Maximo v. Threatt CA2/7

Filed 1/19/22 Maximo v. Threatt CA2/7
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GUADALUPE MAXIMO, B301735
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC654184)
v.
RYAN THREATT,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, James A. Kaddo, Judge. Affirmed.
Law Office of Patrick T. Santos and Patrick T. Santos for
Plaintiff and Appellant.
Richardson, Fair and Cohen and Kimberley L. Maxwell for
Defendant and Respondent.
________________________________
Guadalupe Maximo appeals from a judgment entered after
a jury awarded her $22,620 in damages for personal injuries
suffered in a 2016 automobile collision with Ryan Threatt.
Because the award did not exceed Threatt’s pretrial offer to settle
the case under Code of Civil Procedure section 998,1 the trial
court entered judgment in favor of Threatt after offsetting
Maximo’s recovery with Threatt’s litigation costs.
On appeal, Maximo contends the trial court abused its
discretion in allowing Threatt’s medical and biomechanics
experts to testify outside their areas of expertise, beyond the
scope of their deposition testimony, and in violation of the court’s
pretrial orders. Maximo also asserts the trial court abused its
discretion in denying her motions in limine to exclude evidence of
medical liens placed by her doctors on her recovery and her
attorneys’ referral of her to specific doctors. In addition, she
argues the court erred in failing to instruct the jury on the
“eggshell plaintiff” theory. Finally, Maximo argues the trial court
erred in awarding an offset to Threatt for his litigation costs
under section 998 without requiring Threatt to file a motion for
offsets. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Accident
On the evening of February 2, 2016, Maximo drove her
2015 Kia Optima eastbound on Hyde Park Boulevard in Los
Angeles. Threatt was driving his 2000 Honda Accord behind her.
1 All statutory references are to the Code of Civil
Procedure unless otherwise indicated.
2
When Maximo’s car reached the intersection of Hyde Park
Boulevard and Chester Avenue, she stopped at a stop sign.
Threatt failed to stop, and his car struck the back of Maximo’s
car. Threatt estimated he was traveling approximately “four to
seven miles per hour” at the time of the accident. However, his
damage reconstruction expert opined at trial that Threatt was
traveling 16 to 19 miles per hour. According to Maximo, the
collision pushed her car “about 10 to 11 feet.” Maximo’s car
suffered damage to the rear bumper, the passenger side exhaust
pipe, and the plastic undercarriage for the spare tire. The
accident damaged the driver-side front headlamp, the hood, and
the front bumper of Threatt’s car.2 Threatt spent approximately
$400 to repair his car.3
Neither the police nor paramedics were summoned to the
scene. Maximo and Threatt exchanged contact information, and
they drove home in their respective cars.
B. Maximo’s Complaint, Pretrial Discovery, and Pretrial
Motions
In March 2017 Maximo filed a complaint for personal
injury and property damage, alleging Threatt was negligent
when his car struck hers, causing her to sustain personal injuries
from the accident. She sought medical expenses, property
damage, loss of income, and pain and suffering. Threatt later
2 Photographs of the cars taken by Threatt after the
accident were admitted at trial.
3 Maximo did not introduce evidence of the cost to
repair her car.
3
conceded liability but disputed that Maximo’s claimed injuries
were caused by the accident.
Maximo designated her treating doctors, Dr. Harry Brooks
and Dr. Babak Samimi, as expert witnesses. Threatt designated
three experts: Philip Wang, an accident reconstruction expert;
Dr. Ronald Kvitne, an orthopedic surgeon; and Kimberly Balogh,
a biomechanical engineer. Each party deposed the other’s
experts before trial.
In April 2018, several months before trial, Threatt served
Maximo with a section 998 offer to settle the case for $35,001, but
Maximo rejected the offer. Maximo countered with a section 998
offer to settle the case for $69,999, which Threatt rejected.
Maximo filed 10 motions in limine, including, as relevant
on appeal, to exclude evidence of (1) Maximo’s attorneys’ referral
of Maximo to specific doctors; (2) Maximo’s doctors’ placing of
medical liens on her recovery in the lawsuit; and (3) medical
payments to Maximo from collateral sources, including medical
insurance reimbursement. Maximo also sought to preclude
Balogh from providing opinions at trial on “medical causation” or
“injury causation.” The trial court granted Maximo’s motion to
exclude any reference to payments from collateral sources but
denied her other motions. The court clarified with respect to
Maximo’s motion to preclude Balogh from offering opinions on
medical or injury causation that Balogh could “testify that, based
on the force of the impact and the position of the passenger or
driver inside of that vehicle, [whether] the impact caused the
injuries complained of.”
4
C. The Evidence at Trial
1. Maximo’s case
Maximo testified that when she got home after the
accident, her “whole body [was] in shock and sore.” She took
acetaminophen and wrapped her left hand in an elastic bandage
to ease the pain. Maximo woke up feeling sore the next day, but
she went to work. After work, she visited an urgent care facility,
complaining of pain in her neck, back, right knee, right ankle, left
hand, left thumb, and right wrist. The urgent care records
disclosed she had a “contusion” on her right knee. However,
Maximo did not know how she sustained the contusion and could
not recall whether any part of her body struck any part of the
car’s interior at the time of the impact. The urgent care doctor
advised Maximo to take a muscle relaxer.
Maximo’s attorney referred her to Dr. Brooks, an
orthopedic doctor. Dr. Brooks testified he examined Maximo
approximately one week after the accident. He observed
Maximo’s right knee was swollen with restricted motion and
tenderness on the inside medial joint line, but it was not bruised.
Dr. Brooks also noted Maximo had restricted motion in her neck
and lower back, pain in her right wrist, and tenderness in her left
thumb. Dr. Brooks ordered X-rays and an MRI and prescribed
Maximo a knee brace and physical therapy. Maximo did not
disclose any prior injuries or conditions affecting her knee.
Maximo also did not tell Dr. Brooks that in 2013 she was in a
rear-end car accident, in which she sustained a minor injury to
her right knee. She did not seek medical treatment after the
2013 accident, and the pain in her knee resolved on its own about
a month after the accident.
5
According to Dr. Brooks, the MRI revealed Maximo had
patella friction syndrome, a condition causing friction between
the knee cap and femur, as well as an “increased signal” on her
right knee showing a collection of fat behind the tendon and
below the knee cap. The increased signal resulted from
inflammation due to her injury. The MRI also showed patella
tilt, a malalignment of the knee cap that can cause friction or
rubbing, and a condition called chondromalacia. Dr. Brooks
opined Maximo’s “symptoms were all directly related to the
effects of the accident.” When asked whether the accident was
the only cause of Maximo’s condition, Dr. Brooks responded,
“Absolutely.”
