Filed 9/18/14 Soto v. Knight Transporation CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



CONRADO SOTO,

         Plaintiff and Appellant,                                        E056536

v.                                                                       (Super.Ct.No. RIC530528)

KNIGHT TRANSPORTATION et al.,                                            OPINION

         Defendants and Appellants.


         APPEAL from the Superior Court of Riverside County. Gloria Trask, Judge.

Affirmed.

         The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiff and Appellant.

         Ghormley & Associates, Scott L. Ghormley; Watkins, Blakely & Torgerson and

Noel K. Torgerson for Defendants and Respondents.

                                                             I

                                                 INTRODUCTION

         This action arises from a traffic collision at around midnight, on the Interstate 10

highway (I-10). One of Knight Transportation, Inc.’s tractor-trailer (big rig) trucks

                                                             1
rearended a white pickup truck plaintiff Conrado Soto (Soto) was towing in the slow

lane, up a hill. Soto appeals from judgment entered following nonsuit in favor of

defendants Knight Transportation, Inc. and its driver, Felipe Noriega (collectively,

Knight). Soto contends the trial court erred in precluding his experts, including treating

physicians, from testifying, resulting in nonsuit.

       We conclude the trial court did not abuse its discretion in excluding Soto’s experts

from testifying on the ground Soto failed to serve a timely designation of expert

witnesses. Although the trial court erred in assuming Soto’s treating physicians were

barred from providing nonexpert percipient witness testimony, such error was harmless.

The judgment is therefore affirmed.

                                              II

                   FACTUAL AND PROCEDURAL BACKGROUND

       A little after midnight, on September 5, 2008, Soto was involved in a motor

vehicle accident on the I-10, in the number four lane. At the time, Soto was driving a

black Toyota pickup truck, which was towing a white pickup truck up a long uphill

grade. The bed of the black pickup was fully laden with auto parts, tools, a walker, and

crutches.

       In June 2009, Soto filed a lawsuit against Knight, alleging Soto suffered personal

injuries and property damages caused by the truck accident. During a bench trial in April

2012, Officer Maciborski testified he reported to the accident scene shortly after the

accident. He observed that Soto’s two pickup trucks had a “jury-rigged” system of

“taillights that Mr. Soto had run from the taillight sections of the black pickup truck over

                                              2
the cab of the white pickup truck and somehow was connected to the tail of the white

pickup truck lights.” It was disputed whether the taillight system was working at the time

of the collision. The driver of the big rig indicated he did not observe any taillights.

       Officer Maciborski testified that he determined from his investigation, which

included interviewing Soto in Spanish, that the accident occurred in the number four lane,

when the big rig rear-ended the white pickup, causing both pickup trucks to spin out of

control. There was a passenger in the front seat of the pickup truck. The passenger was

not interviewed and did not testify at the trial. Soto told Maciborski his black pickup

truck was travelling at approximately 50 miles per hour, towing the white pickup. The

driver of the big rig said he was traveling about 55 miles per hour.

       Maciborski testified he asked Soto in Spanish if he was injured and whether he

had any automobile liability insurance. Soto told Maciborski he was not injured and had

no complaints of pain. Maciborski stated in his accident report that no parties were

injured. Soto did not produce any evidence of automobile liability insurance.

Maciborski did not cite anyone involved in the accident for any violations or wrongdoing

in the accident. Shortly before trial, it was determined Soto had no automobile liability

insurance and therefore could not recover any general or noneconomic damages. He

could only recover his medical expenses.

       Soto testified that, before the truck accident, he was fine. He had no pain,

problems, or difficulty with his right hip or leg, and was able to run without any

limitations or restrictions. About two days after the accident, he started feeling pain in

his neck, back, waist, low back, shoulders, and right hip. The pain got progressively

                                              3
worse. Soto believed his right hip had been injured in the truck accident. Four days after

the accident, an orthopedic surgeon recommended surgery. A few months later, Soto

went to another orthopedic surgeon who also recommended surgery. Dr. Penenberg

performed Soto’s hip surgery at Cedars-Sinai Hospital in May 2009. Soto had a second

surgery at Olive View Medical Center to drain fluid from his abdomen.

       Soto further testified that the day after the accident, a stranger named “Carlos”

contacted Soto and said he represented attorney Eric Douglas Johnson and persuaded

Soto to sign an agreement retaining Johnson as Soto’s attorney. Carlos drove Soto to his

doctor appointments and interpreted for Soto. Carlos selected Soto’s treating physicians.

After Soto was released from the hospital, he stayed with his nephew. Healthcare

workers cared for Soto during the day. Soto used a wheelchair for about a month and

then used crutches. Soto claimed that, after the truck accident, he was disabled. He had

to use a cane every day, whenever he walked.

       After all of Soto’s available witnesses testified, Soto’s attorney, George

Mgdesyan, requested the trial court to continue the trial to allow an additional third party

witness, Mr. Alvarado, to testify. Because the witness had not been subpoenaed and was

not available, the trial court denied a continuance. Mgdesyan moved for a mistrial on the

ground the trial court had precluded Soto from presenting crucial witnesses, including his

experts and treating physicians. The trial court continued the matter and permitted

Mgdesyan to submit supplemental briefing on the issue of excluding testimony of treating

physicians.



                                             4
       After reviewing the parties’ written briefs and cited case law, and hearing oral

argument, the court ruled that Soto’s treating physicians could not testify as either experts

or laywitnesses because Soto had not timely served an expert designation. The trial court

denied Soto’s motion for mistrial and granted Knight’s motion for nonsuit under Code of

Civil Procedure section 581, subdivision (c). 1 The trial court thereafter entered judgment

in favor of Knight and against Soto.

                                                 III

                     EXCLUSION OF EXPERT WITNESS TESTIMONY

       Soto contends the trial court erred in preventing Soto from introducing any expert

witness testimony at trial. We conclude the trial court did not abuse its discretion by

denying a continuance of trial to allow Soto’s experts to be deposed, denying Soto’s

motion to submit a tardy expert designation, or granting Knight’s motion in limine to

exclude Soto’s experts.

