Filed 6/9/15 Yeung v. State of Cal., Dept. of Transportation CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



WILLIAM YEUNG,                                                      D065175

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2012-00092541)

STATE OF CALIFORNIA DEPARTMENT
OF TRANSPORTATION,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Timothy

B. Taylor, Judge. Affirmed.

         Nana Gyamfi for Plaintiff and Appellant.

         Jeanne Scherer, Jeffrey R. Benowitz, Glenn B. Mueller, John Frederick Smith and

Elizabeth R. Feyzbakhsh for Defendant and Respondent.

         APPEAL from a judgment of the Superior Court of San Diego County, Timothy

B. Taylor, Judge. Affirmed.

         Plaintiff William Yeung appeals a judgment following a jury verdict in favor of

defendant State of California, acting by and through the Department of Transportation
(Caltrans), in his action for wrongful termination of employment. On appeal, he contends

the trial court erred by denying his motion to exclude evidence untimely produced by

Caltrans, denying his motion for a continuance of the trial based on Caltrans's discovery

violations, and denying his motion for new trial based on juror misconduct, surprise, and

newly discovered evidence.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Apparently from 1998 to 2011, Yeung was employed by Caltrans as a civil

engineer. After three adverse actions for poor work performance, Caltrans terminated his

employment. Yeung filed an action against Caltrans alleging causes of action for

unlawful discrimination, harassment, and retaliation based on race, national origin,

religion and/or perceived sexual orientation. Following a two-week trial, the jury

returned a defense verdict, rejecting all of Yeung's claims, and the trial court entered

judgment on the jury's verdict. The court denied Yeung's motion for new trial. Yeung

timely filed a notice of appeal.

                                       DISCUSSION

                                              I

            Yeung's Pretrial Motion to Exclude Untimely Produced Evidence

       Yeung contends the trial court abused its discretion by denying in part his pretrial

motion to exclude certain evidence that Caltrans untimely produced and disclosed to him.

He argues the court should have barred Caltrans from all use or reference to that evidence

and should not have allowed its use in impeaching his testimony.



                                              2
                                              A

       Yeung filed a pretrial motion seeking an order precluding Caltrans from

introducing or referring to certain evidence it had untimely produced, including 445

pages of documents produced by Caltrans on July 10, 2013, and three computer hard

drives produced by Caltrans on July 24, 2013. He argued the introduction of that

previously undisclosed evidence would "incurably" prejudice him because it would be

"virtually impossible" at that stage of the litigation to adequately respond to it. Caltrans

opposed the motion, conceding it had untimely produced the three hard drives but

arguing it should nevertheless be allowed to use them to impeach Yeung.

       On August 20, 2013, the first day of trial, the trial court found Caltrans did not

timely produce the hard drives by the discovery cutoff date of July 19, 2013. It

sanctioned Caltrans for its late production of the hard drives by precluding it from using

documents from the hard drives in its case-in-chief. However, the court noted its ruling

did not preclude Caltrans from using the documents on the hard drives for impeachment.

In addition, the court denied Yeung's request to exclude the 445 pages of documents,

finding Yeung had not filed a motion to compel regarding those documents and also that

Caltrans showed he was not prejudiced by its July 10, 2013, production of those

documents.

                                              B

       A trial court exercises discretion when it chooses among various options for

imposing a sanction on a party for discovery violations. (Miranda v. 21st Century Ins.

Co. (2004) 117 Cal.App.4th 913, 928.) Discovery sanctions should be appropriate to the

                                              3
violation and should not exceed what is required to protect the interests of the party

entitled to discovery. (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin &

Berns (1992) 7 Cal.App.4th 27, 35.) "The court's discretion to impose discovery

sanctions is broad, subject to reversal only for manifest abuse exceeding the bounds of

reason." (American Home Assurance Co. v. Société Commerciale Toutélectric (2002)

104 Cal.App.4th 406, 435 (American Home).) "The abuse of discretion standard is not a

unified standard; the deference it calls for varies according to the aspect of a trial court's

ruling under review. The trial court's findings of fact are reviewed for substantial

evidence, its conclusions of law are reviewed de novo, and its application of the law to

the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court

(2008) 43 Cal.4th 706, 711-712, fns. omitted (Haraguchi).)