After Maximo attended physical therapy but continued to
suffer pain, Dr. Brooks administered two cortisone anti-
inflammatory injections to Maximo’s right knee, temporarily
easing her pain. In November of 2016, however, based on
Maximo’s ongoing pain, Dr. Brooks recommended she undergo
surgery on her right knee. Dr. Brooks opined that based on the
fact Maximo had no symptoms before the accident, “the need for
the surgery on her right knee is directly due to the effect of the
accident of February 2, 2016.”
Maximo’s attorney recommended that Maximo see
Dr. Samimi, an orthopedic surgeon, who examined Maximo in
March 2017. Dr. Samimi observed the same conditions in
Maximo’s knee that Dr. Brooks found in 2016. Dr. Samimi noted
the MRI showed swelling in the front of her knee just below the
patella. He also determined Maximo had chondromalacia, which
is damage to the cartilage in the knee cap. Dr. Samimi opined
Maximo’s patella tilt had been present since birth. The
chondromalacia “could have been there for . . . months up to a
6
year or two years, but I wouldn’t expect it to be there for four, five
years. . . .” The chondromalacia would have caused the majority
of Maximo’s pain. Dr. Samimi testified to a degree of medical
certainty and probability that the 2016 car accident caused
Maximo’s knee injury, necessitating the 2017 surgery. Maximo
did not tell Dr. Samimi about the 2013 car accident.
In November 2017 Dr. Samimi operated on Maximo’s knee.
The surgery addressed the problems resulting from
chondromalacia and the patella tilt. During the surgery,
Dr. Samimi also “cleaned up and released th[e] tissue” in the
inflamed medial synovial plica, which could have resulted from
the injury or “for no reason.”
Maximo conceded she did not miss any work following the
accident until her knee surgery, at which time she missed six
weeks of work. All of Maximo’s physical complaints, other than
her right knee pain, resolved within a month after the accident.
Maximo maintained her lifestyle from the spring of 2016 (after
receiving physical therapy and cortisone injections) until the
surgery in November 2017. She had an active social life,
including dancing and vacations during which she did not wear a
knee brace.
When Dr. Brooks was asked in cross-examination to
explain “the biomechanics [of] how Ms. Maximo’s body moved to
cause this injury that you say she sustained in the rear-end
accident,” Dr. Brooks responded that Maximo “first went
backward[] and then she went forward[] and then backward[]
again.” Dr. Brooks believed Maximo hit her knee inside of the
interior of the car during this movement. He added that
Maximo’s injuries also resulted “probably [from] a forceful
7
contraction of the quadriceps muscle because she was putting her
foot on the brake.”
Dr. Samimi similarly opined, when asked how Maximo’s
body would have moved in the car, that in a rear-end collision,
the person’s body moves backward into the seat, then “it’s going
to ricochet forward into the front of the car.” Further, depending
on how close the person is to the steering wheel and the
dashboard, “with respect to the knee injur[ies] usually I will see
either the front of the knee impacting against the dashboard or
the knee being held firmly against the brake pedal, and since it’s
in a flexed position, that contracture of the patella into the femur
causes an impaction or a compressed force there.” Dr. Samimi
added that although he did not have evidence that Maximo’s knee
hit the dashboard or that she firmly pressed her knee (or foot)
against the brake pedal, he based his opinion that one of these
things happened on his expertise in orthopedics and evaluation of
hundreds of patients in car accidents. He described his
experience with injuries from accidents as “biomechanical
training” in that he would have to analyze the “biomechanics of
[the] injury.”
Doctors Brooks and Samimi described the medical bills for
Maximo’s treatment, including medical tests, physical therapy, a
knee brace, and surgery. Both doctors placed medical liens on
Maximo’s recovery. When asked about the medical lien he had
placed on Maximo’s recovery, Dr. Brooks explained he provided
treatment to Maximo based on the lien, but Maximo would be
responsible for the bills regardless of the outcome of the case.
8
2. Threatt’s case
Balogh was a biomechanical engineer, which she described
as “an engineer that applies math and physics to the human body
utilizing forces of external and internal to biological systems, in
our case, the human body and the effects of those forces
produced.” She opined that when a vehicle is hit from behind, a
forward force on the front vehicle is “very similar to being pushed
back into the seat.” The occupant would go back as the vehicle
goes forward, and the head restraint “cushions a lot of energy
that was received from that initial impact.” Given the impact, it
is “acceptable” that Maximo would have suffered the neck, lower
back, and middle back injuries she initially reported. However,
Balogh opined there were no factors that would have caused
Maximo to “come forward into the frontal panel of any form,
meaning the steering wheel or the knee bolster or the
dashboard.”4 Further, the three-point restraint system would
have stopped her from going forward. Balogh added that if
Maximo’s knee were to hit the knee bolster, she would expect to
see bruising of the bone or skin associated with the bone, but
Dr. Brooks did not diagnose Maximo with a contusion.5
4 Balogh explained a “knee bolster” is the pad
underneath the steering wheel and steering column, “which
is centered along the midline of the human body and the
pelvis.”
5 Balogh acknowledged that Maximo’s records showed
a contusion (from her urgent care visit), but Balogh noted
that “when there’s someone that goes in and claims . . . a
soreness of some sort, sometimes they will just diagnose a
sprain or strain or a contusion.”
9
Balogh opined the trauma from the rear-end collision would
not have caused chondromalacia, which could result from an
impact, because there was no impact to Maximo’s knee, and “it’s
more likely that it would be associated with some congenital
disorders also diagnosed,” including patella tilt and a medial
synovial plica. Balogh opined the patella tilt “increases your
chances of friction there which would, in turn, create a
chondromalacia, especially if you have imbalances on your
muscles.” As to patella tendon friction syndrome, “[f]riction is
indicative of having a rougher surface to rub against, and then a
syndrome is often associated with overuse.” Further, direct
trauma was not necessary to cause the condition. Balogh
disagreed with Dr. Samimi’s opinions on the biomechanics of the
accident, explaining that Maximo would have maintained the
position of her foot as she was pushed back into the cushion of
the seat, causing her knee to extend “a little but, not fully,”
taking pressure off the patella. Balogh also disagreed with Dr.
Samimi’s opinion that Maximo would have ricocheted back into
the seat, then forward. Balogh opined that, based on the science
of kinematics and biomechanics, Maximo would have been
pushed back into the seat and returned to a normal resting
position.
Dr. Kvitne, an orthopedic surgeon, similarly opined that
the movement of Maximo’s body in a rear-end collision would not
have caused an injury to Maximo’s knee requiring surgery
because the occupant of the first vehicle in a rear-end collision
would move backward, and it would be “biomechanically
physically impossible” for Maximo’s knee to hit the dashboard.
