Opinion
A118724
6-9-2008
GLENDA WELCH et al., Plaintiffs and Respondents, v. BIG DOG CITY CORPORATION et al., Defendants and Appellants.
NOT TO BE PUBLISHED
BY THE COURT:
It is ordered that the opinion filed herein on May 9, 2008, be modified as follows:
1. On page 12, at the beginning of the first full paragraph, delete the first two sentences and citation and replace it with the following:
While the choice of what sanction to impose is within the trial courts discretion, that discretion is not unlimited. By demonstrating that the record discloses no reasonable basis for the courts decision, the appellant may overcome the presumption of correctness and affirmatively establish error. (See Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355 [trial courts exercise of discretion is subject "to the limitations of legal principles governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown"]; People v. Jacobs (2007) 156 Cal.App.4th 728, 736-738.)
2. On page 13, in the first paragraph, delete the last two sentences and replace them with the following:
Moreover, there was evidence to suggest that, upon the taxis impact with the other vehicle, Mrs. Welch collided with the seat in front of her with such force that it broke. This evidence that she flew forward with such force, while her husband did not, suggested at least the possibility that appellants would claim Mrs. Welch was not wearing her seatbelt after all.
3. On page 16, at the end of the first partial paragraph, after the word "abuse," add as footnote 7 the following footnote, which will require renumbering of all subsequent
Under the seatbelt defense itself, expert testimony is usually required to establish that the plaintiffs injuries would have been avoided or less severe if she had used the seat belt. (CACI No. 712; Truman v. Vargas (1969) 275 Cal.App.2d 976, 983.) The record of the in limine motion hearing, however, does not show that respondents emphasized this principle, or that the court relied on it in precluding all evidence regarding Mrs. Welchs use of her seatbelt. Even if we assume that it did, the court must also have been aware that expert opinion is not always required to prove that failure to use a seat belt caused at least some of the plaintiffs injuries. (Lara v. Nevitt (2004) 123 Cal.App.4th 454, 458; McNeil v. Yellow Cab Co. (1978) 85 Cal.App.3d 116, 118.) Moreover, evidence of Mrs. Welchs failure to wear a seat belt was germane to other issues of causation, comparative fault, or witness credibility, perception, and recollection.
In their brief in this appeal, respondents repeatedly suggest that the trial court made findings of intentional concealment. In one instance, respondents assert: "The trial court therefore properly concluded Appellants were intentionally concealing the seatbelt defense issue in order to gain some tactical advantage and prevent Respondents from properly preparing for trial." The court made no such finding in granting the in limine motion. Even though we infer from the imposition of sanctions that the failure to make a full disclosure in interrogatory responses was willful, and consider the courts retrospective statements at the subsequent hearing on the new trial motion, there was no finding that appellants engaged in a course of intentional deceit with the aim of gaining a tactical advantage at trial. Indeed, it is difficult to see how appellants would have hoped to gain much advantage over respondents by failing to mention the seat belt issue in their interrogatory responses, since their expert witness would be disclosing his opinion in deposition anyway. In any event, the cases on which respondents rely are distinguishable because the deficiency of appellants discovery responses was apparent about two weeks before trial.
4. On page 16, in the first full paragraph, delete the third sentence and replace it with the following:
For example, had it not been for the trial courts in limine order, appellants might have referred at trial to the facts of the accident—including evidence that Mrs. Welch flew into the back of the front seat—and argued that she must not have had her seatbelt on at all, even without Dr. Mandells opinion.
5. On page 16, in the first full paragraph, delete the last two sentences and replace them with the following:
In other words, appellants could have submitted evidence that might have warranted an instruction on their comparative negligence defense or supported other arguments at trial. The trial court thus deprived appellants of their primary affirmative defense or, at least, important defense evidence.
6. On page 18, delete the existing footnote 7 and replace it with a new footnote 8:
7. On page 18, in the second full paragraph, after the first sentence, insert the following:
While we draw from the record the inferences that are most favorable to the judgment, appellants have affirmatively established that such inferences do not justify the courts issue sanction, in light of the relatively insignificant and curable prejudice to respondents, the lack of a supported finding of intentional deceit by appellants to gain tactical advantage at trial, evidence suggesting that appellants defense might have merit, the potential for other use of the seat belt evidence, and the amount of time remaining before trial.
This modification does not effect a change in the judgment.
The petition for rehearing is denied.