Kulkarni v. Upasani CA4/3

Filed 7/19/13 Kulkarni v. Upasani CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FOURTH APPELLATE DISTRICT
DIVISION THREE
AVINASH KULKARNI,
Plaintiff and Appellant, G045914
v. (Super. Ct. No. 30-2009-00322804)
MEERA UPASANI et al., OPINION
Defendants and Appellants;
SUNILA KULKARNI,
Defendant and Respondent.
Appeal from a judgment and postjudgment orders of the Superior Court of
Orange County, David T. McEachen, Judge. Affirmed.
Law Offices of Rodney L. Donohoo, Rodney L. Donohoo and Kevin Rhine
for Plaintiff and Appellant.
Rutan & Tucker, Lisa N. Neal and Chelsea A. Epps for Defendants and
Appellants.
Nicholas & Butler, Craig M. Nicholas and Tracy J. Jones for Defendant and
Respondent.
* * *
INTRODUCTION
In 1990, Neelam Kulkarni, the wife of Avinash Kulkarni,1 took their infant
son, Soumitra Kulkarni, from their home in Orange County, California, and flew to her
parents‟ home in India. Avinash was unaware of Neelam‟s plans, and did not consent to
Soumitra‟s removal from the United States. More than 19 years later, Avinash sued
several family members and acquaintances, accusing them of having conspired with
Neelam to abduct Soumitra. At trial, the court granted nonsuit motions of Sunila
Kulkarni and Madhavi Nerurkar. A jury found that Meera Upasani and Mohan Upasani
had no knowledge that Neelam planned to leave the United States, and therefore found in
favor of Meera and Mohan and against Avinash. Avinash‟s arguments on appeal are
without merit, and we therefore affirm the judgment.
First, Avinash challenges several of the trial court‟s evidentiary rulings.
Either the court did not abuse its discretion in those rulings, or any error was harmless.
Second, Avinash argues the trial court erred by granting Sunila‟s and
Madhavi‟s nonsuit motions. The court properly determined that, as a matter of law, the
evidence presented by Avinash against Sunila and Madhavi was insufficient to permit the
jury to find in Avinash‟s favor.
Third, the trial court properly denied Avinash‟s motion for a new trial,
which was based on the same evidentiary arguments and claims of improperly nonsuiting
Avinash.
Finally, the trial court did not err in denying Avinash‟s motions to tax costs.
Defendants‟ settlement offers under Code of Civil Procedure section 998 were made in
1
We will at times refer to Avinash Kulkarni, Neelam Kulkarni, Soumitra
Kulkarni, Sunila Kulkarni, Meera Upasani, Mohan Upasani, Madhavi Nerurkar, and
Rajesh Nerurkar by their first names to avoid confusion. We intend no disrespect. Sunila
is not related to Avinash, Neelam, or Soumitra. Sunila, Meera, Mohan, and Madhavi will
be referred to collectively as Defendants.
2
good faith and were greater than the amount Avinash recovered from Defendants at
trial—which was zero.
Because we affirm the judgment, we need not address the cross-appeal, in
which Meera, Mohan, and Madhavi argue the trial court erred by failing to grant their
motions for summary judgment on the ground Avinash‟s claims against them were barred
by the applicable statute of limitations.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Avinash and Neelam married in India in December 1988. Shortly
thereafter, they moved to Orange County, California. Neelam gave birth to Soumitra in
March 1990.
Mohan and Meera, who are husband and wife, were social acquaintances of
Avinash and Neelam, as was Sunila. Madhavi is Neelam‟s younger sister, and is the
ex-wife of Rajesh Nerurkar.
In October 1990, Neelam and Soumitra left the United States for India,
without informing Avinash. Two days after they left, Avinash spoke with Neelam by
telephone, and confirmed she and Soumitra were staying at her family‟s home in India.
It is undisputed that Avinash never travelled to India to see Neelam and
Soumitra. Avinash never tried to bring Soumitra home. Neelam had filed a police
complaint after she arrived in India, alleging that Avinash and his family had mistreated
her. According to Avinash, under India‟s legal system, there was a possibility that, based
on the complaint, he could be indefinitely incarcerated without bail or a trial if he entered
the country. At trial in this case, Avinash‟s expert witness on international child
abduction testified the Indian penal code has been misused by women to extort money
from their husbands, to incarcerate their husbands and their husbands‟ families, and to
prevent their husbands from travelling to India to recover abducted children. The expert
did not express an opinion, however, as to whether Neelam was misusing the system in
that way, or whether the claims in her complaint were true or false. The expert opined
3
that Avinash had done all he could legally do, given the state of Indian law, to recover
Soumitra.
In 1993, Neelam filed for dissolution of her marriage to Avinash in the
family court in India. In her petition, Neelam claimed Avinash had been physically and
emotionally abusive during their marriage. A judgment of dissolution was entered in
April 1995, and Neelam was awarded sole custody of Soumitra.
In 2000, Neelam sought to enforce the Indian court judgment and collect
overdue child support from Avinash, who was at that time living in Arizona. Neelam
gave Rajesh her power of attorney to file a lawsuit against Avinash in Arizona. Rajesh
believed, at that time, Neelam had been wronged by Avinash because Avinash had not
paid child support, and that Neelam had not wrongfully abducted Soumitra.