A. Procedural Background

       In February 2012, Knight served a request for exchange of expert witnesses. The

parties’ expert designations were due on March 1, 2012. Knight timely served its expert

designation.

       In March 2012, Soto served notices of taking depositions of Knight’s experts. On

April 2, 2012, Knight objected to the deposition notices on the grounds they were late

and sent to Knight’s attorney’s wrong address on Von Karman Avenue, which had


       1Unless otherwise noted, all statutory references are to the Code of Civil
Procedure.
                                             5
changed in October 2011. Knight’s attorney reminded Soto’s attorney of his new address

on MacArthur Boulevard.

       On April 10, 2012, Knight served motions in limine, which included motion in

limine No. 2, seeking to exclude testimony of any health care professional or other expert

provided on behalf of Soto, on the ground Soto had not served an expert designation. It

was not until a discovery motion hearing on April 19, 2012, the day before trial, that

Soto’s attorney advised the court and Knight’s attorney that a designation had been

served. Knight’s attorney, Scott L. Ghormley, advised the court he had not received the

expert designation and requested a copy faxed to his office.

       On April 19, 2012, after the discovery hearing, Ghormley received Soto’s faxed

expert designation. Attached to the expert designation was a proof of service, which

stated the document was sent by mail on March 1, 2012, to Ghormley’s office at the new

MacArthur address. The proof of service for the expert designation was signed by the

same person who signed the April 2012 proof of service for the deposition notices.

Included with the faxed expert designation was a photocopy of an envelope addressed to

Ghormley, containing a metered postmark dated March 1, 2012, showing $8.95 in

postage, which was far in excess of the $2.30 postage amount required.

       On April 20, 2012, when the parties appeared in court to answer ready for trial,

Ghormley advised the trial judge that Soto had not provided a timely expert designation.

Attorney Robert Bazikyan, appearing on behalf of Soto, argued Soto had served a timely

expert designation, as established by the expert designation proof of service and copy of

the envelope. Ghormley argued Soto delayed providing his expert designation until April

                                             6
19, 2012. Therefore it was untimely. The trial court stated that the judge trying the case

should hear the motion to exclude Soto’s witnesses.

       The case was assigned to Judge Trask for trial. Judge Trask heard Knight’s

motion to exclude Soto’s expert witnesses that same day, April 20, 2012. During the

hearing, it was conceded Soto was not entitled to general damages because Soto did not

have automobile liability insurance at the time of the truck accident and therefore the

bench trial would be limited to Soto’s medical damages claim. Ghormley advised the

court he did not receive Soto’s expert designation until April 19, 2012, and therefore

Soto’s experts should be excluded. Ghormley noted that Soto’s attorneys’ failure to serve

a timely expert designation was consistent with their pattern of behavior of failing to

serve and file documents or filing them late. In opposition, Bazikyan argued there was

no evidence refuting that Soto’s attorneys timely served an expert designation. Bazikyan

further agreed to produce Soto’s experts for deposition.

       The trial court noted that Soto’s attorneys’ history of dilatory, noncompliant

conduct was inconsistent with a finding of timely exchange of expert witness

designations. Soto’s attorneys did not even respond to Knight’s April 10, 2012 motion to

exclude Soto’s experts. The court tentatively ordered Soto’s experts precluded from

testifying and continued the hearing to allow additional briefing on the issue.

       On April 23, 2012, Soto filed a motion to submit a tardy expert designation, to be

heard on April 23, along with Knight’s motion in limine to exclude Soto’s experts. Also

on April 23, 2012, Knight filed a supplemental brief in support of Knight’s motion in

limine to exclude expert testimony. Knight asserted that a reasonable inference could be

                                             7
made that Soto’s attorney did not timely serve a designation of expert witnesses and,

therefore, Soto was precluded from introducing retained expert testimony, as well as

testimony by nonretained treating physicians. Soto filed opposition to Knight’s motion to

exclude Soto’s experts. Soto argued his attorney’s secretary, Elizabeth Hatamian, mailed

the expert designation on March 1, 2012, as reflected by the proof of service and copy of

the envelope postmarked March 1, 2012.

       During the motion hearing on April 23, 2012, Mgdesyan explained that he would

be trying the case and had hired Bazikyan to do the discovery, after his law partner left

his firm. Mgdesyan said he was unaware of all the discovery problems Bazikyan had

caused. Mgdesyan said he did not respond to Knight’s motion in limine because he was

in New York on a federal matter during the week his office received Knight’s motion,

and did not return until April 18, 2012.

       Mgdesyan apologized for all the problems in the case, requested the court not to

exclude his experts, and requested a 30- to 45-day continuance to allow his experts to be

deposed. Ghormley objected and argued Soto was not entitled to relief under section

473. Ghormley further argued that the totality of the circumstances indicated that Soto’s

attorneys did not, in fact, timely mail an expert designation on March 1, 2012.

       The trial court granted Knight’s motion to exclude Soto’s experts and denied

Soto’s motion to submit tardy experts. The court reasoned: “[I]n looking, again, at the

totality of the circumstances, the history of noncompliance with court’s orders, the

presumption that it was received has been rebutted. It’s just one excuse after another that

in the end does not add up to receipt by the defense of the designation of experts. [¶] . . .

                                              8
[W]here you received a motion in limine stating that they are requesting to exclude any

expert testimony for failing to designate, lack of a response is the equivalent of an

admission . . . .” The court added, “You [Mgdesyan] are the lead attorney on this case.

You are responsible for this case. And this case has had a series of significant missteps,

to be kind, failing to comply with court orders, failing to comply with the court rules. . . .

[¶] You know, it’s not just about plaintiff. There’s a defendant here that has gone to

great expense, length of time, and preparation to be ready for trial to have their experts.

It’s very, very costly for defense to prepare for trial. . . . So I have to consider both sides

of the table, not just you and your client, but what about the prejudice to the defendant?