                                               C

       Based on our review of the record, we conclude the trial court did not abuse its

discretion in sanctioning Caltrans for its discovery abuse by precluding it from using the

untimely-produced hard drives in its case-in-chief, but nevertheless allowing it to use

documents from those hard drives to impeach Yeung. The court presumably considered

various options for sanctioning Caltrans for producing the hard drives after the discovery

cutoff date and exercised its discretion to preclude their use in Caltrans's case-in-chief,

but allow their use in impeaching Yeung. In so doing, the court did not abuse its

discretion. Its chosen sanction was neither arbitrary, capricious, nor beyond reason.

(American Home, supra, 104 Cal.App.4th at p. 435; Haraguchi, supra, 43 Cal.4th at

pp. 711-712.) Yeung has not carried his burden on appeal to persuade us otherwise.

                                               4
       Furthermore, Yeung has not shown the court's ruling was prejudicial to him.

Yeung testified he believed his supervisor had surreptitiously installed a "beta" version of

Microsoft Word on his work computer, thereby causing problems with his work product.

Based on that testimony, Caltrans presented impeachment evidence showing no such

software had been installed on Yeung's computer. However, Yeung does not explain on

appeal how he probably would have obtained a more favorable verdict had the court

excluded that impeachment evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.) To

the extent Yeung also argues he did not have sufficient time to review the hard drives

before trial, we believe the three-and-one-half-week period before trial should have been

adequate for him to review them and, in any event, he does not show any prejudice from

the shortened time for their review.

       We further conclude the trial court did not abuse its discretion by denying Yeung's

motion to exclude the 445 pages of documents. The court properly considered the fact

that Yeung had not filed a motion to compel production of those documents and

presumably considered the fact they were produced nine days before the discovery cutoff

date. By denying Yeung's motion to exclude those documents, the court did not abuse its

discretion. Its ruling was neither arbitrary, capricious, nor beyond reason. (American

Home, supra, 104 Cal.App.4th at p. 435; Haraguchi, supra, 43 Cal.4th at pp. 711-712.)

Yeung has not carried his burden on appeal to persuade us otherwise. He also has not

carried his burden on appeal to show the July 10, 2013, production of those documents

was prejudicial to him (i.e., it is reasonably probable he would have obtained a more



                                             5
favorable result had Caltrans disclosed those documents earlier). (People v. Watson,

supra, 46 Cal.2d at p. 836.)

                                             II

                        Denial of Motion for Continuance of Trial

       Yeung contends the trial court abused its discretion by denying his motion for a

continuance of the trial based on Caltrans's discovery violations. He argues the court

should have granted his request for a continuance based on Caltrans's "dump" of the 445

pages of documents and three hard drives shortly before trial.

                                             A

       At the hearing on Yeung's motion to exclude the 445 pages of documents and

three hard drives, Yeung argued their late production did not allow him time to take

depositions and perform other trial preparation to respond to or use that evidence. The

trial court asked Yeung whether he sought a continuance of the trial based on Caltrans's

late production of the hard drives. He replied he was if the court was going to allow

Caltrans to use the evidence. Caltrans opposed Yeung's request for a continuance of the

trial, noting there was no need for it because it would use the hard drives solely for

impeachment and also there was no surprise because Yeung should have already been

aware of the documents on the hard drives. The court noted the trial had already been

continued once. Finding there was no good cause shown for a continuance of the trial,

the court denied the motion.




