Filed 3/25/14 Akopyan v. Bear Trucking, Inc. CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


STEVE AKOPYAN,
         Plaintiff and Appellant,
                                                                     A129566
v.
BEAR TRUCKING, INC., et al.,                                         (Mendocino County
                                                                     Super. Ct. No. SCUKCVG 03-90370)
         Defendants and Respondents.


         A jury awarded plaintiff Steve Akopyan almost $846,000 in damages in a personal
injury action arising out of a trucking accident. On appeal, his primary claim is that the
trial court improperly precluded him from augmenting his expert witness list and from
conducting further discovery after the court declared a mistrial on two occasions.
         The record on appeal supports a conclusion that the court did not preclude
Akoypan from conducting further discovery after the mistrials. As for the claim that he
should have been allowed to designate certain experts to testify after previous trials ended
in a mistrial, Akopyan misconstrues case law holding that discovery reopens following a
mistrial. Before the first trial, the court precluded Akopyan from calling designated
experts as a sanction for repeated discovery abuses. Although discovery reopens
following a mistrial, it does not follow that the reopening of discovery erases the effect of
evidentiary sanctions imposed for repeated instances of misconduct. Because we reject
Akopyan’s claims of error, we affirm the judgment.




                                                             1
                      FACTUAL AND PROCEDURAL BACKGROUND
                                     The Complaint
       On April 1, 2001, Akopyan was injured in an accident while driving a truck in
Mendocino County. He filed a personal injury complaint in Los Angeles County on
April 2, 2002, naming Bear Trucking, Inc. (Bear) and Trailmobile Parts & Services
Corporation (Trailmobile) as defendants (collectively referred to as defendants).1 In
October 2002, the action was transferred to Mendocino County.
                        Continuance of January 2004 Trial Date
       Trial was originally set for January 12, 2004. All parties timely exchanged expert
disclosures by November 24, 2003, in accordance with Code of Civil Procedure section
2034.010 et seq.2
       In late November 2003, a discovery dispute arose that caused the trial date to be
continued. Defendants complained that they had not been given a sufficient opportunity
to depose Akopyan, and they argued that the depositions of Akopyan and his designated
experts should be completed before the scheduling of the defense experts. The trial court
vacated the trial date, extended the discovery cutoff to March 19, 2004, and directed the
parties to meet and confer regarding a deposition schedule.
       In December 2003, Akopyan’s counsel proposed a deposition schedule and
subsequently participated in a one-hour telephone conference with defense counsel for
the purpose of discussing deposition scheduling. The parties agreed to continue
discussions at a later date. Defense counsel thereafter made numerous attempts to
coordinate the deposition schedule. Counsel for Akopyan failed to respond to
correspondence from defense counsel regarding deposition scheduling, and as of April

       1
         During the course of this appeal, Essex Insurance Company substituted as a
respondent in place of Trailmobile on the grounds that Trailmobile was a de facto
dissolved corporation and that Essex Insurance Company was the real party in interest as
the insurer of Trailmobile. Unless the context requires otherwise, we will use the term
Trailmobile to encompass both Trailmobile and its insurer, Essex Insurance Company.
       2
         All further statutory references are to the Code of Civil Procedure unless
otherwise specified.


                                            2
2005, Bear’s counsel reported that it had received no further correspondence from
Akopyan’s counsel regarding deposition scheduling and had received no notices from
Akopyan’s counsel concerning any effort to reschedule a trial date.
                 April 2005 Motion to Dismiss for Failure to Prosecute
       In April 2005, Bear moved to dismiss the complaint under section 583.410 as a
result of Akopyan’s failure to bring the matter to trial within three years. (See § 583.420,
subd. (a)(2)(A).) Bear argued that Akopyan’s counsel had failed to respond to numerous
attempts to schedule depositions, that none of the depositions had taken place in the
intervening months since the court vacated the trial date, and that Akopyan’s counsel had
not taken any steps to reschedule the trial. Trailmobile joined in the motion to dismiss.
       The trial court heard the motion to dismiss on July 1, 2005. During the hearing,
the court stated it was “very close to dismissing this case for failure to prosecute,”
although it acknowledged such an outcome would be draconian. The court noted that
there had been “innumerable and sometimes senseless discovery disputes” in the case,
and that nothing had happened in the 18 months since the court ordered the parties to
meet and confer. The court expressed frustration that it was “literally at wit’s end” with
“no confidence in the meet and confer process because this case has just absolutely
degenerated.” According to the court, the defendants had a right to know what
Akopyan’s percipient witnesses would say and the nature of the theories espoused by
Akopyan’s experts. During the hearing, the court stated, “I don’t care about disclosure.
I’m going to supercede [sic] all of this stuff from [section] 2034 of the Code of Civil
Procedure because it’s not getting done.”
       In a written order filed in July 2005, the court denied the motion to dismiss and
instead set a deadline for the completion of each side’s discovery. As set forth in the
order, counsel for defendants were to meet and confer to develop a schedule of
depositions they wished to complete. Akopyan’s counsel was not to be included in the
meet and confer process. All depositions of Akopyan’s witnesses were to be completed
by October 31, 2005. The court indicated it would dismiss the action if Akopyan failed
to produce witnesses noticed for deposition by the defendants. The defendants were to


                                              3
complete all of their depositions before Akopyan could commence his depositions. The
court set a further hearing on November 4, 2005, at which time the court would consider
whether its order had been followed and whether the case should be dismissed. The court
would also consider at that time scheduling the depositions of defendants’ percipient and
expert witnesses. Discovery was closed, with the exception of the depositions of
percipient and expert witnesses that had already been noticed for deposition.
                                    Evidentiary Sanctions
         In September 2005, Bear filed an ex parte application for dismissal of the action
based upon Akopyan’s failure to produce witnesses. As set forth in the application, on
August 11, 2005, defense counsel hand served a notice containing a schedule for
deposing Akopyan’s designated experts. The first deponent on the schedule was David
N. Glaser, M.D., with a scheduled deposition date of August 31, 2005. Dr. Glaser failed
to appear for the deposition, as did counsel for Akopyan. Before the scheduled date of
the deposition, defense counsel had heard nothing from Akopyan’s counsel concerning
the deposition. Bear sought to dismiss for failure to comply with the court’s July 2005
order.
         Instead of dismissing the action, the court issued a lesser sanction of precluding
Dr. Glaser from testifying. The court also precluded Akopyan from designating other
experts to testify as to the damages-related matters Dr. Glaser was slated to address as an
expert, including issues related to brain injury, neurological dysfunction, and psychiatric
damages sustained by Akopyan.
         In early November 2005, Bear’s counsel filed a declaration reporting on the status
of efforts to schedule expert depositions. According to the declaration, the parties met
and conferred regarding the remaining expert depositions after Akopyan failed to produce
Dr. Glaser for the first scheduled deposition. Akopyan’s counsel provided defense
counsel with dates for some, but not all, of the experts designated by Akopyan. In an
October 2005 letter, counsel for Akopyan indicated that one of the designated damages
experts, Kyle Boone, Ph.D., would be unavailable for deposition on the date selected. In
further correspondence and discussions between the parties, counsel for Akopyan stated