It’s significant.”

       Mgdesyan responded that Soto should not be penalized for his attorneys’ neglect

or wrongdoing and therefore should be granted relief under section 473. The trial court

requested the parties to meet and confer on the matter while the court briefly took the

matter under submission. After the recess, Mgdesyan informed the court he had offered

to pay for all of Knight’s expert deposition costs. Mgdesyan also requested the court to

allow him to file a section 473 motion and to brief the issue of setting aside waiver of a

jury. Mgdesyan conceded “my office messed up. I messed up.” Mgdesyan argued that,

nevertheless, his client’s case should not be jeopardized, since Knight’s prejudice was

minimal compared to the prejudice his client would suffer if the court excluded Soto’s

experts. The trial court disagreed and again stated it was granting Knight’s motion to

exclude Soto’s experts and denying Soto’s motion to submit tardy experts.



                                               9
B. Applicable Law

       “The statutes governing expert witness discovery are part of the Civil Discovery

Act (§ 2016.010 et seq.). The purposes of the discovery statutes are ‘to assist the parties

and the trier of fact in ascertaining the truth; to encourage settlement by educating the

parties as to the strengths of their claims and defenses; to expedite and facilitate

preparation and trial; to prevent delay; and to safeguard against surprise.’ [Citation.]”

(Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950.) “[T]he need for

pretrial discovery is greater with respect to expert witnesses than ordinary fact witnesses

because the opponent must prepare to cope with the expert’s specialized knowledge.

[Citation.] The Legislature responded to this need by enacting detailed procedures for

discovery pertaining to expert witnesses. (See § 2034.210 et. seq.)” (Id. at p. 951.)

       One such statute, section 2034.210, provides in relevant part: “After the setting of

the initial trial date for the action, any party may obtain discovery by demanding that all

parties simultaneously exchange information concerning each other’s expert trial

witnesses to the following extent: [¶] (a) Any party may demand a mutual and

simultaneous exchange by all parties of a list containing the name and address of any

natural person, including one who is a party, whose oral or deposition testimony in the

form of an expert opinion any party expects to offer in evidence at the trial.”

       Section 2034.260, subdivision (a), provides in relevant part: “All parties who

have appeared in the action shall exchange information concerning expert witnesses in

writing on or before the date of exchange specified in the demand. The exchange of

information may occur at a meeting of the attorneys for the parties involved or by a

                                              10
mailing on or before the date of exchange.” Section 2034.300, which is key in the instant

case, provides that, with certain exceptions, “on objection of any party who has made a

complete and timely compliance with Section 2034.260, the trial court shall exclude from

evidence the expert opinion of any witness that is offered by any party who has

unreasonably failed to do any of the following: [¶] (a) List that witness as an expert

under Section 2034.260. [¶] (b) Submit an expert witness declaration. [¶] (c) Produce

reports and writings of expert witnesses under Section 2034.270. [¶] (d) Make that

expert available for a deposition under Article 3 (commencing with Section 2034.410).”

(Italics added.)

       Section 2034.710 provides the following exception to section 2034.300’s rule of

mandatory exclusion of expert witness testimony: “(a) On motion of any party who has

failed to submit expert witness information on the date specified in a demand for that

exchange, the court may grant leave to submit that information on a later date. [¶] (b) A

motion under subdivision (a) shall be made a sufficient time in advance of the time limit

for the completion of discovery . . . to permit the deposition of any expert to whom the

motion relates to be taken within that time limit. Under exceptional circumstances, the

court may permit the motion to be made at a later time.” Section 2034.720 further

provides: “The court shall grant leave to submit tardy expert witness information only if

all of the following conditions are satisfied: [¶] (a) The court has taken into account the

extent to which the opposing party has relied on the absence of a list of expert witnesses.

[¶] (b) The court has determined that any party opposing the motion will not be

prejudiced in maintaining that party’s action or defense on the merits. [¶] (c) The court

                                            11
has determined that the moving party did all of the following: [¶] (1) Failed to submit

the information as the result of mistake, inadvertence, surprise, or excusable neglect.[2]

[¶] (2) Sought leave to submit the information promptly after learning of the mistake,

inadvertence, surprise, or excusable neglect. [¶] (3) Promptly thereafter served a copy of

the proposed expert witness information described in Section 2034.260 on all other

parties who have appeared in the action.” (Italics added.)

       Here, the trial court found that Soto failed to serve a timely expert designation,

there was no reasonable mistake or excusable neglect, and Soto failed to promptly rectify

the problem by immediately seeking leave to submit an expert designation.

C. Discussion

       Soto presented the following evidence to establish that his attorneys timely served

an expert designation on March 1, 2012:

       (1) A copy of Soto’s expert designation, faxed to and received by Ghormley on

April 19, 2012;

       (2) a proof of service attached to Soto’s expert designation, stating the expert

designation was served on March 1, 2012, executed by Mgdesyan’s secretary, Elizabeth

Hatamian;

       (3) a copy of the envelope addressed to Ghormley, allegedly containing Soto’s

mailed expert designation, showing a postmark date of March 1, 2012;

       2 Because the expert witness statute provides its own procedures for relief from
exclusion, relief cannot be obtained under section 473, subdivision (b), on the ground of
“mistake, inadvertence, surprise, or excusable neglect,” including the provision for
mandatory relief upon filing an attorney affidavit of fault. (§ 473, subd. (b), Gotschall v.
Daley (2002) 96 Cal.App.4th 479, 483.)
                                             12
       (4) Mgdesyan’s declaration stating that on March 1, 2012, he prepared Soto’s

expert designation and handed it to Hatamian to mail on March 1, 2012;

       (5) Hatamian’s declaration stating that on March 1, 2012, she prepared and signed

the proof of service attached to Soto’s expert witness designation; she mailed the expert

designation to Ghormley on March 1, 2012; she accidentally applied the incorrect

postage on the envelope; after mailing the expert designation, she subsequently used

Ghormley’s incorrect address on expert deposition notices because she relied on

letterhead Ghormley used on a March 30, 2012 letter; and, as a common practice, her

office photocopied envelopes, along with postmarks, when sending important documents

to opposing counsel.