                                              6
                                               B

       California Rules of Court, rule 3.1332,1 provides that assigned trial dates are firm

and continuances of trials are disfavored. A party seeking a continuance of a trial must

request a continuance by a noticed motion or ex parte application with supporting

declarations "as soon as reasonably practical once the necessity for the continuance is

discovered." (Rule 3.1332(b).) A "court may grant a continuance only on an affirmative

showing of good cause requiring the continuance." (Rule 3.1332(c).) Factors that a court

may consider in ruling on a motion for continuance include: (1) the proximity of the trial

date; (2) whether there have been any previous continuances; (3) the prejudice the parties

or witnesses will suffer as the result of a continuance; (4) whether the interests of justice

are best served by a continuance or by trial of the matter; and (5) any other relevant

factor. (Rule 3.1332(d).)

       "The decision to grant or deny a continuance is committed to the sound discretion

of the trial court. [Citation.] The trial court's exercise of that discretion will be upheld if

it is based on a reasoned judgment and complies with legal principles and policies

appropriate to the case before the court. [Citation.] A reviewing court may not disturb

the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing

in the record. [Citation.] The burden rests on the complaining party to demonstrate from

the record that such an abuse has occurred." (Forthmann v. Boyer (2002) 97 Cal.App.4th

977, 984-985.)


1      All rule references are to the California Rules of Court.

                                               7
                                             C

       Based on our review of the record, we conclude the trial court did not abuse its

discretion by denying Yeung's motion for continuance of the trial. Yeung had possession

of the hard drives and 445 pages of documents more than three weeks before the

scheduled August 20, 2013, trial date, but did not make a motion for continuance until the

morning of the first day of trial. Furthermore, he did not make the motion in writing with

supporting declarations, as required by rule 3.1332(b). The trial court also could

reasonably find Yeung had not shown good cause for a continuance. He did not make his

motion until the first day of trial, showing the very close proximity of the motion to the

trial. There also had been a previous continuance of the trial. Furthermore, the parties

expected to, and did, call over 20 witnesses to testify over a two-week period. The court

could reasonably find Caltrans and the many witnesses would be prejudiced by a

continuance at such a late date. Finally, the court could reasonably conclude Yeung was

not prejudiced by the denial of a continuance because he had the hard drives and 445

pages of documents for over three weeks before trial, which it could have concluded was

adequate for him to review them and otherwise prepare for trial. Weighing those factors,

the court reasonably found Yeung had not shown good cause and it did not abuse its

discretion by denying his motion for a continuance. (Forthmann v. Boyer, supra, 97

Cal.App.4th at pp. 984-985.) Yeung has not carried his burden on appeal to persuade us

otherwise.




                                             8
                                             III

                              Denial of Motion for New Trial

       Yeung contends the trial court abused its discretion by denying his motion for new

trial. He argues the court should have granted his motion for new trial based on juror

misconduct, surprise, and newly discovered evidence.

                                              A

       In his motion for new trial, which he filed in propria persona after dismissing his

trial counsel, Yeung asserted there was juror misconduct when, during a recess in the

trial, defense counsel purportedly had a lengthy conversation with juror Layla Fockaert in

the vestibule between the courtroom and the hallway. In support of that assertion, he

submitted the declaration of Leonard Buckmaster, one of the witnesses he called to testify

at trial, who stated:

           "2. I arrived at the Superior Court . . . and waited outside the
           courtroom for the trial to resume after lunch break.

           "3. I was seated on the benches located outside of the courtroom and
           observed Juror Layla [Fockaert] approach Caltrans Attorney [Heidi]
           Wierman to engage her in conversation. They . . . then immediately
           went into the vestibule between the public waiting area and the
           courtroom. I observed [Fockaert and Wierman] in the vestibule
           engaged in conversation for approximately 2 to 3 minutes until they
           returned from the vestibule into the public waiting area with the
           courtroom bailiff."

Yeung also submitted his own declaration, stating he did not have any knowledge of any

juror communicating with defense counsel. He also submitted declarations from his two

trial counsel, Robert Garcia, Jr., and Jeffrey McIntyre, both of whom stated they did not



                                              9
have any knowledge of any communication between any juror and defense counsel

during trial.