                                               4
they were considering withdrawing certain experts, including Dr. Boone. In a letter dated
October 21, 2005, Akopyan’s counsel offered a date for one deponent after the
October 31 discovery deadline and failed to provide dates for two other deponents,
including Dr. Boone, although counsel offered to provide dates “ ‘shortly.’ ” As of the
date of the declaration in early November 2005, Akopyan’s counsel had still not provided
deposition dates for two deponents, including Dr. Boone.
       After conducting a further status conference on November 4, 2005, the court
issued a written ruling precluding Dr. Boone from testifying as an expert for Akopyan.
The court further precluded Akopyan from designating other experts to testify as to the
damages-related matters Dr. Boone was to address as an expert, including issues related
to brain injury and Akopyan’s psychological, cognitive, and emotional state, as well as
his general psychological and social adaptation to his injuries. The court issued similar
orders as to two experts designated by Akopyan on liability issues. The court’s order
permitted Akopyan to complete his depositions of the defendants’ percipient and expert
witnesses.
                           First Trial (Mistrial)—March 2007
       The first jury trial began on March 5, 2007. The court declared a mistrial two days
later because there was no available court reporter as a result of a strike by county
employees. The court set a new trial date of June 11, 2007, although it later continued
the date to October 15, 2007.
       According to Trailmobile, Akopyan did not serve any further discovery on
defendants following the first mistrial. Akopyan does not dispute Trailmobile’s
contention.
                   Akopyan’s Motion to Designate Additional Experts
       Following the mistrial, Akopyan moved to augment his expert witness designation
to include three newly designated retained experts and four non-retained experts. Dr.
Glaser and Dr. Boone were not among the experts Akopyan sought to include in the
augmented expert witness disclosure. Akopyan relied upon the principle that a mistrial



                                             5
restarts discovery and that the new trial date set by the court controls the cut-off for
discovery and the exchange of expert witness information.
       On May 18, 2007, the trial court issued an order granting in part and denying in
part Akopyan’s motion to augment his expert witness list. In ruling on the motion, the
court noted that under the authority of Fairmont Ins. Co. v. Superior Court (2000) 22
Cal.4th 245 (Fairmont), “it is clear that discovery is reopened following, among other
events, the declaration of a mistrial.” The court characterized the directive in Fairmont
as “clear and unequivocal.” However, the court stated that Fairmont “did not consider
the effect of any previous orders precluding evidence or imposing discovery limitations
or sanctions.” In Fairmont, the court permitted renewal of discovery under the
circumstances of a remand, mistrial, or new trial because those circumstances were
generally immune to abusive manipulation. The court contrasted the situation here: “To
now permit discovery to resume unrestricted by prior orders made to sanction or prevent
discovery abuse would be, at best, to ignore or, at worst, to reward prior, established
discovery abuse. In balancing its obligation to follow the directive of the Fairmont court
and its obligation to elimination [sic] discovery abuse, this court will continue to enforce
all discovery abuse sanctions and orders previously made in this matter.” The court set
forth the history of the case in part, although it noted that “[i]t is not practically possible
for the court to recite the history of discovery motions, abuses, orders and sanctions.”
       The court denied Akopyan’s request to designate two new liability experts,
reasoning that the subject of their testimony was identical or substantially similar to the
testimony that was to be offered by the two liability experts the court previously ruled
could not testify.3 However, the court granted the motion to augment the expert witness


       3
        In his opening brief on appeal, Akopyan states that the court denied his motion to
augment his expert witness designation to include experts and categories that had been
disallowed before the first trial, including Dr. Glaser and Dr. Boone. To be clear,
Akopyan’s motion did not request including Dr. Glaser and Dr. Boone as designated
experts. The only reference to the pretrial exclusion orders was contained in a footnote in
which Akopyan stated the rulings were clear error and had been superseded by the
mistrial. Also, before filing his motion, Akopyan’s counsel served a “post-mistrial”

                                               6
list with five additional experts.4 In granting the motion in part, the court reasoned that
the pretrial order requiring Akopyan to complete discovery according to a strict schedule
was not a specific discovery sanction. The court further reasoned that none of the court’s
prior orders precluded Akopyan from calling the five proposed experts or from eliciting
the testimony they were prepared to offer. The order notes that the court had previously
issued an in limine order precluding certain witnesses from testifying at trial, but that
“[w]ith the reopening of discovery” that order was moot and would be revisited at the
pretrial conference.
          In an order ruling on in limine motions dated September 24, 2007, the court
observed that, following the mistrial, “[d]iscovery was reopened and all discovery
response and cut-off dates [were] determined with reference to that new initial trial date.”
In a further order dated September 27, 2007, the court vacated the October 2007 trial
date, reasoning that defense counsel had not been afforded sufficient opportunity to
depose experts newly designated by Akopyan. The court’s order stated that “[d]iscovery
is closed” with the exception of expert witness discovery related to three experts
designated by Akopyan.
                             Second Trial (Mistrial)—April 2008
          A second jury trial commenced in April 2008. After seven days of trial, the court
declared a mistrial due to misconduct by Akopyan’s counsel. The court ruled that
Akopyan’s counsel had engaged in repeated violations of specific pretrial and in limine
orders.
          Following the second mistrial, the court rescheduled trial for January 26, 2009.
Again, following the second mistrial, Akopyan did not serve further written discovery
requests on defendants.



expert designation that listed 24 non-retained experts and 10 retained experts, although
Dr. Glaser and Dr. Boone were not included in the list.
       4
         In addition, the court later changed its ruling as to one of the liability experts it
originally ruled could not testify.


                                                7
                       Third Trial (Liability Issues)—January 2009
       The third jury trial in this case began in January 2009. The trial was limited to the
issue of liability. At the conclusion of the liability phase, the jury returned a verdict
finding that defendants were negligent and that their negligence was a significant factor
in causing harm to Akopyan. The jury apportioned the fault for the accident between
Akopyan and the defendants, with 18 percent attributable to Akopyan, 67 percent
attributable to Bear, and 15 percent attributable to Trailmobile.
       The trial court set the jury trial on damages for November 2, 2009. The damages
trial was later continued to May 3, 2010.
               Bear’s June 2009 Motion to Reopen Discovery on Damages
       In June 2009, Bear filed a motion seeking a limited reopening of discovery on
damages. Bear pointed out that it had not received any information concerning the extent
of Akopyan’s injuries and claimed damages since before the first mistrial. Bear had
served supplemental discovery in 2006 but had not received a response. Further, Bear
had sought updated discovery from Akopyan in 2009 but had not received a reply.
Akopyan opposed the motion, contending that discovery was closed and that Bear was
effectively seeking to reopen discovery in the middle of trial. In a July 2009 order, the
court granted the motion for a limited reopening of discovery on damages issues.5
Otherwise, discovery remained closed.
                        Fourth Trial (Damages Issues)—May 2010
       The jury trial on damages issues commenced in May 2010. Akopyan claimed the
2001 accident resulted in injuries to his neck, back, shoulders, and knees that necessitated
several different types of conservative treatments that included home exercise programs,


       5
        In his opening brief, Akopyan claims the court made clear at the hearing on
Bear’s motion for a limited reopening of discovery that it was not reopening discovery
for Akopyan. The record does not contain a transcript of the hearing conducted on
July 5, 2009, at which the trial court supposedly denied Akopyan’s request to reopen
discovery. Because there is no factual support for the assertions that Akopyan moved to
reopen discovery or that the court denied any such motion, we shall disregard these
assertions.