       Section 1013, subdivision (a), provides that the service of a legal notice or other

paper by mail is “complete at the time of the deposit.” Further, the party who complies

with the statutory requirements of legal service by mail has no burden to show that the

other party actually received the notice. Rather, the person to whom the notice is sent by

mail incurs the risk that the mail might fail. (Silver v. McNamee (1999) 69 Cal.App.4th

269, 283; Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360.) Where one

party complies with the statutory requirements of legal service by mail, a court is entitled

to presume that the document was served, absent a sufficient factual showing to

overcome the presumption. (Forslund v. Forslund (1964) 225 Cal.App.2d 476.) It is

thus the addressee’s burden to show that it did not receive notice. (Evans v. Department

of Motor Vehicles (1994) 21 Cal.App.4th 958, 973.)

       Here, there was sufficient evidence to create a presumption that Soto’s expert

                                             13
designation was timely served on March 1, 2012. Knight thus had the burden of refuting

the presumption. Whether the presumption of receipt has been rebutted is a question of

fact generally resolved in the trial court. (See, e.g., Glasser v. Glasser (1998) 64

Cal.App.4th 1004, 1010-1011.) We conclude Knight met its burden of rebuttal by

providing substantial evidence that Soto’s attorney did not timely serve an expert

designation on March 1, 2012. Such evidence rebutting the presumption included

evidence of the following facts:

       (1) Knight’s attorney, Ghormley, did not receive Soto’s expert designation until it

was faxed on April 19, 2012, the day before trial was to begin.

       (2) The expert designation proof of service, signed by Hatamian, stated the

document was sent on March 1, 2012, to Ghormley’s correct, current address, whereas on

March 26, 2012, Hatamian sent notices of taking depositions to Ghormley’s previous

address. Knight’s attorney notified Soto’s attorney on March 30, 2012, of the new

correct address, which was the address on Soto’s expert designation, thus indicating

Hatamian prepared the expert designation proof of service after being reminded of

Ghormley’s change of address.

       (3) Mgdesyan provided a copy of the envelope allegedly containing Soto’s expert

designation, which had postage far exceeding the amount needed for mailing the expert

designation.

       (4) Photocopying the envelope used to send the expert designation is not common

practice.

       (5) Soto’s attorneys had a history throughout the case of failing to serve and file

                                             14
documents or filing them late and violating court rules, resulting in evidentiary sanctions.

       (6) Soto’s attorneys failed to respond immediately to Knight’s motion in limine to

exclude Soto’s experts. The motion was served on April 10, 2012. Soto’s attorneys did

not claim Soto had timely served an expert designation until April 19, 2012, and

Mgdesyan did not file a motion to submit a tardy expert designation until April 23, 2012,

three days after trial was scheduled to begin.

       In refuting Knight’s contention Soto’s expert designation was not timely served on

March 1, 2012, Soto argued there was evidence Hatamian mailed Soto’s expert

designation on March 1, 2012, to Ghormley’s correct address; Hatamian inadvertently

used extra postage; the expert designation was lost in the mail; and later, she got confused

as to Ghormley’s current office address because she had recently received a letter from

him on his old letterhead, and as a result served deposition notices to his former address.

The trial court rejected Soto’s arguments and found that Soto’s expert designation was

not timely served on March 1, 2012. Since the outcome of conflicting evidentiary

inferences is most appropriately determined in the trial court, we will not on this record

disturb the trial court’s factual determination that Soto’s expert designation was not

timely served. (See Idaho Maryland Mines Corp. v. Industrial Accident Commission

(1959) 174 Cal.App.2d 693, 695-696.)

       Citing Plunkett v. Spaulding (1997) 52 Cal.App.4th 114 (Plunkett) (overruled in

Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 40 (Schreiber)), Soto argues that the

trial court abused its discretion in denying his motion to submit a tardy designation and

granting Knight’s motion in limine to exclude Soto’s experts. Soto asserts the trial court

                                             15
failed to take into consideration that Soto offered to make his experts immediately

available for deposition and pay for Knight’s cost of deposing them. Furthermore, any

inconvenience to Knight or delay in trying the case, arising from allowing Knight to

depose Soto’s experts, was far outweighed by prejudice to Soto in precluding his experts

from testifying.

       In Plunkett the trial court excluded two of the plaintiff’s treating physicians from

testifying as experts because the plaintiff failed to provide the defendant with expert

witness declarations. The trial court found that the mistake did not constitute an

exceptional circumstance warranting relief during the trial. (Plunkett, supra, 52

Cal.App.4th at p. 136.) On appeal, the Plunkett court reversed, holding that the trial court

erred in not granting the plaintiff’s motion to submit tardy expert witness declarations.

(Id. at p. 137.)

       Plunkett is distinguishable in that in Plunkett the plaintiff served an expert

designation but failed to provide expert declarations for treating physicians, whereas the

instant case concerns the failure to serve a timely expert designation. (Plunkett, supra, 52

Cal.App.4th at pp. 120-121.) In addition, in Plunkett, the error was due to the plaintiff’s

attorney making a reasonable mistake of law, in which the attorney mistakenly believed

expert witness declarations were not required for treating physicians who were expected

to testify on the standard of care. This was an uncertain area of law, which the California

Supreme Court later clarified when it overruled Plunkett in Schreiber , supra, 22 Cal.4th

31, holding that a plaintiff’s treating physicians are normally not experts, retained within

the meaning of the statutes requiring submission of an expert witness declaration. In the

                                             16
instant case, there was sufficient evidence to support the trial court’s finding Soto had not

demonstrated reasonable mistake or excusable neglect in failing to serve a timely expert

designation. (Id. at pp. 33, 39-40.)