Also in 2000, Avinash sued Neelam and her mother, Urmila Thakur, in the
Orange County Superior Court, for violation of Civil Code section 49, subdivision (a),
intentional infliction of emotional distress, and negligent infliction of emotional distress,
based on taking Soumitra to India. A default judgment was entered against Neelam and
Thakur.
In 2008, Neelam travelled to the United States with Soumitra, when he
arrived to attend college in California; she was arrested on charges of criminal child
abduction when she arrived at Los Angeles International Airport. Neelam pleaded guilty.
In November 2009, Avinash filed a complaint against Does 1 through 20,
for violation of Civil Code section 49, subdivision (a), negligence per se, and intentional
and negligent infliction of emotional distress. Defendants and Rajesh were named in the
complaint by means of Doe amendments. The claims were based on the allegation that
Defendants and Rajesh “knowingly aided and abetted [or] conspired with Neelam and
[Thakur] and . . . facilitated in the abduction, including but not limited to, providing
[Neelam] with money, transportation, assistance in fraudulently obtaining a duplicate
passport and birth certificate, and arranging and paying for airline tickets from Orange
4
County to India for Neelam and Soumitra.” Avinash dismissed the action against Rajesh,
with prejudice, in exchange for Rajesh‟s agreement to appear and truthfully testify at his
deposition and the trial in this matter.
Mohan, Meera, and Madhavi filed motions for summary judgment, arguing,
inter alia, Avinash‟s claims were barred by the applicable statute of limitations. The trial
court denied the motions on the ground the statute of limitations on the Civil Code
section 49, subdivision (a) claim did not begin to run until 2008.2
The case proceeded to trial. At the close of Avinash‟s case, the trial court
granted Madhavi‟s and Sunila‟s motions for nonsuit. At the conclusion of all testimony,
the jury found in favor of Mohan and Meera. In the special verdict form, the jury found
neither Meera nor Mohan was aware of Neelam‟s plan to abduct Soumitra.
The trial court denied Avinash‟s motion for a new trial, finding as follows:
“Plaintiff had his day in Court and was afforded every opportunity to present evidence to
the jury to establish his claims. The jury determined that Plaintiff failed to meet his
burden after hearing three weeks of trial testimony.” The court also denied Avinash‟s
motions to tax costs. Avinash timely appealed. Mohan, Meera, and Madhavi filed a
cross-appeal based on the trial court‟s denial of the motions for summary judgment.
DISCUSSION
I.
ADMISSION OF EVIDENCE
Avinash argues the trial court erred by (1) admitting evidence that he
physically and emotionally abused Neelam during their marriage, (2) excluding evidence
2
Sunila also filed a motion for summary judgment, which was scheduled for a
hearing after Mohan and Meera‟s and Madhavi‟s motions were heard. Sunila‟s motion
raised the same arguments as the other motions. After the other motions for summary
judgment were denied, Sunila withdrew her motion.
5
that he passed a polygraph test, disproving the claims of abuse, and (3) admitting certain
testimony of Defendants‟ expert witness on emotional distress damages. We review the
trial court‟s rulings on the admissibility of evidence for abuse of discretion. (Gordon v.
Nissan Motor Co., Ltd. (2009) 170 Cal. App. 4th 1103, 1111.)
A.
Evidence of Avinash’s Abuse of Neelam
Avinash argues the trial court erred by permitting the admission of
evidence that he abused Neelam. He contends the evidence was irrelevant, constituted
inadmissible hearsay, and violated Evidence Code section 352. We address each
contention in turn.
1. Relevance
Relevant evidence is evidence “having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action,”
including but not limited to “evidence relevant to the credibility of a witness.”
(Evid. Code, § 210.) Defendants argue that the evidence of abuse was relevant to
disprove Avinash‟s contention that he could not return to India to reunite with Soumitra,
despite knowing Soumitra‟s whereabouts, and to impeach Avinash‟s testimony that his
relationship with Neelam and Soumitra was good before Neelam left for India. Further,
Defendants contend Avinash placed most of the testimony and documentary evidence of
the alleged abuse before the jury, and cannot now be heard to complain it was not
relevant. (Horsemen’s Benevolent & Protective Assn. v. Valley Racing Assn. (1992) 4
Cal. App. 4th 1538, 1555 [“If an appellant offers inadmissible matters into evidence, he
cannot complain of its admission on appeal”].)
Avinash conceded in the trial court that the evidence of Neelam‟s claims of
abuse was relevant to the case. As Avinash argued in his motion in limine: “[E]vidence
of Neelam‟s allegations of abuse will undoubtedly be disclosed before the jury, as it is
central to [Avinash]‟s „defense‟ to Defendants‟ claims that [Avinash] could have gone at
6
any time to India to obtain or visit his son.” Avinash therefore asked the trial court to
admit the evidence to explain Avinash‟s actions, but not as a defense to the Civil Code
section 49, subdivision (a) claim of child abduction, and that the jury be so instructed.
The trial court instructed the jury as follows: “It is illegal in the State of California to
participate or engage in the abduction or enticement of a child from a parent. [¶] In this
case you must accept that a child . . . was abducted from the plaintiff, Avinash Kulkarni,
and [it] is not a defense to child abduction that the defendants . . . believed the child
would be better off with the mother or that plaintiff, Avinash Kulkarni, was abusive in
some way. That is not the decision for the defendants to make in this case and does not
justify their action.”
