with his assistant.
The court asked Shaham’s counsel whether he was relying
on his assistant for legal advice or allowing his assistant to
“dictate what questions to ask and where to go with this
case.” Shaham’s counsel assured the court he was not, and
13
proceeded to call Shaham as a rebuttal witness. Shaham’s
counsel did not object to the court’s questions or request a
jury admonition.
C. Jury Instructions and Special Verdict Form
Before trial, Shaham’s counsel filed briefs arguing that
Douglas could be held strictly liable for any injury caused by
her dog under Beverly Hills Municipal Code section 5-2-111,
along with proposed jury instructions quoting the ordinance.
At trial, as requested, the court delivered instructions
quoting the ordinance: “‘Beverly Hills ordinance 5-2-111
states as follows: “A[ny] person owning, controlling, or
having care or custody of any animal shall be liable for any
injury caused by such animal. Any person owning,
controlling, or having care or custody of any animals shall
take reasonable and necessary precautions as required to
protect all persons from physical harm from such animal.”’”
Shaham’s counsel proposed that the special verdict
form, which the parties agreed should include questions
about negligence and Douglas’s dog’s alleged dangerous
tendency, should also reflect a strict liability theory based on
the ordinance: “I would like a verdict [form] that says ‘Is that
animal owned by defendant’ and ‘Did that animal injure? If
so, go on to the damage questions.’” Both parties’ counsel
reviewed the final special verdict form before it was
submitted to the jury. The approved form reflected
Shaham’s counsel’s proposed theory of strict liability: it
asked whether Douglas owned, kept, or controlled a dog
14
(question three) and whether Douglas’s dog caused injury to
Shaham (question four); it directed the jury, if it answered
“Yes” to question four, to proceed to the question requiring
calculation of damages (question eight). The court
instructed the jury to take care in following the directions on
the verdict form, including directions regarding what to do
after the jury returned an answer to a question (requiring
the agreement of at least nine jurors).
Shaham’s counsel also requested a jury instruction on
Civil Code section 3342, which provides that a dog owner is
liable for any damages suffered by any person who is “bitten
by the dog.” (Civ. Code, § 3342, subd. (a).) The court denied
the request on the ground that Shaham was not bitten.
D. Closing Arguments
Shaham’s counsel argued that even according to
Gomez’s account of the August 2016 incident, Gomez was
negligent in allowing Truffle to approach and scare Shaham,
causing Shaham to twist her body and thereby sustain
injuries (the jury was instructed that any negligence on
Gomez’s part was attributable to Douglas). Shaham’s
counsel further argued that the jury could find negligence
per se based on a violation of, inter alia, Beverly Hills
Municipal Code section 5-2-111. He further argued that
Douglas was strictly liable for any injury caused by Truffle
because, as a former racing greyhound, the dog had an
abnormally dangerous tendency to run and leap. He asked
the jury to award Shaham tens of thousands of dollars in
15
medical costs that had or would be incurred as a result of her
injuries to her calf and other body parts; $800,000 in
damages for pain and suffering; and over $1 million in lost
earnings.
Douglas’s counsel did not dispute that Shaham had
injured her left calf, but argued that Douglas’s dog had not
been the cause of her injury which, in any case, had healed.
At the outset of his argument, he used an image in
explaining the burden of proof, and the court overruled an
objection by Shaham’s counsel. Shaham’s counsel made no
further objection before or during the following arguments,
which Shaham now characterizes on appeal as misconduct.
Douglas’s counsel argued Shaham was not credible in
light of various behaviors she exhibited in the courtroom. As
one of several examples, Douglas’s counsel discussed her
display of a prayer book during closing arguments, arguing
Shaham was attempting to influence the jurors or make
them think she was “holier than thou.” He further argued
that during opening statements, Shaham’s counsel had
similarly attempted to influence the jurors by commenting
that Shaham was Jewish: “[I]t struck me as a blatant
attempt to show that his client was something more than
just a person, that she has a lot of faith and that she’s
Jewish. But he didn’t know that my client [Douglas] was
Jewish. So it kind of backfired on him using religion to come
into a courtroom. Religion has nothing to do with our
system here. [¶] . . . [B]ut she’s using that to try and
influence you.”