       Furthermore, unlike in the instant case, in Plunkett the plaintiff promptly filed a

motion to submit tardy expert declarations. The motion was filed the day after counsel in

Plunkett learned of his mistaken interpretation of the expert witness discovery statute.

(Plunkett, supra, 52 Cal.App.4th at p. 135.) In Plunkett, there was minimal prejudice to

the defendant from the tardy submission of the declarations because the defendant

already had anticipated the proposed testimony and had acted to counter it by other expert

testimony. (Id. at p. 136.) The Plunkett court concluded the plaintiff’s attorney had

made an honest, reasonable, good faith mistake in not providing the expert declarations,

and immediately upon learning of the mistake, promptly sought leave to submit a tardy

expert witness declaration and offered to make the expert immediately available for

deposition. (Id. at p. 137.)

       Here, there was substantial evidence Soto did not timely serve an expert

designation, Knight was prejudiced in that it prepared its defense assuming no expert

witnesses would testify, and Soto did not promptly file a motion to submit a tardy expert

designation or immediately object to Knight’s motion to exclude Soto’s experts. Soto’s

motion to provide a tardy expert designation was filed over 10 days after receiving

Knight’s motion to exclude Soto’s experts, and three days after the trial was scheduled to

begin. “Whether to grant relief from the failure to timely submit an expert witness

declaration is addressed to the sound discretion of the trial court and will not be disturbed

                                             17
on appeal absent a showing of manifest abuse of that discretion.” (Plunkett, supra, 52

Cal.App.4th at p. 135.) Here, Soto has not shown a manifest abuse of discretion in

denying Soto’s motion to submit tardy designation and granting Knight’s motion in

limine to exclude Soto’s experts. (Ibid.)

                                             IV

              EXCLUSION OF TREATING PHYSICIANS’ TESTIMONY

       Soto alternatively contends the trial court committed reversible error by preventing

his treating physicians from presenting nonexpert, percipient testimony. Soto does not

dispute that physicians, who are nondisclosed as experts, cannot provide opinion

testimony. On appeal, Soto acknowledges that his treating physicians, as nonexperts,

could not give opinion testimony. Soto argues that his treating physicians, however,

should have been permitted to testify as to their observations and treatment, and thus

testify as a percipient, nonexpert witness. Soto asserts that based on such testimony, the

court could have inferred that his injuries were caused by the accident and, therefore,

expert testimony was not necessary to prevail on his medical damages claim.

       A party must disclose a treating physician’s identity in its expert designation if it

intends to offer the physician’s expert opinion at trial. (Schreiber, supra, 22 Cal.4th at

pp. 33-35; § 2034.210, subd. (a).) Here, the trial court found that Soto failed to serve a

timely expert designation. Therefore his treating physicians were precluded from

providing any expert testimony, such as on causation. The issue here is whether the trial

court erred in also precluding Soto’s treating physicians from testifying to nonopinion

evidence, such as testimony of the physicians’ observations of Soto’s injuries, diagnoses,

                                             18
prognoses, treatment of Soto, and bills for treatment.

       The court in Kalaba v. Gray (2002) 95 Cal.App.4th 1416 (Kalaba) explained there

are two types of physician experts, retained and nonretained experts that must be listed in

an expert designation in order to provide expert opinion testimony at trial: “‘To the

extent a physician is retained “for the purpose of forming and expressing an opinion in

anticipation of the litigation or in preparation for the trial of the action,” his identity and

opinions are generally privileged unless he testifies. (§ 2034, subd. (a)(2).) Should the

physician testify, an expert witness declaration is required. On the other hand, to the

extent a physician acquires personal knowledge of the relevant facts independently of the

litigation, his identity and opinions based on those facts are not privileged in litigation

presenting “an issue concerning the condition of the patient.” [Citations.] For such a

witness, no expert declaration is required, and he may testify as to any opinions formed

on the basis of facts independently acquired and informed by his training, skill, and

experience. This may well include opinions regarding causation and standard of care

because such issues are inherent in a physician’s work.’” (Id. at p. 1422, quoting

Schreiber, supra, 22 Cal.4th at p. 39.)

       Soto’s treating physicians were the second type of witness, because they acquired

personal knowledge of the relevant facts independently of the litigation. Therefore their

identity and opinions based on those facts were not privileged in litigation. (Kalaba,

supra, 95 Cal.App.4th at p. 1422; Schreiber, supra, 22 Cal.4th at p. 39.) Soto, however,

was required to provide a timely expert designation listing his treating physicians as

nonretained experts in order for his treating physicians to testify as to their opinions.

                                               19
After the trial court ruled that Soto had failed to provide a timely expert designation, his

attorney argued that Soto’s treating physicians could nevertheless testify as nonexperts,

as to their observations. In determining whether such evidence was admissible, the trial

court failed to differentiate between permissible nonexpert testimony and inadmissible

expert opinion evidence barred by Soto’s failure to provide a timely expert designation.

The trial court simply concluded that all testimony by Soto’s treating physicians, both

expert opinion and nonexpert testimony, was precluded under section 2034.300.

A. Expert Opinion Testimony

       The court in Brun v. Bailey (1994) 27 Cal.App.4th 641, 652 (Brun) (superseded by

amended statute on other grounds) concluded that, under the common law definition of

opinion evidence, “. . . a physician or other treating health care practitioner, who testifies

regarding his or her knowledge of the patient’s treatment, diagnosis or prognosis, does

not express an expert opinion.” (Id. at p. 654.) In addressing the issue of whether a

treating physician was entitled to an expert witness fee, the Brun court noted that, “the

Legislature, in 1968, adopted Government Code former section 68092.5, which provided

in pertinent part for payment of an expert witness fee to any person called to testify in

court or in the taking of a deposition ‘. . . solely as to any expert opinion which he holds

upon the basis of his special knowledge, skill, experience, training or education, and who

is qualified as an expert witness . . . .’” (Id. at pp. 652-653; italics added.)