Further, if Maximo’s knee sustained direct trauma from the
accident as she had claimed, her injuries would have been
10
different and more severe. He noted Maximo drove away from
the accident scene, drove herself to urgent care the next day, and
did not miss any time from work, showing the injury was at most
a soft tissue injury that would not require surgery. Further, the
MRI showed a chronic knee cap alignment issue that Maximo
had “on and off for years.” Dr. Kvitne opined the surgery was not
necessitated by the accident, but rather, would have corrected a
“longstanding preexisting knee cap malalignment problem that
would give [her] symptoms of pain and swelling from time to time
depending on [her] activity level.” Finally, Dr. Kvitne critiqued
the medical expenses Maximo incurred, opining many of the
charges for Maximo’s treatment were unreasonable.
On July 16, 2021 the jury returned a special verdict in
favor of Maximo for $22,620, including $20,220 for past medical
damages and $2,400 for pain and suffering.
D. Judgment and Appeal
On August 9, 2019 Threatt served a memorandum of costs
seeking $52,843.06 and a proposed judgment that set forth the
jury’s award of $22,620 in general and special damages with a
blank line for the amount of an offset for Threatt’s costs. Maximo
did not file an objection to the proposed judgment, nor did she
move to strike or tax Threatt’s claimed costs. On September 3,
2019 the court entered the judgment.6
6 The judgment provided, “Pursuant to CCP
section 998, Defendant, Ryan Threatt is entitled to costs
from Plaintiff, Guadalupe Maximo, the sum of $52,843.06
in costs.” (Capitalization omitted.) Although the judgment
contains a blank for the amount of an offset, it is
undisputed that the jury’s award of $22,620 for Maximo
11
Maximo timely appealed.
DISCUSSION
A. The Trial Court Did Not Commit Prejudicial Error in
Admitting Threatt’s Expert Evidence
1. Standard of review
We review the trial court’s rulings on the admission of
evidence for an abuse of discretion. (People v. Trujeque (2015)
61 Cal.4th 227, 278; Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 773 (Sargon).) A
ruling constitutes an abuse of discretion only if it is “‘so irrational
or arbitrary that no reasonable person could agree with it.’”
(Sargon, at p. 773; accord, Sanchez v. Kern Emergency Medical
Transportation Corp. (2017) 8 Cal.App.5th 146, 154.)
Even if a trial court abuses its discretion in admitting
evidence, the judgment may only be reversed if the error was
prejudicial. (ABM Industries Overtime Cases (2017)
19 Cal.App.5th 277, 293; Grail Semiconductor, Inc. v. Mitsubishi
Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 799
(Grail Semiconductor); see Cal. Const., art. VI, § 13 [“No
judgment shall be set aside . . . on the ground . . . of the improper
admission or rejection of evidence, . . . unless, after an
examination of the entire cause, including the evidence, the court
shall be of the opinion that the error complained of has resulted
in a miscarriage of justice.”].)
was offset by the cost award to Threatt, resulting in a net
judgment in favor of Threatt.
12
“‘In civil cases, a miscarriage of justice should be declared
only when the reviewing court, after an examination of the entire
cause, including the evidence, is of the opinion that it is
reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.’”
(Grail Semiconductor, supra, 225 Cal.App.4th at p. 799; accord,
ABM Industries Overtime Cases, supra, 19 Cal.App.5th at p. 293.)
The appellant has the burden of demonstrating the error was
prejudicial. (Kim v. The True Church Members of Holy Hill
Community Church (2015) 236 Cal.App.4th 1435, 1444; Grail
Semiconductor, at p. 799.)
2. The trial court did not abuse its discretion in
admitting Dr. Kvitne’s testimony
a. Dr. Kvitne was qualified to testify about
whether the accident caused Maximo’s injury
Maximo contends the trial court abused its discretion in
overruling her attorney’s objection that Dr. Kvitne provided
expert opinion testimony on biomechanics, which was beyond his
professional qualifications. In explaining why the accident did
not cause Maximo’s knee injury, Dr. Kvitne testified, “The
occupant . . . in the vehicle will be moving posterior relative to
the car. So if somebody is claiming that their knees hit the
dashboard, it’s physically impossible. It’s biomechanically
physically impossible. I’ve never seen it unless there was a
rollover of the vehicle or the patient was ejected from the vehicle
or they struck something from the front after the rear-end
collision.” The trial court did not abuse its discretion.
“A person is qualified to testify as an expert if he has
special knowledge, skill, experience, training, or education
13
sufficient to qualify him as an expert on the subject to which his
testimony relates.” (Evid. Code, § 720, subd. (a).) “A trial court’s
decision that a proposed witness qualifies as an expert under
Evidence Code section 720 is a matter within the court’s broad
discretion and will not be disturbed on appeal unless the
defendant demonstrates a manifest abuse of that discretion.
[Citation.] When a preliminary showing is made that the
proposed witness has sufficient knowledge to qualify as an expert
under the Evidence Code, questions about the depth or scope of
his or her knowledge or experience go to the weight, not the
admissibility, of the witness’s testimony.” (People v. Jones (2013)
57 Cal.4th 899, 949-950; accord, People v. Jackson (2016)
1 Cal.5th 269, 327-328.)
Dr. Kvitne is a board-certified orthopedic surgeon who has
practiced orthopedics in Los Angeles since 1987. He was
previously a clinical professor of orthopedic surgery at the
University of Southern California School of Medicine. More
recently, he practiced at Cedars-Sinai Medical Center, where he
trained residents and fellows. At trial, Dr. Kvitne acknowledged
he had no education in biomechanics, but when asked on cross-
examination whether he intended to testify about biomechanics,
he responded he did not and instead intended to testify “from
personal observations and my 30 years of practice.”
Although Dr. Kvitne expressed his opinion that drivers in
rear-end collisions could not “biomechanically” hit their knees
against the dashboard, Dr. Kvitne did not base this opinion on
application of engineering and physics principles to the
movement of the human body, but rather, on his experience,
saying he had “never seen it” except in limited circumstances not
present here. And Maximo’s attorney could have, but failed, to
14
clarify what Dr. Kvitne meant by the term “biomechanically.”
Dr. Kvitne’s testimony was no different from that of Maximo’s
medical experts. Dr. Brooks, who similarly had no education or
training in biomechanics, opined in response to a question about
the biomechanics of the accident that Maximo would have hit her
knee in the interior of the vehicle because of the movement of her
body “backward[] and then . . . forward[] and then backward[]
again.” Dr. Brooks also opined that Maximo’s injuries probably
resulted from the contraction of her quadriceps muscle because
she put her foot on the brake. Dr. Samimi similarly opined that
Maximo was likely, because of how the car would “ricochet
forward,” to hit her knee against the dashboard or suffer an
injury from pressing her knee (or foot) against the brake pedal.