       Yeung also argued he should be granted a new trial on the grounds of surprise and

newly discovered evidence, asserting Caltrans's untimely production of the hard drives

surprised him and prevented him from adequately examining them to refute the testimony

of Caltrans's witness, Victor Nava, that the beta version of Microsoft Word had not been

installed on his computer. In support of that argument, Yeung submitted a declaration of

Dan Byrnes, stating he provided computer services to Yeung, examined the hard drives,

and determined certain documents thereon were created from MS Office Word 2007.

       Caltrans opposed Yeung's motion for new trial, arguing he had not shown there

was any juror misconduct and, in any event, should have brought it to the court's attention

before the jury returned its verdict. In support of its opposition, Caltrans submitted the

declaration of juror Fockaert, stating in part:

           "3. At no time during the Yeung trial did I approach either of the
           attorneys for [Caltrans] and engage in any conversation whatsoever.

           "4. At no time did I go into the 'vestibule' between the public area
           and the courtroom with Ms. Wierman or Ms. Feyzbakhsh.

           "5. At no time during or after the Yeung trial did I speak with Ms.
           Wierman or Ms. Feyzbakhsh in the 'vestibule.'

           "6. At . . . no time during or after the Yeung trial did I speak to any
           attorney involved in the case. . . ."

Caltrans also submitted declarations of both of its trial counsel, stating they did not speak

with any juror or go into the vestibule with any juror during trial.



                                              10
       Regarding Yeung's assertions of surprise and newly discovered evidence, Caltrans

argued Byrnes's declaration was not credible or admissible as expert opinion because it

did not set forth a foundation for his expertise in computer forensics and he did not

indicate what metadata or specific documents he extracted from the hard drives.

Furthermore, it argued Yeung did not show that forensic analysis could not have been

done before trial. Also, it argued Yeung had not shown he was prejudiced by the

untimely production of the hard drives (i.e., it is reasonably probable he would have

obtained a more favorable result had the hard drives been timely produced).

       The trial court denied Yeung's motion for new trial. Regarding his assertion of

juror misconduct, the court found the declarations submitted by Caltrans were credible in

denying that no conversation in the vestibule occurred between Fockaert and Wierman.

The court implicitly found Buckmaster's declaration, submitted by Yeung, to be not

credible. It noted his declaration was silent as to when Buckmaster brought the alleged

improper contact to Yeung's attention and it did not explain how he identified Fockaert

by name as opposed to other female jurors. Regarding Yeung's assertions of surprise and

newly discovered evidence, the court found Byrnes's declaration was inadmissible, but, in

any event, it believed its ruling allowing Caltrans to use the hard drives only for

impeachment was correct, its denial of Yeung's motion for continuance was correct, and

there would not have been a different outcome at trial had the hard drive impeachment

evidence been excluded (i.e., Yeung was not prejudiced). The court further found Yeung

had adequate time before or during trial to have hired a computer expert to examine the



                                             11
hard drives. The court concluded the trial was a credibility contest and the jury "got this

one right," noting the preponderance of the evidence favored a defense verdict.

                                             B

       Code of Civil Procedure section 657 provides that a verdict may be vacated and a

new trial granted on a motion therefor on certain grounds materially affecting the

substantial rights of a party, including misconduct of the jury, surprise, and newly

discovered evidence. A trial court has broad discretion in ruling on a motion for new trial

and its exercise of that discretion is given great deference on appeal. (Sherman v. Kinetic

Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160; City of Los Angeles v. Decker (1977)

18 Cal.3d 860, 871-872.) In reviewing an order denying a motion for new trial, we

review the entire record and make an independent determination whether any asserted

error was prejudicial. (Plancarte v. Guardsmark (2004) 118 Cal.App.4th 640, 645

(Plancarte); Sherman, at pp. 1160-1161.) Absent prejudicial error, there is no discretion

to grant a new trial. (Cal. Const., art. VI, § 13; Osborne v. Cal-Am Financial Corp.

(1978) 80 Cal.App.3d 259, 265-266.)