       Evidence Code section 801 provides that, “If a witness is testifying as an expert,

his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a)

Related to a subject that is sufficiently beyond common experience that the opinion of an

                                               20
expert would assist the trier of fact; and [¶] (b) Based on matter (including his special

knowledge, skill, experience, training, and education) perceived by or personally known

to the witness or made known to him at or before the hearing, whether or not admissible,

that is of a type that reasonably may be relied upon by an expert in forming an opinion

upon the subject to which his testimony relates, unless an expert is precluded by law from

using such matter as a basis for his opinion.”

       The Law Revision Commission Comments for Evidence Code, section 801 state

that, “[a]lthough courts have not always used the same language, the decisive

consideration in determining the admissibility of expert opinion evidence is whether the

subject of inquiry is one of such common knowledge that men of ordinary education

could reach a conclusion as intelligently as the witness or whether, on the other hand, the

matter is sufficiently beyond common experience that the opinion of an expert would

assist the trier of fact.” (People v. Cole (1956) 47 Cal.2d 99, 103.)

       In differentiating between treating physician expert opinion and percipient witness

factual testimony, the Brun court explained: “Questions regarding the physician’s

knowledge of specific facts as to the patient’s condition, including past treatments

provided and past diagnoses and prognoses rendered, are factual questions. Questions

regarding the expert’s opinion as to the patient’s prognosis at the time of the deposition,

or regarding the reasons for the treatments, diagnoses, or prognoses provided in the past,

call for opinion.” (Brun, supra, 27 Cal.App.4th at p. 654.) Brun concluded that former

section 2034, subdivision (i)(2) [recodified as section 2034.430], did not “alter the

common law rule that a physician or other treating health care practitioner, who testifies

                                             21
regarding his or her knowledge of the patient’s treatment, diagnosis or prognosis, does

not express an expert opinion.” (Brun, at p. 654.) Testimony, however, explaining the

reason a physician conducted his examination in a specific way constitutes opinion

testimony. (Id. at p. 657.)

       Here, it is undisputed testimony by Soto’s treating physicians regarding causation

of Soto’s injuries constitutes opinion testimony and therefore was correctly excluded as

expert opinion testimony under section 2034.300. Soto concedes this in his appellate

reply brief. However, factual testimony as to Soto’s treating physicians’ observations,

treatment, diagnoses, prognoses, and billing was not inadmissible expert opinion

testimony. Therefore, as to the treating physicians’ nonexpert, factual testimony, the trial

court erred in assuming it was barred simply because Soto had not provided a timely

expert designation listing the treating physicians as expert witnesses.

B. Admissible Nonexpert Testimony by Treating Physicians

       There appears to be very little, if any, California case law addressing whether a

treating physician can testify as a nonexpert, percipient witness. Soto cites County of Los

Angeles v. Superior Court (1990) 224 Cal.App.3d 1446, 1455-1457 (County of Los

Angeles), Province v. Center for Women’s Health & Family Birth (1993) 20 Cal.App.4th

1673, 1682-1684 (Province) (overruled on other grounds in Heller v. Norcal Mutual Ins.

Co. (1994) 8 Cal.4th 30, 41), and Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d

637, 653 (Jutzi) for the proposition the trial court erred in barring his treating physicians

from presenting nonexpert, percipient testimony. County of Los Angeles is not on point.

It concerns testimony by defendant physicians, sued in a medical malpractice action. The

                                              22
court in County of Los Angeles, at pp. 1455-1456, stated that “Questions to the defendant

physicians about their impressions and reasons for their action or lack of action at the

time the medical procedure was performed are, of course, entirely appropriate. Such

questions were asked without objection by defense counsel. But . . . questions about

after-the-fact opinions and impressions of the physicians stand in quite another light.”

The defendant physicians’ testimony in County of Los Angeles concerned their own

conduct. Such testimony did not constitute testimony by a treating physician in a

personal injury action, regarding the plaintiff’s treatment and injuries.

       In Jutzi, supra, 196 Cal.App.3d at page 653, also a medical malpractice case, the

court held the trial court did not err in allowing a defense medical witness, who was not

designated as an expert witness, to testify concerning the hospital’s policy of allowing the

plaintiff’s type of injury to be treated by an emergency room physician. The Jutzi court

held that former section 2037 [now sections 2034.210 and 2034.300], which barred

nondesignated experts from testifying at trial, did not apply “because Dr. Grigsby did not

testify as an expert witness. Instead, he testified concerning his personal knowledge of

the written policy of that hospital in 1976 allowing emergency room physicians to treat

fractures of the type in question.” (Jutzi, supra, 196 Cal.App.3d at p. 653.) While Jutzi

did not concern a treating physician testifying as a nonexpert, Jutzi supports the

proposition that a physician can testify as a nonexpert to facts within the physician’s

personal knowledge.

       In Province, supra, 20 Cal.App.4th at page 1684, a medical malpractice action, the

court held that the trial court committed reversible error by allowing a treating physician,

                                             23
who was not properly designated as an expert, to provide expert opinion testimony. In

dicta, the trial court stated that, on retrial, if the treating physician was not designated as

an expert and produced for deposition in compliance with the Civil Discovery Act of

1986 (Code Civ. Proc., § 2016 et seq.), “[t]he trial court must limit his testimony to

percipient observations . . . .” (Ibid.) In Province, the court merely assumed, without

discussion, that a treating physician may testify to percipient observations as a nonexpert

if not designated as an expert.

       There is, however, persuasive federal case law that is more on point. In Brooks v.

Union Pac. R.R. (8th Cir. 2010) 620 F.3d 896, 900, a personal injury case, the federal

eighth circuit Court of Appeals held that the plaintiff’s treating physician could testify as

a laywitness when describing the plaintiff’s medical condition. (See also Davoll v. Webb

(10th Cir. 1999) 194 F.3d 1116, 1138-1139 (Davoll).) The Brooks court also held that

the physician’s affidavit was inadmissible because it, not only merely explained the

plaintiff’s condition, but also introduced opinion as to the cause of the plaintiff’s injury.

