Jin v. Velasquez
| Decision Date | 01 November 2021 |
| Docket Number | E073581 |
| Parties | KEVIN JIN et al., Plaintiffs and Appellants, v. RAFAEL VELASQUEZ, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
KEVIN JIN et al., Plaintiffs and Appellants,
v.
RAFAEL VELASQUEZ, Defendant and Respondent.
E073581
California Court of Appeals, Fourth District, Second Division
November 1, 2021
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. PSC1704197 L. Jackson Lucky, IV, Judge. Affirmed.
Kevin Jin, Luke Jin, and Mary Lim, in pro. per., for Plaintiffs and Appellants.
Farmer Case & Fedor, Maxine Dawn Harvey and Anthony T. Case for Defendant and Respondent.
OPINION
RAMIREZ P. J.
In 2015, there was an automobile collision on southbound Palm Drive on the way to Palm Springs. There were different versions of how the accident occurred, but the result was a complaint filed by plaintiffs Jin Kevin Yong Xuan, referred to as Kevin Jin, on behalf of himself and his minor son Luke Jin, against defendant Rafael Velasquez. Velasquez cross-complained against Kevin Jin for indemnification.[1] The trial of liability was bifurcated from the damage portion. After hearing the competing versions of the accident, the jury returned a verdict finding defendant was not negligent, resulting in a judgment for defendant on plaintiff's complaint, and a determination that defendant's cross-complaint was moot. Plaintiffs appealed.
On appeal, plaintiffs seek to "fix the wrong jury verdict" arguing that (1) the trial court erred in excluding plaintiff's expert from testifying due to plaintiff's failure to timely designate the expert[2]; (2) improper impeachment of plaintiff with deposition transcripts; (3) the defendant's testimony as to the circumstances of the collision was false; (4) the judgment was unfair because defense counsel and counsel for the cross-defendant (plaintiff) conspired in order to save the insurance company money; (5) the Korean interpreters made errors in translation of plaintiff's testimony that infected the outcome of the trial; and (6) the jury erred in finding defendant was not negligent. We affirm.
Background
The trial was bifurcated so the following information relates to the liability portion only.
a. Plaintiff's Testimony
On August 19, 2015, at 6:15 a.m., plaintiff Kevin Jin headed south on Palm Drive in the direction of Palm Springs, to take his minor child, Luke, to school in his Jaguar vehicle. At that location, the speed limit on Palm Drive was 60 miles per hour. Up ahead, the road was barricaded due to high winds blowing sand, and Jin observed this as he went past a traffic signal. Realizing he would need to take a detour, he changed lanes from the number one lane to the number two lane, intending to move to the right hand side of the road in order to get onto the Interstate 10 freeway.
At first Jin testified that he usually drove in the left lane, but because of the barricade, he went into the number two lane and then he went into the number three lane. However, he then said that because there was traffic in the number three lane, Jin stopped his vehicle in the number two lane to await the opportunity to enter that lane. However, in his side rearview mirror, he saw a vehicle driving fast behind him change lanes from the number two lane into the number three lane briefly, and then return to the number two lane, where it collided with the right rear panel of plaintiff's vehicle.
b. Defendant's testimony
Defendant testified that he was driving to work on Palm Drive, coming from his home in Desert Hot Springs, driving his 1986 or 1988 truck at a speed of approximately
50 to 55 miles per hour. He was the number two lane. He approached the traffic signal at the crest of an incline, but he could not see plaintiff until after he reached the crest of the incline. Defendant was still driving in the number two lane and plaintiff was still in the number one lane when defendant first saw him, approximately 50 to 60, or possibly 65 feet ahead of defendant.
Plaintiff was trying to get into the number two lane, and defendant could see he was trying to cross all lanes of traffic to reach the freeway entrance. After he reached the other side of the incline, defendant saw plaintiff apply his brakes while still in the number one lane, and then suddenly change to the number two lane, where he stopped at a slight angle, unable to get all the way over to the number three lane.
