Filed 9/9/14 Bayer v. Eckersley CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR




OMAR BAYTER,                                                         B239831
                                                                     (Los Angeles County
                Plaintiff and Appellant,                             Super. Ct. No. EC050750)

v.

WENDY ECKERSLEY,

              Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Los Angeles County,
David Milton, Judge. Affirmed.
         The Yarnall Firm and Delores A. Yarnall; Martinian & Assoc., Inc., and
Tigran Martinian for Plaintiff and Appellant.
         Mark R. Weiner & Associates and Kathryn Albarian for Defendant and
Appellant.
      After judgment was entered in favor of plaintiff and appellant Omar Bayter
in his negligence action against defendant and appellant Wendy Eckersley, the trial
court denied Bayter’s motion for a new trial. Bayter contends he is entitled to a
new trial on his damages due to errors at trial regarding the presentation of
evidence regarding those damages. Eckersley has filed a protective cross appeal,
arguing that if a new trial is granted, it should encompass the issue of liability
because the trial court improperly denied her request for instructions on
comparative negligence. We reject Bayter’s contentions of error, thus rendering it
unnecessary for us to address Eckersley’s cross appeal. We therefore affirm.


       RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
      A. Complaint
      On August 20, 2009, Bayter initiated the underlying action for negligence
and negligence per se against Eckersley. His complaint alleged that on March 7,
2008, as he was driving on Scott Road in Burbank, Eckersley negligently drove her
car out of a parking garage and collided with his car. The complaint further
alleged that Eckersley’s conduct caused physical, emotional, and financial injury to
Bayter.


          B. Trial
              1. Bayter’s Evidence
      Bayter testified that on March 7, 2008, he was driving to work along Scott
Road. After slowing for some construction work, he began to resume his speed
when a car driven by Eckersley suddenly appeared and struck his vehicle. Bayter
could not avoid the collision. He immediately felt a twisting of his spine and pain,
but declined an invitation from paramedics to be taken to an emergency room
because he lacked medical insurance.

                                           2
      After experiencing severe headaches and back pain, he saw a chiropractor,
who recommended various treatments. In addition, Bayter tried “self treatment”
for his pain. When his pain persisted, he saw Dr. Roy Simon, a physician who had
used epidural injections to treat a spinal disc herniation that Bayter suffered in a
car accident in 2007. After Simon concluded that the same treatment would be
ineffective for Bayter’s back injuries following the March 2008 accident, Bayter
underwent back surgery in October 2010.
      Bayter testified that prior to his 2007 accident, he had no significant back
problems, although he had been in several minor car accidents and briefly
underwent therapy for a strained back in 2000. Following the 2007 accident,
Bayter suffered back pain, but Simon’s treatment largely eliminated his pain by the
end of 2007. After the March 2008 accident, Bayter’s back pain made the pain he
felt in 2007 seem like “child’s play.” He had great difficulty performing ordinary
functions, such as walking, sitting for lengthy periods, and running. Although
surgery relieved some of his pain, Bayter remained unable to run, play contact
sports, and dance.
      During cross-examination, Bayter testified that in August 2009, he began to
walk with a limp. Following that testimony, defense counsel played for the jury a
so-called “sub rosa” surveillance video recording dated September 1, 2010, prior to
Bayter’s surgery. The video recording, taken without Bayter’s knowledge, showed
him walking with no apparent difficulty and without a limp.
      Eckersley testified that on March 7, 2008, she drove out of the parking
garage of her residence, stopped on the driveway entrance to Scott Road, and
looked to her left for oncoming traffic.1 When she made a right turn onto Scott


1     Eckersley testified as an adverse witness (Evid. Code, § 776).


                                           3
Road, Bayter’s car hit her car. According to Eckersley, she never saw Bayter’s car
before the collision. She told Burbank Police Department Officer Randy Lloyd,
the investigating officer, that a parked truck blocked her view of Scott Road to the
left of the driveway, and later challenged a citation issued to her on the ground that
the collision was due to a lack of visibility where the driveway met Scott Road,
rather than to wrongdoing on her part.
      In interrogatory responses, Eckersley denied that she was “at fault” for the
collision. At trial, she initially asserted that Bayter had been negligent, stating that
she would have seen his car had he not been speeding. Later, she denied “liability”
for the collision, but said that she was “the sole party responsible for the accident.”
She also acknowledged that her challenge to the citation was unsuccessful.
      Officer Lloyd testified that the damage to Bayter’s car was inconsistent with
a low speed departure from the parking garage. Eckersley told Lloyd that a parked
truck had obscured her view of the street to her left. He issued a citation to
Eckersley for failing to yield the right of way upon entering a public street (Veh.
Code, § 21804, subd. (a)).
      Ronald Stone and Ana Rodriguez testified that they knew Bayter prior to the
March 2008 accident. According to Stone and Rodriguez, before the collision,
Bayter manifested no inability to walk or get around, but after it, he appeared to
find walking difficult due to back problems.
      Bayter offered expert testimony to establish that the March 2008 accident
caused significant injury to him, including serious injury to his spine. Kenneth
Solomon, an expert in accident reconstruction, opined that Eckersley caused the
collision, that Bayter was travelling less than 30 miles per hour when it occurred,
and that the forces it created were sufficient to cause the physical injuries that
Bayter claimed. Solomon offered no opinion regarding how fast Eckersley’s car
was moving when it collided with Bayter’s car.