                                               8
physical therapy, manipulations under anesthesia, and pain medication. It was
Akopyan’s position that it was ultimately necessary to perform surgery on his knees,
back, neck, and shoulders because the conservative treatments failed. Akopyan also
claimed the surgeries failed to alleviate his pain and that he would be dependent upon
pain medication for the rest of his life, resulting in him being unable to hold any job for
the remainder of his working life. Akopyan requested that the jury award him over
$700,000 for past medical expenses and $2.6 to $3.5 million for future medical care.
       The defendants’ theory of the case was that Akopyan presented a pattern of
exaggerating his injuries and was seeking damages for injuries and medical treatment
unrelated to the 2001 accident. The defendants agreed that injuries to Akopyan’s knees
were attributable to the 2001 accident and that the subsequent treatments for his knees,
including surgeries and some of the physical therapy, were reasonably necessary. They
also agreed that emergency medical treatment provided at the scene and the hospital
immediately after the crash was reasonably necessary. They likewise agreed that
Akopyan’s consultation with a neurologist concerning headaches following the accident,
including the MRI’s of the brain, was reasonable to assess his neurological condition.
With regard to issues related to Akopyan’s back, the defendants agreed that an MRI of
the lower back was reasonable for purposes of assessing if he had an injury attributable to
the 2001 accident. In total, the defendants agreed that Akopyan should be awarded
$54,762 for past medical expenses he incurred as a result of the 2001 accident. Bear and
Trailmobile contested all of Akopyan’s other claimed injuries and denied that any other
past medical treatment was reasonably necessary for injuries suffered in the 2001
accident. The primary disputed issues at trial were whether Akopyan’s claimed injuries
to his neck and back were attributable to the 2001 accident, and whether the medical
treatment he received was excessive or reasonably necessary.
                              Evidence Offered by Akopyan
       On the day of the accident in 2001, Akopyan received emergency medical
treatment at the scene and at the hospital. He reported neck and thigh pain, had abrasions
to his right elbow and knee, and had a superficial cut on his forehead that required


                                              9
stitches. While being treated at the hospital, Akopyan told the attending physician that he
was not experiencing any back pain. A CT scan of his neck revealed no fractures or
dislocation but showed degenerative changes, including bony overgrowth and disc bulge
narrowing. Akopyan was considered to be in “good condition” and was released the
same day, walking out of the hospital unassisted with a prescription for Tylenol with
Codeine.
       A little over two weeks after the accident, Akopyan was treated by Dr. Robere
Missirian, an orthopedic surgeon. Akopyan reported headaches and pain in his neck,
back, chest, hip, wrists, and knee. Dr. Missirian’s examination revealed a cut on
Akopyan’s forehead, pain and tenderness in his cervical spine and the back of his right
shoulder, tenderness in his lower back, and a hematoma near his right hip. His right knee
was swollen, unstable, and had a significantly diminished range of motion. Akopyan told
Dr. Missirian that these injuries occurred in the 2001 accident. Dr. Missirian did not
observe any neurological defects in Akopyan’s neck or back.
       Dr. Missirian ordered an MRI of Akopyan’s right knee, lower back, and wrists.
The lower back MRI revealed bulging discs and pre-existing mild arthritic changes but
no neurological defects associated with the bulges. The MRI of Akopyan’s right knee
revealed a torn meniscus. After Akopyan’s knee was more stable, Dr. Missirian
performed arthroscopic surgery on the right knee. Several months later, Akopyan tore
the meniscus in his left knee as a result of compensating for the injury to his right knee.
Dr. Missirian subsequently performed arthroscopic surgery on Akopyan’s left knee.
       Akopyan continued to report pain in his back that was treated with chiropractic
care, as well as epidural injections and manipulations under anesthesia. According to Dr.
Missirian, Akopyan’s back continued to deteriorate instead of healing over time as most
injuries would. Akopyan underwent his first back surgery in 2004, followed by later
surgeries to different areas of his back. Throughout the course of the surgeries and other
treatments, Akopyan continued to report pain and claimed the condition of his back
worsened over time.



                                             10
       Dr. Missirian and Dr. Ayman Salem, who performed back surgeries on Akopyan,
both testified it was their opinion that all of Akopyan’s injuries were caused by the 2001
accident. They reached this conclusion because they knew of no other cause of
Akopyan’s condition in view of his claim that he had no prior injuries to the affected
parts of his body. Akopyan had told Dr. Missirian and Dr. Salem that he had no medical
problems in the past and denied any significant prior injuries or accidents. This medical
history was important to both Dr. Missirian’s and Dr. Salem’s opinions on causation and
treatment.
       Akopyan offered testimony from three physicians to support his claim that the
2001 accident caused him to develop a chronic pain condition. Dr. Mohamed Kattih, a
specialist in chronic pain and rehabilitation, testified that Akopyan developed a chronic
pain condition as a result of the accident and opined that Akopyan will be in pain and
dependent upon painkillers for the rest of his life. Dr. Kattih did not believe that
Akopyan was malingering or being untruthful about his pain.
       Dr. Lawrence Miller, a physician specializing in physical medicine and
rehabilitation, diagnosed Akopyan with an untreatable chronic pain condition that would
not improve with surgery, therapy, or pain medication. Dr. Miller testified that Akopyan
would never be employable. Dr. Miller further explained that Akopyan’s exaggeration of
his symptoms was not malingering but simply an effort to convince his doctors that he
was in pain. In his explanation, Dr. Miller criticized the use of certain neurological
testing—referred to as the “fake bad scales”—in assessing whether a patient was
malingering. He further testified that Akopyan had a conversion disorder that explained
why Akopyan believed he had such severe injuries despite not actually experiencing
serious injuries in the accident. He recommended a life care plan that included a two-
week inpatient program designed to reduce Akopyan’s dependence on pain medication
followed by outpatient programs designed to address pain management. The cost for the
inpatient program was estimated to be $59,730.
       Dr. Arthur Joseph Glaser, a clinical psychologist, testified that Akopyan suffered
from post-traumatic stress disorder. Like Dr. Miller, Dr. Glaser diagnosed Akopyan with


                                             11
a chronic pain disorder. Also like Dr. Miller, Dr. Glaser criticized the use of “fake bad”
testing to evaluate whether Akopyan was malingering.
                             Evidence Offered by Defendants
        Bear and Trailmobile presented testimony from three physician experts that
examined Akopyan. Dr. Bruce Albert, an orthopedic surgeon, examined Akopyan in
April 2003 and offered an opinion regarding the injuries attributable to the 2001 accident
and the recommended treatment for those injuries. Dr. Albert’s examination suggested
that Akopyan’s disc bulge was not symptomatic. Based upon his review of Akopyan’s
medical records and his examination of Akopyan, Dr. Albert testified that the initial
medical treatment received at the hospital, as well as the follow up evaluation with Dr.
Missirian, including the MRI’s and the knee surgeries, were reasonable. He also testified
that 30 sessions of physical therapy were reasonable following the knee surgeries and that
Akopyan’s knees should have healed within six weeks of the surgeries without further
pain.
        Dr. Daniel Rovner, a neurologist, examined Akopyan’s neurological functioning
to determine what injuries were attributable to the 2001 accident. Dr. Rovner observed
that Akopyan offered an incomplete history of his physical complaints, had a gait that
was inconsistent with a neuromuscular disease process, and was not making an effort on
the mental status exam. Dr. Rovner testified that Akopyan’s trivial head trauma and
muscle and ligament strain caused by the 2001 accident should have resolved with
conservative treatment.
        Dr. Robert Tomaszewski, a clinical neuropsychologist, also evaluated Akopyan.
His evaluation led him to conclude that Akopyan’s test results were not a valid
representation of his functioning ability and were not consistent with any known patterns
of cognitive dysfunction. For instance, Akopyan’s test results would suggest he was
incapable of driving a car, yet Akopyan was observed driving to the examination.
Akopyan failed the “fake bad scale” symptom validity tests in the mental examination.
This result led Dr. Tomaszewski to the conclusion that Akopyan was probably
malingering and over-reporting his physical symptoms. Dr. Tomaszewski testified that