Accordingly, Avinash agreed at trial that evidence of alleged abuse of
Neelam was relevant. Even if he had not so agreed, the evidence of when Defendants
learned about Neelam‟s abuse allegations was relevant to prove or disprove a central
element of Avinash‟s case. Further, the evidence was relevant to prove or disprove
Avinash‟s claim that he could not attempt to regain custody of Soumitra due to any
trumped-up claims of abuse, which was, in turn, relevant to Defendants‟ statute of
limitations defense.
2. Hearsay
Avinash next argues that evidence of Neelam‟s allegations of abuse was
hearsay and should have been excluded. Defendants argue Avinash failed to object to
much of the testimony that he now claims is inadmissible hearsay, therefore forfeiting the
argument on appeal. Avinash agrees that he did not object to some of the testimony.
Rather, he contends that by bringing a motion in limine to exclude evidence of alleged
abuse, he preserved all hearsay objections. An objection may be preserved on appeal by
the filing of a motion in limine if “(1) a specific legal ground for exclusion was advanced
through an in limine motion and subsequently raised on appeal; (2) the in limine motion
was directed to a particular, identifiable body of evidence; and (3) the in limine motion
7
was made at a time, either before or during trial, when the trial judge could determine the
evidentiary question in its appropriate context.” (People v. Whisenhunt (2008) 44
Cal. 4th 174, 210.)
Avinash‟s motion in limine did not raise hearsay as a ground for excluding
the evidence; the motion claimed the evidence was irrelevant because abuse is not a
defense to child abduction, and because the admission of such evidence would be unduly
prejudicial and would cause an undue consumption of time. Therefore, Avinash‟s motion
in limine did not preserve the hearsay objection on appeal, and his argument that the
following evidence, to which no hearsay objection was interposed, was inadmissible
hearsay has been forfeited: (1) Rajesh‟s testimony about Avinash‟s trustworthiness;
(2) Rajesh‟s testimony that social services was called because Neelam told Avinash not
to hit the baby; (3) Meera‟s testimony that Avinash‟s green card was on hold due to
Neelam‟s abuse charges; (4) reference to Neelam‟s statement in an affidavit that torture
caused by Avinash was unbearable; and (5) Santosh Limaye‟s testimony that Neelam
made statements about who had bought her airline ticket to India.3
We next consider whether the trial court erred by admitting the evidence to
which Avinash‟s counsel interposed a timely hearsay objection. (Avinash objected to
Limaye‟s testimony that Neelam did not want to discuss what had been happening
between her and Avinash, and Avinash‟s father told Limaye that Neelam needed to learn
how to behave. The trial court sustained Avinash‟s counsel‟s objections to this
testimony. Avinash did not move to strike the answers that had been given, but the trial
court instructed the jury not to consider evidence to which an objection had been
sustained. There is no issue for us to review with respect to that testimony.)
Madhavi‟s testimony that Neelam told her in 1993 or 1994 that Avinash
was emotionally and physically abusive was offered not for its truth, but to show
3
Limaye is the ex-husband of Avinash‟s sister.
8
Madhavi‟s lack of knowledge in 1990 of Neelam‟s plan to return to India. The same is
true of Meera‟s testimony that Neelam told her in 2008 that she had been abused by
Avinash, and Mohan‟s testimony that he was not aware of Neelam‟s claims of abuse
when he signed an affidavit on behalf of Avinash in 1992 because Mohan would not have
helped Avinash get a green card if he had been aware of the claims of abuse.4 (See
generally People v. Davis (2005) 36 Cal. 4th 510, 535-536 [“Evidence of an out-of-court
statement is also admissible if offered for a nonhearsay purpose—that is, for something
other than the truth of the matter asserted—and the nonhearsay purpose is relevant to an
issue in dispute”].)
Avinash argues the trial court erred by allowing Defendants to read into the
record statements from Rajesh‟s affidavit, filed in the Arizona court, in support of
Neelam‟s claim for child support from Avinash. The sworn statements, in which Rajesh
expressed his beliefs that Avinash had emotionally and physically abused Neelam, that
social services had been called to the family home, that charges of alleged abuse were
filed against Avinash, and that Neelam did not abduct Soumitra but rather was fleeing
from Avinash‟s alleged abuse, were not offered for their truth, but to impeach Rajesh‟s
contradictory testimony in the trial of the present case. (Evid. Code, § 1235.)
Avinash also complains that Rajesh was asked at trial if he was aware
someone had called social services because he or she had heard Neelam tell Avinash not
to hit the baby. Rajesh responded, “I don‟t recall”; we fail to see how the trial court erred
in failing to sustain an objection to the question.
Avinash argues the trial court erred by allowing Defendants‟ counsel to
quote from a “Child Protection Services report that contained numerous hearsay
4
Mohan‟s affidavit reads, in relevant part, as follows: “I did not observe any
signs of stress in [Avinash and Neelam‟s] relationship during any of these meetings. I
also did not notice any abusive behavior by Avinash towards his wife or son. No
mention was made to me of any physical abuse by Avinash to his wife or his son, in those
meetings. [¶] I find Avinash to be of high moral character and integrity.”