16
Continuing to address Shaham’s credibility, Douglas’s
counsel argued Shaham was biased because she was asking
the jury to award her over one million dollars, which were
her “million reasons” for bringing the action. Arguing that
Shaham’s behavior outside the courtroom was also relevant
to her credibility, he argued: “She confronted Ms. Gomez
about her citizenship by saying she was going to call the
police. Who does that when this occurs? [¶] Why does
citizenship even come up?”
Douglas’s counsel observed that Shaham had failed to
introduce into evidence any medical records or bills. He
argued: “Even worse, she, through her attorney, has what we
call[] subpoena powers . . . . None of her doctors were
subpoenaed here other than Dr. Collins. Where are these
doctors? Where is this proof that she suffered all of this
injury for this accident?” Douglas’s counsel quoted from and
commented on CACI No. 205, as follows: “‘If a party failed to
explain or deny evidence against her when she could
reasonably be expected to have done so based on what she
knew, you may consider her failure to explain or . . . her
failure to deny in evaluating the evidence.’ [¶] So you can
assume that if she failed to bring up any evidence that was
against her and she didn’t dispute it, that you can hold that
against her.” He proceeded to quote from and address CACI
No. 203: “‘You may as a jury consider the ability of each
party to provide evidence. If a party provided weaker
evidence when it could have provided stronger evidence, you
17
may distrust the weaker evidence.’ [¶] And that’s Ms.
Shaham’s.”
E. Verdict
After a relatively short period of deliberations, the jury
returned. By a 9-to-3 vote, the jury answered “No” to
question one on the special verdict form, which asked
whether Douglas was negligent. The jury unanimously
answered “Yes” to question three, which asked whether
Douglas owned, kept, or controlled a dog. In response to
question four -- “Did Defendant’s dog cause injury to
Plaintiff Farahnaz Shaham?” -- 11 jurors answered “No,”
while one answered “Yes.” Finally, the jury unanimously
answered “No” to question five, which asked whether
Douglas’s dog had an unusually dangerous nature or
tendency. Pursuant to the directions on the special verdict
form, the jury answered no other questions. Shaham did not
file a motion for new trial. She timely appealed the
judgment entered on the verdict.
DISCUSSION
A. Denial of Application to Reopen Discovery
Shaham contends the superior court abused its
discretion in denying her ex parte application to reopen
discovery after the expiration of the discovery cut-off date.
“Except as provided in Section 2024.050, a continuance or
postponement of the trial date does not operate to reopen
discovery proceedings.” (§ 2024.020, subd. (b).) Section
18
2024.050 provides, “On motion of any party, the court may
grant leave . . . to reopen discovery after a new trial date has
been set. This motion shall be accompanied by a meet and
confer declaration . . . .” (§ 2024.050, subd. (a).) “In
exercising its discretion to grant or deny this motion, the
court shall take into consideration any matter relevant to
the leave requested, including, but not limited to, the
following: [¶] (1) The necessity and the reasons for the
discovery. [¶] (2) The diligence or lack of diligence of the
party seeking the discovery . . . , and the reasons that the
discovery was not completed . . . . [¶] (3) Any likelihood that
permitting the discovery . . . will prevent the case from going
to trial on the date set, or otherwise interfere with the trial
calendar, or result in prejudice to any other party. [¶] (4)
The length of time that has elapsed between any date
previously set, and the date presently set, for the trial of the
action.” (§ 2024.050, subd. (b).)
Shaham has failed to show the superior court abused
its discretion in denying her application to reopen discovery.
The record does not reflect that Shaham submitted a meet-
and-confer declaration as required by section 2024.050,
subdivision (a). More important, the record does not show
the court abused its discretion in considering the statutory
factors. (See § 2024.050, subd. (b).) Over a year had elapsed
between the initial trial date of June 20, 2018, and the
October 16, 2019 trial date set by the court at the time it
declined to reopen discovery. The court had already
continued trial three times at Shaham’s request, and had
19
also continued the trial-setting conference to accommodate
her, primarily because she had “fired her attorneys on the
eve of Trial.” The court was understandably hesitant to
delay trial even further, as likely would have been necessary
had it reopened discovery. Moreover, Shaham’s failure to
complete the requested discovery despite the prior
continuances suggested a lack of diligence. Finally, nothing
in the record suggests that Shaham made any offer of proof
in order to demonstrate her need for the requested discovery.
We reject Shaham’s reliance on the apparent
inconsistency between the February 2019 minute order’s
statement that the cut-off date was “to be continued,” and
the July 2019 minute order’s statements that discovery had
been closed since January and would remain closed.
