Hoyt v. ABM Aviation CA2/3

Filed 11/16/21 Hoyt v. ABM Aviation CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
DARIN HOYT, B299232
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC629539
v.
ABM AVIATION, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Holly E. Kendig, Judge. Affirmed.
Liddy Law Firm, Donald G. Liddy; Killackey Law Offices,
Michael A. Killackey; Esner, Chang & Boyer, Stuart B. Esner,
Andrew N. Chang and Kevin K. Nguyen for Plaintiff and
Appellant.
Murchison & Cumming and Edmund G. Farrell for
Defendant and Respondent.
_______________________________________
INTRODUCTION
Plaintiff and appellant Darin Hoyt (plaintiff) filed this suit
against defendant and respondent ABM Aviation, Inc. (ABM)
after he was injured in a collision with a bus driven by an
employee of ABM. A jury concluded plaintiff was entirely at fault.
Plaintiff does not challenge the jury’s findings. Instead,
plaintiff contends the trial court erred by denying his request to
preclude ABM’s accident reconstruction expert (expert) from
testifying at trial because ABM’s counsel inadvertently sent the
expert a copy of plaintiff’s confidential mediation brief. Although
we agree that disclosure of the mediation brief was improper (see
Evidence Code section 1119), the record reflects that the expert
did not rely on the brief in forming his opinions. The expert’s trial
testimony supports that position as does the fact that the expert
reviewed the available evidence and completed his initial
analysis prior to the mediation. Plaintiff speculates that the
expert may have been subconsciously influenced by the content of
the mediation brief and therefore should have been disqualified.
We conclude such speculation is insufficient to support the
disqualification of the expert and, therefore, affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
1. The Injury
Plaintiff dropped off several friends at the curb in front of
Terminal 2 at Los Angeles International Airport in October 2015.
After saying goodbye, plaintiff returned to the car and opened the
driver’s side door just as a bus was passing. As plaintiff held the
car door open, his hand was caught between the car door and an
indicator light on the right side of the bus, crushing his ring
finger and amputating a portion of his pinky finger. The bus was
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owned and operated by ABM and, at the time of the accident, was
being driven by an employee of ABM.
2. The Complaint
Plaintiff sued a number of parties including ABM. The
operative complaint alleged that ABM owned and operated the
bus involved in the accident and that ABM’s employee, who was
driving the bus, operated the bus in a negligent manner. The
complaint sought damages for past and future medical expenses
as well as lost wages.
3. Plaintiff’s Motion to Exclude the Expert
3.1. Plaintiff’s Motion
Prior to trial, plaintiff filed a motion in limine seeking to
disqualify the expert. Plaintiff’s counsel had recently deposed the
expert and examined his file. The file contained plaintiff’s
confidential mediation1 brief which, according to plaintiff’s
counsel, contained “attorney thought processes and detailed
analysis of evidence including photographs and video of the
incident; an analysis of the testimony and facts as it pertains to
applicable California law; analysis of portions of witness
depositions which are strategic to Plaintiff’s case; work product
including exhibits we intend to use at trial, the use and
applicability of various CACI jury instructions which will be
requested at trial; Confidential medical summaries; Insurance
information and; Settlement Demands.” Plaintiff asserted that
the mediation brief was confidential and inadmissible under
1 The parties participated in mediation in August 2018.
3
Evidence Code2 section 1119 and that ABM’s disclosure of the
brief to its expert was improper. Further, plaintiff argued, under
sections 801, subdivision (b) and 803, the court was required to
exclude any expert testimony “based in whole or in significant
part on matter that is not a proper basis for such an opinion.”
Plaintiff urged that the expert “is irreversibly tainted by the
confidential knowledge he obtained from the mediation brief” and
asked the court to preclude the expert from testifying at trial.
3.2. ABM’s Opposition
ABM opposed the motion to disqualify the expert.
Specifically, counsel for ABM explained that disclosure of the
mediation brief to the expert was accidental. One of ABM’s
attorneys asked his secretary to send the expert a photograph
that had been attached to the mediation brief. Instead, the
secretary sent the entire mediation brief. Moreover, the expert
stated in a declaration that although he had reviewed the
mediation brief, he did not rely on it in formulating his analysis
of the accident nor did he discuss it with ABM’s attorneys.