All three doctors based their opinions on whether Maximo
suffered a serious knee injury from the accident on their
experience with patients who had been in rear-end collisions. To
the extent Dr. Kvitne’s testimony strayed beyond the scope of his
experience, this goes to the weight, not the admissibility, of his
testimony. (People v. Jones, supra, 57 Cal.4th at pp. 949-950.)
Further, in explaining why he would not expect to see a
serious knee injury from the accident, Dr. Kvitne appropriately
relied on Maximo’s condition after the accident. As Dr. Kvitne
explained, Maximo was able to drive her vehicle from the
accident scene, went to work the next day, drove herself to urgent
care, and complained of only mild knee pain when she was seen
at the urgent care facility. The urgent care facility did not take
any X-rays, provide Maximo crutches, or prescribe pain
medication. Dr. Kvitne stated these factors showed she “didn’t
have a significant knee injury.” He also reviewed the MRI scan
taken three weeks after her accident and opined that “[i]t showed
15
a chronic kneecap alignment issue that she’s had on and off for
years,” and the lack of a bone bruise showed Maximo suffered at
most a minor soft tissue injury from the accident.
Finally, to the extent Dr. Kvitne’s opinion on how Maximo’s
body would have moved in the vehicle was beyond his expertise,
Maximo has not demonstrated a miscarriage of justice because
the testimony was cumulative of similar testimony from Balogh,
who was Threatt’s biomechanics expert. (See Grail
Semiconductor, supra, 225 Cal.App.4th at p. 799.)
b. Dr. Kvitne’s testimony did not exceed the scope
of his deposition testimony
Maximo contends the trial court abused its discretion in
overruling her attorney’s objections to Dr. Kvitne’s trial
testimony on biomechanics and the reasonableness of Maximo’s
medical bills as exceeding the scope of the opinions he offered in
his deposition. This contention lacks merit.
When an appropriate demand is made for the exchange of
expert witness information, a party is required to disclose the
general substance of the testimony the expert is expected to give
at trial. (§ 2034.260, subd. (c)(2).) The disclosure allows the
opposing party, in taking the expert’s deposition, “to fully explore
the relevant subject area . . . and to select an expert who can
respond with a competing opinion on that subject area.” (Bonds
v. Roy (1999) 20 Cal.4th 140, 146-147; accord, Cottini v. Enloe
Medical Center (2014) 226 Cal.App.4th 401, 416.) In an expert
witness exchange, a party is required to “‘“‘disclose the substance
of the facts and the opinions to which the expert will testify,
either in his witness exchange list, or in his deposition, or both.’”’”
(Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1518-1519;
16
accord, Easterby v. Clark (2009) 171 Cal.App.4th 772, 778
(Easterby); Kennemur v. State of California (1982)
133 Cal.App.3d 907, 919.) “‘“When an expert is permitted to
testify at trial on a wholly undisclosed subject area, opposing
parties . . . lack a fair opportunity to prepare for cross-
examination or rebuttal.”’” (Dozier, at p. 1519; see Easterby, at
p. 780.) “Although a party is required to ‘“disclose
the substance of the facts and the opinions to which the expert
will testify,”’ this ‘does not require disclosure of specific facts and
opinions.’” (DePalma v. Rodriquez (2007) 151 Cal.App.4th 159,
165 (DePalma).) An expert opinion at trial exceeding the scope of
deposition testimony may be excluded “if the opposing party has
no notice or expectation that the expert will offer the new
testimony, or if notice of the new testimony comes at a time when
deposing the expert is unreasonably difficult.” (Easterby, at
p. 780; accord, Dozier, at pp. 1523-1524.)
In DePalma, supra, 151 Cal.App.4th at pages 162 to 163,
the defendant’s biomechanics expert testified at his deposition
about an automobile accident, opining that based on the force of
the impact on the plaintiff’s vehicle, the plaintiff was not likely to
have suffered any injury. At trial, the same expert testified more
specifically that the accident would not have caused the plaintiff’s
knee and shoulder injuries. (Ibid.) The Court of Appeal
concluded the trial court did not abuse its discretion in allowing
the testimony at trial, explaining, “[T]he instant case is quite
different from the situation . . . where testimony excluded by the
trial court involved an entirely new area of testimony not
previously disclosed. Here, [the expert’s] trial testimony
constituted merely an expanded description and interpretation of
the conclusions stated in his deposition testimony.” (Id., at
17
p. 165; cf. Jones v. Moore (2000) 80 Cal.App.4th 557, 566 [trial
court did not abuse its discretion in excluding testimony of expert
on whether lawyer breached a duty of care in family law
proceeding concerning conduct after entry of judgment where
expert testified at deposition only about prejudgment conduct and
stated he would not offer other opinions at trial].)
When asked at his deposition to state the opinions he
intended to provide at trial, Dr. Kvitne responded, “The
biomechanics of a rear-end-collision motor vehicle accident would
not produce, biomechanically, enough forces to injure the knee in
any significant manner such that it would lead to surgery such as
what happened in this case. So the biomechanics aren’t sufficient
to produce the forces necessary to create a patellofemoral
malalignment or patellofemoral friction syndrome that would
require surgery.” Dr. Kvitne’s statement that he intended to
testify about the biomechanics of a rear-end collision and that the
force would not be sufficient to produce Maximo’s knee injury
provided notice of the “‘“general substance”’” of his testimony,
and as in DePalma, his testimony at trial appropriately provided
“an expanded description and interpretation of the conclusions
stated in his deposition testimony.” (DePalma, supra,
151 Cal.App.4th at pp. 165-166.)
Maximo argues the court should have barred Dr. Kvitne
from testifying about biomechanics at trial because when asked
at his deposition whether he intended “to testify about
biomechanics in this case,” Dr. Kvitne replied, “[N]o, just from
personal observation in my 30 years of practice.” But Dr.
Kvitne’s clarification was consistent with his testimony in which
he based his opinion on how Maximo’s body would have moved in
the car on his personal experience with patients who had been in
18
rear-end collisions, not on calculations of the force of the collision
or other mathematical equations.
Dr. Kvitne also stated in his deposition that he intended to
testify at trial about the reasonableness of Maximo’s medical
expenses. He opined that Maximo would have benefitted from six
to 12 weeks of physical therapy and the two cortisone injectioions
Dr. Brooks performed. However, a reasonable expense for the
physical therapy would have been $100 to $125 for each session
and “under a hundred dollars” for the cortisone injections.
Dr. Kvitne testified further that “all charges then that would
have been incurred from the surgery, post-op rehab and any
future medical care would not be necessary as a result of any
injury that she would have sustained to her right knee on
February 2nd, 2016.” (Italics added.)