9
statements from Neelam regarding abuse.” Avinash testified on cross-examination that
he was not aware of any claims that someone had called social services because he or she
heard Neelam tell Avinash not to hit the baby. The trial attorney for Meera, Mohan, and
Madhavi provided Avinash with a copy of the social services report in order to refresh his
recollection. Counsel then asked: “Does this—this is one of the first claims that was
submitted. It says, „there was concern for the baby‟—,” at which point Avinash‟s
counsel objected on hearsay grounds. After argument, the court ruled that the testimony
would not be permitted. Nothing in the appellate record indicates the report was ever
referred to again. The jury was properly instructed that what the attorneys say in court is
not evidence; there was no hearsay evidence improperly before the jury because the
question was stopped before it was completed, and no response was ever given.
Avinash also claims the trial court erred by admitting into evidence several
documents that contain hearsay statements regarding the alleged abuse. Avinash, not
Defendants, requested that the Indian divorce petition filed by Neelam, the Indian
contempt petition, and the notice of filing of a foreign judgment in Arizona be admitted
into evidence. Avinash cannot now argue that his use of hearsay statements from those
documents was proper, while Defendants‟ use of the same documents was improper.
Avinash offered one isolated statement from those documents to establish that Meera
helped Neelam arrange to purchase the plane tickets to India. Defendants offered
additional portions of the same documents to put in context the statement Avinash was
using. (Evid. Code, § 356 [“Where part of an act, declaration, conversation, or writing is
given in evidence by one party, the whole on the same subject may be inquired into by an
adverse party; when a letter is read, the answer may be given; and when a detached act,
declaration, conversation, or writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may also be given in
evidence”].)
10
Finally, the Arizona divorce pleadings were not hearsay because they were
not admitted for their truth. Rather, they were admitted to impeach Rajesh, whose
statements in the divorce proceeding pleadings were contrary to his testimony in the trial
in this matter. (Evid. Code, § 1235.)
3. Evidence Code Section 352
Avinash also argues the evidence of his alleged abuse of Neelam should
have been excluded under Evidence Code section 352 because “its probative value [was]
substantially outweighed by the probability that its admission [would] (a) necessitate
undue consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.” Evidence is admitted in violation of
section 352 only if “it poses an intolerable „risk to the fairness of the proceedings or the
reliability of the outcome‟ [citation].” (People v. Waidla (2000) 22 Cal. 4th 690, 724.)
“„The prejudice which . . . 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.‟ [Citations.] „Rather, the statute uses the word in its etymological sense of
“prejudging” a person or cause on the basis of extraneous factors.‟” (People v. Zapien
(1993) 4 Cal. 4th 929, 958.)
Avinash failed to show the evidence posed an intolerable risk to the fairness
of the proceedings, or to the reliability of the jury‟s verdict. As noted ante, Avinash
conceded in the trial court that Neelam‟s allegations of abuse were necessary to
Avinash‟s case, in that they supported his justification for failing to travel to India to
reunite with Soumitra, despite knowing exactly where Soumitra was for 18 years.
Avinash‟s motion in limine asked the trial court to instruct the jury that evidence of
Neelam‟s abuse allegations not be admitted as a defense to the Civil Code section 49,
subdivision (a) claim. The court did instruct the jury that any abuse of Neelam or
Soumitra was not a defense to the claim of conspiracy to abduct a child asserted by
Avinash against Defendants. Defendants‟ trial counsel explained that the evidence
11
elicited would be used, not to establish a defense, but to impeach Avinash‟s testimony
that he had a happy marriage before Soumitra‟s abduction, and to disprove Avinash‟s
$20 million emotional distress damages claim.
Avinash correctly quotes the trial court as saying, “I made a big mistake in
allowing you to bring in all this abuse testimony. That‟s my problem. I allowed it and
that took days of testimony, days of testimony, and I allowed it because I thought it was
fair.” The court‟s statement at the conclusion of the trial does not establish an abuse of
discretion when the decision was made before or during trial to admit certain evidence.
Where an appellant contends evidence was erroneously admitted at trial, he or she bears a
heavy burden. It is insufficient simply to establish that, based on hindsight, admitted
evidence could have been properly excluded. (Reese v. Wal-Mart Stores, Inc. (1999) 73
Cal. App. 4th 1225, 1237 [appellate court assesses whether trial court abused its discretion
based on state of the record at the time the trial court‟s decision was made, not based on
later developments].)
We find no abuse of discretion in the trial court‟s determination that
Evidence Code section 352 did not preclude admission of the evidence in question.
4. Relevance of Abuse as Defense to Child Abduction
Defendants argue the evidence in question was relevant because abuse is a
defense to child abduction under California law. The authorities they cite, however, do
not support this argument. The Restatement Second of Torts, section 700, provides:
“One who, with knowledge that the parent does not consent, abducts or otherwise
compels or induces a minor child to leave a parent legally entitled to its custody or not to
return to the parent after it has been left him, is subject to liability to the parent.” The
Restatement rule is not the same as the California statute, as noted by section 700,
comment c, pages 505-506: “When the parents are by law jointly entitled to the custody
and earnings of the child, no action can be brought against one of the parents who
abducts or induces the child to leave the other. . . . One parent may be liable to the other
12
parent for the abduction of his own child if by judicial decree the sole custody of the
child has been awarded to the other parent.” California law, by contrast, creates a cause
of action by one parent against the other for child abduction, even if they shared custody
at the time the abduction occurred. (See Rosefield v. Rosefield (1963) 221 Cal. App. 2d
431, 434-435.)