Instead, he relied on three videos from airport security cameras,
photographs and measurements taken by the airport police, and
additional photographs taken by representatives of ABM and by
plaintiff’s girlfriend, who was at the scene of the accident. The
expert also examined the bus involved in the accident and
inspected the accident site. And, in any event, because the trial
had initially been set to begin in September 2018, the expert had
examined the evidence and completed most of his work before the
August 2018 mediation. Finally, ABM explained that the expert
2 All undesignated statutory references are to the Evidence Code.
4
was its only liability expert and that his disqualification on the
eve of trial would be exceptionally prejudicial.
3.3. Ruling
The court heard and ruled on several motions in limine on
March 28, 2019. The court deferred ruling on the motion
regarding the expert, however. The minute order from the
following day indicates the court made a ruling on the motion as
follows: “The court will speak with the expert before he testifies.
Plaintiff will draft an order in regards to this ruling.” The record
does not contain an order and no reporter was present at the
hearing.
4. Trial
On April 2, 2019, just before the trial began, the court met
with counsel to resolve outstanding issues. One issue noted by
the court was the motion in limine regarding ABM’s expert. The
court indicated that, before the expert testified, it would speak
with the expert about any work performed after the mediation
and determine whether any of that work related to material
disclosed only in plaintiff’s mediation brief. The court asked
counsel to provide advance notice of the expected date the expert
would testify so that the court could schedule time for
questioning outside the jury’s presence.
The jury was empaneled on April 4, 2019 and the parties
presented evidence and argument over four days.3 At the
beginning of the third day of trial, outside the presence of the
jury, the court addressed several pending matters including
3 Because plaintiff does not challenge the jury verdict on his negligence
claim, we do not recite the evidence presented in detail.
5
defense objections to excerpts of the expert’s videotaped
deposition to be played by plaintiff. But although plaintiff’s
counsel mentioned plaintiff’s objections to the expert at the
beginning of the hearing, the court made no further ruling on
those objections. After plaintiff played a series of video clips from
the expert’s deposition, plaintiff rested and the defense presented
its first witness. Immediately thereafter, the defense called the
expert to testify. Plaintiff did not renew his objection to the
expert’s testimony.
The expert testified that he had reviewed “the traffic
collision report, various scene photographs, surveillance video
obviously from LAX,” transcripts of several depositions including
those of plaintiff, an eyewitness, and plaintiff’s accident
reconstruction expert, and that expert’s file materials. The expert
also obtained aerial photographs of the accident scene and
inspected the scene and the bus himself. The expert explained
how he and other members of his team used the video footage,
photographs, and measurements taken at the scene to create a
simulation of the accident. Using that simulation, the expert
opined about the distance between plaintiff’s car and the bus as
well as the likely speed and position of the bus at the time of the
accident.
Ultimately, the jury found that neither ABM nor its
employee bus driver was negligent. A judgment in favor of ABM
was entered on May 13, 2019. Plaintiff timely appeals.4
4Plaintiff’s request for judicial notice, filed on June 18, 2021, is
granted.
6
DISCUSSION
1. Scope and Standard of Review
We review the court’s order on the disqualification motion
for an abuse of discretion. (Rico v. Mitsubishi Motors Corp. (2007)
42 Cal.4th 807, 819 (Rico).) We review a trial court’s factual
findings under the substantial evidence test. (In re Charlisse C.
(2008) 45 Cal.4th 145, 159.) In doing so, we resolve every
evidentiary conflict and indulge every reasonable inference in
favor of the prevailing party if the evidence supporting the
challenged ruling is of ponderable legal significance, and if it has
reasonable, credible, and solid value. (Oregel v. American Isuzu
Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.)
An appellant has the burden not only to show error but
prejudice from that error. (Cal. Const., art. VI, § 13.) If an
appellant fails to satisfy that burden, his argument will be
rejected on appeal. (Century Surety Co. v. Polisso (2006) 139
Cal.App.4th 922, 963.) “[W]e cannot presume prejudice and will
not reverse the judgment in the absence of an affirmative
showing there was a miscarriage of justice. [Citations.]” (Ibid.)
2. The court did not err by denying plaintiff’s
disqualification motion.
2.1. Disclosure of the confidential mediation brief
was improper.
Section 1119 protects the confidentiality of mediation-
related matters. It provides:
“Except as otherwise provided in this chapter:
“(a) No evidence of anything said or any admission made
for the purpose of, in the course of, or pursuant to, a mediation or
a mediation consultation is admissible or subject to discovery,
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and disclosure of the evidence shall not be compelled, in any
arbitration, administrative adjudication, civil action, or other
noncriminal proceeding in which, pursuant to law, testimony can
be compelled to be given.