At trial, Dr. Kvitne similarly opined the charges for urgent
care and evaluation by Dr. Brooks were reasonable, as well as
three months of physical therapy, the knee brace, two cortisone
injections, and an MRI and X-rays. Although Dr. Kvitne
provided additional testimony at trial that the charges to review
the MRI and X-rays were excessive, Dr. Kvitne made clear at his
deposition that he intended to testify at trial on the
reasonableness of Maximo’s medical expenses, providing
Maximo’s attorney a full opportunity to question Dr. Kvitne
about the reasonableness of each medical bill.7 As to Dr. Kvitne’s
7 In overruling Maximo’s objection to Dr. Kvitne’s
testimony about the reasonableness of the bills for
reviewing the MRI’s and X-rays and the performance of the
surgery, the trial court stated Dr. Kvitne could testify as to
these subjects, but Maximo’s attorney would have an
opportunity to cross-examine him. However, Maximo’s
19
testimony that the charges for Maximo’s surgery and post-
surgery rehabilitation were excessive, as in DePalma, supra,
151 Cal.App.4th at page 165, Dr. Kvitne’s testimony at his
deposition that Maximo should not have incurred “any” charges
for surgery placed Maximo on notice that Dr. Kvitne would testify
at trial that all specific surgery and post-surgery rehabilitation
charges were unreasonable.
c. The trial court cured any prejudice from
Dr. Kvitne’s testimony on medical
reimbursements
Maximo contends she was prejudiced by Dr. Kvitne’s
testimony referencing insurance company reimbursement rates.
Although Maximo is correct that Dr. Kvitne’s testimony was
improper, there was no prejudice in light of the trial court’s
admonition to the jury to disregard the testimony.
Dr. Kvitne testified the charges for the two cortisone
injections were excessive because they “would have been
reimbursed at $100 . . . . So the bill is inflated and unreasonable.”
Maximo’s attorney objected, arguing that Dr. Kvitne’s testimony
violated the trial court’s ruling excluding any mention of
reimbursement rates. The court sustained the objection at
sidebar and ordered that Dr. Kvitne could only testify about what
rates were reasonable in the doctor’s opinion. However, when
discussing the charges for physical therapy, Dr. Kvitne testified
the charges were unreasonable because “physical therapy visits
are reimbursed typically at $100 to $125.” The court sustained
attorney did not inquire during his cross-examination of
Dr. Kvitne about the reasonableness of these charges.
20
Maximo’s objection and admonished the jury: “The court has
indicated that as to the testimony pertaining to reimbursement,
the motion is sustained. The jury is instructed to disregard the
part of the testimony about reimbursement. That means you are
to treat it as though you did not hear of it.”
Maximo contends the trial court should have excluded all of
Dr. Kvitne’s testimony about the reasonableness of Maximo’s
medical bills given Dr. Kvitne’s reliance on reimbursement rates.
But the trial court properly admonished the jury to disregard the
testimony about reimbursements. “We presume the jury followed
the court’s instruction.” (People v. Martinez (2010) 47 Cal.4th
911, 957; accord, People v. Flores (2020) 9 Cal.5th 371, 405; Pope
v. Babick (2014) 229 Cal.App.4th 1238, 1250 [“[a]bsent some
indication in the record, we presume the jury followed the court’s
instructions and that its verdict reflects the limitations the
instructions imposed”].) Further, when Dr. Kvitne later
reiterated his opinion about the medical bills without reference to
reimbursement rates, Maximo’s attorney had an opportunity to
cross-examine Dr. Kvitne about the foundation for his opinion,
but Maximo’s attorney failed to do so. Under these
circumstances, Maximo has not established that the improper
testimony prejudiced her.
3. The trial court did not commit prejudicial error in
overruling Maximo’s objections to Balogh’s testimony
a. To the extent Balogh testified beyond the scope
of her expertise in biomechanics, Maximo has
not demonstrated prejudice
Maximo contends the trial court abused its discretion in
allowing Balogh to provide testimony on medical and injury
21
causation that was outside her area of expertise in biomechanics.
To the extent Balogh’s testimony exceeded the scope of her
qualifications, it was not prejudicial.
Balogh is an expert in biomechanics, with a background in
anatomy and kinesiology and a focus on “how the body moves”
and “how external forces are applied to the human body and how
the body reacts to it.”8 Her testimony about how Maximo’s body
would have moved within the car upon impact fell squarely
within her experience as a biomechanical engineer. Balogh also
properly relied on the fact Dr. Brooks did not note or recall seeing
a contusion to Maximo’s knee even though he evaluated her
about a week after the accident. And Balogh used her training to
opine that Maximo “would not have experienced an impact to the
knee into the knee bolster based off of the fundamental principles
of kinematics and Newtonian physics.” Balogh’s testimony that
the accident did not cause Maximo’s knee injury logically flowed
from her opinion based on biomechanics in that she opined
Maximo’s knee did not hit the knee bolster or dashboard because
her body was moving backward, not forward as a result of the
impact.
8 Maximo’s motion in limine addressed Balogh’s
deposition testimony, in which Balogh stated she was not a
licensed doctor, but she received medical training in
graduate school while she was pursuing a degree in
biomechanics. Balogh’s resume (marked as an exhibit at
her deposition) disclosed her professional background and
experience in anatomy, physiology, and injury causation,
including determining the cause of neck, back, and musclo-
skeletal injuries. She also testified she had worked closely
with orthopedists and other doctors on matters related to
accidents in more than 200 personal injury cases.
22
Balogh’s description of chondromalacia as an “overuse
injury” and her opinion that Maximo’s chondromalacia condition
was “more likely . . . associated with some congenital disorders
also diagnosed” veered into a medical opinion beyond her
expertise. But she was qualified to opine that the condition did
not develop from an impact to Maximo’s knee given Balogh’s
conclusion based on biomechanics that Maximo’s knee did not hit
the knee bolster or dashboard. With respect to Balogh’s
testimony on whether Maximo’s patella tilt and medial synovial
plica were caused by the accident, this opinion involved medical
testimony beyond Balogh’s expertise, but it also rested on proper
biomechanical analysis of the nature of the accident. Balogh
opined that Maximo “had maintained a position of her foot [on
the brake] as she was pushed back into the cushion of the seat,”
which would have caused her knee to be extended a “little bit,”
but not fully, taking pressure off the patella. Thus, Balogh
opined, Maximo’s “patella was not as compressed to the knee
joint.”