Nothing in the record reflects that Shaham raised this
apparent inconsistency in the trial court. (See Jameson v.
Desta (2018) 5 Cal.5th 594, 609 [“‘In the absence of a
contrary showing in the record, all presumptions in favor of
the trial court’s action will be made by the appellate court’”].)
She therefore forfeited the issue on appeal. (See Eisenberg
et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter
Group 2021) Ch. 8-D ¶ 8:265 [“Appellants are commonly
held to an ‘implied waiver’ where the error urged on appeal
was never asserted in the trial court. Appellate courts will
not reverse for procedural defects or erroneous rulings that
could have been, but were not, challenged below. [¶] . . . [¶]
The same principle generally precludes appellants from
asserting a new theory on appeal”].)
20
Even had Shaham shown an abuse of discretion, we
would conclude she has failed to show prejudice. In her
opening brief, she fails to identify any further discovery she
would have conducted had discovery been reopened. In her
reply brief, for the first time, she asserts -- without citation
to the record -- that her requested discovery would have
included depositions of Douglas, Gomez, and Dr. Stibbe. We
need not consider this untimely and unsupported assertion.
(See Vines v. O’Reilly Auto Enterprises, LLC (2022) 74
Cal.App.5th 174, 190 (Vines) [“‘we need not address claims
not properly addressed in the opening brief’”]; Eisenberg et
al., Cal. Practice Guide: Civil Appeals & Writs, supra, Ch. 8-
D ¶ 8:173 [“the parties’ briefs cannot make arguments
relying on facts outside the record . . . ; statements in the
briefs based on improper matter are disregarded by the
appellate court”].) In any event, Shaham does not argue
these depositions would have enabled her to mount a more
persuasive case; instead, she argues they would have spared
her from comments by the trial court that her counsel was
not entitled to conduct discovery during his examination of
witnesses. On this record, we discern no possibility that
those comments affected the outcome of the trial. In sum,
Shaham has failed to show the superior court prejudicially
erred in declining to reopen discovery.
21
B. Exclusion of Testimony About Midtrial
Examination
Shaham contends the trial court erred in excluding
testimony from her treating physician, Dr. Collins, about his
most recent, midtrial examination of Shaham, on the ground
that it exceeded the scope of his deposition testimony.
1. Principles
Generally, on objection of any party who has made a
complete and timely compliance with the expert exchange
statute, the trial court “shall exclude from evidence the
expert opinion of any witness that is offered by any party
who has unreasonably failed to do any of the following: [¶]
(a) List that witness as an expert . . . . [¶] (b) Submit an
expert witness declaration. [¶] . . . [¶] (d) Make that expert
available for a deposition under Article 3 (commencing with
Section 2034.410).” (§ 2034.300.) “[N]o expert witness
declaration is required for treating physicians to the extent
that their opinion testimony is based on facts acquired
independently of the litigation, that is, facts acquired in the
course of the physician-patient relationship and any other
facts independently acquired.” (Ochoa v. Dorado (2014) 228
Cal.App.4th 120, 140.) However, even a treating physician
must be listed as an expert and made available for
deposition. (§ 2034.300; see also § 2034.260, subd. (b)(1)
[expert list must identify any “person whose expert opinion
that party expects to offer in evidence at the trial”];
§ 2034.410 [“On receipt of an expert witness list from a party,
22
any other party may take the deposition of any person on the
list” (italics added)].) “When counsel is not notified when the
opposing party’s expert witness formulates postdeposition
opinions to be offered at trial, the witness is ‘in effect not
made available for deposition as to the further opinions.’”
(Dozier v. Shapiro, supra, 199 Cal.App.4th at 1519, italics
added; see also Jones v. Moore (2000) 80 Cal.App.4th 557,
565 [plaintiff’s expert witness was “in effect not made
available for deposition as to the further opinions he offered
at trial -- opinions which during deposition he assured
defense counsel he did not have”].) Thus, “a treating
physician may not offer testimony at trial that exceeds the
scope of his or her deposition testimony if the opposing party
had no notice that the expert would offer new testimony in
sufficient time to re-depose the expert.” (Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2021) Ch. 8J-6 ¶ 8:1668b.)