“(b) No writing, as defined in Section 250, that is prepared
for the purpose of, in the course of, or pursuant to, a mediation or
a mediation consultation, is admissible or subject to discovery,
and disclosure of the writing shall not be compelled, in any
arbitration, administrative adjudication, civil action, or other
noncriminal proceeding in which, pursuant to law, testimony can
be compelled to be given.
“(c) All communications, negotiations, or settlement
discussions by and between participants in the course of a
mediation or a mediation consultation shall remain confidential.”
Plaintiff contends, and ABM does not dispute, that counsel
violated section 1119 by sending a copy of plaintiff’s confidential
mediation brief to its expert. We agree. Plaintiff goes on to argue,
at length, that a new trial is required under section 1128. On that
point, we disagree with plaintiff.
Section 1128 provides: “Any reference to a mediation
during any subsequent trial is an irregularity in the proceedings
of the trial for the purposes of Section 657 of the Code of Civil
Procedure. Any reference to a mediation during any other
subsequent noncriminal proceeding is grounds for vacating or
modifying the decision in that proceeding, in whole or in part,
and granting a new or further hearing on all or part of the issues,
if the reference materially affected the substantial rights of the
party requesting relief.” And plaintiff cites several cases relating
to the discovery or use of confidential mediation materials and
the remedy afforded under that section.
8
For example, in Foxgate Homeowners’ Assn., Inc. v.
Bramalea California, Inc. (2001) 26 Cal.4th 1, plaintiff
homeowners’ association moved for sanctions against defendant
developer and its attorney under Code of Civil Procedure
section 128.5, for failing to participate in court-ordered mediation
in good faith and to comply with an order of the mediator.
(Foxgate, at pp. 6–8.) In support of the sanctions motion, plaintiff
attached the report of the mediator and a declaration by
plaintiff’s counsel reciting statements made during the mediation
session. (Id. at p. 8.) The trial court accepted the evidence and
granted the sanctions motion. (Ibid.) The Supreme Court
reversed, holding that sections 1119 and 1121 unambiguously
conferred confidentiality on the material at issue, making it
inadmissible for any purpose. (Foxgate, at pp. 13–14.)
Accordingly, the court reversed the sanctions order under
section 1128 and noted that if plaintiff elected to pursue the
sanctions motion on remand, no evidence of communications
made during the mediation could be admitted or considered.
(Foxgate, at p. 18.)
Although plaintiff’s legal analysis is correct, it is
inapposite. ABM did not elicit any testimony from the expert
relating to the mediation or the mediation brief. Neither did ABM
attempt to use any material relating to the mediation during
trial. In other words, because no “reference to a mediation during
any subsequent trial” occurred, section 1128 is inapplicable.
2.2. An expert’s exposure to confidential mediation
materials does not necessarily require
disqualification.
Plaintiff’s primary contention is that “experts who review
privileged and confidential information such as an opposing
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party’s mediation briefs, reports and other similar work product
materials are disqualified and precluded from giving expert
testimony in subsequent trial proceedings.” Although exclusion or
disqualification of an expert exposed to confidential information
or attorney work product may be appropriate in some situations,
it is not always required, as plaintiff claims.
Plaintiff notes, correctly, that an expert’s opinion is limited
to an opinion based on matters “of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject
to which his [or her] testimony relates.” (§ 801, subd. (b).) Upon
objection, a court “shall” exclude opinion testimony “that is based
in whole or in significant part on matter that is not a proper basis
for such an opinion.” (§ 803.) The Law Commission comment to
section 803 explains the scope of the exclusionary rule: “Under
Section 803, as under existing law, an opinion may be held
inadmissible or may be stricken if it is based wholly or in
substantial part upon improper considerations. Whether or not
the opinion should be held inadmissible or stricken will depend in
a particular case on the extent to which the improper
considerations have influenced the opinion. ‘The question is
addressed to the discretion of the trial court.’ [Citations.] … If a
witness’ opinion is stricken because of reliance upon improper
considerations, the second sentence of Section 803 assures the
witness the opportunity to express his opinion after excluding
from his consideration the matter determined to be improper.” In
other words, contrary to plaintiff’s contention, an expert witness
will not necessarily be disqualified if he or she relies on improper
considerations. Instead, the scope of the expert’s opinion may be
restricted to reflect only those opinions based upon proper
matters. (Cf. Fox v. Kramer (2000) 22 Cal.4th 531, 541 [excluding
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medical expert opinion where expert “relied substantially” on
confidential peer review materials in formulating his opinion];
County Sanitation Dist. v. Watson Land Co. (1993) 17
Cal.App.4th 1268, 1282 [holding that “ ‘[w]hen the testimony of a
valuation witness is based on considerations which are proper as
well as those which are improper, the court in its discretion may
strike the testimony or permit it to remain and consider the
impropriety in determining the weight to be given it’ ”].)