As the trial court observed in denying Maximo’s motion in
limine to exclude Balogh’s testimony on causation, the question of
what injuries an accident causes requires overlapping opinions on
biomechanics and medicine. The trial court granted leeway in
these areas to both sides—allowing Maximo’s medical experts to
opine on the biomechanics of how Maximo’s body would have
moved within the car and Balogh to opine on whether the
movement within the car would have caused Maximo’s injuries.
To the extent the trial court abused its discretion in allowing
Balogh to provide medical testimony as to the causes of the three
conditions Maximo suffered, it was not reversible error because
Balogh’s testimony was cumulative to that of Dr. Kvitne. And,
23
given Balogh’s limited background beyond biomechanics, her
testimony would have carried less weight on medical causation
than that of Dr. Kvitne and Drs. Brooks and Samimi. Thus,
Maximo has not met her burden to show it is reasonably probable
she would have obtained a more favorable result had the trial
court excluded Balogh’s testimony on Maximo’s medical
conditions. (Grail Semiconductor, supra, 225 Cal.App.4th at
p. 799.)
b. Balogh’s testimony did not exceed the scope of
her deposition testimony
Maximo contends the trial court erred in overruling
Maximo’s objection to Balogh’s trial testimony because the
testimony exceeded the scope of the declaration of Threatt’s
attorney under section 2034.260, subdivision (c)(2), and Balogh’s
deposition testimony. The trial court did not err.
During discovery, Threatt’s attorney disclosed in her
declaration under section 2034.260, subdivision (c)(2), that
Balogh was a biomechanical engineer specializing in “human
factors analysis and issues, accident investigations, [and]
illumination measurement dealing with areas including
automobile accidents.” Further, Balogh “is expected to testify
about human factors issues as they pertain to the automobile
accident which is [the] subject of the plaintiff’s complaint. She
may also testify regarding the speeds, velocities, and delta-V of
the involved subject automobile and pedestrian. She is also
expected to testify regarding the lighting conditions, visibility,
human perception, cognition, motor skills reaction time;
foreseeability of human behavior and/or behavioral expectations
of the parties to this litigation.”
24
Although the declaration from Threatt’s attorney did not
state that Balogh would testify on whether the movement of
Maximo in the vehicle caused her injuries, Balogh testified on
this subject during her deposition, and Maximo’s attorney
thoroughly cross-examined her on those opinions. Further,
Drs. Brooks and Samimi provided opinions that contradicted
Balogh’s, opining that the biomechanics of the accident would
have caused Maximo’s knee injury by pushing her knee against
the dashboard or her foot onto the brake pedal. Thus, Threatt’s
failure to comply strictly with the expert disclosure requirements
did not result in unfair surprise or prejudice. (See Easterby,
supra, 171 Cal.App.4th at p. 780 [“[D]efendants in this case had
the opportunity to take Regan’s deposition in light of his changed
opinion and prepare for cross-examination and rebuttal of his
testimony. The elements of unfair surprise and prejudice . . . are
entirely absent in this case.”].)
Balogh stated at her deposition that she intended to
provide her opinion at trial that Maximo’s “claimed knee
injury . . . was not [a result] of this car accident.” When asked
whether she had any other opinions, Balogh responded,
“Everything that leads up to that would be involved in those
opinions.” Balogh added that based on “occupant kinematics, it
was very unlikely that [Maximo] sustained a knee injury . . . that
was diagnosed within the relative MRI as a result of this
incident.” At trial, Balogh provided greater detail as to the cause
of each of Maximo’s injuries, opining that they did not result from
the accident. At her deposition, Balogh also addressed Maximo’s
underlying medical conditions, acknowledging that trauma can
cause injury to the medial femoral plica and increased friction to
the medial femoral condyle, but opining that the conditions was
25
“often considered to be congenital.” Balogh opined further that
she did not believe the patella tendon friction syndrome Maximo
experienced resulted from the accident. At trial, Balogh repeated
these opinions and provided a detailed description of the anatomy
of the knee using a diagram of the knee and explaining her
opinion why Maximo did not suffer a serious knee injury from the
accident.
Although Balogh provided greater detail at trial than in her
deposition, Maximo was on notice from Balogh’s deposition
testimony that Balogh intended to opine at trial that Maximo’s
knee did not hit the knee bolster or dashboard during the
accident, and thus, did not cause Maximo’s knee injuries. (See
Easterby, supra, 171 Cal.App.4th at p. 780.)
c. The trial court did not abuse its discretion in
denying Maximo’s motion to exclude Balogh’s
expert opinions based on an improper
“experiment”
Maximo contends the trial court abused its discretion in
denying her motion in limine to exclude Balogh’s expert opinions
because they were based on an experiment that did not use
scientific methodology. Maximo had argued in her motion in
limine that Balogh’s expert opinions were improperly based on
photographs attached to her expert report that showed “a person
of unidentified height, weight, name, age, experience, or even
identity in the seat of a Kia of a different year than Plaintiff's
vehicle,” without any information about the positioning of
Maximo’s seat, seat belt, or steering wheel, or the type of shoes
Maximo was wearing. The photographs showed the position of a
woman’s leg, knee, and foot in relation to the steering column and
26
brake pedal. Maximo argues the photographs did not meet the
Kelly-Frye9 standard of admissibility for scientific evidence, and
thus, the court should have excluded them. Maximo’s contention
lacks merit.
“Given the broad discretion accorded to trial courts to
determine the relevancy of evidence, trial judges bear a
substantial gatekeeping responsibility to ensure the proper use of
expert testimony.” (People v. Tran (2020) 50 Cal.App.5th 171,
185; see Sargon, supra, 55 Cal.4th at pp. 771-772 [“the trial court
acts as a gatekeeper to exclude expert opinion testimony that is
(1) based on matter of a type on which an expert may not
reasonably rely, (2) based on reasons unsupported by the
material on which the expert relies, or (3) speculative”]; Evid.
Code, § 801, subd. (b) [an expert’s testimony must be “[b]ased on
matter (including his special knowledge, skill, experience,
training, and education) perceived by or personally known to the
witness or made known to him at or before the hearing, whether
or not admissible, that is of a type that reasonably may be relied
upon by an expert in forming an opinion upon the subject to
which his testimony relates. . . .”].) However, as the Supreme
Court observed in Sargon, “[C]ourts must also be cautious in
9 The Kelly-Frye test is derived from People v. Kelly
(1976) 17 Cal.3d 24, 30 and Frye v. United States (D.C. Cir.
1923) 293 F. 1013, 1014. Under the test, “‘the proponent of
evidence derived from a new scientific technique must
establish that: (1) the reliability of the new technique has
gained general acceptance in the relevant scientific
community, (2) the expert testifying to that effect is
qualified to give an opinion on the subject, and (3) the
correct scientific procedures were used.’” (People v. Jones,
supra, 57 Cal.4th at p. 936.)
