Filed 10/8/13 Crane v. Clark CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


PETER CRANE,
          Plaintiff and Appellant,
                                                                     A134025
v.
COLBY CLARK,                                                         (San Francisco City & County
                                                                     Super. Ct. No. CGC-09-489352)
          Defendant and Respondent.




          Appellant Peter Crane (Crane) was a passenger in a taxi that was rear-ended by a
station wagon driven by respondent Colby Clark (Clark), an accident for which Clark
admitted liability. Crane, who had a preexisting back condition, introduced evidence that
in the three years following the accident he spent over $46,000 for medical care, and that
future medical expenses could run over $2 million. Crane also sought damages for past
and future pain and suffering, the upshot of which was a closing argument that sought
millions of dollars in damages. Following brief deliberations, the jury awarded Crane
$10,345, and the trial court denied his motion for new trial.
          Crane appeals, primarily asserting three claims of evidentiary error: (1) admitting
evidence that contradicted unresponded-to requests for admission that had been deemed
admitted; (2) admitting photographs of the taxi and the station wagon; and (3) admitting
evidence that did not meet the standard for expert testimony. He also asserts error in the
denial of the new trial. We conclude that none of Crane‘s contentions has merit, and we
affirm.


                                                             1
                                       BACKGROUND
         The Complaint and the General Pretrial Proceedings
         In June 2009 Crane, acting in pro per, filed a complaint for personal injury,
naming as defendants Clark and Christopher Clark, her husband. The complaint was
based on a motor vehicle accident on June 15, 2007 on Bush Street near its intersection
with Powell, in San Francisco. Clark was the driver of the car, her husband the alleged
owner.
         In October 2009, represented by counsel, the Clarks filed an answer.1
         On November 2, 2009 the case was set for jury trial for June 14, 2010.
         On December 3, 2009, still representing himself, Crane served various discovery
on Clark, including requests for production of documents, form interrogatories, and
requests for admissions. The requests for admissions were nine in number, as follows:
         No. 1: ―Admit that, immediately prior to the COLLISION, the vehicle in which
Plaintiff was sitting was in front of YOU at a complete stop for a red light on Bush Street
at its intersection with Powell Street, in San Francisco, California.‖
         No. 2: ―Admit that, immediately prior to the COLLISION, YOU were looking at
YOUR child in the back seat of YOUR VEHICLE.‖
         No. 3: ―Admit that, immediately prior to the COLLISION, YOU were holding a
mobile phone.‖
         No. 4: ―Admit that YOU failed to act in a reasonable manner with regard to the
operation of YOUR VEHICLE immediately prior to the COLLISION.‖
         No. 5: ―Admit that YOU violated California Vehicle Code §21703 immediately
prior to the COLLISION.‖
         No. 6: ―Admit that, immediately prior to the COLLISION, YOU were exceeding
the posted speed limit on Bush Street.‖
         No. 7: ―Admit that but for YOUR failure to pay attention to the vehicles in front
of YOU, the COLLISION would not have occurred.‖

         1
             Christopher Clark was ultimately dismissed from the action.


                                                2
       No. 8: ―Admit that, immediately prior to the COLLISION, YOU did not apply the
VEHICLE‘S brakes.‖
       No. 9: ―Admit that, immediately prior to the COLLISION, YOU did not attempt
to steer the VEHICLE away from the vehicle in which Plaintiff was sitting.‖
       Clark provided no responses to any of the discovery.
       On March 26, 2010, an attorney substituted in on behalf of Crane, and that same
day filed motions to compel responses to the discovery, including, as pertinent here, to
―deem admitted matters sought in requests for admissions to Colby Clark, Set One.‖
       Crane‘s motions were unopposed, and by order of April 20, Judge Curtis Karnow
ordered the motions ―granted in their entirety.‖ Thus, pursuant to Code of Civil
Procedure section 2033.010, the facts in the requests for admissions were established,
which facts included that ―immediately prior to the collision‖ Clark:
       was looking at her child in the back seat of her vehicle.
       failed to act in a reasonable manner in operating her vehicle.
       violated Vehicle Code section 21703.
       was exceeding the posted speed limit on Bush Street.
The established facts also included admissions of causation and fault.
       In late May 2010, Crane filed an ex parte application to continue the trial date, and
by order of May 27, trial was continued to August 23, and then again to September 27,
apparently by stipulation. Meanwhile, on August 18, new counsel substituted in for
Clark, and later that month trial was again continued, to October 25.
       In September 2010, Crane moved to augment his expert disclosure which, after
some continuances, was denied on October 13, the register of actions indicating as
follows: ―[D]enied. Plaintiff has not acted diligently and allowing augmentation would
prejudice defendant. In addition, the court indicated that the motion was denied without
prejudice to parties requesting/seeking to continue the trial date.‖
       Apparently no courtroom was available on October 25, and trial was continued to
February 7, 2011. On November 1, 2010, Crane filed a motion for trial preference.



                                              3
       The Attempts to Withdraw the Admissions
       On October 26, 2010, apparently while the case was on trial standby, Clark‘s new
attorney filed an ex parte motion to withdraw the deemed admissions. The motion was
denied, but Clark was permitted to file a noticed motion, which she did, on November 10,
filing motions to withdraw and amend admissions and to reopen discovery. Hearing on
the motions was set for November 17, on which date the motions were ordered ―off
calendar,‖ to be heard in the law and motion department. The next pertinent entry in the
register of actions is on December 23, which reads as follows: ―Defendant Colby Clark‘s
motion to withdraw and amend admissions; motion for an order to reopen discovery . . . .
Defendant‘s request to have the matter heard at 9:30 AM so as to have the matter
reported was denied. Argued and the court ruled as follows: motion to withdraw and
amend admissions is denied without prejudice. Insufficient showing of prior counsel‘s
mistake, inadvertence, or excusable neglect. Prejudice to plaintiff is demonstrated.
Plaintiff has prepared the case since April believing these issues are not in contention,
and the trial is currently set for February after the first trial date was continued. Motion
to reopen discovery is granted for the limited issues surrounding the claim of need of a
new surgical procedure related to the incident. This is without prejudice to making a
motion to augment expert witness list. . . . Judge: Charlotte Walter Woolard; not
reported.‖
       On January 12, 2011, Clark‘s attorney renoticed the motion to withdraw and
amend admissions. This motion was, for the first time, accompanied by a declaration of
Clark‘s former attorney, offering his explanation for why no responses to the requests for
admissions had been filed. Crane opposed the motion, and on the day it was scheduled
for hearing the court ordered it ―off calendar,‖ to ―be recalendared before Judge Woolard
in Department 504.‖ On February 3, the motion was heard by Judge Woolard and
denied. Her order read as follows: ―Defendant‘s Motion to Withdraw and Amend
Admissions is DENIED without prejudice. Defendant made an insufficient showing of
prior counsel‘s mistake, inadvertence, or excusable neglect. Prejudice to Plaintiff is
demonstrated. Plaintiff has prepared the case since April believing these issues are not in


                                              4
contention, and the trial is currently set for February after the first trial date was
continued.‖
       Trial was continued to February 8, on which date it in fact began.
                                         THE TRIAL
       Motions in Limine
       The case was assigned for trial to the Honorable Michael I. Begert who, as will be
seen, handled the case with great care and concern, particularly sensitive to the issue(s)
presented by what was deemed established by the unresponded-to admissions. The case
started with motions in limine, beginning with the six motions filed by Crane. The first
three of those motions are particularly pertinent here, described by Crane as motions:
(1) for issue sanctions and evidentiary sanctions against Clark to establish causation and
liability, and to preclude mention of and exclude any documents not identified and/or
produced during the course of discovery ; (2) to preclude evidence and statements
contrary to the deemed admitted requests for admission; and (3) to preclude testimony of
defendant‘s expert James Hughes.
       The colloquy and holdings on the motions in limine bear significantly on some of
the issues Crane raises here, and we thus recite what occurred at some length, beginning
with motion no. 1. Among other things, this motion asked for exclusion of certain
documents which, Crane argued, should have been produced pursuant to an April 20,
2010 discovery order and were in fact not produced until October 18, 2010. These
included photographs of the vehicles involved in the accident as well as Clark‘s auto
repair estimate. In the course of the extensive argument on this motion, the following
colloquy occurred:
       ―THE COURT: Okay. Now, let me turn back to you, plaintiff‘s counsel. My
issue with this is that these documents were turned over in discovery, albeit, not when
they should have been turned over; but they were turned over. So you had—that
differentiates you from the cases you‘ve cited where the issue is surprise at trial. In other
words, the one side wants to introduce documents that have never been seen before trial.