Notwithstanding the foregoing exclusionary rule, a
party may call even an undesignated expert witness “to
impeach the testimony of an expert witness offered by any
other party at the trial.” (§ 2034.310, subd. (b).) “This
impeachment may include testimony to the falsity or
nonexistence of any fact used as the foundation for any
opinion by any other party’s expert witness, but may not
include testimony that contradicts the opinion.” (Ibid.)
23
2. Analysis
The trial court properly prohibited Dr. Collins from
testifying to opinions based on his midtrial examination of
Shaham because Shaham had unreasonably failed to make
Dr. Collins available for deposition with respect to the
excluded opinions. (See § 2034.300, subd. (d); Dozier v.
Shapiro, supra, 199 Cal.App.4th at 1519; Jones v. Moore,
supra, 80 Cal.App.4th at 565.) Without notice to Douglas,
Shaham’s counsel arranged for Dr. Collins to examine
Shaham during trial and attempted to elicit testimony about
the midtrial examination mere days later. Thus, Shaham
did not provide notice in sufficient time for Douglas to
depose Dr. Collins with respect to his new opinions.
Shaham suggests Dr. Collins’s proffered testimony was
permissible impeachment of an opposing expert under
Section 2034.310, because the testimony purportedly was
offered to contradict opinion testimony from Douglas’s
medical witnesses -- Dr. Snibbe and physical therapist Israel
-- regarding “a particular fact,” viz., the extent of Shaham’s
injuries. However, Dr. Collins testified before Dr. Snibbe;
the former’s testimony could not have been offered to
impeach the latter’s future testimony. Although Dr. Collins
testified after P.T. Israel, Shaham fails to identify any “fact
used as the foundation for any opinion” by Israel, let alone
any evidence in the record that Dr. Collins’s proffered
testimony would have addressed the “falsity or nonexistence”
of such a foundational fact. (§ 2034.310, subd. (b).) Shaham
has failed to show that the testimony fell within the bounds
24
of permissible impeachment under Section 2034.310, or that
the court erred in prohibiting Dr. Collins from offering
opinion testimony exceeding the scope of his deposition
testimony.10
We acknowledge that the exclusionary rule set forth in
section 2034.300 applies on its face only to expert opinion,
and that the court prohibited Dr. Collins not only from
expressing opinion based on the midtrial examination, but
also from “discussing the facts” of the examination. But
even assuming, arguendo, that this further prohibition was
error, Shaham has not shown prejudice. (See Unzueta v.
Akopyan (2019) 42 Cal.App.5th 199, 220-221 [appellant
asserting error in exclusion of evidence bears burden to show
reasonable probability of more favorable result absent
error].) In the trial court, Shaham made no offer of proof
10
The cases on which Shaham relies are distinguishable.
(See Easterby v. Clark (2009) 171 Cal.App.4th 772, 780-781
[defendants were “explicitly notified” three months before trial
that plaintiff’s treating physician would express postdeposition
opinion at trial, and had opportunity before trial to retake
physician’s deposition]; Fatica v. Superior Court (2002) 99
Cal.App.4th 350, 352-353 [trial court prohibited plaintiff’s
treating physician from testifying to opinions expressed at his
deposition, as remedy for physician’s inadequate preparation for
deposition, and rejected reasonable alternative requested by
plaintiff, viz., brief adjournment to allow further deposition];
Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 33 [trial court
prohibited plaintiff’s treating physicians from expressing any
expert opinion, erroneously believing plaintiff had been required
to submit expert declarations].)
25
concerning the additional facts Dr. Collins might permissibly
have testified to. On appeal, she asserts only that Dr.
Collins’s proffered testimony would have concerned the
extent of her injuries. But Dr. Collins was permitted to
testify on that topic on the basis of his four pre-deposition
examinations and his review of medical records; it is
speculative whether his testimony would have gained any
weight had he additionally relied on the bare facts of the
midtrial examination. In any event, the extent of Shaham’s
injuries proved irrelevant, as the jury concluded that
Douglas’s dog was not their cause. In sum, the court
properly excluded Dr. Collins’s opinion testimony based on
his midtrial examination of Shaham, and any error in
excluding his non-opinion testimony concerning the
examination was harmless.
C. Asserted Instructional Errors
Shaham contends the trial court erred in failing to
deliver strict liability instructions premised on Civil Code
section 3342 (the dog-bite statute) and Beverly Hills
Municipal Code section 5-2-111. The dog-bite statute
provides: “The owner of any dog is liable for the damages
suffered by any person who is bitten by the dog . . .
regardless of the former viciousness of the dog or the owner’s
knowledge of such viciousness.” (Civ. Code, § 3342, subd.