Plaintiff relies on two California5 cases to support his claim
that experts who have been exposed to confidential materials
must always be disqualified. Both cases are distinguishable.
In Rico, supra, 42 Cal.4th 807, plaintiff’s attorney obtained
notes written by defense counsel “through inadvertence” on the
part of the defense. (Id. at p. 812.) The notes discussed defense
counsels’ litigation strategy and summarized a meeting with
their expert witnesses in which the weaknesses of the case were
discussed. The notes also included lead counsel’s thoughts and
analysis of potential pitfalls. Plaintiff’s attorney read through the
notes, made copies, analyzed their contents, shared the notes
with his co-counsel and plaintiff’s experts, and used the notes in
deposing defendants’ experts. (Id. at pp. 812–813.) The
defendants moved to disqualify plaintiff’s counsel and experts
under Code of Civil Procedure section 2018.020, based on the
5 Plaintiff also discusses numerous federal district court cases. Federal
cases are not binding on California courts but may be persuasive
authority in appropriate circumstances. (Aleman v. AirTouch Cellular
(2012) 209 Cal.App.4th 556, 576, fn. 8.) Because California law is clear
and resolves the issues presented in this case, we do not rely on the
federal authority cited by plaintiff.
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misuse of defense counsel’s confidential and privileged work
product. The trial court granted the motion. (Rico, at p. 813.)
The Supreme Court affirmed. After considering the
standard to be applied when counsel inadvertently receives
materials that appear to be privileged, the court considered what
remedy should be available if counsel fails to comply with that
standard. The court held that “ ‘ “mere exposure” ’ ” to an
adversary’s confidences is insufficient to warrant disqualification,
which the court regarded as a “draconian” result, but stated that
disqualification “ ‘might be justified if an attorney inadvertently
receives confidential materials and fails to conduct himself or
herself in the manner specified above, assuming other factors
compel disqualification.’ ” (Rico, supra, 42 Cal.4th at p. 819.) In
the case before it, the court found disqualification of plaintiff’s
counsel and experts was justified due to the extreme harm caused
by counsel’s dissemination and use of opposing counsel’s notes on
strategy and expert witnesses. (Ibid.) The use of the document
“undermined the defense experts’ opinions and placed defendants
at a great disadvantage” such that without disqualification of
plaintiff’s counsel and their experts, “the damage caused by
[counsel’s] use and dissemination of the notes was irreversible.”
(Ibid.)
We assume, without deciding, that confidential mediation
materials are subject to the same protection as attorney work
product. Even so, Rico is distinguishable. First, unlike counsel in
Rico, counsel here did not intentionally disclose the mediation
brief to its expert. Second, counsel did not discuss the brief with
the expert and encourage the expert to take advantage of its
contents, as counsel did in Rico. Third, and as discussed in detail
post, the expert did not use or rely upon the mediation brief. And
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finally, there is no evidence that the mediation brief contained
information of similar strategic value as the notes disclosed in
Rico, which summarized the defense experts’ analysis of the
weaknesses of the defense case and counsel’s notations about
defense strategy related thereto.
Plaintiff also cites Peat, Marwick, Mitchell & Co. v.
Superior Court (1988) 200 Cal.App.3d 272 (Peat Marwick), a case
involving a battle of accountancy experts. After plaintiff’s
accountancy firm (Main Hurdman) had performed substantial
work on the matter, defendant (Peat Marwick) acquired Main
Hurdman, creating an obvious conflict of interest. Main
Hurdman then abruptly terminated its work with plaintiff. In
addition, plaintiff had heard rumors of the potential acquisition
earlier, but Peat Marwick had repeatedly assured plaintiff no
merger would take place. (Id. at pp. 278–281.) Due to the extreme
prejudice resulting from the acquisition, plaintiff moved to enjoin
the merger and, in the alternative, sought sanctions against Peat
Marwick, precluding the firm from contesting the issues upon
which Main Hurdman would have testified. (Id. at pp. 280–281.)