                                               5
        ―You‘ve actually had, because of the delays in this trial taking place, some period
of months to conduct discovery based on these documents. So that‘s my problem with
excluding the information at this point. It‘s basically a lack of prejudice and the fact that
it‘s hard for me to find that defense counsel engaged in some kind of willful concealment
when they were turned over during this expert‘s deposition.
        ―So you may respond to that.‖
        ―MR. BONAGOFSKY [CRANE‘S COUNSEL]: Number one, I would like to say
that we were given no notice, that I can see, as to who took the photos. They were just
turned over. So they weren‘t authenticated. I had no opportunity to conduct fact
discovery on them; and No. 2, those photographs are in direct contravention to these
issues that were deemed admitted in the RFAs.
        ―So even if . . . the issue or evidentiary sanctions aren‘t granted because of the
failure to turn them over to discovery, I think they still stay out because the RFAs and the
photographs are inconsistent, and the law on that is clear. That no evidence can come in
contrary to what an RFA says, right?
        ―THE COURT: I‘ll get to that in a second.‖
        Following some back and forth, the argument on motion no. 1 ended with this:
        ―THE COURT: On the other hand, for plaintiff‘s counsel, my problem is that the
information has been out there for a while, and I don‘t see indication that an aggressive
effort was made to solve the problem other than to say, oh, they didn‘t give it to us, so it
can‘t be used. That‘s my problem, is that this stuff, it looks to me at the absolute latest
was in your possession in October of last year.
        ―MR. BONAGOFSKY: October 18th is when I got the photographs and the
documents. . . . [¶] . . . [¶]
        ―THE COURT: Okay. So here‘s my ruling: I‘m going to rule on Plaintiff‘s
Motion in Limine Number 1 that the deemed admissions are admissions against the
defendant. That was Judge Karnow‘s ruling. I don‘t see how you could interpret his
ruling any other way. There was an attempt made to revisit Judge Karnow‘s ruling, and



                                               6
based on both sides‘ representation, it‘s my understanding that that attempt was denied.
So the admissions are deemed admitted.
       ―That said, the admission is literally going to be limited to what was admitted. If
there is evidence that is not in direct contradiction to those admissions, I‘ll allow it. With
respect to—I‘m getting ahead of myself here because of a lot of these issues are bound up
together, but with respect to the documents that were turned over in connection with
Mr. Hughes‘ deposition, I am going to allow those if there is a proper foundation laid for
those documents.
       ―And I am open to plaintiff‘s counsel‘s suggestions for ways that I can mitigate
any prejudice to them by ordering that certain things happen before—certain discovery
happens before defense counsel attempts to introduce those materials. So you may be
heard, Counsel.‖
       ―MR. BONAGOFSKY: One issue I have is that we‘ve actually moved to exclude
Hughes‘ testimony in its entirety. His testimony is entirely based on the fact that the
accident was between 0 an 3 miles an hour, which is directly in contravention to the
admission that she was exceeding the speed limit at the time of the accident.
       ―THE COURT: I disagree with that, Counsel. The request for admission said
‗immediately prior to.‘ Now, I think you‘re going to be able to impeach this witness
pretty effectively with this admission; and I‘m, of course, going to allow that
impeachment to happen. But it‘s not necessarily inconsistent to say, ‗immediately before
she was going 30 miles an hour, in my opinion, she was going 5 miles an hour when she
hit him.‘
       ―MR. BONAGOFSKY: She also said she didn‘t apply her brakes.
       ―THE COURT: I understand. I understand. But it‘s not—it is not impossible for
all three of those things could be true.‖
       The argument ended with the understanding that the person who took the
photographs—Jeffrey Harris, the taxi driver—would be deposed. And he was.
       Judge Begert then turned to motion no. 2, to preclude evidence and statements
contrary to the deemed admitted requests for admission. He began with the observation


                                              7
that ―I think we‘ve already addressed this. In a literal sense I‘m granting Motion in
Limine No. 2, but we‘re gong to have to make a lot of decisions on the fly in order to
implement that order. Like I said, I‘m going to have to decide whether the testimony
that‘s being—whether the evidence that‘s being offered is actually in direct contradiction
to the request for admission.
       ―So you may be heard, Counsel.
       ―MS. FOGARI [CO-COUNSEL FOR CRANE]: Thank you, Your Honor.
       ―With respect to Motion in Limine No. 2, we would request that the report of the
accident reconstructionist, Mr. Hughes, be deemed inadmissible because it relies solely
on Ms. Clark‘s statements, as is given assumptions, and her statements are in
contravention to the RFAs. And that‘s the basis for our motion.
       ―And given the deemed admitted order, Defendant should not be permitted to
conduct an end run around the order by getting Mr. Hughes‘ report into evidence.
       ―THE COURT: Yeah, and I have ruled, with some reluctance, that because of the
way the Request For Admissions is worded, it‘s not impossible that the Defendant could
have been traveling at 5 miles an hour when she struck the cab in which Mr. Crane was
traveling and have been traveling at 30 miles an hour immediately prior to that.
       ―MR. BONAGOFSKY: Can I address that, Your Honor?
       ―THE COURT: Yes.
       ―MR. BONAGOFSKY: Mr. Hughes testified at his deposition that the basis for
his opinion was that Ms. Clark told him that she was stopped behind the cab with her foot
on the brake, was ‗turned around talking to her child, took her foot off the brake and
coasted into the back of the cab at a very low rate of speed. So his entire opinion is based
on something that is in direct contravention. I don‘t think you can read the basis for his
opinion with the RFAs.
       ―THE COURT: Okay. Thank you for that clarification.
       ―My ruling is going to be that that is hearsay. I mean, that statement by the
Defendant is hearsay. It‘s not admissible. He can‘t get it into evidence by saying this is
what I relied on. Okay. He can say, ‗These are my assumptions,‘ but he can‘t get her


                                             8
testimony in that‘s in contravention to the admissions. And she can‘t testify in direct
contradiction to the admissions. So you‘re going to have to advise your client that she‘s
going to have to craft her testimony in—whatever she is going to say is going have to be
consistent with those Request For Admissions. Is that clear?
       ―MR. BONAGOFSKY: Not really.
       ―THE COURT: Okay. So, for example, she can say—he can say ‗My opinion is
based on the assumption that she was going 0 to 5 miles an hour,‘ and then you can
impeach it.
       ―MR. BONAGOFSKY: Okay.
       ―THE COURT: She can say, ‗I was going between 0 and 5 miles an hour.‘ She
cannot say ‗that I was stopped‘ because that‘s contradicted by the Request For
Admission. She cannot say that ‗I applied the brakes‘ because that‘s in contradiction to
the Request For Admission. Is that clear enough?
       ―MR. BONAGOFSKY: I understand.
       ―THE COURT: Okay. Do you understand that, Defense Counsel?
       ―MR. MORIARTY [COUNSEL FOR CLARK]: I think I do, Your Honor. I do.
I‘m just thinking it through my head explaining it to my client. My client is in a position,
unfortunately, she never had the opportunity to—I‘m with you, though.
       ―THE COURT: That‘s between her and her former counsel. But I‘m stuck with
where we are, and it‘s not easy. And I‘m not entirely comfortable with it, but plaintiff‘s
counsel has got a point on this and apparently it‘s been agreed with by more than one
judge in this courthouse. So . . . [¶] . . . [¶]
       ―Okay. Mr. Moriarty, I‘ve looked at the cases cited by plaintiff‘s counsel, and the
cases weren‘t entirely persuasive to me on the point of evidence, contrary evidence being
excluded as a result of an admission. However, the Rutter Guide that‘s referenced there
was pretty clear on that point. If you have contrary authority, I would invite you to give
it to me. In other words, authority that says just because I‘ve admitted something doesn‘t
mean I can‘t impeach myself by introducing evidence of the opposite. If you have
authority that says that‘s okay, I would be interested in seeing that.


                                                   9
       ―MR. MORIARTY: I believe, Your Honor, in one of the supplementals that I
provided to you, I spoke of a few cases. The first we were in agreement with, the literal
reading of the request. And then the Court retains jurisdiction, the Frederick‘s versus
Filbert Company . . . case. 189 Cal. App. 3d. [¶] . . . [¶] ‗Court retains jurisdiction to
determine the scope and effect of a party‘s admission. The Court may determine whether
it accurately reflects the truth in light of other evidence in the case. This prevents
requests for admission being misused as a device to hide or confuse issues.‘ [¶] In
addition, the Milton versus Montgomery Ward Company case . . . 33 Cal. App. 3d 133
explains that the Court may simply read the admission differently than the propounding
party expected. And the reason I bring those up is, one, with regard to the literal meaning
of the request, the literal meaning it talks about immediately prior. And as the Court has
pointed out, that is different than the moment of impact. And its also different from
events leading up to the moment of impact. . . . [¶] . . . [¶]
       ―THE COURT:         Okay. The way you described those cases, Mr. Moriarty, it
sounds like they‘re consistent with what I‘m saying, which is, you can‘t introduce
evidence that‘s contradicted by the admission; but it remains my decision whether the
evidence offered is contradicted by the admission. What I‘m asking you is if you have
any authority that says you can introduce evidence that‘s contradictory to the Request For
Admission, I would be interested in seeing that.
       ―And, Counsel, let me just say, I just want to get these things right. So everybody
has an opportunity to prove me wrong and you shouldn‘t be bashful about saying I‘m
wrong. But this is, you know, in my brief time looking at this case, these are the
conclusions that I‘ve reached. And so you‘re going to have to convince me that I should
have reached a different conclusion. Okay.
       ―Plaintiff‘s In Limine Motion No. 3, to preclude the testimony of defendant expert
James Hughes. I‘ve already ruled on that. I think I would characterized that as it‘s
denied, but I‘m going to keep a tight leash on Mr. Hughes, and if you think we need a
402 on Mr. Hughes, I would be willing to entertain that.
       ―MR. BONAGOFSKY: We would request that, Your Honor.