                                           4
      Dr. Roy Simon testified that in July 2007, he diagnosed Bayter as suffering
from a herniation to his “L-5 S-1” spinal disc due to a car accident. He treated
Bayter with epidural injections, which significantly reduced Bayter’s pain. In
January 2008, Simon discharged Bayter from his care, with the recommendation
that Bayter engage in physical therapy, if necessary, and see a physician every four
months to obtain medications. According to Simon’s discharge report, Bayter
manifested a seven millimeter herniation to his disc that might require surgery in
the future.
      Dr. Simon further testified that in June 2008, he again saw Bayter, who
complained regarding back pain. He reviewed an MRI, which disclosed an eight to
nine millimeter herniation on Bayter’s L-5 S-1 disc. Because Simon did not
believe that epidural injections would be effective to treat the herniation, he
referred Bayter to a spine surgeon. Simon opined that the March 2008 accident
caused the herniation he discovered in June 2008.
      Dr. David Payne testified that he performed spinal surgery on Bayter in
October 2010. Payne first saw Bayter in June 2010. Following an examination of
Bayter and his medical records, Payne concluded that Bayter had suffered a
significant injury in the March 2008 accident that resisted nonsurgical treatment.
At trial, Payne opined that the March 2008 accident caused spinal injuries beyond
those from the 2007 accident. He also opined that the medical expenses Bayter
incurred following the March 2008 accident -- which totaled $380,671.38 -- were
for necessary and reasonable treatment.
      Robert Johnson, a forensic economist, estimated that Bayter’s lost wages
(adjusted to present value) totaled $715,197. He further opined that the costs of
Bayter’s “life care plan” -- the medical treatment he would need in the future to




                                           5
address his back problems flowing from the March 2008 accident -- totaled
$349,775 (adjusted to present value).2


              2. Eckersley’s Evidence
      Dr. Stephen Rothman, a neuroradiologist, testified that he had examined
Bayter’s MRI scans following his 2007 and March 2008 accidents. Rothman
opined that after the 2007 accident, Bayter displayed a degenerative disc, that is, a
protruding “worn” disc likely to worsen over time. He furthered opined that there
was no material change in that disc following the March 2008 accident. According
to Rothman, a significant herniation in the disc first appeared in an MRI scan taken
in August 2009. At the time, there was a hole in the disc, and a portion of the disc
-- which Rothman likened to a “lump of jelly” -- had been ejected from it.
      Dr. Robert Wilson, an orthopedic surgeon, testified that car accidents rarely
cause disc protrusions, and that the vast majority of them result from “genetics’”
He opined that the one millimeter difference between Bayter’s herniation, as
disclosed by the MRI scans taken before and after the March 2008 accident, was
“meaningless,” as spinal discs ordinarily fluctuate “day by day.” During cross-
examination, in response to hypothetical questions, he also opined that the forces
Bayter experienced in the March 2008 accident were unlikely to have caused a disc
herniation.
      Marcela Ramirez testified that she was the controller for Regent Global
Sourcing, which hired Bayter in February 2008 to assist with accounts receivable.
According to Ramirez, he was a slow worker whose tempo did not improve with



2     Johnson based his estimate on a plan prepared by Amy Sutton, a life care
planner who also testified at trial.


                                          6
training. Although Ramirez knew of the March 2008 accident, Bayter never told
her that it interfered with his work. In April 2008, she discharged him.


        C. Special Verdicts, Judgment, and Motion for a New Trial
      Following the presentation of evidence, the trial court rejected Eckersley’s
request for instructions on comparative negligence. The jury returned special
verdicts, finding that Eckersley was negligent, that her negligence was a substantial
factor in the causation of injury to Bayter, and that his damages totaled $8,305.00.
      On December 19, 2011, the trial court entered judgment in Bayter’s favor in
accordance with the jury’s special verdicts. In December 30, 2011, Bayter moved
for a new trial. On February 3, 2012, the trial court denied the motion for a new
trial. On March 15, 2012, the court issued an amended judgment.