       "In ruling on a request for a new trial based on jury misconduct, the trial court

must undertake a three-step inquiry. [Citation.] First, it must determine whether the

affidavits supporting the motion are admissible. [Citation.] If the evidence is admissible,

the trial court must determine whether the facts establish misconduct. [Citation.] Lastly,

assuming misconduct, the trial court must determine whether the misconduct was

prejudicial." (People v. Dorsey (1995) 34 Cal.App.4th 694, 703-704.)



                                             12
       To grant a motion for new trial based on surprise, the moving party must not have

been able to prevent the surprise by the exercise of ordinary prudence and the surprise

must have detrimentally impacted, or prejudiced, that party. (McCoy v. Pacific Maritime

Assn. (2013) 216 Cal.App.4th 283, 305.) Similarly, a party seeking a new trial based on

newly discovered evidence must show the evidence is newly discovered, he or she

exercised reasonable diligence in discovering and producing it, and it is material to the

party's case. (Plancarte, supra, 118 Cal.App.4th at p. 646.)

                                             C

       Based on our review of the record, we conclude the trial court did not abuse its

discretion by denying Yeung's motion for new trial. Regarding his assertion of juror

misconduct, assuming arguendo Buckmaster's declaration was admissible, our review of

the declarations submitted by the parties shows the trial court correctly found Yeung had

not shown that any juror misconduct had, in fact, occurred. The parties allegedly

involved in the vestibule conversation, Fockaert and Wierman, both denied that a

conversation occurred. As an officer of the court, Wierman has an obligation to be

truthful and therefore her declaration warrants a presumption of truthfulness.

Furthermore, as the trial court noted, Buckmaster's declaration was very short on details

regarding his ability to distinguish Fockaert from the other female jurors and identify her

by name, especially since he testified at trial for only five minutes. Because Yeung did

not carry his burden to prove misconduct occurred and that misconduct was prejudicial,

the trial court properly denied his motion for new trial to the extent it was based on juror

misconduct. (People v. Dorsey, supra, 34 Cal.App.4th at pp. 703-704.)

                                             13
       Regarding Yeung's assertion of surprise, the trial court properly found he was not

unduly surprised by Caltrans's untimely production of the hard drives more than three

weeks before trial. The court reasonably found Yeung had adequate time and opportunity

to obtain a computer expert to examine those hard drives during the five-week period

from the date of Caltrans's production and the last day of trial. Yeung does not show he

could not, with reasonable diligence, have obtained such an expert. Furthermore, Yeung

has not shown he was prejudiced by that surprise (i.e., it is reasonably probable he would

have obtained a more favorable verdict had the hard drives been timely produced).

Therefore, the trial court properly denied his motion for new trial to the extent it was

based on surprise. (McCoy v. Pacific Maritime Assn., supra, 216 Cal.App.4th at p. 305.)

       Finally, regarding Yeung's assertion of newly discovered evidence, the trial court

properly found Yeung had not shown he exercised reasonable diligence in discovering

and producing the purported newly discovered evidence (e.g., Byrnes's expert opinion)

because he could have obtained that new evidence during the five weeks after Caltrans's

production of the hard drives until the last day of trial. Furthermore, Yeung has not

shown that new evidence was material to his case and it is reasonably probable he would

have obtained a more favorable verdict had it been admitted at trial. The trial court

properly denied Yeung's motion for new trial based on newly discovered evidence.

(Plancarte, supra, 118 Cal.App.4th at p. 646.) Therefore, we conclude Yeung has not

carried his burden on appeal to show the trial court abused its discretion by denying his

motion for new trial on grounds of juror misconduct, surprise, and newly discovered



                                             14
evidence. (Plancarte, at p. 645; Sherman v. Kinetic Concepts, Inc., supra, 67

Cal.App.4th at pp. 1160-1161.)

                                     DISPOSITION

      The judgment is affirmed. Caltrans is entitled to costs on appeal.




                                                                           McDONALD, J.

WE CONCUR:


HALLER, Acting P. J.


IRION, J.




                                           15