                                               10
       ―THE COURT: Okay. Keep me posted as to, you know, when you, think that‘s
going to happen, and I think that‘s legitimate.‖
       Opening Statements
       With liability admitted, the only issue was damages, which damages would
include medical expenses and pain and suffering. There was no claim for wage loss.
       The background of how that issue would be developed, and the competing views
of the evidence, was described in the opening statements. Thus, Crane‘s, where his
attorney described him as follows: ―Now, before the accident Mr. Crane was an active
athlete. He was a former ski patrol at Squaw Valley, captain of his college ski team, he
was a surfer, he was an active runner, he was in great shape. Since the accident he can no
longer do most of those things without excruciating pain, and this is a result of the
accident.‖ The trial would be, as his counsel would later describe it, about a collision that
caused ―an aggravation of a preexisting lumbar injury.‖
       Clark‘s counsel‘s version of what was involved was this: ―[T]his case involves a
minor rear-end accident . . . . Both vehicles drove away from the accident with no visible
damage. . . . Defendant Colby Clark is admitting that she was negligent in coming into
contact with the back of the cab, she makes no bones about that. She knows that she
bumped the back of the cab and she admits to it. Plaintiff Peter Crane is in the back of a
cab without a seatbelt on at the time of the accident. After this minor rear-end accident,
Plaintiff Peter Crane, he‘s fine at the scene. . . . [P]laintiff also has no cuts, no bruises, no
welts, nothing that‘s showing that there was any type of a trauma as a result of this bump.
[¶] Police are not called to the scene. Paramedics or ambulance, not called to the scene.
Both vehicles drive away from the scene. . . . [¶] . . . [¶] . . . Now, before this accident,
plaintiff is suffering from low back problems.‖
       Evidence
       Much of the evidence is not germane to the issues before us, and we recite it only
briefly, to provide some context. Crane was an attorney by training, 36 years old at the
time of the accident. He had stopped practicing law in 2006, and at the time of the
accident was as an entrepreneur helping to start small businesses.


                                               11
        As to the accident itself, there was relatively little evidence about it. Harris, the
taxi driver, called as a witness by Crane, testified he was stopped for a light, chatting with
Crane, his head turned slightly. ―The next thing . . . I saw the logo of the steering wheel
in my right eye. . . . [I]t was just a quick bang . . . and I asked [Crane] what happened,
and he said the lady behind us just hit us.‖ Crane‘s counsel asked Harris if the impact felt
like a minor accident, and Harris stated he was not sure how to respond, and replied,
―Some people rate accidents in terms of car damages.‖ Counsel clarified that he was
―referring to the forces exerted inside the cab, not to any damage to the cab or anything
like that,‖ and, then asked, ―inside the cab, did it feel like a significant impact?‖ Harris
responded in the affirmative. Harris also testified that the taxi moved forward ―a little‖
upon impact.
        Harris looked at Clark‘s station wagon after the accident, and saw no visible
damage. He talked to Clark, exchanged information with her, and then drove Crane to
his destination. Neither the police nor an ambulance was summoned.
        On cross-examination, Harris was shown copies of photographs of the taxi taken
after the accident, and testified he took the original photographs. Over Crane‘s objection
(based on Harris‘s concerns over possible distortion of the photographs), and after
questioning by Judge Begert, the photographs were admitted.
        Crane testified he was in the backseat of the taxi, not wearing a seatbelt. He
described the impact as a ―violent jolt,‖ and that he was thrown forward out of his seat,
striking the roof of the cab, then the seat in front of him, ending up in the foot well
between his seat and the front seat. He did not remember feeling any pain at that time
and suffered no bruises, welts, or cuts. He confirmed that following the accident Harris
drove him to his destination, a work-related charity event, where he went to ensure
everything was running smoothly with his company‘s product and to meet people
involved with the charity. He enjoyed a glass of wine, stayed for an hour or so, and went
home.
        Clark‘s testimony about the accident was especially brief. The reason was that
prior to her testimony Judge Begert held a Evidence Code section 402 hearing,


                                               12
necessitated by the matters admitted by the requests, at which Clark described what
happened prior to the collision, including her actual speed prior to impact. Judge Begert
ruled that Clark could not testify about her actual, pre-collision speed, or that she was
stopped behind the taxi prior to impact, or the force of the impact, on the basis that such
facts would be in direct contradiction of the deemed admissions. Clark was allowed to
testify about what happened after impact, and confirmed that the pictures of the taxi
represented what it looked like following the accident. Clark also testified that she and
Harris inspected her car and the back of the taxi at the accident scene, and that there were
some scratches on the vehicles.
       As indicated, the main issue at trial was the extent of damages caused by the
accident, against the background of Crane‘s preexisting medical condition. Much of the
evidence came from Crane‘s doctors and other health care providers, including those who
had treated Crane prior to the accident and, of course, from their records. Necessarily a
significant witness on this issue was Crane himself, and he was examined in detail about
his medical condition and complaints, and his conduct, both before the accident and after.
And he did not acquit himself well, at times giving testimony at odds with the medical
records, at other times claiming not to recall significant facts. A few illustrations should
suffice.
       To put the illustrations in perspective, Crane testified that he has skied since he
was eight years old and in fact had raced in both slalom and giant slalom. Crane also
surfed, and had since age 16. And, Crane admitted, he had experienced low back pain
throughout his life after engaging in physical activities.
       Physical therapist Rodney Heschong, who began treating Crane in
December 2006, some six months before the accident, testified that in his initial
evaluation Crane had complained of a ―low back strain with a twisting in 2000, several
injuries while skiing, mostly strains and sprains to the back.‖ A chiropractor Crane went
to in February 2007 testified that Crane told him that he had lower back pain and leg pain
due to a surfing injury. Later asked about all this, Crane said he did not remember
suffering any back or leg injury due to skiing or surfing.


                                             13
       Crane‘s first visit to a doctor after the June 15 accident was Monday, June 18.
According to the note in the doctor‘s file, Crane presented ―with several complaints. He
did cut his leg on a barbed wire fence, and he was unsure of when his last tetanus booster
was. . . . He also requested a Hepatitis A vaccine because he was traveling to Mexico and
Central America for a surfing vacation. Patient also complained of neck pain after a
whiplash injury two days ago. He was in the back seat of the cab and was rear-ended and
notes neck pain and stiffness since the accident.‖
       Questioned at length about this, Crane could remember nothing, absolutely
nothing, about the barbed wire incident, and could not remember asking for a hepatitis
shot, and did ―not remember having a trip planned then.‖ Crane‘s claimed inability to
remember these facts, and myriad others, while on cross-examination prompted a
question from a juror, who asked, ―Mr. Crane, have you experienced memory problems
in the past?‖ Crane answered yes, explaining that pain pills sometimes affect his
memory.
       In early 2010 Crane went skiing with his former ski team on a reunion weekend,
where he fell. He posted a picture on his Facebook page showing him having fallen, with
the caption: ―Ski patrol forgot the cliff sign and I was lucky enough to fall in these trees
before going over.‖ In May 2010 Crane had surgery, a microdiscectomy.
       On the issue of damages, Crane introduced evidence of past medical expenses
totaling $46,707. This was comprised of some $24,000 for the surgery, plus MRIs,
X-rays, chiropractic care, medical visits, prescription medications, and an epidural
injection. Crane‘s physicians testified that future medical costs would be at least
$200,000. This would include a second microdiscectomy, the minimum he would need,
that would cost $40,000 to $55,000 and would take six months of recovery time.
Follow-up treatment would include physical therapy, prescription medications, possible
epidural injections, medical visits, additional MRIs and X-rays, and a spinal cord
stimulator. One doctor testified that Crane might need a lumbar fusion, which would cost
$200,000 to $225,000 and would take six months to a year of recovery time, for a total



                                             14
cost of $352,100. And if Crane opted not to have surgery, the cost of ongoing medical
care could reach $1.5 million.
       Clark‘s medical expert testified that Crane did not sustain any objectively
identifiable injury directly resulting from the accident, no objectively identifiable injury
to the cervical, thoracic, or lumbar regions. Crane did have complaints of discomfort in
those sites that were attributed by the treating providers to soft tissue injury or a strain or
sprain. And, the expert opined, Crane‘s soft tissue injuries attributable to the accident
were resolved by treatment within six weeks or so of the accident. The expert further
opined that Crane did not aggravate his prior condition in the accident; did not sustain
any objectively identifiable injury to his right lower extremity as a result of the accident;
and did not suffer an injury to his lumbar low back and right lower extremity region as a
result of the accident that was not present before the accident.
       Closing Arguments
       Crane‘s counsel began his closing argument by ―telling you again about
Mr. Crane. Before the accident, despite the fact that he did have a lumbar disc injury, he
was a happy, active, athletic guy who was an avid skier, former member of the ski patrol,
mountain biker, mountain climber. He had done all kinds of athletic activities. He was
in very good shape, and he recovered well from the prior disc injury. By April 5th, 2007,
his symptoms were down to a level that Dr. Slosar and Dr. Melnik and Dr. Andrews all
said made him not a surgical candidate. That changed after the accident.‖ And so
counsel defined the issue: Clark, driving carelessly, caused a collision that caused ―an
aggravation of preexisting lumbar injury.‖
       Lengthy argument followed, culminating with the amount of damages for which
Clark was responsible. They began with the $46,707 for past medical expenses. Turning
to future medical expenses, counsel argued that these would range from $352,100 if
Crane were to have surgery to $1.51 million if he did not. And on the issue of pain and
suffering, using a per diem basis, counsel argued that $846,240 was appropriate for past
pain and suffering, and $469,000 in ―additional pain and suffering from today‘s date
forward through the end of the recovery period if it [i.e., the surgery] works.‖ If not,