                                            12
the test results were more consistent with inadequate effort and malingering—i.e.,
intentional acts by the patient—rather than a somatoform disorder that is unintentional.
                     Evidence Bearing Upon Akopyan’s Credibility
       Akopyan testified at trial that he had not been injured in a car accident before the
April 2001 accident, and he denied seeking chiropractic treatment for his neck or back as
a result of any prior accident. Further, in response to an interrogatory, Akopyan had
denied seeking compensation for personal injuries suffered in the 10-year period
preceding the 2001 accident. Defense counsel impeached Akopyan with evidence that he
had been in an accident in November 2000, that he and his mother had a lawyer at the
time who made a demand for compensation to an insurance company, and that he was
treated by a chiropractor for injuries suffered. A report prepared by chiropractor Jouleta
Grigorian established that Akopyan had been in a car accident in late 2000, that he
claimed to have suffered back and neck injuries as a result, and that he sought
chiropractic treatment for those injuries. Five months before the April 2001 accident,
Akopyan’s treating chiropractor reported that his condition remained “guarded.” In the
face of this evidence, Akopyan maintained that he had no recollection of the accident,
any injuries he might have suffered, or any treatment he may have received.
       Akopyan also denied being in a car accident after 2002, and specifically denied
being in a car accident in 2009. Akopyan recanted this testimony when he was
impeached with evidence of a police report containing his signature and establishing he
had been in an accident in 2009.
       Photographs that showed Akopyan camping and engaging in other activities were
introduced for the purpose of demonstrating that he enjoyed certain activities that he was
purportedly unable to do after the 2001 accident. Akopyan testified that a number of
photos were taken of him before the 2001 accident. He also testified that he was first
married in 2004, a fact that became relevant because he was wearing a wedding ring in
some of the photos. Consequently, the jury was able to infer that the pictures purportedly
showing him engaged in activities before the 2001 accident were, in fact, taken well after
the accident. In addition, Akopyan’s brother testified that one trial exhibit consisting of a


                                             13
camping photo was probably taken after the accident, despite Akopyan’s testimony that
he believed it had been taken before the accident.
       Akopyan claimed that he could not drive, lift items, or perform other activities
associated with everyday life. In a similar vein, one of Akopyan’s expert witnesses
testified that Akopyan was unable to drive as of 2005 and required the use of a cane.
However, at trial the defense introduced surveillance video taken in 2006 showing
Akopyan walking without a cane as well as driving. Additional surveillance video from
2009 showed Akopyan carrying his child, loading the child into his car, and driving to a
doctor’s appointment.
                                        The Verdict
       The jury returned a unanimous verdict awarding Akopyan a total of $845,938. He
received $251,832 for past lost earnings, $54,762 for past medical expenses, $59,730 for
future medical expenses, $181,614 for future lost wages and vocational rehabilitation,
$48,000 for property damage, and $250,000 for past pain and suffering. The jury did not
award any damages for future pain and suffering.
       Akopyan filed a timely notice of appeal from the judgment.
                                       DISCUSSION
1.     2005 Scheduling Order and Evidentiary Sanctions
       In response to a motion to dismiss for lack of prosecution, the trial court issued an
order in July 2005 denying the motion to dismiss and instead setting a schedule for
completion of discovery. Among other things, the court’s order directed the parties to
complete all of the depositions of Akopyan’s witnesses by October 31, 2005. After
Akopyan failed to produce certain experts for deposition, the court issued orders in
September and November 2005 precluding the experts from testifying at trial and also
preventing Akopyan from designating other experts to testify as to the issues the
precluded experts were slated to address.
       Akopyan objects to the July 2005 scheduling order as well as the evidentiary
sanctions that resulted from the application of that order. Akopyan seizes on a reference
the trial court made at a hearing in July 2005 in which it stated it was going to supersede


                                             14
the portion of the Code of Civil Procedure dealing with expert witness disclosure and
discovery because “it’s not getting done.” Based primarily upon that isolated statement,
Akopyan contends the trial court improperly superseded the Code of Civil Procedure,
terminated his right to discovery, and excluded experts who failed to appear for
deposition on dates unilaterally selected by defendants. As we explain, the court acted
within its discretion.
       The trial court’s 2005 scheduling order resulted from a discretionary motion to
dismiss for lack of prosecution. A court’s ruling on such a motion is reviewed for abuse
of discretion. (Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th 1422,
1430.) Section 583.150 provides that the statutes allowing for dismissal as a result of a
delay in prosecution do not limit or affect the court’s authority to impose other sanctions
under the court’s inherent powers or pursuant to other statutory schemes.
       It is well settled that courts have fundamental, inherent powers to control litigation
before them. (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377.) “Courts are
not powerless to formulate rules of procedure where justice demands it.” (Adamson v.
Superior Court (1980) 113 Cal.App.3d 505, 509.)
       “Misuse of the discovery process may result in the imposition of a variety of
sanctions. These include payment of costs, sanctions barring the introduction of certain
evidence, sanctions deeming that certain issues are determined against the offending
party, and sanctions terminating an action in favor of the aggrieved party. [Citations.]
Misuse of the discovery process includes . . . disobeying a court order to provide
discovery . . . and failing to meet and confer in good faith to resolve a discovery dispute
when required by statute to do so.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th
1202, 1214.) Under section 2025.450, the court has the power to impose an issue
sanction, an evidentiary sanction, or terminating sanctions for failure to obey a court
order compelling attendance at a deposition. In addition, section 2034.300,
subdivision (d) allows a court to exclude the expert opinion of an expert who is not made
available for deposition.



                                             15
       “[V]iolation of a discovery order is not a prerequisite to issue and evidentiary
sanctions when the offending party has engaged in a pattern of willful discovery
abuse . . . .” (Karlsson v. Ford Motor Co., supra, 140 Cal.App.4th at p. 1215.) As a
general matter, the purpose of discovery sanctions is to prevent abuse of the discovery
process and correct the problem rather than serve as a punishment. (Pratt v. Union
Pacific Railroad Co. (2008) 168 Cal.App.4th 165, 183.) An order imposing discovery
sanctions “will not be reversed on appeal in the absence of a manifest abuse of discretion
that exceeds the bounds of reason, resolving all evidentiary conflicts in favor of [the trial
court’s] ruling.” (Ibid.)
       In this case, the trial court employed an incremental approach to addressing the
parties’ discovery dispute. At the outset, in December 2003, the court vacated the trial
date and ordered the parties to meet and confer regarding a deposition schedule. Over a
year later, in April 2005, Bear moved to dismiss for failure to prosecute, noting that
Akopyan had failed to meet and confer as required by the court’s order. In ruling on the
motion in July 2005, the court noted it was very close to dismissing the action and had no
confidence in the parties’ ability to meet and confer. Instead of dismissing the case, the
court chose to impose a scheduling order that required Akopyan to comply with a
deposition schedule set by defendants. The court warned Akopyan that the case would be
dismissed if he failed to comply. It was only after Akopyan failed to comply with the
scheduling order that the court imposed evidentiary and issue sanctions. This sequence
of events does not suggest arbitrary or capricious action by the trial court, but instead is
evidence of a reasonable and measured effort to balance Akopyan’s right to a trial on the
merits with the defendants’ right to discovery and to proceed to trial without undue delay.
       Akopyan complains that the scheduling order required him to comply with a
deposition schedule unilaterally set by the defendants. We disagree with Akopyan’s
characterization of the order. While it is true that the court’s order directed the
defendants to set the deposition schedule at the outset, the apparent purpose of that
directive was to avoid miring the litigation in further, lengthy, and unsuccessful attempts
to meet and confer concerning a mutually acceptable deposition schedule. Nothing