Further, the privilege of which comment e to the Restatement Second of
Torts, section 700, page 506, speaks, and on which Defendants rely, does not apply in
this case: “One is not liable for rescuing a child from physical violence inflicted by its
parent in excess of his parental privilege. To entitle the actor to immunity, however, it
must appear reasonably probable that the child is about to suffer immediate harm or that
it will be subjected to immediate harm if it returns to its home. It is also necessary to the
actor‟s protection that he act for the purpose of saving the child from the threatening
danger or of assisting him to escape from it. [Citation.] A private citizen is not
privileged, however, to abduct or entice a child from its parent to save the child from
what the actor reasonably believes to constitute improper surroundings or immoral
influences, nor to afford it advantages superior to those available in its home. Any
person authorized by law to remove a child from an improper home is privileged when
acting within the scope of his authority.” In Robbins v. Hamburger Home for Girls
(1995) 32 Cal. App. 4th 671, 675, summary judgment was granted in favor of a shelter that
took in the plaintiffs‟ 15-year-old daughter. The court there concluded that the defendant
shelter and its employees did not interfere with the plaintiff parents‟ rights because they
did not induce the daughter to come to or stay at the shelter, and the shelter employees‟
conduct was privileged because they had a reasonable apprehension that the daughter
could suffer immediate physical harm if she returned home or if they told the plaintiff
parents where she was. (Id. at pp. 681-682.) Here, by contrast, there is no factual
support for a claim that Defendants were privileged in their actions (assuming they did
commit the acts alleged).
13
Horowitz v. Sacks (1928) 89 Cal. App. 336, relied on by Defendants, is
factually distinguishable. There, the defendants were sued for abducting and alienating
the affections of a wife for her husband. (Id. at pp. 338-339.) The wife was Olga Sacks‟s
daughter, who was apparently of “unsound mind.” (Id. at pp. 339, 341-342.) The
appellate court found no violation of Civil Code section 49 by Sacks, in part, because
“[w]ithout becoming liable a mother may advise her child in good faith as to the child‟s
domestic affairs, especially when the offspring is an infant or of unsound mind.
[Citation.] The same right extends to persons in loco parentis. [Citation.] As the
complaint charges a conspiracy against all of the defendants, the existence of anything
which justified the mother in bringing about the separation will excuse the acts of the
other defendants. [Citation.]” (Horowitz v. Sacks, supra, at p. 341.)
We therefore reject Defendants‟ argument that the evidence was properly
admitted because it was relevant as a defense to the claim of child abduction. Because
we have concluded the evidence was otherwise admissible, the lack of relevance as a
defense is immaterial.
5. Any Error Was Harmless.
Even if the trial court had erred in admitting the evidence of the alleged
abuse, the error was not prejudicial because the jury found in favor of Meera and Mohan
on the first element of Avinash‟s claim—that they lacked knowledge of Neelam‟s plan to
take Soumitra to India without Avinash‟s knowledge or consent. Therefore, it is not
reasonably probable that Avinash would have received a more favorable result if the
evidence of alleged abuse had been excluded. (See Casella v. SouthWest Dealer
Services, Inc. (2007) 157 Cal. App. 4th 1127, 1146.) Avinash argues that the result would
have been different in the absence of the allegedly improper evidence because the
evidence of abuse caused the jury to see him as a bad person, and to doubt the reliability
of his testimony. However, the jury‟s only finding in the special verdict form was that
Mohan and Meera did not have knowledge of Neelam‟s plan to abduct Soumitra.
14
Avinash‟s credibility was in no way implicated at that point because Avinash had not
provided any testimony regarding Mohan‟s and Meera‟s alleged knowledge of the plan.
Further, Avinash provides no basis for assuming the jury did not discharge its duty to
fairly consider the evidence in rendering its verdict. (See McShane v. Cleaver (1966) 247
Cal. App. 2d 260, 266 [“this court should assume that the jury properly discharged its duty
and applied all of the instructions which were given”].) Avinash has failed to show it is
reasonably probable he would have received a more favorable result at trial, absent the
admission of the evidence regarding his alleged abuse of Neelam; any error in admitting
the evidence was therefore harmless.
B.
Polygraph Evidence
Avinash argues the trial court erred by refusing to admit in evidence the
results of a polygraph examination that he had taken. In criminal cases, polygraph
evidence may only be admitted, based on the parties‟ stipulation: “(a) Notwithstanding
any other provision of law, the results of a polygraph examination, the opinion of a
polygraph examiner, or any reference to an offer to take, failure to take, or taking of a
polygraph examination, shall not be admitted into evidence in any criminal proceeding,
including pretrial and post conviction motions and hearings, or in any trial or hearing of a
juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties
stipulate to the admission of such results. [¶] (b) Nothing in this section is intended to
exclude from evidence statements made during a polygraph examination which are
otherwise admissible.” (Evid. Code, § 351.1.)