                                              15
counsel put forth some alternatives. The result of all this? ―[A] total figure of
$1,934,127.‖
       Counsel concluded by reminding the jury of all of Clark‘s admissions, including
that ―immediately prior to the collision she was holding a mobile phone and she has
admitted that immediately prior to the collision she was exceeding the posted speed limit
on Bush Street. She has also admitted that immediately prior to the collision she did not
apply the vehicle‘s brakes. . . . [¶] So the reason why these are important is that requests
for admission are not like normal evidence. These are things that shove away any
evidence that is in conflict with what she has admitted. No matter how powerful you
think it is, no matter how convincing you might think certain photographs are of what
really happened in this case.
       ―You must accept as true that she was going over 30 miles an hour immediately
before the accident, did not hit her brakes, did not try to steer away, was turned around
looking in the back seat holding a mobile phone.‖
       The defense argument was relatively brief, a total of 20 pages in the transcript.
The argument began with counsel reminding the jury that it had to use its ―common
sense,‖ and from there focused primarily on the fact that the surgery did not take place
until May 2010, some three years after the accident—and shortly after the fall depicted
on Crane‘s Facebook page. And in the intervening period Crane had participated in the
same type of vigorous activities like skiing, surfing, and scuba diving, as he had before.
Counsel also noted the lack of corroborating testimony from any of Crane‘s friends or
acquaintances. Finally, counsel commented on Crane‘s lack of credibility, focusing on
the ―six times . . . he was not true.‖
       Jury Instructions
       Judge Begert‘s instructions to the jury included CACI 210 (requests for
admission), modified to also instruct that ―you are not permitted to accept as true any
evidence that contradicts facts admitted in a Request for Admission.‖ The jury was also
instructed on the speed limit with CACI Instruction 707, which informed the jury that the
speed limited where the accident occurred was 30 miles per hour. And on the subject of


                                             16
expert testimony, the jury was given CACI 219 (Expert Witness Testimony), 220 (Expert
Questions Containing Assumed Facts), and 221 (Conflicting Expert Testimony).
       Following instructions, a session was held outside the presence of the jury, at
which various housekeeping matters were discussed. In the course of this session, Judge
Begert made the following statement for the record: ―Okay. One other thing I wanted to
put on the record was that there was considerable discussion about requests for admission
and their impact on the case. For the record, I allowed certain evidence to come into the
case which was related to the subject matter of the request for admission. The Court did
this pursuant to a case, Fredericks v. Filbert Company, which is 189 Cal.App.3d 272, and
Milton versus Montgomery Ward, which is 33 Cal.App.3d 133. And, in addition, I
advised the jury that they could not consider as true evidence which was contradicted by
the request for admission. And that was based on Murillo versus Superior Court,
143 Cal.App.4th 730.‖
       Verdict
       The jury began its deliberations on the morning of February 23. Early that
afternoon the jury returned its verdict, finding for Crane, and awarding $545 for past
medical expenses and $9,800 for past pain and suffering, for a total of $10,345. The jury
determined that Crane was also negligent, but that his negligence was not a substantial
factor in causing his harm.
       Motion for New Trial
       On March 10, Crane filed a notice of intention to move for new trial, and on
March 21 his brief in support of the motion together with the declaration of counsel and
request for judicial notice. On April 11, Crane filed an augmented brief, augmented
declaration of counsel, and augmented request for judicial notice. Clark filed opposition,
and the motion was argued on April 29. On May 11, Judge Begert issued a
comprehensive 15-page order denying it. After judgment was entered, Crane filed a
timely appeal.




                                            17
                                         DISCUSSION
       Introduction to the Issues: The Law Regarding Requests for Admissions
       Crane‘s primary arguments assert evidentiary error, and underlying them is the
effect of the matters deemed admitted by the unresponded to requests for admissions, and
what evidence could thereafter be allowed at trial. We thus begin with some discussion
about requests for admissions.
       ―The admission request differs fundamentally from the other five discovery tools
(depositions, interrogatories, inspection demands, medical examinations, and expert
witness exchanges). These devices principally seek to obtain proof for use at trial. In
marked contrast, admission requests seek to eliminate the need for proof: ‗[T]he purpose
of the admissions procedure . . . is to limit the triable issues and spare the parties the
burden and expense of litigating undisputed issues.‘ Sometimes the admissions obtained
will even leave the party making them vulnerable to summary judgment.‖ (1 Hogan &
Weber, California Civil Discovery (2d ed. 2005), § 9.1, p. 9-2, fns. omitted.)
       As the Supreme Court noted long ago, requests for admission ―are primarily aimed
at setting at rest a triable issue so that it will not have to be tried. . . . For this reason, the
fact that the request is for the admission of a controversial matter, or one involving
complex facts, or calls for an opinion, is of no moment. If the litigant is able to make the
admission, the time for making it is during discovery procedures, and not at the trial. . . .‖
(Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429; accord Kelly v. New West
Federal Savings (1996) 49 Cal.App.4th 659, 672 [admitted facts preclude contrary
evidence at trial].) In short, the objective of requests for admissions is to narrow the
issues and save the time and expense of unnecessary proof at trial. (Hillman v. Stults
(1968) 263 Cal.App.2d 848, 885.)
       Code of Civil Procedure section 2033.280, subdivision (b), provides that when a
responding party fails to respond timely to requests for admission, the requesting party
may move for an order that ―the truth of any matters specified in the requests be deemed
admitted. . . .‖ Crane did that here, and his motion was granted, the effect of which is
that the matters in the requests were ―conclusively established.‖ (Code Civ. Proc.,


                                                18
§ 2033.410, subd. (a).) As the leading practical treatise describes it, requests for
admissions ―are one of the most potent discovery weapons because whatever is admitted
is conclusive.‖ (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2013) [¶] 8:1257, p. 8G-1.)
       That said, the treatise also notes this:
       ―Trial judge’s ‘interpretation’ of admission in light of other evidence: The
court retains the discretion to determine the scope and effect of a party‘s admission. The
court may determine whether it accurately reflects the truth in light of other evidence in
this case. This prevents requests for admission being misused as a device to hide or
confuse issues. [Citation.]
       (a) [8:1390.1] For example, the trial judge may find an RFA deceptive because
the admission is susceptible to different meanings. [Citation. ] [¶] . . . [¶]
       (b) [8.13903] Or, the court may simply read the admission differently than the
propounding party expected. [Citation.]
       (c) [8:1390.5] Compare—unambiguous admission: But if the response is
unambiguous, there is no reason to construe it. The matter admitted must be treated as
‗conclusively established.‘ [Citation.].‖ (Weil & Brown, supra, at pp. 8G-33-8G-34.)
       Three cases bear on the observations quoted above, shedding light on the subject
of how a trial court is to deal with admitted requests for admission.
       The first is Milton v. Montgomery Ward & Co., Inc. (1973) 33 Cal.App.3d 133
(Milton). Milton slipped on defendant‘s premises and sued for personal injuries.
Defendant served 14 request for admissions, Milton did not respond, and the matters
were deemed admitted, including no. 9 which read: ―Your only hospitalization for the
injuries complained of was for approximately one hour and was at the Community
Hospital of San Gabriel.‖ (Id. at pp. 136-137.) The reality was that Milton had other
hospitalizations, and at the start of trial his counsel asked if we are ―bound in terms of our
opening statement to the sole and single hospitalization?‖ The court responded: ―Any
hospitalization you want other than this particular hospital. It is deemed admitted at this



                                              19
point that he was one hour at this particular hospital. What other hospitals he went to I
have not the slightest.‖
       Evidence of other hospitalizations was admitted, and Milton received a plaintiff‘s
verdict. Defendant appealed, and the Court of Appeal affirmed. It first confirmed that
―after a matter is deemed admitted, the scope and effect of the admission must be
determined by the trial court. The trial court has broad discretion in determining the
admissibility and relevance of evidence.‖ (Milton, supra, 33 Cal.App.3d at p. 138.) The
court went on to hold that defendant‘s counsel had acquiesced in the court‘s
interpretation of the admission, noting that defendant had in fact subpoenaed records
from other hospitals and that defendant‘s expert witness was aware of other
hospitalizations. Tellingly, the court concluded: ―No injustice resulted from the
introduction of the evidence of other hospitalizations. The court‘s ruling merely
permitted the jury to determine the issues on their merits.‖2 (Milton, supra,
33 Cal.App.3d at p. 139.)
       The next case is Fredericks v. Kontos Industries (1987) 189 Cal.App.3d 272
(Fredericks), which, citing Milton, begins as follows: ―Here we hold that an admission
by a party under Code of Civil Procedure section 2033 is usually conclusive, but in
certain cases the trial court has discretion to determine its scope and effect.‖ (Id. at p.