                                              16
prevented Akopyan from objecting to a deposition notice or proposing alternative dates
for a particular deposition. However, instead of objecting to the notice or proposing
alternative dates, Akopyan’s counsel and the first expert scheduled for deposition, Dr.
Glaser, simply failed to appear on the scheduled date. Akopyan contends he offered
alternative dates for the deposition, but that was only after his expert failed to appear and
Bear moved to dismiss the action. Bearing in mind that Akopyan’s counsel told the trial
court he intended to abide by the court’s scheduling order at the time it was issued, and in
view of the court’s admonition that the action would be dismissed for failure to produce
witnesses noticed for deposition, Akopyan’s counsel offered no valid justification for his
failure to comply with the order.
       Further, after Akopyan’s unexplained failure to produce Dr. Glaser for deposition,
the parties sought to agree on mutually acceptable dates for the remaining depositions,
belying Akopyan’s contention that the defendants sought to unilaterally and inflexibly
dictate the deposition schedule. Akopyan’s failure to produce Dr. Boone was not the
result of an inconvenient deposition date unilaterally selected by defendants. Rather, Dr.
Boone was not deposed because Akopyan’s counsel failed to provide the defendants with
available deposition dates for Dr. Boone.
       Akopyan claims the court’s scheduling order is invalid because it supersedes the
Code of Civil Procedure. In support of his argument, Akopyan places heavy reliance on
Hernandez v. Superior Court (2003) 112 Cal.App.4th 285 (Hernandez). The case is
inapposite. In Hernandez, the court directed the plaintiffs to unilaterally disclose their
experts and expert opinions to the defendants, ostensibly to provide the parties with
enough information to determine if summary judgment motions were warranted. (Id. at
p. 296.) The trial court acknowledged that a simultaneous exchange of experts was
required by statute but found that a nonsimultaneous exchange would facilitate resolution
by summary judgment. (Ibid.) The Court of Appeal reversed the trial court’s order,
reasoning that the relevant statute “provides for an earlier simultaneous, mutual
exchange, but it does not permit a unilateral exchange.” (Id. at p. 297.) While noting that
courts possess inherent power to adopt suitable procedures, the Hernandez court


                                             17
explained that courts do not have power to adopt procedures directly in conflict with a
statute. (Id. at pp. 296–297.)
       Here, the parties simultaneously exchanged expert disclosures in November 2003.
Unlike in Hernandez, the trial court did not order Akopyan to unilaterally disclose the
identity of his experts. Instead, the court simply directed the order in which expert
depositions were to take place in light of longstanding and intractable difficulties in
scheduling and completing expert discovery. Nothing in Hernandez precludes a court
from ordering one party’s expert depositions to proceed first. Nor has Akopyan
explained how such a scheduling order violates any specific directive contained in the
Code of Civil Procedure. At most, he claims the Code of Civil Procedure “envisions”
that parties will complete all of their percipient witness discovery before expert witness
discovery is conducted, and he complains the court set an arbitrary deadline for
completing discovery of his expert witnesses. Despite his claim that the court’s
scheduling order somehow violates the spirit of the Code of Civil Procedure, he has
failed to specify the statute that was purportedly violated by the court’s order or explain
how the court exceeded its inherent authority to control the proceedings before it.
       Further, it bears mention that Akopyan does not claim to have suffered any
particular prejudice as a result of having to present his expert witnesses for deposition
first before conducting depositions of the defense experts. His primary complaint is that
the court issued exclusionary orders precluding Dr. Glaser and Dr. Boone from testifying
at trial. However, the exclusionary orders have little to do with whose experts were
deposed first. The orders were the product of misconduct by Akopyan’s counsel and his
failure to make the witnesses available for deposition.
       We conclude the court acted within its discretion in issuing the 2005 scheduling
order and in imposing evidentiary sanctions after Akopyan violated the court’s order.
Although the court was inclined to dismiss the case in 2005, it chose instead to control
discovery and keep a tighter rein on Akopyan’s counsel in light of the extreme delay in
completing expert discovery. The evidentiary sanctions were an appropriate response to
Akopyan’s repeated violations of the court’s orders and were directly tailored to remedy


                                             18
the harm caused by the actions of Akopyan’s counsel. The evidentiary sanctions
permitted Akopyan to proceed with his case on the merits with all but two of his many
designated experts. The sanctions also ensured that the defendants would not be
surprised or unprepared at trial with evidence that they or their experts had not been
permitted to explore in discovery.
2.     Purported Failure to Reopen Discovery After Mistrials
       Akopyan next contends the trial court erred in preventing him from conducting
discovery after the court declared a mistrial on two occasions. As a consequence, he
claims he was unfairly surprised at trial by the existence of surveillance video as well as a
chiropractic report predating the 2001 accident. He also argues that he should have been
allowed to augment his expert witness list following the mistrials to designate experts
who had previously been precluded from testifying as a result of evidentiary sanctions
issued in 2005. As set forth below, we reject Akopyan’s contentions.
       a.     Governing Law
       In Fairmont, supra, 22 Cal.4th at p. 247, our Supreme Court held that discovery
reopens following a mistrial, an order granting a new trial, or a remand for a new trial
after a judgment is reversed on appeal. In such a case, the new discovery cutoff is
calculated from the date initially set for the new trial. (Ibid.) The court reasoned that
requiring parties to seek leave to take additional discovery in the case of a new trial
would not be consistent with the purposes of the Discovery Act. (Id. at pp. 252–253.)
       The reopening of discovery extends to the designation of experts. (See Guzman v.
Superior Court (1993) 19 Cal.App.4th 705, 706.) In Beverly Hospital v. Superior Court
(1993) 19 Cal.App.4th 1289, 1291, the court held that a mistrial restarts the time
limitations on discovery and permits the parties to file new demands for the exchange of
expert witness information. Likewise, in Hirano v. Hirano (2007) 158 Cal.App.4th 1, 9,
the court held that “[t]he rule that discovery is automatically reopened following reversal
on appeal is particularly applicable to expert witness discovery.” The court explained
that parties may be forced to change expert witnesses due to a prior witness’s
unavailability or to respond to additional evidence raised in the new trial. (Ibid.)


                                             19
       b.     Reopening of Discovery After Mistrials
       Akopyan asserts that the court ignored Fairmont and refused to reopen discovery
following the two mistrials. He argues that he was unfairly surprised at trial by
surveillance video and a chiropractic report because he was denied the opportunity to
conduct further discovery. Akopyan’s contention is wrong as a factual matter.
       The trial court recited the following history in an order denying Akopyan’s new
trial motion: “Discovery reopened for several periods following the initial surveillance
[of Akopyan] in 2006. Although the court erroneously closed discovery following the
March 2007 mistrial, that error was corrected in orders issued [May] 18 and June 14,
200[7]. Discovery was reopened from March 18 to the thirtieth day preceding the initial
trial date (October 15, 2007) following the March mistrial (CCP 2024.020(a))[.]
Discovery reopened for a second time after the April 2008 mistrial.”
       Our review of the record confirms the trial court’s recitation of the relevant
procedural history. In its ruling on Akopyan’s motion to augment his expert witness list
after the first mistrial, the trial court specifically acknowledged that discovery reopens
following the declaration of a mistrial. Indeed, in its June 2007 order, the court noted
that, “[w]ith the reopening of discovery” it would revisit its earlier orders precluding
certain witnesses from testifying at trial. Further, the court allowed Akopyan to designate
five new experts and later permitted Akopyan to add additional experts. The court would
not have permitted Akopyan to designate new experts unless it concluded that discovery
had been reopened.
       Akopyan focuses on the court’s ruling that it would “continue to enforce all
discovery abuse sanctions and orders previously made in this matter.” He seems to
interpret this ruling to mean that the court intended to enforce all orders previously
issued, including orders closing discovery. That is an erroneous reading of the order.
The plain import of the court’s order is that the court intended to enforce all orders and
sanctions arising out of discovery abuses. Consequently, the court made clear that it
would not permit Akopyan to designate experts to testify as to the issues slated to be
addressed by experts precluded from testifying as a result of prior evidentiary sanctions.