27
excluding expert testimony. The trial court’s gatekeeping role
does not involve choosing between competing expert
opinions. . . . [T]he gatekeeper’s focus ‘must be solely on
principles and methodology, not on the conclusions that they
generate.’” (Sargon, at p. 772.)
Contrary to Maximo’s contention, Balogh did not base her
opinion solely on photographs of a woman driving a car similar to
Maximo’s. Balogh testified that her expert opinions were based
on (1) Balogh’s background and expertise in biomechanics;
(2) Balogh’s review of Maximo’s medical records and Maximo’s
subjective complaints about her injuries; (3) the report of the
accident reconstruction expert, Wang, and his calculation of the
Delta V change in velocity of Maximo’s car upon impact (from
nine to 10 miles per hour); (4) Wang’s opinion the accident had a
“slight underride”; (5) Wang’s calculation of the “vertical
displacement of the Kia at the dashboard” of approximately one
inch; and (6) an “exemplar model,” which was “a human model of
the same height and an exemplar vehicle,” which was a 2015 Kia
Optima (the same year and model of Maximo’s vehicle).
Maximo is correct that Balogh acknowledged in cross-
examination that she did not know how Maximo’s seat was
adjusted, how long Maximo’s legs were, or what type of shoes she
was wearing. But Maximo’s attorney did not elicit any evidence
that these factors would have affected Balogh’s opinion. Nor did
Maximo show through cross-examination or her own expert’s
testimony that Balogh’s opinions were subject to analysis under
the Kelly-Frye test because they fell within the “limited class of
expert testimony which is based, in whole or part, on a technique,
process, or theory which is new to science and, even more so, the
law.’” (People v. Leahy (1994) 8 Cal.4th 587, 605; accord, People
28
v. Tran, supra, 50 Cal.App.5th at pp. 186-187.) Although
Maximo focuses on the unscientific nature of an expert relying on
photographs, the photographs were properly shown to the jury as
a demonstrative exhibit to explain Balogh’s testimony, not as the
basis of her testimony. (See Tran, at pp. 187-188 [Kelly-Frye test
does not apply to demonstrative evidence offered to assist the
jury to understand expert testimony].) It was up to the jury to
determine the credibility of Balogh and the weight to give her
testimony. (Johnson & Johnson Talcum Powder Cases (2019)
37 Cal.App.5th 292, 330.)
B. The Trial Court Did Not Abuse Its Discretion in Denying
Maximo’s Motions in Limine To Exclude Evidence of Her
Doctors’ Medical Liens
Maximo contends the trial court abused its discretion in
denying her motion in limine to preclude Threatt from asking
Maximo’s doctors whether they placed liens on Maximo’s recovery
to obtain payment for the medical treatment they provided
because the evidence was irrelevant and unduly prejudicial. The
court did not abuse its discretion.
In determining the credibility of a witness, the jury may
consider “any matter that has any tendency in reason to prove or
disprove the truthfulness of his testimony at the hearing,”
including “[t]he existence or nonexistence of a bias, interest, or
other motive.” (Evid. Code, § 780, subd. (f); see Calvert v. State
Bar (1991) 54 Cal.3d 765, 777 [“Generally, any fact or
circumstance tending to show that a witness has a financial
interest in the outcome of a legal proceeding is a proper ground
for impeachment.”].) Evidence that Maximo’s doctors placed liens
on her recovery was relevant to the doctors’ credibility because it
29
tended to show they had a financial interest in the outcome of the
case.
Further, the trial court did not abuse its discretion in
declining to exclude the evidence under Evidence Code
section 352. “‘[T]he prejudice which exclusion of evidence under
Evidence Code section 352 is designed to avoid is not the
prejudice or damage to a defense that naturally flows from
relevant, highly probative evidence. . . . The stronger the
evidence, the more it is ‘prejudicial.’ The ‘prejudice’ referred to in
Evidence Code section 352 applies to evidence that uniquely
tends to evoke an emotional bias against the defendant as an
individual and has minimal effect on the issues. In applying
section 352, ‘prejudicial’ is not synonymous with “‘damaging.’”’”
(People v. Jones (2017) 3 Cal.5th 583, 610; accord, People v. Bell
(2019) 7 Cal.5th 70, 105 [“Evidence is not prejudicial, as that
term is used in an [Evidence Code] section 352 context, merely
because it undermines the opponent’s position or shores up that
of the proponent.”].) Here, the lien evidence was damaging
precisely because it was relevant to the doctors’ credibility, not
because it was designed to evoke an emotional reaction in the
jury.
C. The Trial Court Did Not Err in Denying Maximo’s Motion
in Limine To Exclude Evidence That Her Attorney Referred
Her to Specific Doctors
Maximo contends the trial court erred in denying her
motion in limine to exclude evidence that her attorney referred
her to Dr. Brooks and Dr. Samimi, arguing her attorney’s referral
30
was protected under the attorney-client privilege. The trial court
did not err.10
The attorney-client “privilege does not apply to every single
communication transmitted confidentially between lawyer and
client. Rather, the heartland of the privilege protects those
communications that bear some relationship to the attorney's
provision of legal consultation.” (Los Angeles County Bd. of
Supervisors v. Superior Court (2016) 2 Cal.5th 282, 294; accord,
Wood v. Superior Court (2020) 46 Cal.App.5th 562, 576.) Thus,
the attorney-client privilege does not apply where a person
consults an attorney for advice in a nonlegal capacity, for
example, when an attorney is acting “‘merely as a negotiator for
the client or is providing business advice.’” (Los Angeles County
Bd. of Supervisors, at p. 296; see Watt Industries, Inc. v. Superior
Court (1981) 115 Cal.App.3d 802, 805 [attorney-client privilege
did not attach “where . . . the attorney act[ed] merely as a
business agent for the client in conveying the client’s position to a
contracting party”].) Maximo’s attorney’s provision of a list of
10 We review the trial court’s finding on undisputed
facts that a communication falls within the attorney-client
privilege de novo. (See HLC Properties, Ltd. v. Superior
Court (2005) 35 Cal.4th 54, 60; see also Sprengel v.
Zbylut (2019) 40 Cal.App.5th 1028, 1042 [where the facts
are undisputed, “[t]he existence of an attorney-client
relationship involves a question of law that we review de
novo”].) “The party claiming a privilege shoulders the
burden of showing that the evidence it seeks to suppress
falls within the terms of an applicable statute.” (HLC
Properties, at p. 59.)
31
doctors to Maximo, like an attorney providing business advice, in
no way was the rendering of confidential legal services falling
within the attorney-client privilege.