       2
         The Supreme Court has noted, albeit in a different context, that there could be an
element of fortuity, if not unreality, involved in requests for admissions, especially if the
request is unresponded to. Thus: ―Parties often propound requests for admission
covering the ultimate facts of the case that, if admitted, are outcome determinative. The
propounding party who gets ‗lucky‘ and receives no response then notices a motion for a
deemed admitted order that, at a minimum results in the award of monetary sanctions. If
the propounding party does not receive a response by the hearing, then, under Courtesy
Claims [Service v. Superior Court (1990) 219 Cal.App.3d 52] and St. Paul [& Marine
Ins. v. Superior Court (1992) 2 Cal.App.4th 843], he ‗hits the jackpot‘ and ‗wins‘ an
irrevocable deemed admitted order disposing of the lawsuit. By permitting relief under
[former Code of Civil Procedure section 2033,] subdivision (m) [currently codified at
section 2033.300, subdivision (b)], we eliminate such undeserved windfalls and the
resulting subversion of the policy favoring the resolution of lawsuits on the merits.
[Citation.]‖ (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 982-983.)


                                              20
274, fn. omitted.) Fredericks, a builder and operator of movie theaters, sued Kontos, a
provider of interior furnishings for such theaters. In response to a request for admission,
Fredericks admitted that he ―had agreed to make progressive payments to Kontos
according to a schedule set forth in March 6 documents.‖ (Fredericks, supra,
189 Cal.App.3d at p. 276.) At trial, Fredericks testified that although the progressive
payments were to be made under the contract, they were dependent upon work being
performed by Kontos, and that Kontos‘s intention at the time the contract was made was
not to demand the May 1 payment until construction on the theater warranted it. In short,
both parties did not intend the dates in the payment schedule to be sacrosanct. (Id. at
pp. 277-278.)
        After discussing Milton, the Court of Appeal observed as follows: ―Milton
recognized the power of the trial court to determine the admissibility and relevance of
evidence related to admitted facts. Here, the trial court properly admitted evidence of the
party‘s understanding of the progress payment schedule. Evidence of this understanding
did not contradict the fact admitted, but rather explained it. The court must have
discretion to admit evidence to elucidate and explain an admission, because the
admission of a fact does not always reflect the party‘s reasonable understanding of that
fact.
        ―It is through the court‘s discretion to determine the admissibility and relevance of
evidence that a trial accurately reflects events rather than distorts them. An admission
under section 2033, as a rule, conclusively establishes the fact admitted, but the
admission of a fact may be deceptive when the fact admitted may have different
meanings. Through the court‘s discretion to admit evidence that explains the scope and
effect of such an admission, the court ensures that the request for the admission is not
misused as a device to hide or confuse issues.‖ (Frederick’s, supra, 189 Cal.App.3d at
p. 278.)
        The third case, and the one on which Crane heavily relies, is Valerio v. Andrew
Youngquist Construction (2002) 103 Cal.App.4th 1264. Valerio, a subcontractor, sued
the general contractor, alleging in the alternative breach of express written contract and


                                             21
quantum meruit. The general contractor filed a cross-complaint, and in his answer to the
cross-complaint Valerio admitted that a written contract between the parties existed.
Valerio made a similar admission in his response to requests for admissions. At trial,
however, Valerio took the position that no executed contract existed. The trial court
concluded there was no contract because there was no mutuality of assent, and entered
judgment on a quantum meruit theory.
       The general contractor appealed, and the Court of Appeal reversed, holding that
the trial court ―failed to give conclusive effect to Valerio‘s judicial admissions regarding
the existence of a written contract.‖ (Valerio v. Andrew Youngquist Construction, supra,
103 Cal.App.4th at p. 1267.) The court concluded as follows: ―Unlike the circumstances
of Fredericks v. Kontos Industries, Inc., supra, [189 Cal.App.3d 272], there was no
ambiguity in Valerio‘s understanding at the time he responded to the requests for
admissions. Valerio clearly believed that a written contract existed. He admits that, at
the time of the response, trial counsel labored under the ‗misconception . . . that there was
in place a fully executed written agreement between the parties.‘ Accordingly, there was
no reason for the court to interpret the admission in order to resolve an ambiguity or
reflect Valerio‘s reasonable understanding of the facts. Simply put, Valerio filed a
mistaken response that he never later moved to amend or withdraw. Moreover, if Valerio
disagreed that a written contract existed, he was required under Code of Civil Procedure
section 2033, subdivision (f)(1)(B) to deny the portion of the requested admission that he
considered untrue. Valerio was aware that he could qualify his admission, as reflected in
his response to request for admission No. four. [¶] It is apparent from the court‘s remarks
that motions to amend or withdraw would have been granted. While the result here is
rigorous, the rule is clear and [defendant] is entitled to rely upon it.‖ (Valerio v. Andrew
Youngquist Construction, supra, 103 Cal.App.4th at pp. 1273–1274.)
       The Issue at Trial
       As mentioned above, one deemed admitted fact—that Clark was exceeding the
30 mile-per-hour speed limit—became the focal point on the question of what testimony
could be admitted. And to put the issue in complete perspective—and to demonstrate


                                             22
precisely what Judge Begert was concerned about—we quote the colloquy at the hearing
on the new trial motion that well captures the point:
       ―THE COURT: Okay. Now, Mr. Bonagofsky, let me ask you this:
       ―Do you actually take the position that the real speed of Defendant‘s vehicle at the
point of impact was in excess of 30 miles per hour?
       ―MR. BONAGOFSKY: I take the position that this Court, Department 302, by
judicial fiat, established that that was the case.
       ―THE COURT: Okay. I‘m asking you, independent of that, in the real world—
       ―MR. BONAGOFSKY: I have no idea. I wasn‘t there.
       ―THE COURT: Okay. Because the problem that I‘m confronted with, and the
problem I‘ve been confronted with since the very beginning of this trial, is that I think the
Requests for Admissions, which—which I never said were not deemed and were not
admissions, that—We‘ve always been in agreement that the Requests for Admissions are
deemed admitted.
       ―The question has always been, what is the impact of that on this proceeding?
       ―And the challenge that that presented to me is that I was, therefore, operating in
two different versions of reality.
       ―One is the reality that you referred to in your papers at one point as the judicial
reality, which is that Ms. Clark was going in excess of the speed limit immediately prior
to the collision.
       ―And the other reality was what I‘ll call the historical reality, which is that lots of
evidence in this case was inconsistent with the judicial reality, including, I would say, the
description that Mr. Crane had of what happened at the accident, the description that the
taxicab driver gave of what happened at the accident, and these were witnesses that were
called by the Plaintiff.
       ―So my question to you is: Do you have some legal authority that you can point
me to that would explain how the Court can deal with exactly that situation where the
admissions are clearly at odds with the historical reality of the case?



                                               23
       ―MR. BONAGOFSKY: All of the authority that I provided says that no contrary
evidence can come in if it is contrary to the Requests for Admission. That‘s the whole
point of the RFA, is, no contrary evidence comes in. That‘s why we have Requests for
Admission. That‘s the legal effect of the Request for Admission.‖
       Judge Begert Did Not Err in Connection With the Testimony of Hughes and
       Shimada
       Crane first contends that ―the testimony of defense ‗experts‘ . . . Hughes and . . .
Shimada Contradicted the Judicial Admissions.‖ James Hughes was an expert in
accident reconstruction, Sean Shimada, Ph.D. an expert in biomechanics.
       The proceedings below included 402 hearings for both Hughes and Dr. Shimada.
The hearing for Hughes was extensive, that for Dr. Shimada, brief. As pertinent to the
issue here, Crane‘s counsel cross-examined Hughes extensively, with special reference to
his deposition and his reference to the ―delta velocity‖ of the taxi. Further questions
ensued, with Hughes referring to his deposition testimony that Clark was travelling
―between zero and 3 miles an hour‖ at impact. Judge Begert then asked some questions,
the upshot of which was that Hughes said Clark was ―travelling about 4.7 at the highest
end.‖ Crane‘s counsel responded immediately: ―Based on that, your Honor, I think the
RFAs preclude him from testifying.‖ There followed redirect examination from Clark‘s
counsel, lengthy recross, and further redirect. Judge Begert asked more questions, and
then said that, following argument from Crane‘s counsel, he was ready to rule. This
argument followed:
       ―MR. BONAGOVSKY: Mr. Hughes testified a moment ago that it was a matter
of impossibility of physics for his results to have been consistent with what the RFAs say.
That being the case, I don‘t see how he can testify.
       ―He didn‘t testify to any of what he‘s saying right now at his deposition. He gave
me the testimony that I read to you. I think it‘s highly prejudicial for him to be allowed to
testify to something entirely different from what he testified to in his deposition. That‘s
all.
       ―THE COURT: Okay. Mr. Moriarty.