The Brooks court concluded that such expert opinion evidence was properly excluded

because the plaintiff failed to comply with Federal Rules of Civil Procedure Rule

26(a)(2)3 requiring an expert designation.

       Likewise, in Davoll, a disability discrimination case, the tenth Circuit Court of

Appeals held that the plaintiff’s undisclosed treating physician could testify as a

laywitness when describing a medical condition. (Davoll, supra, 194 F.3d at pp. 1138-


       3Undesignated rule references are to the Federal Rules of Civil Procedure unless
otherwise indicated.
                                               24
1139.) The Davoll court stated: “A treating physician is not considered an expert

witness if he or she testifies about observations based on personal knowledge, including

the treatment of the party. [Citations.] A treating physician, even when testifying as a

lay witness, may state ‘expert’ facts to the jury in order to explain his testimony.

[Citations.]” (Id. at p. 1138.)

       We recognize Davoll further states that opinion testimony based on percipient

facts is also admissible, relying in part on Richardson, which was superseded by federal

statute. As explained in Musser v. Gentiva Health Services (7th Cir. 2004) 356 F.3d 751,

756, “Richardson was interpreting the pre-1993 Amendment Rule 26. Richardson relied

on language in a case, Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993), also decided

before the 1993 Amendment. More importantly, the text of the current Rule 26(a)(2)(A)

references the Federal Rules of Evidence to determine what must be disclosed as expert

testimony. Expert testimony is designated as such by its reliance on ‘scientific, technical,

or other specialized knowledge.’ Fed.R.Evid. 702. Occurrence witnesses, including

those providing ‘lay opinions,’ cannot provide opinions ‘based on scientific, technical, or

other specialized knowledge within the scope of Rule 702.’ Fed.R.Evid. 701. Thus, a

treating doctor (or similarly situated witness) is providing expert testimony if the

testimony consists of opinions based on ‘scientific, technical, or other specialized

knowledge’ regardless of whether those opinions were formed during the scope of

interaction with a party prior to litigation.” (Musser, at p. 757, fn. 2; italics added.) The

court in Musser noted “that treating physicians are not exempt from the requirements of

Federal Rules of Evidence 702 and 703 because ‘we do not distinguish the treating

                                              25
physician from other experts when the treating physician is offering expert testimony

regarding causation’).” (Ibid., citing O’Conner v. Commonwealth Edison Co. (7th Cir.

1994) 13 F.3d 1090, 1105, fn. 14.)

       Based on limited California case law and persuasive federal decisions, we

conclude a treating physician can testify as a percipient, nonexpert witness but only as to

the treating physician’s observations within the physician’s personal knowledge. Any

opinion testimony derived from those observations or personally known facts is

inadmissible. In the instant case, the trial court therefore erred in barring Soto’s treating

physicians from testifying as nonexpert, percipient witnesses base on Soto not properly

designated his treating physicians as experts.

C. Harmless Error

       Although the trial court erred in concluding Soto’s treating physicians could not

testify because Soto did not serve a timely expert designation, the error was harmless

error. Soto has not established he was prejudiced, since nonsuit was inevitable. Reversal

is unwarranted absent prejudicial error. (Cal. Const., art. VI § 13; Code Civ. Proc., § 475

[“No judgment, decision, or decree shall be reversed or affected by reason of any error,

ruling, instruction, or defect, unless it shall appear from the record that such error, ruling,

instruction, or defect was prejudicial . . . and that a different result would have been

probable if such error, ruling, instruction, or defect had not occurred or existed.”]);

Paterno v. State of California (1999) 74 Cal.App.4th 68, 107.)

       Even if Soto’s treating physicians were permitted to testify as nonexperts

regarding facts, such as their observations, treatment provided, diagnoses, prognoses, and

                                              26
billing facts, the outcome would have been the same; nonsuit would likely have been

granted. “‘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 [the trier of

fact] 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 not create a conflict . . .; “there must be substantial evidence to create the

necessary conflict.” [Citation.]’” (Santa Barbara Pistachio Ranch v. Chowchilla Water

Dist. (2001) 88 Cal.App.4th 439, 444.)

       In the instant case, Soto could not prevail on his medical damages claim without

expert medical testimony supporting his contention his hip injury was caused by or

exacerbated by the truck accident. Although Soto testified his hip was fine right before

the truck accident and he suffered hip pain afterwards, resulting in surgery, there was

expert evidence refuting this. Where it was undisputed Soto had previously injured his

right hip, a determination of whether Soto’s alleged hip injury was preexisting or caused

entirely or in part by the truck accident, was beyond common knowledge and thus

required medical expertise. As a laywitness, Soto therefore was unable to prove his hip

condition was caused by the accident and not preexisting.

       Soto argues that his testimony established he was injured during the truck accident

                                              27
and, even though there was defense expert evidence refuting this, the trial court could

reject Knight’s expert opinion evidence and find that Soto’s testimony sufficiently

established his injuries were caused by the truck accident. Because the instant case does

not present any issues of professional negligence or medical malpractice, the trier of fact

was not required to accept as conclusive uncontradicted testimony of Knight’s experts.

(Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632-633.) “Instead, the general

rule applies. Under this rule, . . . the opinion of any expert witness ‘is only as good as the

facts and reasons on which it is based. . . .’ (BAJI No. 2.40.) If the jury finds that the

party offering expert testimony has failed to prove any foundational fact, or that some

fact on which the expert’s opinion is based has been disproved by the opposing party, the

jury is required to consider that in evaluating the expert testimony. Although a jury may

not arbitrarily or unreasonably disregard the testimony of an expert, it is not bound by the

expert’s opinion. Instead, it must give to each opinion the weight which it finds that

opinion deserves. So long as it does not do so arbitrarily, a jury may entirely reject the

testimony of a plaintiff’s expert, even where the defendant does not call any opposing

expert and the expert testimony is not contradicted. . . .; Beard v. David (1960) 179

Cal.App.2d 175, 177-178 [testimony of plaintiff’s expert was not conclusive, but was to

be weighed by jury]; Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170-172

[jury not bound to accept the opinions expressed by medical experts even where no

opposing opinion is offered].)” (Howard, at p. 632.)