Evidence Code section 351.1 does not apply in civil cases. “Evidence Code
section 351.1 does not speak to the use of polygraph evidence in proceedings outside the
context of criminal proceedings, and we have found no statutory or judicially created bar
to a party offering polygraph evidence in civil proceedings. [¶] . . . Evidence Code
section 351.1 thus does not, by its terms, operate as a bar to the admission of polygraph
15
evidence in SVP [(sexually violent predator) civil commitment] proceedings.” (People v.
Fields (2009) 175 Cal. App. 4th 1001, 1017.) We therefore analyze the exclusion of the
polygraph examination results under basic evidentiary principles.5
Absent an offer of proof that a polygraph examination is accepted as
reliable in the scientific community, it is presumptively unreliable and inadmissible.
(People v. Harris (1989) 47 Cal. 3d 1047, 1094; see United States v. Scheffer (1998) 523
U.S. 303, 309-310 [noting lack of consensus regarding reliability of polygraph
evidence].) As recently as last year, a California appellate court concluded, “there was
significant controversy within the relevant scientific community about the reliability of
polygraph examination at the present time.” (In re Jordan R. (2012) 205 Cal. App. 4th
111, 130.) Avinash did not attempt to prove the reliability of his polygraph examination
results in the trial court. On appeal, he contends that he had an expert witness who could
have testified to the reliability of polygraph examinations; Avinash did not, however,
make an offer of proof to the trial court. We find no error in the trial court‟s decision to
exclude evidence of the polygraph examination results.
C.
Expert Testimony Regarding Avinash’s Emotional Distress
Avinash argues the trial court erred by allowing Dr. Mark Lipian to testify
as an expert regarding Avinash‟s claims of emotional distress.
Avinash first argues that Dr. Lipian‟s testimony was lacking in foundation.
Dr. Lipian never spoke with, much less examined, Avinash. Dr. Lipian‟s opinion was
based on his review of Avinash‟s deposition testimony, declarations and other sworn
5
Defendants cite Rufo v. Simpson (2001) 86 Cal. App. 4th 573, 602-603, for the
proposition that Evidence Code section 351.1 applies in civil cases: “In the absence of a
stipulation between the parties, the results of a polygraph examination, as well as the fact
of an offer to take, a refusal to take, or the taking of a polygraph examination, are
inadmissible as evidence in California criminal and civil proceedings. [Citations.]” We
disagree with the Rufo court‟s conclusion, based on the analysis in People v. Fields,
supra, 175 Cal. App. 4th 1001.
16
statements by Avinash, correspondence between Avinash and Soumitra, correspondence
between Avinash and others including legal authorities, a portion of Avinash‟s medical
records, and correspondence from Neelam. That Dr. Lipian did not personally examine
Avinash went to the weight of his testimony, not its admissibility. (Bell v. Mason (2011)
194 Cal. App. 4th 1102, 1112.)
People v. James (1989) 208 Cal. App. 3d 1155, on which Avinash relies, is
distinguishable. In that case, the proposed expert witness testified that he would
normally need to spend two hours with a patient in order to “make an accurate diagnostic
impression.” (Id. at p. 1164.) However, the expert had spent less than 30 minutes with
the defendant. (Ibid.) The trial court refused to let the expert testify as to his diagnostic
impression of the defendant because, by the expert‟s own testimony, he lacked “the basis
for a meaningful opinion.” (Ibid.) The appellate court concluded the trial court did not
abuse its discretion in excluding the expert‟s opinion testimony. (Ibid.) In this case,
Dr. Lipian testified that his field of forensic psychiatry involves a different approach and
technique from clinical psychiatry, and that he did not need to personally evaluate a
subject in order to render an opinion.
Avinash also argues Dr. Lipian‟s opinion was not admissible under
Evidence Code section 801 because his opinion was as to a matter that was within the
common experience of the jury. “[F]acts which may be ascertained by the ordinary use
of the senses of a nonexpert” need not be established by expert opinion testimony.
(Walter v. England (1933) 133 Cal. App. 676, 680.) This does not mean, however, that
expert testimony should be excluded if the jury has any basic knowledge of the subject
matter. “The jury need not be wholly ignorant of the subject matter of the opinion in
order to justify its admission; if that were the test, little expert opinion testimony would
ever be heard. Instead, the statute declares that even if the jury has some knowledge of
the matter, expert opinion may be admitted whenever it would „assist‟ the jury. It will be
excluded only when it would add nothing at all to the jury‟s common fund of
17
information, i.e., when „the subject of inquiry is one of such common knowledge that
men of ordinary education could reach a conclusion as intelligently as the witness‟
[citation].” (People v. McDonald (1984) 37 Cal. 3d 351, 367, overruled on other grounds
in People v. Mendoza (2000) 23 Cal. 4th 896; see People v. Lindberg (2008) 45 Cal. 4th 1,
45.)