                                    DISCUSSION
      Bayter challenges the judgment, arguing that he is entitled to a new trial
limited to damages. He does not dispute the jury’s special verdicts regarding
liability; rather, he asserts interrelated contentions of error regarding the
presentation and admission of evidence regarding the amount of damages, and
argues that those errors cumulatively resulted in reversible prejudice. The
purported errors include Eckersley’s failure to provide her exhibits prior to trial,
the improper disclosure of Dr. Simon’s misdemeanor conviction for lewd conduct,
irregularities related to the defense experts’ opinion testimony, and the presentation
of the sub rosa surveillance video recording. For the reasons discussed below, we
conclude that he has shown no reversible error.




                                            7
       A. Governing Principles
       Our review follows established principles. Generally, rulings regarding the
admissibility of evidence are consigned to the trial court’s discretion. (People ex
rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639.)
That discretion permits the court to control the cross-examination of witnesses
(People v. Ardoin (2011) 196 Cal.App.4th 102, 118) and the presentation of
impeachment evidence (People v. Ricciardi (2012) 54 Cal.4th 758, 808-809).
Ordinarily, absent a timely, specific, and correct objection or other challenge to an
item of evidence, a party may not attack its admission on appeal. (3 Witkin, Cal.
Evidence (5th ed. 2012) Presentation at Trial, §§ 371-372, pp. 519-521.)
       Furthermore, on appeal, “[w]e do not review the trial court’s reasoning, but
rather its ruling. A trial court’s order is affirmed if correct on any theory . . . .
[Citations].” (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co.
(1997) 59 Cal.App.4th 6, 15-16.) Thus, we may affirm a ruling “on any basis
presented by the record whether or not relied upon by the trial court.” (Day v. Alta
Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1.) This principle
encompasses evidentiary rulings. (Grimshaw v. Ford Motor Co. (1981) 119
Cal.App.3d 757, 785-786 (Grimshaw).)
       Only prejudicial error supports reversal of the judgment. (Cassim v. Allstate
Ins. Co. (2004) 33 Cal.4th 780.) Ordinarily, an error or defect at trial is harmless
unless “there is a ‘reasonabl[e] probab[ility]’ that it affected the verdict.” (College
Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715, quoting People v.
Watson (1956) 46 Cal.2d 818, 836.) In this context, “a ‘probability’ . . . does not
mean more likely than not, but merely a reasonable chance, more than an abstract
possibility. [Citations.]” (College Hospital, Inc., supra, at p. 715.)




                                             8
      B. Failure to Comply With Local Rules
      Bayter contends the trial court improperly failed to ensure that Eckersley
complied with rule 3.25(h)(1) of the Superior Court Los Angeles County, Local
Rules (rule 3.25(h)(1)), which states: “At least five days prior to the final status
conference, counsel must serve and file lists of pre-marked exhibits to be used at
trial . . . . Failure to exchange and file these items may result in not being able to
call witnesses, present exhibits at trial, or have a jury trial.” (Italics added.) Bayter
maintains that Eckersley’s failure to provide an exhibit list and exchange exhibits
denied him access to four types of evidence: (1) the reports prepared by the
defense experts, Dr. Wilson and Dr. Rothman; (2) powerpoint slides that Rothman
displayed while testifying; (3) some medical studies that Wilson identified while
testifying; and (4) the sub rosa surveillance video recording that Eckersley
presented to impeach Bayter. He further argues that Eckersley’s noncompliance
with rule 3.25(h)(1) with respect to those times impaired his ability to cross-
examine her experts and address the sub rosa video recording. As explained
below, he has failed to establish his contentions.
      Rule 3.25(h)(1), by its plain language, consigns to the trial court’s discretion
the determination whether noncompliance with the rule in a specific situation
warrants the exclusion of an item of evidence. Generally, to the extent that an
exercise of the discretion rests on findings, we review the findings for the existence
of substantial evidence. (Federal Home Loan Mortgage Corp. v. La Conchita
Ranch Co. (1998) 68 Cal.App.4th 856, 860; Roddis v. All-Coverage Ins. Exchange
(1967) 250 Cal.App.2d 304, 309.)
      We begin with the defense experts’ reports. Following the presentation of
evidence at trial, Eckersley’s counsel, Maria Skinner, sought their admission.
Bayter’s counsel, Delores Yarnall, opposed the request on several grounds,
including Skinner’s noncompliance with rule 3.25(h)(1). In response, Skinner