       Nevertheless, here, Soto could not prevail on his medical damages claim without

expert opinion evidence, since there was substantial evidence Soto’s hip condition was

                                             28
preexisting and Soto had the burden of proving causation. During the trial, Officer

Maciborski testified Soto told him he was not injured and had no complaints of pain.

Maciborski also stated in his accident report that no parties were injured, including Soto’s

front passenger. Soto, who speaks Spanish and requires an interpreter, testified he told

Maciborski he was injured and that Maciborski did not speak to him in Spanish.

However, Maciborski testified he is fluent in Spanish and interviewed Soto in Spanish.

Soto also testified that 11 years before the trial, he had had a total hip replacement in

Guatemala, in which the right femur head was replaced because of a slip-and-fall

accident. During Soto’s deposition, he testified he had had the hip replacement surgery

in Guatemala City over 20 years before the truck accident. Soto also acknowledged that,

at the time of the truck accident, there was a walker and crutches in the bed of his black

pickup truck, but claimed he was fine right before the accident and the walker and

crutches were in his truck because he planned to sell them in Guatemala.

       There was also defense expert medical evidence that Soto’s hip injury was

preexisting and thus was not caused by the truck accident. Knight’s defense radiologist

concluded in his report that “Mr. Soto’s imaging studies obtained prior to his surgery

reveal significant abnormalities of his pre-existing right total hip arthroplasty and native

right hip which are nearly certain to predate the accident by several years. No findings

are identified which can be reasonably attributed to recent trauma.”

       Soto’s own testimony was not sufficient to meet his burden of proving that his

alleged injuries were caused in whole or in part by the truck accident. When medical

services costs are claimed as damages, the plaintiff must show that the services were

                                             29
attributable to the incident giving rise to liability, that they were necessary, and that the

charges were reasonable. (Dimmick v. Alvarez (1961) 196 Cal.App.2d 211, 216.) When

medical services may be attributable to more than one cause, the bill for such services

may be admitted as evidence of damages only if there is evidence from which a fact

finder can apportion the expense among the various causes. (McAllister v. George (1977)

73 Cal.App.3d 258, 264-265; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 73.) In

the absence of expert opinion, Soto could not establish causation or apportionment, nor

could he refute Knight’s expert evidence establishing that Soto’s hip injury was

preexisting. The determination of whether Soto’s injuries were caused by the truck

accident was beyond common experience, and therefore Soto could not prevail on his

medical damages claim. Nonexpert testimony by his treating physicians would not have

made any difference in the outcome of his medical damages claim. Knight would have

been entitled to nonsuit, since, as a matter of law, the evidence presented by plaintiff

would have been insufficient to permit the trier of fact to find in his favor, even if the trial

court had permitted Soto’s treating physicians to provide nonexpert testimony. (Santa

Barbara Pistachio Ranch v. Chowchilla Water Dist., supra, 88 Cal.App.4th at p. 444.)

       In general, the question “[w]hether a defendant’s conduct actually caused an injury

is a question of fact [citation] that is ordinarily for the [trier of fact] [citation].” (Osborn

v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 252.) In certain cases in which

“the complexity of the causation issue is beyond common experience, expert testimony is

required to establish causation.” (Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th

1363, 1373.) For example, in cases involving complicated medical causation issues, the

                                               30
standard of proof generally required is a reasonable medical probability based on

competent expert testimony that the defendant’s conduct contributed to the plaintiff’s

injury. (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79; Rutherford v.

Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 976, fn. 11.) When there are several possible

causes for an injury, “[t]he law is well settled that in a personal injury action causation

must be proven within a reasonable medical probability based upon competent expert

testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) In

those cases in which the issue of causation is beyond common lay experience, “causation

must be founded upon expert testimony and cannot be inferred from the [trier of fact’s]

consideration of the totality of the circumstances unless those circumstances include the

requisite expert testimony on causation.” (Cottle v. Superior Court (1992) 3 Cal.App.4th

1367, 1385.)

       In the instant case, plaintiff testified his hip injury was caused by the truck

accident but was unable to present any expert testimony on the element of causation.

Because there was expert medical evidence that plaintiff’s hip injury was preexisting, the

issue of causation was a complex medical issue, beyond the common knowledge of the

trier of fact. Lay opinion on causation was therefore insufficient. There are a plethora of

medical issues which required knowledge beyond that of a layperson to resolve,

including whether plaintiff had a preexisting condition, such as a preexisting right hip

condition from a slip and fall accident and surgery 10 years before the truck accident,

avascular necrosis attributable to plaintiff’s long-term smoking, alcoholism, and liver

damage; whether plaintiff’s inability to recover quickly or fully after the truck accident

                                              31
was due to these preexisting conditions; whether plaintiff was 100 percent disabled

because of the truck accident or in part due to his preexisting conditions and the

deterioration of his left hip (his alleged truck accident injury was to his right hip); and

whether plaintiff’s post-truck accident medical damages were 100 percent attributable to

the truck accident or should be apportioned between the truck accident and preexisting

conditions. Under the particular facts in this case, plaintiff was required to present expert

opinion testimony establishing, to a degree of reasonable medical probability, that the

truck accident caused or contributed to his right hip injury. Since plaintiff was unable to

present any expert opinion testimony on the element of causation or to establish his

medical bills were reasonable and necessary, plaintiff could not prevail on his medical

damages claim. Therefore excluding nonexpert testimony by plaintiff’s treating

physicians was harmless error.

                                              V

                                       DISPOSITION

       The judgment is affirmed. Knight is awarded its costs on appeal.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS

                                                                  CODRINGTON
                                                                                              J.

We concur:


RICHLI
                 Acting P. J.


MILLER
                           J.

                                              32