Avinash also argues the trial court erred by allowing Dr. Lipian to testify
regarding Avinash‟s credibility. An expert witness may not give an opinion as to
whether a witness is telling the truth. (People v. Curl (2009) 46 Cal. 4th 339, 359;
People v. Coffman and Marlow (2004) 34 Cal. 4th 1, 82.) Dr. Lipian opined that Avinash
had “certain traits associated with antisocial personality disorder,” including “a pattern of
malingering, which is telling of untruths, which is very much a trait of antisocial
personality disorder.” In support of this opinion, Dr. Lipian identified specific examples
of Avinash‟s malingering behavior, including Avinash‟s pattern of “progressive
opportunistic embellishment to suit [his] legal needs and his quest for vengeance,” and
his pattern of changing the factual bases for his legal claims based on the party or parties
from whom he was seeking damages. Dr. Lipian‟s testimony was not that Avinash was
lying or that he was not credible in his testimony at trial; the jury was capable of
comparing Avinash‟s earlier statements and sworn testimony with his testimony in the
present trial to determine whether he was credible. Dr. Lipian‟s testimony, however,
took Avinash‟s earlier contrary statements, and placed them in a medical context, which
is something beyond the understanding of the average lay person. The trial court did not
err in allowing that testimony.
Avinash next argues that Dr. Lipian inappropriately transmitted
inadmissible hearsay to the jury through his expert testimony. It is permissible for an
expert witness to express an opinion based on hearsay. (Continental Airlines, Inc. v.
McDonnell Douglas Corp. (1989) 216 Cal. App. 3d 388, 414-415.) Avinash complains,
however, that Dr. Lipian essentially provided to the jury the hearsay evidence that was
18
not otherwise before it. Avinash cites specific examples of information that Dr. Lipian
received from Neelam, Soumitra, and others, which should not have been submitted to
the jury. We need not determine whether this was error because Avinash cannot establish
any prejudice resulting from the admission of Dr. Lipian‟s testimony.
In any event, any error in admitting Dr. Lipian‟s testimony was harmless.
Dr. Lipian‟s testimony went solely to the issue of Avinash‟s damages due to his alleged
emotional distress. The jury found Meera and Mohan had no knowledge of Neelam‟s
plan to abduct Soumitra, an issue on which Avinash provided no testimony. The jury
never reached the issue of damages, so there could be no prejudice in the admission of
Dr. Lipian‟s testimony. Additionally, even absent Dr. Lipian‟s testimony, evidence was
before the jury that, contrary to his testimony, Avinash did not suffer any physical
manifestations of his alleged emotional distress. Further, there was ample testimony that
Avinash never sought to develop a relationship with Soumitra, before or after he moved
to the United States to attend college, and provided no financial or other assistance to
Soumitra.
II.
GRANTING NONSUIT MOTIONS
A.
Standard of Review
“A defendant is entitled to a nonsuit if the trial court determines that, as a
matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in
his favor. [Citation.] „In determining whether plaintiff‟s evidence is sufficient, the court
may not weigh the evidence or consider the credibility of witnesses. Instead, the
evidence most favorable to plaintiff must be accepted as true and conflicting evidence
must be disregarded. The court must give “to the plaintiff[‟s] evidence all the value to
which it is legally entitled, . . . indulging every legitimate inference which may be drawn
from the evidence in plaintiff[‟s] favor.”‟ [Citation.] A mere „scintilla of evidence‟ does
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not create a conflict for the jury‟s resolution; „there must be substantial evidence to create
the necessary conflict.‟ [Citation.] [¶] In reviewing a grant of nonsuit, we are „guided by
the same rule requiring evaluation of the evidence in the light most favorable to the
plaintiff.‟ [Citation.] We will not sustain the judgment „“unless interpreting the evidence
most favorably to plaintiff‟s case and most strongly against the defendant and resolving
all presumptions, inferences and doubts in favor of the plaintiff a judgment for the
defendant is required as a matter of law.”‟ [Citation.]” (Nally v. Grace Community
Church (1988) 47 Cal. 3d 278, 291.) We may not, however, consider the supporting
evidence in isolation, and disregard any contradictory evidence; rather, we must review
the entire record. (Kidron v. Movie Acquisition Corp. (1995) 40 Cal. App. 4th 1571,
1581.)
B.
Sunila’s Nonsuit Motion
The only evidence supporting a claim against Sunila was Rajesh‟s
testimony regarding the hearsay statements of others. Rajesh testified that Neelam told
him, in 1996, that Sunila drove her to the airport in 1990. Madhavi, who, Rajesh
testified, was also present at the lunch when Neelam made that statement, testified
Neelam never told them that Sunila helped Neelam travel to India. Indeed, Madhavi
testified no lunch or other meeting between Neelam, Rajesh, and Madhavi ever occurred.
Rajesh also testified that in 1997, at a social gathering at which Mohan was
present, Meera told him Sunila had taken Neelam and Soumitra to the airport in 1990.
Mohan testified Rajesh‟s testimony on this point was false.
Contrary to Rajesh‟s testimony, Sunila denied she drove Neelam to the
airport, or helped Neelam in any way to leave for India.
Avinash argues there was circumstantial evidence supporting his claim
against Sunila. None of the evidence cited, however, establishes, directly or
20
circumstantially, that Sunila drove Neelam to the airport, or was in any other way
involved in Neelam‟s flight to India.
There was not substantial evidence supporting Avinash‟s claims against
Sunila. The trial court did not err in granting Sunila‟s motion for nonsuit.
C.
Madhavi’s Nonsuit Motion
The evidence supporting Avinash‟s claims against Madhavi was equally
absent. At the time Neelam and Soumitra left the United States for India, Madhavi was
18 years old and living in India. Madhavi admitted that Neelam and Soumitra travelled
to California and stayed with Madhavi and Rajesh for one and one-half months in 1998.