(a).) The statute codifies an exception to the common law
rule of strict liability for injury caused by a dog, which
requires that the dog have had an unusually vicious or
26
dangerous tendency that was known by the owner at the
time of the injury. (See Drake v. Dean (1993) 15 Cal.App.4th
915, 921-922.) Notwithstanding the dog-bite statute, “the
common law [dangerous-tendency] rule still obtains when a
dog causes injury by some means other than biting.”
(Johnson v. McMahan (1998) 68 Cal.App.4th 173, 176;
accord, 6 Witkin, Summary 11th Torts § 1573 (2021).)
Beverly Hills Municipal Code section 5-2-111 provides, in
relevant part: “Any person owning, controlling, or having
care or custody of any animal shall be liable for any injury
caused by such animal . . . .”
Shaham has failed to show instructional error. The
court properly declined to instruct the jury on the dog-bite
statute because Douglas’s dog undisputedly did not bite
Shaham. (See Civ. Code, § 3342, subd. (a); Johnson v.
McMahan, supra, 68 Cal.App.4th at 176.) Contrary to
Shaham’s implication, the court did instruct the jury on
Beverly Hills Municipal Code section 5-2-111. Moreover, the
special verdict form submitted to the jury -- approved by
Shaham’s counsel -- reflected Shaham’s proposed theory of
strict liability based on the ordinance. As Shaham
acknowledges on appeal, her counsel requested a verdict
form reflecting this strict liability theory as follows: “I would
like a verdict [form] that says ‘Is that animal owned by
defendant’ and ‘Did that animal injure? If so, go on to the
damage questions.’” The approved verdict form did precisely
what Shaham’s counsel requested: it asked whether Douglas
owned, kept, or controlled a dog (question three) and
27
whether Douglas’s dog caused injury to Shaham (question
four), and directed the jury, if it answered “Yes” to question
four, to proceed to the question concerning damages
(question eight). The court instructed the jury to take care
in following the directions on the verdict form, including
those regarding what to do after answering a question.
Shaham does not attempt to explain how, in light of the
verdict form, she was denied the benefit of the ordinance.
Instead, Shaham appears to suggest the verdict form
should have omitted any question about causation. But the
ordinance expressly limits liability to injury “caused by” the
animal. Moreover, Shaham forfeited any such contention by
failing to raise it in the trial court, where her counsel
approved the verdict form and failed to request clarification
or further deliberation when the jury announced its verdict.
(See People v. Johnson (2015) 61 Cal.4th 734, 784
[“defendant has forfeited the issue of whether the technical
error in the verdict form improperly biased the penalty
verdict ‘by failing to object to the form of the verdict when
the court proposed to submit it or when the jury returned its
finding’”]; Mathews v. Happy Valley Conference Center, Inc.
(2019) 43 Cal.App.5th 236, 265 [by failing to raise issue in
trial court, defendants forfeited contention that special
verdict form was defective for applying single employer
doctrine to breach of contract action].) In sum, Shaham has
failed to show error in the court’s instructions to the jury.
28
D. Asserted Judicial Misconduct
Shaham contends the trial court engaged in
misconduct throughout the trial, including by: (1)
interrupting Shaham’s counsel’s cross-examination of animal
control officer Alarcon in order to permit Douglas’s counsel
to elicit Alarcon’s testimony that he had been confronted by
Shaham’s mother (a witness for Shaham) during a break in
his testimony; (2) impugning Shaham’s counsel’s competence
in the presence of the jury, by commenting on his
understanding of trial procedures and asking whether he
was relying on his assistant for legal advice regarding
whether to call any rebuttal witness; (3) sustaining
objections, including some raised on the court’s own motion,
to certain questions posed by Shaham’s counsel in cross-
examining Dr. Snibbe; (4) jocularly overruling Shaham’s
counsel’s objection to the admission of a photo of Truffle
wearing toy antlers; and (5) informing the jury that the alley
beside Shaham’s house was public, not private, property as
Shaham’s counsel had indicated in opening statements.11
Shaham forfeited many or all of her claims of judicial
misconduct by failing to raise timely objections in the trial
court. (See People v. Seumanu (2015) 61 Cal.4th 1293, 1320
[“As a general rule, a specific and timely objection to judicial
11
In her reply brief, for the first time, Shaham makes
additional claims of judicial misconduct. Shaham forfeited these
claims by failing to raise them in her opening brief. (See Vines,
supra, 74 Cal.App.5th at 190.)