                                             20
The court otherwise acknowledged that discovery had reopened and indicated so in its
order. Akopyan points out that the court stated in a September 2007 order that discovery
was closed with the exception of certain expert discovery, but that order simply reflects
that discovery closed again before the October 2007 trial date following the first mistrial.
The order does not suggest that discovery had remained closed following the first
mistrial. Indeed, in an in limine order issued just days earlier, the court stated that,
following the first mistrial, “[d]iscovery was reopened and all discovery response and
cut-off dates [were] determined with reference to that new initial trial date.”
       According to Akopyan, the court’s limited reopening of discovery at Bear’s
request in July 2009 confirmed that discovery remained closed before that date.
Discovery was closed at the time, but not because the trial court refused to give effect to
the holding in Fairmont. Discovery was reopened after the second mistrial in 2008 but
closed again before the January 2009 trial on liability issues. At the time Bear sought a
limited reopening of discovery in June 2009, the parties were in the middle of a
bifurcated trial with damages issues yet to be tried. We are aware of no authority
suggesting that discovery automatically reopens following the first phase of a bifurcated
trial. Consequently, the fact that Bear sought to reopen discovery on a limited basis
between the phases of a bifurcated trial has no bearing upon whether discovery was
automatically reopened during the periods following the mistrials in 2007 and 2008.
       Akopyan had the right to pursue further discovery following the mistrials in 2007
and 2008. He simply chose not to do so. Also, like Bear, he could have sought to reopen
discovery following the liability phase of trial in 2009. Again, there is nothing in the
record to suggest he sought such relief. In his opening brief on appeal, he claims the
court made clear at a hearing in July 2009 that it would not allow him to reopen
discovery. Because the transcript of that hearing was not provided to this court, the
record contains no support for Akopyan’s assertion.6


       6
        In his reply brief, Akopyan conceded that the hearing transcript is not part of the
record on appeal but claimed that he would order “a copy of the July 5, 2011 [sic]

                                              21
          Consequently, Akopyan’s lack of diligence in pursuing discovery precludes any
argument that he was unfairly surprised at trial by surveillance video and a chiropractor’s
report.
          c.     Effect of Mistrials on Evidentiary Sanctions
          Throughout the duration of the case below, the trial court maintained in place the
evidentiary sanctions issued in September and November 2005. As a consequence,
Akopyan was precluded from calling Dr. Glaser and Dr. Boone as expert witnesses at
trial, and he was further precluded from replacing them with other experts in their
designated fields.
          Akopyan contends that he had an “absolute right” to designate new experts
following each mistrial under the authority of Fairmont and cases specifically addressing
the automatic reopening of expert discovery. He further argues that the evidentiary
sanction orders were rendered irrelevant and that the court’s continued enforcement of
the orders amounted to punishment instead of a legitimate effort to remedy discovery
abuse. The issue presented is whether the reopening of discovery following a mistrial
automatically erases the effect of evidentiary sanctions issued before a mistrial.
          The authority relied upon by Akopyan does not support a conclusion that
evidentiary or other sanctions issued for discovery abuses have no further effect
following the declaration of a mistrial. The purpose of the rule automatically reopening
discovery in the case of a new trial is to promote the purposes of the Discovery Act—
“i.e., promoting discovery by permitting parties to fully inform themselves of the facts,
expediting efficient trial preparation, and reducing time-consuming and costly litigation
over discovery disputes.” (Fairmont, supra, 22 Cal.4th at pp. 252–253.) “In the typical
case, when a new trial is required, the nature and scope of the issues will have been
affected, requiring substantial investigation of new points or issues that were not
adequately addressed in the original proceedings.” (Id. at p. 253.) Thus, reopening



Transcript of Proceedings” and seek to augment the record on appeal with the transcript.
No such transcript has been provided to this court.


                                               22
discovery allows the parties to receive updated information and eliminate gaps in the
evidence that may have prompted the need for a new trial in the first place. (Ibid.)
       The justification for reopening discovery in the case of a new trial does not
support erasing evidentiary sanctions for past discovery abuses. A party may have a
legitimate need to get updated or new information following a mistrial, but that party
should not be able to pursue discovery previously denied by the court simply because a
new trial was ordered. The effect of a mistrial or order granting a new trial is to place the
parties in the same position as if the case had never been tried. (See Saakyan v. Modern
Auto, Inc. (2002) 103 Cal.App.4th 383, 390.) A rule that evidentiary sanctions are
automatically expunged following a mistrial or order granting a new trial would place a
sanctioned party in a better position than the party was in before the case was tried.
       In Fairmont, the Supreme Court explained that the reopening of discovery in the
case of a new trial does not allow the parties to start with a fresh slate unencumbered by
the past history of discovery in the case. (Fairmont, supra, 22 Cal.4th at p. 254.)
Specifically, the court stated that limits on deposing natural persons only once apply
“during the run of the litigation,” and it confirmed that numerical limits continue to apply
to the number of interrogatories and requests for admission served on parties. (Ibid.)
Thus, the court recognized that discovery is not unlimited after a new trial is ordered but
is instead seen as a continuation of discovery previously conducted in the case.
       As relevant here, the Fairmont court stated that it could discern no reason not to
reopen discovery after a new trial is ordered “[i]n the absence of any abuse of the
discovery procedures.” (Fairmont, supra, 22 Cal.4th at p. 255, italics added.) The
court’s qualification acknowledges that the automatic reopening of discovery in the case
of a new trial does not excuse past discovery abuses or permit the parties to abuse the
process once discovery is reopened. Further, in adopting the rule that discovery is
reopened in the event of a new trial, the court dismissed the concern that a party would
generate grounds for a mistrial or new trial “merely in order to extend the time for
discovery.” (Id. at p. 252.) The concern about creating grounds for a mistrial is much
greater in the case of a party that is the subject of evidentiary sanctions. Unlike a party


                                             23
who may simply want additional time to conduct discovery—a motivation the Fairmont
court deemed too trivial to motivate a party to create grounds for a new trial—a party
subject to evidentiary sanctions would have sufficient motivation to generate a mistrial if
that party believed the mistrial would have the effect of erasing the sanctions.
       We agree with the trial court’s conclusion that the reopening of discovery
following a mistrial or other order granting a new trial does not permit discovery to
resume unrestricted by previous orders made to sanction or prevent discovery abuse. A
rule establishing that a mistrial allows a party to conduct discovery unfettered by past
discovery and evidentiary sanctions would reward discovery abuse and encourage parties
to generate grounds for mistrials or new trials simply in order to avoid the effect of the
sanctions.
3.     Admission of Chiropractor’s Report
       At trial, Akopyan denied being in a motor vehicle accident in November 2000.
Bear’s counsel showed Akopyan a demand letter prepared by an attorney as well as a
chiropractor’s report indicating that Akopyan had been in a motor vehicle accident in
November 2000 and had received chiropractic treatment for his injuries. Akopyan still
claimed he had no recollection of the earlier accident. After Bear’s counsel sought to
move the chiropractic report into evidence as a prior inconsistent statement or a party
admission, Akopyan’s counsel objected to the report as inadmissible hearsay. The court
ultimately admitted the report into evidence under the business records exception to the
hearsay rule after receiving a declaration from the treating chiropractor. (Evid. Code,
§ 1271.)
       Akopyan contends on appeal that the trial court erred in admitting the
chiropractor’s report into evidence because a sufficient foundation had not been laid to
establish that the report fell under the business records exception to the hearsay rule. He
argues that an insurance company representative who was called to testify concerning the
documents shown to Akopyan was not competent to testify as to their mode of
preparation.