                                             24
       ―MR. MORIARTY: Your Honor, that‘s all the subject of cross-examination.
       ―Mr. Hughes has explained that all of his calculations, all of his opinions and
conclusions, are based on the physical evidence and there was no need for him to have
any information or anything with regard to the speed of my client‘s vehicle at the
moment of impact, or immediately prior to the moment of impact. It‘s not a factor in his
analysis.
       ―And we‘re dealing with two separate issues. We have deemed admissions—
We‘re admitting to the fault for the accident, Your Honor. We‘ve admitted to that.
       ―What we‘re dealing with right now is the analysis of whether there is an injury
claim and what the extent of that injury claim is.
       ―And as part of that analysis, we have an accident reconstructionist and a
biomechanical expert that are doing their analysis based entirely, in the beginning, on the
physical evidence. There‘s nothing that‘s contrary to these deemed admissions. We‘re
admitting to the fact that we were negligent at the time of the incident.
       ―THE COURT: No. You‘re admitting to the fact that you were going 30-30 miles
an hour or more. That‘s what you‘re admitting to.
       ―MR. MORIARTY: Understood.
       ―THE COURT: Okay. So I don‘t want to hear anything out of this witness that
indicates that that vehicle was going less than 30 miles an hour.
       ―MR. MORIARTY: He is not going to.
       ―THE COURT: All right. I think this is a very difficult problem.‖
       Counsel for Crane then said there was ―[o]ne more piece of evidence that I‘d like
to put into the record, if I may,‖ and was allowed to. It was as follows:
       ―MR. BONAGOVSKY: Mr. Hughes, what did you say was the G-force that you
calculated in this accident?
       ―MR. HUGHES: Based upon the delta velocity between the two vehicles, the
G-force was .98 Gs.‖ Counsel then impeached Hughes with his deposition, ending with
the observation that the deposition was ―completely inconsistent with what he‘s going to
testify to.‖


                                             25
          ―THE COURT: Okay. I don‘t have any doubt that there will be some very
interesting impeachment, but I‘m going to allow the witness to testify.
          ―We have another issue that‘s come up in the course of this hearing, which is, one
of the pieces of impeachment evidence is going to be that the estimate of the damage to
the vehicle came from an insurance adjuster.
          ―So how are we going to deal with that?‖
          The discussion then turned to the subject of Crane‘s ability to use the insurance
adjuster‘s estimate of damage to Clark‘s station wagon to impeach Hughes without
introducing evidence of insurance. After some discussion, further testimony was elicited
from Hughes in an effort to resolve the issue, the result of which was that Hughes agreed
that he could give his opinion based on the photographs of damage to the vehicles and
without using the damage estimate. At that stage of the proceeding, Crane‘s counsel
objected, in the following language:
          ―MR. BONAGOFSKY: Your Honor, you see my problem with this, which is that
it‘s—it‘s like a moving target. I took this deposition in October, and I‘m faced with an
entirely different thing now with an expert whose deposition I haven‘t taken on these
topics.
          ―I think that his testimony, based on the math that‘s in front of him—and if Your
Honor would take a look at, you‘ll see it‘s the same thing—is based on math that is
inconsistent with the RFAs. That being the case, it cannot come in under CCP 2033. It
cannot come in.
          ―Therefore, I don‘t think the witness should be allowed to testify. I think there‘s a
lack of a reasonable basis for his expert opinion, given what we‘re hearing today.
          ―He can‘t just pick numbers out of thin air based on nothing. There‘s got to be a
rational basis or else he‘s not—he‘s not competent to testify as an expert. [¶] . . . [¶]
And this is like . . . [¶] . . . [¶] a Kelly-Frye problem.‖
          Finally, after more discussion about how the estimate might be described, Judge
Begert said he was prepared to rule. Then this occurred:



                                                26
       ―THE COURT: That‘s what I‘m going to do. I think that the probative value of
this expert‘s testimony, at the end of the day, is going to be de minimis.
       ―But you‘re going to be able to cross-examine this witness on the fact that this
was . . . the cost of repair estimate . . . on the Defendant‘s car was prepared by the
Defendant.
       ―MR. BONAGOFSKY: Not by the insurance company?
       ―THE COURT: No.
       ―MR. BONAGOFSKY: Your Honor, I—I want to—For the record I want to state
a number of objections.
       ―THE COURT: Okay.
       ―MR. BONAGOFSKY: Number 1, I want to object that the estimate is not
admissible.
       ―Number 2, I‘m being hamstrung by the fact—
       ―THE COURT: The estimate is not admissible, that‘s correct.
       ―MR. BONAGOFSKY: I‘m just trying to state some objections.
       ―THE COURT: Yes.
       ―MR. BONAGOFSKY: So—
       ―THE COURT: And I want to be clear what my ruling is: The estimate is not
coming into evidence.
       ―MR. BONAGOFSKY: Number 2, the fact that it was done by an insurance
adjuster adds a layer of bias to this that I am being precluded from telling the jury about,
and I think that‘s highly prejudicial.
       ―Number 3, I think that there is a lack of a sufficient basis for this expert‘s
testimony. Given what he testified to at the beginning of this hearing and what he‘s
testifying to in response to these leading questions from Mr. Moriarty, it‘s a constantly
moving target.
       ―The jury‘s not going to see that. What they‘re going to see and hear is, they‘re
going to hear the polished final product, now that he‘s had a chance to change his story
three, four times, and I—I can do nothing about that.


                                              27
        ―I think this is completely contrary to what the RFAs say happened in this case,
which is, as we‘ve discussed before, the judicial reality regardless of what the photos
show.
        ―The photos of the Volvo are not in evidence. And they are so dark that—He
admitted in his deposition that they told him very little. So how can he say anything that
has a sufficient basis to allow his expert testimony to be admissible in the first instance,
let alone cross-examination?
        ―I‘m talking about whether or not he meets Kelly-Frye standards for expert
testimony. He doesn‘t.
        ―THE COURT: Thank you, counsel. You‘ve made your record.‖3
        The 402 hearing for Dr. Shimada was brief, some four pages of transcript. He
opined that Crane‘s injuries were not caused by the accident, an opinion based on his
biomechanical analysis. Dr. Shimada further testified that the bases for his opinions
included the force of impact calculations provided by Hughes. Kelly-Frye was not
mentioned with respect to Dr. Shimada. Judge Begert ruled as follows: ―So there‘s the
same ruling with regard to this witness. [¶] Now, in order to address this . . . conflict—
and I agree that there is some degree of conflict—Plaintiff‘s counsel is going to be able to
read any Requests for Admission that he wants to read during the testimony of these
experts. [¶] I believe, at the end of the case, there will be an instruction on expert
witnesses and hypotheticals and that instruction will say that if the expert‘s opinion was
based on assumptions that are not true, that the expert‘s opinion can be disregarded.‖
        Against that background, both Hughes and Shimada were allowed to testify, and
did. At the conclusion of Dr. Shimada‘s testimony, Crane requested that Judge Begert
read to the jury the matters deemed admitted. Judge Begert agreed, adding at the end of
each request that the matter was ―admitted‖ and had to be accepted as true.



        3
        Later, when Hughes was called to the stand, Crane‘s counsel asked to ―have a
standing objection . . . to this witness‘s testimony based on the 402 hearing.‖ Judge
Begert agreed.


                                             28
       Crane contends that the ―trial testimony of . . . Hughes and . . . Shimada confirmed
their opinions were directly at odds with the Judicial Admission.‖ We disagree.
       A similar argument was made below in Crane‘s motion for new trial, an argument
rejected by Judge Begert in the course of his detailed 15-page order denying the motion.
We cannot improve upon his comprehensive analysis, and we thus quote liberally from
his order where, among other things, he noted as follows:
       ―During trial, the Court prevented Defendant from giving any testimony
contradicting the admissions. At numerous points outside the presence of the jury,
Defendant disputed the truth of the admissions, but the jury was not allowed to hear this
testimony. In addition, the Court excluded any testimony from any witness that literally
contradicted the admissions. In particular, the Court excluded any testimony that the
speed of Defendant‘s vehicle at the point of impact or immediately prior to the collision
was less than 30 miles per hour.
       ―Moreover, the Court introduced the admissions with considerable emphasis.
Prior to reading the admissions to the jury, the Court read CACI 210 which states, in part:
‗If the other party admits those matters, you must accept them as true.‘ The Court then
read each of the requests for admission to the jury, followed by the statement:
‗admitted.‘ ‖ Then, after quoting Crane‘s closing argument reminding the jury what was
admitted, Judge Begert quoted Crane‘s counsel, that ― ‗[Mr. Hughes‘s] testimony about
the speed of impact is completely inconsistent with those facts and you must disregard
them because admissions trump all.‘ ‖
       Judge Begert continued: ―In a literal sense, the Court did not admit any evidence
that contradicted the deemed admissions. Defendant was not allowed to testify that:
(1) she was driving less than 30 miles per hour . . . [¶] On the other hand, both sides
introduced evidence that was inconsistent with a 30-mile-per-hour rear-end impact. For
example, Plaintiff called the cab driver to testify regarding the effect the impact had on
him and Plaintiff. He described the impact on direct, and on cross-examination he stated
that the impact did not move the taxi forward significantly. The cab driver also testified
that he suffered no serious injuries, and he was able to drive back to Marin County after