29
misconduct is required to preserve the claim for appellate
review”]; 7 Witkin, Cal. Proc. 6th Trial § 249 (2022) [“the
claim of misconduct of the court must ordinarily be raised at
the trial by objection, assignment as error, or motion for
mistrial; otherwise it will be waived”].) The sole objection on
the ground of judicial misconduct raised by Shaham’s
counsel -- viz., his objection that the court improperly acted
as an expert witness in informing the jury that the alley
beside Shaham’s home was public property -- was untimely,
as it was not made until more than a day after the court
made its comments. Shaham’s counsel did not move for a
mistrial or otherwise accuse the court of misconduct.
By operation of statute, Shaham arguably preserved
her claims that the court committed misconduct in
sustaining objections to certain questions posed by her
counsel in cross-examining Dr. Snibbe, overruling her
counsel’s objection to a photo of Truffle wearing toy antlers,
and informing the jury that the alley beside her house was
public property. (See Code Civ. Proc., § 647 [“All of the
following are deemed excepted to: . . . a ruling sustaining or
overruling an objection to evidence; and any statement or
other action of the court in commenting upon or in
summarizing the evidence”]; People v. Slaughter (2002) 27
Cal.4th 1187, 1217 [assuming, without deciding, that in light
of section 647, defendant preserved appellate challenge to
trial court’s comment on evidence, notwithstanding
defendant’s failure to object], abrogated on another ground
by People v. Diaz (2015) 60 Cal.4th 1176.) Assuming,
30
without deciding, that Shaham preserved these claims, we
conclude she has failed to show error. We see no abuse of
discretion in either: (1) the court’s sustaining objections to
Shaham’s counsel’s argumentative and often repetitive
questions to Dr. Snibbe regarding notes he did not recall
taking and records he admittedly had not reviewed or
requested; or (2) the court’s overruling Shaham’s counsel’s
objection that a photo of Truffle wearing toy antlers was
“defective and misleading” because the dog did not naturally
have antlers. (See Eisenberg et al., Cal. Practice Guide:
Civil Appeals & Writs, supra, Ch. 8-C ¶ 8:96.1 [“Generally,
appellate courts apply the abuse of discretion standard of
review to any trial court ruling on the admissibility of
evidence”].) The mere fact that the court ruled against
Shaham’s counsel on several occasions does not suggest
misconduct -- particularly in light of its many evidentiary
rulings in Shaham’s favor. (See 7 Witkin, Cal. Proc. 6th
Trial § 252 (2021) [“Rulings against a party, even where
numerous and continuous,” do not suggest judicial
misconduct].) With respect to the court’s comments to the
jury that the alley beside Shaham’s house was public
property, Shaham does not even attempt to show that the
comments were erroneous as a matter of fact or law, much
less that they were relevant to any issue before the jury. In
sum, Shaham forfeited many or all of her claims of judicial
misconduct, and to the extent she preserved any, she has
failed to show error.
31
E. Asserted Attorney Misconduct
Shaham contends Douglas’s counsel committed
misconduct in closing arguments, including by: (1)
commenting on Shaham’s religion in arguing that she and
her counsel had attempted, through her counsel’s opening
statements and her display of a prayer book during closing
arguments, to use her faith to influence the jury; (2) arguing
that Shaham was not credible because she had brought this
case in order to seek over one million dollars; (3)
misrepresenting the evidence in asserting that Shaham had
“confronted Ms. Gomez about her citizenship by saying she
was going to call the police”; and (4) urging the jury to
assume that certain medical evidence Shaham failed to
produce, but which was equally available to Douglas, would
have been adverse to Shaham. Shaham forfeited these
claims by failing to object to the challenged arguments in the
trial court.12 (See Wegner et al., Cal. Practice Guide: Civil
Trials & Evidence (The Rutter Group 2021) Ch. 13-C
¶ 13:229 [“Any objection to improper argument must be
made promptly when the misconduct occurs. Otherwise, the
objection is waived”].)
Contrary to Shaham’s contention, the record does not
show that objections would have been futile. At the time of
12
In her reply brief, for the first time, Shaham makes
additional claims of attorney misconduct. We conclude Shaham
forfeited these claims by failing to raise them in her opening
brief. (See Vines, supra, 74 Cal.App.5th at 190.)