                                             24
       The argument rests upon an inaccurate presentation of the record. The court
specifically rejected the claim that an insurance company representative’s declaration was
sufficient to establish a foundation for admitting the report as a business record. Instead,
the court admitted the report into evidence based upon a declaration by the treating
chiropractor. The chiropractor, Jouleta Grigorian, stated in her declaration that she
prepared the report in the regular course of her business. She further stated that the report
was prepared at or near the time of the events recorded in the document. She identified
her signature on the report as well as that of another treating chiropractor, and she
confirmed that the report detailed the examinations and treatment of Akopyan.
       The declaration submitted by the chiropractor was sufficient to establish the report
as a business record admissible under Evidence Code section 1271. (Cf. Cooley v.
Superior Court (2006) 140 Cal.App.4th 1039, 1045 [nonparty business record may be
admitted through declaration instead of live testimony]); see also Evid. Code, § 1561,
subds. (a)(1)–(a)(5).) In any event, the chiropractor testified at trial after Akopyan’s
counsel subpoenaed her. Her testimony confirmed that a sufficient foundation existed for
admitting the chiropractic report as a business record under Evidence Code section 1271.
4.     Failure to Instruct with CACI No. 3929
       Akopyan contends the court erred in refusing to instruct the jury with CACI
No. 3929, which generally provides that a defendant who is legally responsible for a
plaintiff’s injuries is also responsible for any additional harm caused by others that
negligently treat the injuries.7 According to Akopyan, because defendants based their
defense largely on the argument that certain treatments and therapies were excessive and
unnecessary, he was entitled to have the jury instructed that the defendants may be liable
for those costs as an additional harm caused by the negligent acts of his treating
physicians. Akopyan’s contention lacks merit.

       7
         CACI No. 3929 reads: “If you decide that [name of defendant] is legally
responsible for [name of plaintiff]’s harm, [he/she/it] is also responsible for any
additional harm resulting from the acts of others, in providing medical treatment or other
aid that [name of plaintiff]’s injury reasonably required, even if those acts were
negligently performed.”

                                             25
        “A party is entitled upon request to correct, nonargumentative instructions on
every theory of the case advanced by him which is supported by substantial evidence.”
(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572, italics added.) CACI
No. 3929 may appropriately be given when there is evidence that a further injury resulted
from negligently performed subsequent medical treatment or from a risk inherent in the
necessary medical care. (See Henry v. Superior Court (2008) 160 Cal.App.4th 440, 452,
fn. 6.) The important factor in determining whether subsequent negligent medical
treatment is attributable to the defendant is “ ‘that the medical treatment is closely and
reasonably associated with the immediate consequences of the defendant’s act and forms
a normal part of its aftermath.’ ” (Id. at pp. 451–452.)
        In this case, Akopyan did not claim at trial that his doctors provided incorrect or
inadequate medical treatment. To the contrary, he argued that all of the treatment he
received was necessary and proper. Even now, he does not suggest that his treating
physicians committed malpractice or provided negligent medical care. He cites no
evidence, much less substantial evidence, that the doctors provided negligent medical
care.
        By its terms, CACI No. 3929 only applies to negligently rendered aid that is
“reasonably required” to treat injuries caused by a defendant’s conduct. Here, the
defendants argued that many of the treatments Akopyan received were not reasonably
required or were unrelated to injuries attributable to the 2001 accident. They did not
argue that any medical provider was negligent in providing medical care reasonably
required to treat injuries suffered in the 2001 accident.
        Because Akopyan did not advance the theory that he was harmed by the negligent
conduct of his own doctors, and because there was no substantial evidence to support that
theory, the court did not err in refusing to instruct the jury with CACI No. 3929.
5.      Failure to Award Damages for Future Pain and Suffering
        In its special verdict, the jury found that Akopyan will be reasonably certain to
need medical care in the future as a result of injuries suffered in the 2001 accident. It
awarded damages for future medical expenses of $59,730 and noted parenthetically that


                                              26
this amount was for a “pain management program.” And, although the jury awarded
damages of $250,000 for past physical pain and suffering, it awarded no damages for
future pain and suffering. Akopyan claims the verdict is inconsistent and void as a matter
of law because the jury failed to provide any measure of damages for future pain and
suffering despite concluding that he will be reasonably certain to need medical care in the
future as a result of the 2001 accident.
        “A special verdict is inconsistent if there is no possibility of reconciling its
findings with each other. [Citation.] If a verdict appears inconsistent, a party adversely
affected should request clarification, and the court should send the jury out again to
resolve the inconsistency. [Citations.] If no party requests clarification or an
inconsistency remains after the jury returns, the trial court must interpret the verdict in
light of the jury instructions and the evidence and attempt to resolve the inconsistency.”
(Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357–358.) “On
appeal, we review a special verdict de novo to determine whether its findings are
inconsistent.” (Id. at p. 358.) We will not reverse unless a verdict is “hopelessly
ambiguous.” (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452,
457.)
        Here, Akopyan waived any claim to challenge the supposedly inconsistent verdict
by failing to request clarification before the jury was excused. “ ‘It is well established by
numerous authorities that when a verdict is not in proper form and the jury is not required
to clarify it, any error in said verdict is waived by the party relying thereon who at the
time of its rendition failed to make any request that its informality or uncertainty be
corrected.’ ” (Bisnett v. Hollis (1962) 207 Cal.App.2d 142, 150.)
        Even if Akopyan had properly preserved the issue for appeal, we do not agree that
the special verdict is necessarily inconsistent. At the time the jury reached its verdict,
nine years had passed since the 2001 accident. The jury awarded $250,000 for past pain
and suffering. The jury heard evidence that Akopyan’s injuries should have resolved
following his knee surgeries and that he should not have developed a chronic pain
condition as a result of arthroscopic knee surgeries. As the trial court noted in ruling on a


                                               27
motion for new trial, the jury’s award for past medical expenses supported an inference
that the jury rejected Akopyan’s claims that his back and neck injuries were attributable
to the 2001 accident. This inference is supported by the fact that the jury awarded past
medical expenses in the precise amount suggested by defendants, an amount that was
generally limited to the expense of the initial medical treatment in the emergency room,
the costs associated with treating and surgically repairing Akopyan’s knees, and the costs
incurred to perform necessary diagnostic tests. The amount of damages awarded for
future medical expenses—$59,730—corresponds exactly to the amount that Akopyan’s
expert, Dr. Miller, estimated would be required for a two-week program designed to
reduce Akopyan’s dependence on pain medication. Indeed, the jury specifically noted
the amount was for a “pain management program.” Consequently, a reasonable reading
of the special verdict is that the only medical care required in the future related to
Akopyan’s addiction to pain medication. The special verdict also supports the inference
that the jury believed Akopyan had endured pain and suffering in the past as a result of
the injuries to his knees but that those injuries required no further medical treatment,
aside from therapy to resolve Akopyan’s addiction to pain medication. As noted, the jury
impliedly rejected Akopyan’s claims that his back and neck injuries were attributable to
the 2001 accident, thereby ruling out the possibility that he should be awarded pain and
suffering damages associated with those injuries. Under the circumstances, it was not
inconsistent for the jury to award nothing to Akopyan for future pain and suffering
despite its conclusion that he would require a drug rehabilitation program in the future.
The jury could have reasonably concluded that Akopyan would not endure pain and
suffering in the future attributable to the 2001 accident, or it could have reasonably
concluded that the pain management program would fully resolve any such pain and
suffering.
       Further, insofar as Akopyan contends the damage award is insufficient as a matter
of law, we disagree. We will generally not disturb a jury’s award of damages as
compensation for personal injuries unless an abuse of discretion appears, or unless the
award is inadequate based upon a fair consideration of the evidence. (Haskins v. Holmes