Defendant was now approximately three car lengths behind plaintiff, and at 55 miles per hour, defendant could not avoid plaintiff's vehicle after plaintiff pulled in the number two lane in front of him. He struck the right rear side of plaintiff's vehicle.
c. Procedural Posture
Plaintiff filed a complaint against Velasquez and Velasquez cross-complained.[3]During in limine motions as the matter came on for trial, defendant moved to exclude plaintiff's expert witness on the issue of Luke Jin's injuries due to Jins' failure to timely designate experts. Plaintiffs opposed the motion because the demand was untimely, and plaintiff had informally informed defendant that plaintiffs' treating physicians would
testify as experts and had named them in the mandatory settlement conference statement. The trial court ruled that the treating physicians could testify as percipient witnesses to their observations but could not offer expert opinion.
Thereafter, counsel for cross-defendant Kevin Jin, requested bifurcation of liability issues from the damages portion of the trial, and it was ordered. As a result of the bifurcation, no medical testimony would be offered during the liability portion of the trial. Regarding exhibits, defendant made an oral motion to exclude evidence of plaintiffs' medical records for lack of foundation and authenticity, and because the wife of plaintiff Kevin Jin had made handwritten notes on the documents. Because medical testimony would be limited to observations, defendant argued for exclusion of the documents. The court, unhappy that this motion had not been made in writing, denied the motion but ruled the records would have to be redacted, and that it would consider the adequacy of foundation for the admission of the records at the time of presentation of the evidence.
The court also granted a motion in limine to exclude evidence not disclosed during discovery, specifically, plaintiffs' exhibit numbers 11, 12, and 13, which pertained to treatment records, including acupuncture treatments, and Luke Jin's school records. The ruling was made without prejudice in the event plaintiffs' counsel could show they were turned over in discovery.
Later, after jury selection was complete, the court revisited the issue of excluding evidence for failure to provide discovery, after doing more research. The court
concluded the sanction was too harsh where the exclusionary sanction is intended for parties who repeatedly and willfully fail to provide discovery. The court concluded there may be other reasons to exclude the evidence when actually proffered, but it vacated its ruling excluding them for discovery violations.
In the liability portion of the trial, both plaintiff and defendant testified to differing accounts of the incident as described above. At the conclusion of the testimonial phase of trial, the jury took the matter under submission with instructions to respond to certain questions relating to liability for negligence. The jury returned a verdict finding that defendant was not negligent. On July 3, 2019, judgment was entered in favor of defendant against plaintiffs that plaintiffs take nothing by their complaint, which rendered the cross-complaint moot.
Plaintiff's appealed.
Discussion
Plaintiffs make several contentions on appeal, all lacking in legal discussion supported by citation of authority (see Cal. Rules of Ct., rule 8.204(a)(1)), covering a variety of complaints unrelated to the assignments of error, and most unsupported by the record. The issues and arguments are not articulate, making it difficult to address the individual issues cogently. We address only those contentions related to the plaintiffs' assignments of error and do not address ancillary matters.
1. The Court's Ruling that Plaintiffs' Medical Witnesses Could Not Testify as Experts was Proper and Did Not Prejudice Plaintiffs.
Plaintiffs' first argument refers to the in limine ruling that their treating physicians could not testify as experts. The trial court had made the ruling after determining, based on the admission of plaintiffs' counsel that he did not respond to defendant's request for Designation of Experts, pursuant to Code of Civil Procedure section 2034.230. Plaintiff contends the court was unfair and biased against plaintiffs in making this ruling and refers to information outside the record regarding Luke Jin's visual problems that manifested sometime after the collision. Plaintiffs argue, without authority, that medical records are "considered as witnesses for medical matters." We disagree.
First, the trial court did not completely or absolutely exclude the medical records. Instead, due to plaintiffs' failure to comply with discovery in timely designating their experts, the medical records could be admitted only to the extent they recorded the observations of the treating doctors, with the caveat that they would only be admissible with the proper foundation. Because the records were relevant only to the damages portion of the trial, they were irrelevant on the question of liability, which found no negligence on the part of defendant, so plaintiffs were not prejudiced by the ruling.
Second, the court properly ruled that the treating physicians would not be permitted to offer expert testimony due to the plaintiffs' failure to designate them as experts. Code of Civil Procedure section 2034.230 provides for discovery of information concerning each other's expert witnesses by making a demand for a mutual and
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