32
the asserted misconduct, the court had sustained many
evidentiary objections made by Shaham’s counsel. (See
People v. Fuiava (2012) 53 Cal.4th 622, 680 [defendant
forfeited claims of prosecutorial misconduct by failing to
object in trial court, where “the record d[id] not establish
that properly framed objections would have been in vain or
provoked any ‘wrath’ on the part of the trial court; rather, all
indications [we]re that the court was reasonably responsive
to defense objections throughout the trial”].) Nothing
suggests the court would have failed to properly rule on
meritorious objections, as it had done throughout trial.
Further, the asserted misconduct was not so extreme as to
establish the futility of objections and admonitions. (See
Wegner et al., Cal. Practice Guide: Civil Trials & Evidence,
supra, Ch. 13-C ¶ 13:231 [“Except in ‘extreme’ cases
[citation], failure timely to object waives any objection to
improper closing arguments”].) Shaham cannot establish
otherwise merely by identifying, for the first time on appeal,
a number of alleged errors. (See People v. Fuiava, supra, 53
Cal.4th at 727 [“The prevalence of asserted misconduct
raised for the first time on appeal cannot establish that, had
defense counsel made proper objections at trial, the trial
court would have consistently overruled those objections, the
prosecutor would have persisted in engaging in the asserted
misconduct, or the jury would have been alienated by
33
defendant’s bringing the prosecutor’s asserted improprieties
13
to the court’s attention”].)
Even had Shaham preserved her claims of attorney
misconduct, we would conclude she has failed to show
prejudice. (See Wegner et al., Cal. Practice Guide: Civil
Trials & Evidence, supra, Ch. 13-C ¶ 13:255 [“Misconduct is
prejudicial only when there is a ‘miscarriage of justice’ -- i.e.,
when ‘it is reasonably probable that a result more favorable
to the appealing party would have been reached in the
absence of the error’”].) Emphasizing that only the
minimum number of jurors (nine) agreed on the finding that
13
The alleged misconduct of Douglas’s counsel was not
comparable to the extreme misconduct of the attorneys in the
cases on which Shaham relies. (See Simmons v. Southern Pac.
Transportation Co. (1976) 62 Cal.App.3d 341, 351-359 [where
“plaintiffs’ counsel from the very beginning of the trial embarked
on a campaign of hate, vilification and subterfuge for the sole
purpose of prejudicing the jury,” and defense counsel “objected to
much of plaintiffs’ counsel’s actions and in some cases asked for
admonitions,” defense counsel’s failure to make additional
objections and requests for admonitions did not forfeit
defendant’s claim of misconduct on appeal]; Kolaric v. Kaufman
(1968) 261 Cal.App.2d 20, 25-28 [prejudice from defense counsel’s
misconduct could not have been cured by admonition, where
defense counsel observed that husband and wife plaintiffs had
recently immigrated to U.S.; questioned whether they were U.S.
citizens; argued they had made a mockery of U.S. judicial and
medical systems in return for opportunities offered by U.S.; and
implied they were Jewish by asking wife, who had lived in
Germany, whether she had ever been in concentration camp].)
34
Douglas was not negligent, Shaham asserts it is “likely that
the jury found Douglas was not negligent because they
believed based upon [Douglas]’s counsel’s argument that
Shaham was less injured than she claimed . . . .” On the
contrary, in light of the jury’s 11-1 finding that Douglas’s dog
did not cause any injury to Shaham, any finding of
14
negligence would have been irrelevant. In short, Shaham
has failed to establish a reasonable probability that the jury
understood Douglas’s counsel to be urging it to find
Shaham’s injury was nonexistent, or that she was otherwise
prejudiced by the asserted misconduct.
As explained above, Shaham has forfeited many of her
contentions, and to the extent she has preserved others, she
has failed to show prejudicial error. For the same reasons,
we reject her claim that she was prejudiced by the
cumulative effect of the asserted errors.
14
Equally unfounded is Shaham’s suggestion that the
asserted misconduct of Douglas’s counsel “made the jury
speculate Shaham’s injuries were non-existent.” Douglas did not
dispute that Shaham had injured her calf.
35
DISPOSITION
The judgment is affirmed. Douglas is awarded her
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, P. J.
We concur:
WILLHITE, J.
CURREY, J.
36