D. The Trial Court Did Not Err in Refusing To Instruct the
Jury on the “Eggshell Plaintiff” Theory
Maximo’s attorney requested the trial court instruct the
jury on the “eggshell plaintiff” theory with CACI No. 3928
(unusually susceptible plaintiff).11 He argued that Drs. Brooks
and Samimi opined that Maximo’s preexisting condition of
patella tilt made her more susceptible to injury from the car
accident and that Balogh testified that patella tilt would make
her more susceptible to friction syndrome. But he agreed there
was no evidence that the 2013 accident made Maximo more prone
to injury. The court disagreed with Maximo’s characterization of
the experts’ testimony and sustained Threatt’s objection, finding
“there’s no testimony that she is an unusually susceptible
plaintiff.” On appeal, Maximo contends the trial court erred in
denying her request for the jury instruction because the experts
testified that Maximo had congenital conditions that made her
more susceptible to injury. The court did not err.
“A party is entitled upon request to correct,
nonargumentative [jury] instructions on every theory of the case
11 CACI No. 3928 provides the jury “must decide the full
amount of money that will reasonably and fairly
compensate [plaintiff] for all damages caused by the
wrongful conduct of [defendant], even if [plaintiff] was more
susceptible to injury than a normally healthy person would
have been, and even if a normally healthy person would not
have suffered similar injury.”
32
advanced by [the party] which is supported by substantial
evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548,
572; accord, Olive v. General Nutrition Centers, Inc. (2018)
30 Cal.App.5th 804, 813; see Ng v. Hudson (1977) 75 Cal.App.3d
250, 259, disapproved on another ground in Soule, at pp. 574-576
[trial court erred in refusing instruction on aggravation of
preexisting condition where there was substantial evidence that
car accident aggravated plaintiff’s condition].) We review the
record de novo to determine whether substantial evidence
supported giving a refused jury instruction. (Evans v. Hood Corp.
(2016) 5 Cal.App.5th 1022, 1045; Davis v. Honeywell Internat.
Inc. (2016) 245 Cal.App.4th 477, 495.) In making this
determination, we review the evidence in the light most favorable
to the appellant. (Regalado v. Callaghan (2016) 3 Cal.App.5th
582, 594; Ayala v. Arroyo Vista Family Health Center (2008)
160 Cal.App.4th 1350, 1358.)
There was no substantial evidence that Maximo was more
susceptible to injury from her preexisting knee conditions. As
Maximo’s attorney conceded at the instruction conference,
Maximo testified she fully recovered from the 2013 car accident
in which she injured her right knee. She also denied she had any
chronic knee problems. Dr. Brooks testified that Maximo’s
patella tilt could cause friction or rubbing and chondromalacia.
But he opined the accident was the sole cause of Maximo’s knee
injury, requiring surgery. Dr. Samimi opined that Maximo had
patella tilt since birth, and the chondromalacia could have been
present for up to two years, which caused Maximo pain. But he
opined it was the 2016 car accident that caused Maximo’s knee
injury requiring surgery. Although the surgery corrected the
patella tilt and chondromalacia, neither Dr. Brooks nor
33
Dr. Samimi opined that these conditions played a role in causing
Maximo to suffer a knee injury from the car accident. And
contrary to Threatt’s contention, Balogh opined that the trauma
from the car accident would not have caused the chondromalacia,
which was associated with Maximo’s congenital patella tilt and
medial synovial plica. Balogh never testified the trauma from
the accident exacerbated Maximo’s preexisting knee conditions.
To the contrary, Balogh opined Maximo’s knee never pressed into
the steering wheel, the knee bolster, or the dashboard.
E. The Trial Court Did Not Err in Awarding Threatt an Offset
for His Costs Under Section 998
Maximo contends the trial court committed reversible error
in entering a judgment for Threatt without Threatt first filing a
postjudgment motion seeking an offset under section 998.
Maximo also argues the expert witness costs Threatt sought in
his memorandum of costs “may be” double-billed or
miscalculated, given that Threatt’s experts presented updated
opinions at trial, and it is “more than likely” Maximo’s attorney
incurred more than $12,000 in pre-offer costs to which she was
entitled. Neither contention has merit.
Maximo provides no authority for her contention that
Threatt could only recover his costs as an offset if he first filed a
motion seeking an offset. It was Maximo who could, but did not,
file a motion to strike or tax costs to challenge the costs sought by
Threatt. (See, e.g., Khosravan v. Chevron Corp. (2021)
66 Cal.App.5th 288, 290-291 [reversing award of expert witness
fees as costs to defendants under section 998 on appeal from post-
judgment order denying plaintiffs’ motion to strike or tax costs];
Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1478
34
[trial court did not abuse its discretion in denying plaintiffs’
motion to tax costs claimed by defendant under section 998 in
memorandum of costs].)
As the Court of Appeal explained in Jonkey v. Carignan
Construction Co. (2006) 139 Cal.App.4th 20, 27, “[T]he trial court
[did not] err in awarding expert witness costs claimed in a cost
bill rather than a noticed motion. Code of Civil Procedure
section 998 grants the trial court discretion to award expert
witness fees to a qualifying prevailing party. The fees may be
claimed in a cost bill; there is no rule requiring a noticed motion.”
(See § 998, subd. (e) [“If an offer made by a defendant is not
accepted and the plaintiff fails to obtain a more favorable
judgment or award, the costs under this section, from the time of
the offer, shall be deducted from any damages awarded in favor
of the plaintiff. If the costs awarded under this section exceed
the amount of the damages awarded to the plaintiff the net
amount shall be awarded to the defendant and judgment or
award shall be entered accordingly.”].)
To the extent Maximo is challenging the reasonableness of
the costs awarded, she has forfeited any objection by not filing a
motion to tax or strike costs. (See Douglas v. Willis (1994)
27 Cal.App.4th 287, 289-290 [“[t]he ‘failure to file a motion to tax
costs constitutes a waiver of the right to object’” to a costs bill];
Jimenez v. City of Oxnard (1982) 134 Cal.App.3d 856, 859 [“[b]y
not filing said motion within the period specified in section 1033,
plaintiffs waived the right to object to the costs claimed by the
city”]; see Cal. Rules of Court, rule 3.1700(b)(1) [“Any notice of
motion to strike or to tax costs must be served and filed 15 days
after service of the cost memorandum.”] & (b)(4) [“After the time
has passed for a motion to strike or tax costs or for determination
35
of that motion, the clerk must immediately enter the costs on the
judgment.”].)
DISPOSITION
The judgment is affirmed. Threatt is to recover his costs on
appeal.
FEUER, J.
We concur:
PERLUSS, P. J.
WISE, J.*
* Judge of the Alameda County Superior Court,
assigned by the Chief Justice pursuant to article VI, section
6 of the California Constitution.
36