                                              28
(1967) 252 Cal.App.2d 580, 584.) There is no guarantee that an injured plaintiff is
entitled to general damages for pain and suffering. (Cf. Miller v. San Diego Gas & Elec.
Co. (1963) 212 Cal.App.2d 555, 558.) A verdict limited to the amount of medical
expenses incurred or for a lesser amount is not necessarily inadequate as a matter of law.
(Ibid.) In Miller, the court found that an award in the amount of medical bills alone was
not inadequate because there was a substantial conflict in the evidence presented to the
jury as to whether the plaintiff received any substantial injury and whether the medical
bills were necessary as a result of that injury. (Id. at pp. 560–561.) Likewise, in this case
there was conflicting evidence as to whether Akopyan suffered substantial injury or pain
as a result of the 2001 accident. In view of the conflict in the evidence, the jury was
entitled to award Akopyan the cost of his future medical care but decline to award
general damages for future pain and suffering.
       Akopyan’s reliance on Bisnett v. Hollis, supra, 207 Cal.App.2d 142 is unavailing.
There, the jury found the defendants liable for negligence but awarded no damages to the
plaintiff. (Id. at p. 144.) The Court of Appeal reversed, noting that there was no real
attack on the plaintiff’s evidence that she was injured. (Id. at p. 147.) Although the court
reasoned that the jury might have questioned whether the entire amount of plaintiff’s
medical treatment was necessary, the jury could not reasonably award nothing. (Id. at
p. 148.) Here, by contrast, the jury did not award nothing. It awarded special damages
for past and future medical costs and general damages for past pain and suffering. It
simply declined to award damages for future pain and suffering, a result that does not
compel a conclusion the damages were inadequate as a matter of law. (See Miller v. San
Diego Gas & Elec. Co., supra, 212 Cal.App.2d at p. 558.)
       It was entirely within the purview of the jury to adopt Akopyan’s position, the
defendants’ position, or to find some middle ground. The verdict establishes that the jury
found middle ground by awarding special damages to undergo pain management
treatment and declining to award general damages for future pain and suffering. The
verdict is not inconsistent and the damages are not insufficient as a matter of law.



                                             29
6.     Purported Misconduct During Closing Argument
       In closing argument, Bear’s counsel argued to the jury that it had “the power to
send a message to everyone involved on the plaintiff’s side of this case that there are
some real problems with the legal system . . . .” Counsel further argued that the case
should be judged by the standards of the community in Mendocino County, not North
Hollywood, where Akopyan resided. Counsel stated: “[T]he law says that we can judge
this case by the standards of our community, Mendocino County, you know, not North
Hollywood. You know, maybe in North Hollywood it’s reasonable for a man who
walked out of the emergency room on the day of the accident with three stitches to get a
personal masseuse and a housekeeper for the rest of his life, but we know that’s not
reasonable here. Maybe it’s reasonable in North Hollywood for a man to lie on the stand
about an important thing like a preexisting accident and still recover some money or a lot
of money. We know that’s not reasonable here. Maybe it’s reasonable in North
Hollywood for a man to admittedly exaggerate or feign his symptoms due to a character
problem and still recover big bucks, but you know, not in my town.”
       Akopyan contends that defense counsel’s statements in closing argument
constituted misconduct that justify granting a new trial. We disagree.
       As an initial matter, Akopyan waived the claim by failing to interpose an objection
during closing argument. (See Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d
757, 797.) We disagree with Akopyan’s suggestion that an objection would have been
futile. If there was anything truly objectionable in defense counsel’s argument, an
objection would have prevented counsel from proceeding with the argument and would
have allowed the court to give a curative admonition to the jury, thereby eliminating or
lessening the supposedly prejudicial effect of the argument.
       In any event, we are not persuaded that the challenged statements made by defense
counsel exceeded the permissible scope of argument. “In conducting closing argument,
attorneys for both sides have wide latitude to discuss the case.” (Cassim v. Allstate Ins.
Co. (2004) 33 Cal.4th 780, 795.) Counsel has a right to discuss the merits of the case and
to fully state counsel’s views as to what the evidence shows. (Ibid.) Here, the thrust of


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defense counsel’s argument was that Akopyan was exaggerating his symptoms and had
lied on the stand. Counsel also complained that Akopyan’s doctors had overtreated him
and should not be rewarded by the legal system for their actions. These arguments
constituted permissible commentary on the evidence presented to the jury.
       In the trial court, Akopyan sought a new trial on the ground that defense engaged
in misconduct during closing argument. The court denied the motion, reasoning that any
references to Akopyan’s place of residence in North Hollywood related to whether the
treatment and therapy that Akopyan received was reasonable. The court also noted that it
could not recall any plea or suggestion that “the jury should consider the place of
plaintiff’s residence as a factor in awarding damages.” We generally defer to the ruling
of the trial court on a new trial motion because that court is better positioned to determine
whether the verdict resulted from the asserted misconduct of counsel. (Du Jardin v. City
of Oxnard (1995) 38 Cal.App.4th 174, 180–181.) Here, there is no basis to disturb the
lower court’s ruling or to conclude that any purported misconduct merits reversal.
7.     Claim that Trailmobile Was a Suspended Corporation
       As a final matter, Akopyan contends the judgment in favor of Trailmobile should
be reversed because Trailmobile was a suspended corporation that had no right to defend
itself. Akopyan relies upon the principle that a corporation may not prosecute or defend
an action during the period of time that it is suspended for failure to pay taxes. (See Grell
v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1306.)
       Akopyan’s claim fails because he cites no evidence to support his claim that
Trailmobile’s corporate status was suspended for failing to pay taxes. “It is the duty of
[appellant] to refer the reviewing court to the portion of the record which supports
appellant’s contentions on appeal. [Citation.]” (Guthrey v. State of California (1998)
63 Cal.App.4th 1108, 1115.) When a party fails to support its factual assertions with
references to the record on appeal, we may deem the contention forfeited. (Dietz v.
Meisenheimer v. Herron (2009) 177 Cal.App.4th 771, 800.) Further, according to
Trailmobile, there is no support in the record on appeal for Akopyan’s claim. Because
Akopyan did not respond to Trailmobile’s contention in his reply brief on appeal, we are


                                             31
left to assume that there is no factual support in the record for the claim that
Trailmobile’s corporate status was suspended. It is a fundamental rule of appellate
procedure that a party must affirmatively demonstrate error with an adequate record.
(Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.) Because there is no support in
the record for Akopyan’s claim, we reject it.
                                        DISPOSITION
       The judgment is affirmed. Defendants shall be entitled to recover their costs on
appeal.




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                                 _________________________
                                 McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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