The court granted the request for issue sanctions under its
inherent authority to curb abuse of the litigation process. (Id. at
pp. 286–287.)
Peat Marwick is plainly inapplicable here. Plaintiff does not
seek to invoke the inherent authority of the court nor is there any
evidence that ABM abused the litigation process to plaintiff’s
detriment.
In sum, plaintiff overstates the scope of the exclusionary
rule set forth in section 803. If an expert relies on improper
matters—here, the confidential mediation brief—the expert’s
testimony should be limited to those matters unaffected by the
13
improper material. As we now explain, however, plaintiff failed to
demonstrate that the expert relied on the mediation brief in any
respect.
2.3. Plaintiff fails to establish that the expert relied
on the confidential mediation brief.
The evidence in the record indicates that the expert did not
rely on the confidential mediation brief, i.e., he did not base his
opinion “in whole or in significant part on matter that is not a
proper basis for such an opinion.” (§ 803.)
In opposition to plaintiff’s motion in limine, the expert
acknowledged that he received and reviewed the mediation brief
but attested that he did not rely on it in formulating his analysis
of the accident nor did he discuss it with ABM’s attorneys.
Instead, the expert explained, he relied on three videos taken by
airport security cameras, photographs and measurements taken
by the airport police, and additional photographs taken by
representatives of ABM and by plaintiff’s girlfriend who was at
the scene of the accident. The expert also examined the bus
involved in the accident and inspected the accident site.
The expert’s trial testimony confirmed that he relied on
“the traffic collision report, various scene photographs,
surveillance video obviously from LAX,” and reviewed transcripts
of depositions of plaintiff, an eyewitness, and plaintiff’s accident
reconstruction expert, and that expert’s file materials. The expert
also obtained aerial photographs of the accident scene and
inspected the scene and the bus himself. The expert explained
how he and other members of his firm used the video footage,
photographs, and measurements taken at the scene to create a
simulation of the accident. Based upon that simulation, the
expert opined about the distance between plaintiff’s car and the
14
bus as well as the likely speed and position of the bus at the time
of the accident.
Furthermore, the expert had examined the evidence and
completed most of his work before the August 2018 mediation
because the trial had initially been set to begin in September
2018. We can therefore infer that the mediation brief did not
substantially influence the expert’s approach to his analysis.
This evidence notwithstanding, plaintiff argues that the
“mediation brief necessarily informed [the expert]’s impressions
of the case and influenced his subsequent investigation and
document review, and ultimately his opinions.” This is not a
reasonable inference from the evidence just discussed,
particularly in light of the expert’s statements that he reviewed
the available evidence, conducted his in-person inspection of the
accident site and the bus, and completed his initial analysis prior
to the mediation.
Alternatively, plaintiff contends that the disclosure of the
mediation brief was inherently prejudicial. He asserts, for
example, that “[t]he extent of the damage done in terms of how
much the mediation brief affected the expert, again consciously or
unconsciously, in shaping his approach and his opinion, is neither
knowable nor sufficiently remediable without exclusion.” Further,
plaintiff suggests that “[i]t is impossible to know the extent to
which Plaintiff’s mediation statement[ ] influenced [the expert]’s
opinions.” Plaintiff cites no California6 law suggesting that this
sort of speculation could justify, let alone require, the
6Plaintiff relies extensively on Irwin Seating Co. v. International
Business Machines, (W.D. Mich., Feb. 14, 2007, No. 1:04-CV-568) 2007
WL 518866, an unpublished federal district court case. As already
noted, however, California law is well established.
15
disqualification of an expert. More importantly for our purposes,
by this argument plaintiff effectively concedes that he cannot
establish prejudice on this record. (Century Surety Co. v. Polisso
(2006) 139 Cal.App.4th 922, 963 [“[W]e cannot presume prejudice
and will not reverse the judgment in the absence of an
affirmative showing there was a miscarriage of justice.
[Citations.]”].)
DISPOSITION
The judgment is affirmed. Respondent ABM Aviation, Inc.
shall recover its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J., Acting P. J.
WE CONCUR:
EGERTON, J.
VIRAMONTES, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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