During that time, Madhavi never called Avinash or the police to advise them that Neelam
and Soumitra were there. At that time, however, Neelam had been granted full custody
of Soumitra via the Indian divorce decree.
Avinash‟s contention on appeal that Madhavi “testified that while
[Soumitra] was at her house, she was completely aware that Neelam had taken
[Avinash]‟s son from [Avinash] without [Avinash]‟s consent or knowledge,” is
unsupported by the 52 pages of the reporter‟s transcript to which Avinash cites, and is
actually contrary to the state of the evidence as of the time the nonsuit motion was made
and granted. Madhavi testified, without any contrary evidence, she was not aware, until
Neelam was arrested in 2008, that Avinash claimed Neelam had abducted Soumitra in
1990.
There was not substantial evidence supporting Avinash‟s claims against
Madhavi, and the trial court did not err in granting Madhavi‟s nonsuit motion.
III.
DENIAL OF AVINASH’S NEW TRIAL MOTION
In reviewing an order denying a motion for a new trial, we “„must fulfill
our obligation of reviewing the entire record, including the evidence, so as to make an
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independent determination as to whether the error was prejudicial. [Citations.]‟
[Citation.]” (Ajaxco Inc. v. E*Trade Group Inc. (2005) 135 Cal. App. 4th 21, 46-47.)
This differs from our review of an order granting a motion for a new trial, which we
review for abuse of discretion. (Lane v. Hughes Aircraft Co. (2000) 22 Cal. 4th 405, 412;
Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal. App. 4th 187, 194.)
Avinash contends the trial court should have granted his motion for a new
trial because the trial court improperly admitted the hearsay evidence of Neelam‟s
allegations of abuse and the testimony of Dr. Lipian. As discussed in detail, ante, there
was no error in the trial court‟s evidentiary rulings, or the error was harmless. Our
review of the entire record, moreover, compels a conclusion that the trial court did not err
in denying the motion for a new trial. Considering all of the evidence, not simply the
evidence which Avinash contends was erroneously admitted at trial, we conclude
Avinash failed to prove the elements of any of his claims against Defendants. No direct
evidence supported Avinash‟s claim that Defendants conspired to assist Neelam in
abducting Soumitra and hiding him from Avinash for almost 18 years. The only
evidence tying any of Defendants to the alleged tort by Neelam was the hearsay
testimony of a single witness, Rajesh. That testimony was provided pursuant to an
agreement to dismiss Rajesh from the case, and was contrary to sworn statements he had
previously made in other courts. Even assuming that Neelam herself was liable for
damage caused to Avinash by abducting and concealing Soumitra, there was no
competent evidence that Defendants had any knowledge of Neelam‟s plans, much less
that they assisted her in carrying them out. We conclude the trial court did not err in
denying Avinash‟s motion for a new trial.
IV.
DENIAL OF MOTIONS TO TAX COSTS
We review the denial of a motion to tax costs for abuse of discretion.
(Chaaban v. Wet Seal, Inc. (2012) 203 Cal. App. 4th 49, 52.)
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Sunila filed a memorandum of costs; Meera, Mohan, and Madhavi jointly
filed a separate memorandum of costs. Avinash filed two separate motions to tax costs,
each raising the same legal issues. The trial court denied both motions on all grounds.
On appeal, Avinash advances a single argument—that the trial court erred by finding the
offers of compromise served on Avinash by Defendants were made in good faith.
Avinash contends that, pursuant to Code of Civil Procedure section 998, because the
offers were not made in good faith, they were insufficient to allow Defendants to recover
their expert witness fees.
Before trial, Sunila made an offer of $2,000 to settle the case in exchange
for a full dismissal with prejudice of all claims against her. Also before trial, Madhavi,
Meera, and Mohan made a collective offer of $20,000 in full settlement of the case and
dismissal with prejudice. Avinash recovered nothing against any of Defendants.
“Where, as here, the offeror obtains a judgment more favorable than its offer, the
judgment constitutes prima facie evidence showing the offer was reasonable and the
offeror is eligible for costs as specified in [Code of Civil Procedure] section 998. The
burden is therefore properly on plaintiff, as offeree, to prove otherwise.” (Elrod v.
Oregon Cummins Diesel, Inc. (1987) 195 Cal. App. 3d 692, 700.)
Avinash contends that, because he was seeking $10 million in
compensatory damages and $10 million in punitive damages, the settlement offers were
not made in good faith. Avinash also notes that he recovered a large default judgment
against Neelam and Thakur. “Whether an offer to compromise is made in good faith,
however, cannot be measured by the amount of claimed damages or a party‟s subjective
belief in the case‟s value. An offer to compromise may be „realistically reasonable‟ and
justify cost shifting even though the party receiving the offer is unlikely to accept it as a
consequence of the party‟s skewed valuation of the case.” (Essex Ins. Co. v. Heck (2010)
186 Cal. App. 4th 1513, 1530.)
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Avinash failed to meet his burden of proving Defendants‟ Code of Civil
Procedure section 998 offers were not reasonable, and the trial court did not err in
denying Avinash‟s motions to tax costs.
DISPOSITION
The judgment and postjudgment orders are affirmed. Defendants to recover
costs on appeal.
FYBEL, J.
WE CONCUR:
MOORE, ACTING P. J.
THOMPSON, J.
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