                                             29
the accident. Plaintiff testified that he suffered no broken bones or lacerations even
though he was not wearing a seat belt. Defendant testified regarding how the collision
felt and how her child reacted to it in the back seat. Defendant also testified about the
lack of damage to her car and to the taxi. All of the witnesses testified that no one called
for the police or an ambulance. All of the witnesses testified that both vehicles were
driven away after the accident. No one testified that any airbags were deployed. Plaintiff
testified that after the accident he went on to attend an event as planned. All of this
evidence was inconsistent with a 30 mile-per-hour impact.
       ―The deemed admissions created two conflicting realities. In the historical version
of reality, Defendant‘s car did not impact Plaintiff‘s taxi cab at a speed of 30 miles per
hour and Plaintiff‘s injuries did not result from an impact of that magnitude. In what
Plaintiff has described as the ‗judicial reality,‘ however, Defendant‘s car was travelling at
more than 30 miles per hour ‗immediately prior to the collision.‘ Almost any information
from the historical reality created conflicts with the judicial reality, and the degree of
damage to the vehicles and people from the historical reality would be highly improbable
if the judicial reality were true. This created challenges with regard to the admission of
virtually all of the most probative evidence in the case (i.e., what really happened in the
accident, and how badly did the accident injure Plaintiff?)
       ―Faced with these competing versions of reality, the Court drew the line as
follows: other than the deemed admissions, no evidence regarding the speed of
Defendant‘s car immediately prior to or at the point of impact would be admitted.
Defendant was not permitted to introduce any testimony literally describing the speed of
her car or disputing any of the other admissions. The Court excluded any evidence
contradicting the literal language of the admissions. A great deal of evidence offered by
both sides was, however, in tension with a 30 mile-per-hour impact.
       Then, after easily rejecting Crane‘s claim about Dr. Shimada‘s testimony, Judge
Begert concluded his analysis as follows:
       ―The only evidence that came close to contradicting the deemed admissions, was
the testimony of Defendant‘s accident reconstruction expert, James Hughes.


                                              30
        ―Prior to allowing Mr. Hughes to testify, the Court conducted a hearing outside the
presence of the jury under Evidence Code Section 402. The following exchange between
the Court and Mr. Hughes took place:
        ― ‗THE COURT: What I‘m confused by, Mr. Hughes, is, if you‘re saying—and I
hear you saying—that the speed of the Volvo prior to the impact, that the—the stated
speed of the Volvo before the impact was irrelevant to your expert testimony about the
forces created by the impact; is that correct?
        ― ‗MR. HUGHES: That‘s correct.‘ (Trial Transcript 2/17/2011 at 96:15-21.)
        ―Mr. Hughes also asserted that his opinion of the change in velocity was not based
on the speed at impact. As a result, his testimony at trial was that his opinions were not
based on facts in conflict with the deemed admissions.
        ―At the conclusion of that hearing, the Court stated: ‗I don‘t want to hear anything
out of this witness that indicates that that vehicle was going less than 30 miles an hour.‘
Defendant‘s counsel responded: ‗He is not going to.‘ (Trial Transcript 2/17/2011 at
98:28-99:3.)
        ―After reciting his qualifications, Mr. Hughes‘s direct testimony lasted less than
three pages. (Trial Transcript 2/17/2011 at 114:20-117:11.) Defendant did not elicit any
testimony from Mr. Hughes regarding the speed of the Defendant‘s vehicle at or
‗immediately prior to the collision.‘ As a result, Mr. Hughes never contradicted the
deemed admissions literally.
        ―In his direct testimony to the jury, however, Mr. Hughes stated: ‗So the
differential between the two was about 4.7 miles an hour at the most extreme.‘ (Trial
Transcript 2/17/2011 at 116:14-15.)
        ―Although this brief statement did not technically contain a statement of
Defendant‘s speed immediately prior to impact, Plaintiff‘s counsel elicited the following
testimony on cross-examination:
        ― ‗Q: How is it physically possible, if she‘s exceeding 30 miles per hour
immediately before the accident, that she impacts the back of the cab at 4.7 miles per
hour?


                                             31
       ― ‗A: Well, I said the speed differential between the two was 4.7 miles an hour. I
don‘t know how fast the cab was going.
       ― ‗Q: The cab was stopped.
       ― ‗A: If the cab was stopped, then she could not poss—The damage on the rear of
the cab isn‘t consistent with a—an impacting speed on the vehicle of 30 miles an hour,
which would create a delta velocity of 14, 14—you know, roughly 14 miles an hour. It‘s
not consistent with the facts of the case or with the evidence.‖ (Trial Transcript
2/17/2011 at 119:11-22.)
       ―Although Mr. Hughes did not testify that the impact speed was less than 30 miles
per hour, he conceded that his opinion regarding ―delta velocity‖ was impossible if the
impact speed was 30 miles per hour. Shortly after this testimony, Plaintiff‘s counsel
moved for a mistrial.
       ―In closing argument, Plaintiff‘s counsel stated: [¶] ‗Mr. Hughes‘s opinion is
based on those photographs of the cab which the cab driver said were not fair and
accurate depictions of the cab and photographs and damage reports that they didn‘t show
you . . . He was hired by the defendant to give a favorable opinion and his opinion is in
conflict with the requests for admission that she was exceeding the speed limit 30 miles
per hour and didn‘t hit her brakes right before the accident. His testimony about the
speed of impact is completely inconsistent with those facts and you must disregard them
because admissions trump all.‘
       ―On cross-examination, Mr. Hughes testified that the damage on which he based
his delta velocity opinion was inconsistent with a speed in excess of 30 miles-per-hour
immediately prior to the accident. This opinion represents the greatest point of tension
between what actually happened and the ―judicial reality‖ created by the deemed
admissions. Plaintiff cannot complain, however, that testimony which resulted from his
questioning violated the deemed admissions. The Court finds that Mr. Hughes‘s
testimony on direct examination did not contradict the literal meaning of the deemed
admissions. [¶] . . . [¶]



                                             32
       ―Ultimately, the Court finds that the testimony of Mr. Hughes was not the basis of
the jury‘s verdict. His testimony would have gone largely unnoticed without the
cross-examination by Plaintiff‘s counsel. Other evidence introduced by Plaintiff, or
without Plaintiff‘s objection, supported a verdict that the accident did not cause a severe
injury to Plaintiff. As a result, Plaintiff has failed to demonstrate that the jury based its
damage award on the testimony of Mr. Hughes.‖
       We agree with that thorough analysis.
       The matters deemed admitted by Clark about the facts ―immediately prior to the
accident‖ did not preclude evidence relating to the post-impact damage—perhaps more
accurately, lack of damage—to the taxi. And the testimony of Hughes and Dr. Shimada
was, as Judge Begert noted, limited by him.
       Moreover, and as demonstrated above, the jury was instructed on several
occasions that it had to accept as true the facts deemed admitted—and to disregard any
opinions to the extent they were possibly contradictory to these facts. The jury is
presumed to have followed the instructions, and that ― ‗its verdict reflects the legal
limitations those instructions imposed.‘ ‖ (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th
780, 803-804.) The jury followed the instructions, found Clark liable for the accident,
awarded Crane damages, and concluded that while Crane himself was negligent (in not
wearing a seatbelt), his negligence was not a substantial factor in causing his injuries.
       The verdict was consistent with the opinion of Clark‘s medical expert, that
Crane‘s soft tissue injuries were resolved within six weeks of the accident. The jury was
free to reject the opinion of Crane‘s experts, especially where Crane himself gave
testimony inconsistent with the records of those experts and most especially in light of
Crane‘s vigorous post-accident activities—at least until he fell while skiing.
       Lastly we note that even if there had been error in connection with Hughes‘s
testimony, his testimony was not, as Judge Begert noted, the basis of the verdict. To put
it in Evidence Code terms, any such error would not have resulted in a miscarriage of
justice. (Evid. Code, § 353.)



                                              33
        The Photographs Were Properly Admitted
        Crane‘s second evidentiary argument is that Judge Begert improperly admitted
photographs of the taxi, an argument premised on two separate bases: (1) the
photographs had been improperly withheld during discovery and should have been
disallowed as an evidentiary sanction under Code of Civil Procedure section 2033.030,
subdivision (c), and under Evidence Code section 352; and (2) the photographs
contradicted the admissions. Neither basis is persuasive.
        As discussed in detail above, the photographs had been discussed at length in in
limine motion no. 1. After that thorough hearing, Judge Begert ruled that they had been
provided well before trial, and would not be precluded as a discovery sanction. We
review such ruling denying for abuse of discretion. (See New Albertsons Inc. v. Superior
Court (2008) 168 Cal.App.4th 1403, 1422.) We find none.
        It is true, as Crane contends, that a trial court has power to exclude evidence that
was concealed by a party if it would cause ―unfair surprise‖ if admitted. (See, e.g.,
Deeter v. Angus (1986) 179 Cal.App.3d 241, 255.) Here, the photographs were disclosed
on October 18, 2010, more than three months before trial. Crane could hardly show
surprise, especially as the photographs were taken by Harris, the taxi driver, who was
called as a witness by Crane. In short, and as Judge Begert confirmed in his order
denying a new trial, Crane ―suffered no undue prejudice as a result of the disclosure of
the photographs . . . months before trial began.‖
        Crane‘s alternative basis, that the photographs contradicted the admissions, is
fatuous. We see nothing in any admission addressing the post-accident condition of the
taxi.
        Crane’s Kelly-Frye Contention Has No Merit
        Crane‘s last evidentiary argument asserts error in ―admitting evidence that did not
meet the standard for expert testimony,‖ specifically that the testimony of Hughes and
Dr. Shimada did not satisfy ―the standard for expert testimony under People v. Kelly




                                              34
(1976) 17 Cal.3d 24 [(Kelly)].‖ Crane argues that the testimony failed all three prongs of
the Kelly/Frye rule.4 We deem the argument forfeited.
        Evidence Code section 353 provides that a ―verdict or finding shall not be set
aside, nor shall the judgment or decision based thereon be reversed, by reason of the
erroneous admission of evidence unless: [¶] (a) There appears of record an objection to
or a motion to exclude or to strike the evidence that was timely made and so stated as to
make clear the specific ground of the objection or motion; and [¶] (b) The court which
passes upon the effect of the error or errors is of the opinion that the admitted evidence
should have been excluded on the ground stated and that the error or errors complained of
resulted in a miscarriage of justice.‖
        The effect of subdivision (a) is that to preserve a claim of evidentiary error, the
objection must be specific: ―Specificity is required both to enable the court to make an
informed ruling on the motion or objection and to enable the party proffering the
evidence to cure the defect in the evidence.‖ (People v. Boyette (2002) 29 Cal.4th 381,
424.)
        The 402 hearing involving Hughes was discussed at length above. Any objective
reading of what occurred there shows that Crane‘s fundamental objection, repeated over
and over in the course of the 30 page hearing transcript, was that Hughes‘s testimony
should be excluded because it was inconsistent with the facts deemed admitted in the
requests for admissions—in his words, because the testimony was ―inconsistent with the
RFAs.‖ Crane made no reference to the scientific soundness of Hughes‘s opinion, no
objection that his analysis lacked a recognized scientific basis. In light of this, the
general statement at the conclusion of the 402 hearing that there was a ―Kelly/Frye

        4
           The Kelly/Frye rule provides that ―a new scientific technique must be
‗ ― . . . sufficiently established to have gained general acceptance in the particular field in
which it belongs[,]‖ ‘ in order to be admissible in evidence. [Citation.] The proponent of
the evidence bears the burden of proving a consensus of opinion and must establish
(1) the reliability of the method, usually by expert testimony; (2) the qualifications of the
witness providing the testimony; and (3) that correct scientific procedures were used in
the particular case. [Citation.]‖ (People v. Morris (1988) 199 Cal.App.3d 377, 386.)


                                              35
problem‖ is insufficient to preserve the claim Crane asserts here. (See People v. Ochoa
(1998) 19 Cal.4th 353, 414 [party‘s failure to object to scientific evidence on Kelly/Frye
grounds in the trial court results in the forfeiture of the argument on appeal]; People v.
Kaurish (1990) 52 Cal.3d 648, 688 [same]; also see People v. Modell (1956)
143 Cal.App.2d 724, where the objection to an expert‘s testimony involving experimental
evidence was that a ― ‗proper foundation has not been laid.‘ ‖ (Id. at p. 728.) The Court
of Appeal held that the objection was waived due to the failure to refer to the precise
alleged defects in the expert‘s testimony: ―Any question as to the reliability of the
experiment could have been answered readily in the trial court.‖ (Id. at p. 731.).)
                   Judge Begert Did Not Err in Denying a New Trial
       Crane‘s final argument, brief indeed, is that Judge Begert erred in denying his
motion for new trial because Hughes‘s testimony constituted surprise. Crane asserts that
Hughes‘s testimony ―at his deposition differed materially from his testimony at the
402 hearing and then at trial in a number of respects.‖ So, the argument runs, ―[t]his
testimony constituted surprise that had a materially adverse effect on Crane‘s case. Not
only was [Crane] forced to try to discredit Hughes by using the judicial admissions, he
was then faced with Hughes‘s constantly moving testimony and testimony that came in
after a direct exclusion order from the court. The trial court erred by denying the motion
for a new trial.‖ We are not persuaded.
       Code of Civil Procedure section 657, subdivision (3), provides that a new trial
may be granted on the ground of ―accident or surprise, which ordinary prudence could
not have guarded against.‖ To begin with, new trial motions on this ground are to be
viewed with ―suspicion‖ and are ― ‗seldom successful.‘ ‖ (Fletcher v. Pierceall (1956)
46 Cal.App.2d 859, 866.) And to succeed on this ground, Crane had to show three
conditions: (1) an accident or surprise, i.e., something unforeseen, happened during the
trial (Kauffman v. De Mutiis (1948) 31 Cal.2d 429, 432); (2) prejudice, i.e., that the
surprise had a material adverse effect on his case; and (3) diligence, i.e., the surprise is
one that could not have been guarded against. (HATA v. Los Angeles County/UCLA



                                              36
Medical Center (1995) 31 Cal.App.4th 1791, 1806.) Crane‘s showing does not measure
up.
       A reading of Hughes‘s deposition shows that Crane was on notice prior to trial that
Hughes was relying on more than just Clark‘s statements to support his opinion as to how
the accident happened. For example, Hughes testified at deposition about the change in
velocity, testimony based upon his examination of the damage to the vehicles as indicated
in the photographs, and also the repair estimate for Clark‘s station wagon. The transcript
further demonstrated that Hughes also relied on the bumper strengths and other physical
characteristics of the vehicles. And Clark‘s estimates about her speed at impact were
consistent with, but not necessary to, Hughes‘s analysis, which was a mathematical
conclusion he drew from his change in velocity analysis. This is hardly surprise.
       Denying the motion for new trial, Judge Begert concluded that Hughes‘s brief
testimony was of little impact in light of the entire record of the case. Further, any error
or prejudice was cured by the direction given to the jury by the court immediately
following the testimony of Hughes and Dr. Shimada, that it must accept the deemed
admissions as true, followed by a reading of those admissions. In short, the motion did
not demonstrate that Hughes‘s testimony substantially affected the jurors or that a
different result could reasonably be expected if his testimony were excluded. We see no
reason to reverse. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872;
ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.)
                                      DISPOSITION
       The judgment is affirmed.

                                                  _________________________
                                                  Richman, J.


I concur:

_________________________
Haerle, J.



                                             37
Concurring opinion of Kline, P.J.
       Any matter admitted or deemed admitted in response to a request for admissions
―is conclusively established against the party making the admission in the pending
action,‖ unless, as is not the case here, the court has permitted withdrawal of that
admission. (Code Civ. Proc., § 2033.410, subd. (a), italics added.) Therefore, while a
court may utilize evidence to elucidate and explain an admission, it cannot permit such
evidence to be used to contradict the plain meaning of a response to a request for
admissions or deemed admissions. (Valerio v. Andrew Youngquist Construction (2002)
103 Cal.App.4th 1264, 1271; Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248,
260-261.) As Justice Corrigan pointed out in Valerio, a party who has made (or is
deemed to have made) an admission ― ‗cannot offer contrary evidence unless permitted to
amend, and a judgment may rest in whole or in part upon the admission without proof of
the fact.‖ (Valerio, supra, at p. 1272, quoting 4 Witkin Cal. Procedure [(5th ed. 2008)]
Pleading, [§ 454, p. 587.)] As she also noted, the result of the rule is ―rigorous, [but] the
rule is clear‖ and the adverse party ―is entitled to rely upon it.‖ (Id. at pp. 1273-1274.)
       Clark sought to withdraw the admissions three times, but none of those efforts
succeeded. The rulings of other judges in those proceedings in favor of Crane were,
however, effectively undone by the trial court, as was the rule of law.
       The trial court‘s finding ―that Mr. Hughes‘s testimony on direct examination did
not contradict the literal meaning of the deemed admissions‖ is disingenuous. Taken as a
whole, as undoubtedly it was by the jury, Hughes‘s testimony unquestionably
contradicted the literal meaning of the deemed admissions. I know not whether, in the
mind of the trial court, that is the ―historical‖ or the ―judicial‖ reality; but it is in either
event the operative fact. This could easily have been prevented, and should have been,
but was not.



                                                 1
       I concur in the judgment only because I agree with my colleagues that the record
does not show Hughes‘s testimony substantially affected the jurors or that a different
result could reasonably be expected if his testimony were excluded.

                                                        _____________________
                                                        Kline, P.J.




                                            2