                                           9
maintained that the reports had been produced during discovery. When Yarnall
stated that she was unsure whether she already had the reports, the court gave her
an opportunity to examine them, and ordered a brief recess. Following the recess,
Yarnall never suggested that she had not, in fact, received the reports Skinner
sought to admit. In view of Yarnall’s conduct, we conclude that the trial court
reasonably found Skinner’s noncompliance with rule 3.25(h)(1) was harmless.
      We reach a similar conclusion regarding Dr. Rothman’s powerpoint slides.
When Dr. Rothman began his powerpoint demonstration, Yarnall’s co-counsel,
Andrew Zeytuntsyan asserted several objections, including that the slides had not
been exchanged before trial as exhibits. Skinner maintained that the slides were
simply copies of MRI scans that Bayter already possessed, and had used as
exhibits during the presentation of his case-in-chief. As we elaborate below (see
pt. E.2.b., post), Bayter failed to preserve his contention because Zeytuntsyan did
not object when told during Dr. Rothman’s deposition that the powerpoint
presentation would be unavailable until Dr. Rothman’s trial testimony; moreover,
before the trial court and on appeal, Bayter has shown no material discrepancy
between Dr. Rothman’s slides and the MRI scans that Bayter used at trial. He has
thus established no abuse of discretion.
      Bayter’s contentions regarding the remaining items fail for the same reason,
namely, that they fall outside the scope of rule 3.25(h)(1). Although Dr. Wilson
referred to some medical studies in explaining the basis for his expert opinions,
Eckersley never sought to present or display those studies as exhibits. As to the
video recording, the Superior Court Los Angeles County, Local Rules do not
require parties to include impeachment exhibits on their exhibit lists or disclose
them in advance of trial. Rule 3.151 of those rules, entitled “Marking Of Exhibits
First Disclosed During Trial,” states: “Counsel must mark for identification an
exhibit which has not been pre-marked and which is being used for impeachment

                                           10
before showing the exhibit to opposing counsel or referring to it. . . .” (Italics
added.) Accordingly, Eckersley’s presentation of the video recording did not
contravene the local rules. In sum, Bayter has failed to establish his contentions of
error related to local rule 3.25(h)(1).


        C. Dr. Simon’s Misdemeanor Conviction For Lewd Conduct
      Relying on interrelated arguments, Bayter contends he is entitled to a new
trial due to the presentation of testimony regarding Dr. Simon’s misdemeanor
conviction for lewd conduct. Although his principal contention is that the trial
court made erroneous rulings that effectively compelled Dr. Simon to testify
regarding that conviction, he presents several other contentions, including that the
court clerk improperly accessed Dr. Simon’s criminal records. As explained
below, Bayter has failed to establish his contentions, as the trial court made no
ruling regarding the admissibility of the conviction before Bayter’s counsel
voluntarily elicited the pertinent testimony, and Bayter never objected to the court
clerk’s conduct.


             1. Underlying Proceedings
      Prior to trial, Bayter filed a motion in limine to exclude references to
Dr. Simon’s misdemeanor reckless driving conviction. According to the motion,
that conviction led the California Medical Association to place Dr. Simon’s license
to practice medicine on a probationary status. The motion nonetheless maintained
that when Simon treated Bayter following his 2007 accident, Simon had a valid
medical license, notwithstanding his probation. The motion argued that the
conviction was not for a felony conviction admissible to impeach him under
Evidence Code section 788, and that it was subject to exclusion under Evidence



                                          11
Code section 352. The trial court granted the motion, absent further evidence
demonstrating the conviction’s admissibility.
      During the trial, immediately before Skinner (Eckersley’s counsel) began
her cross-examination of Dr. Simon, the trial court conducted a bench conference.
Skinner requested reconsideration of the ruling on the motion in limine, stating that
she had learned that Simon’s medical license had been suspended due to a
conviction for lewd conduct. When the court asked for proof, Skinner stated that
although Bayter’s attorneys had promised to provide her with information
regarding his purported reckless driving conviction, they had failed to do so.
When she examined what she called “the board website,” she became aware of the
lewd conduct conviction.
      After noting that misdemeanor conduct displaying moral turpitude may be
admissible under People v. Wheeler (1992) 4 Cal.4th 284 (Wheeler), the court
informed Yarnall (Bayter’s counsel) that the conviction was potentially relevant.
The following exchange then occurred:
      “Ms. Yarnall: Perhaps we can continue the argument [until] we find out if
the [Web site information] has anything to do with the doctor. Maybe it’s someone
with the same name.
      “The Court: We must make sure that’s confirmed before there are any
questions about it in the presence of the panel.” The court and counsel then
discussed other issues.
      Later, during the same conference, the court clerk stated that he or she had
found a record of a “criminal appeal” showing that Dr. Simon “was caught with [a]
prostitute,” and that he had been sentenced to two days in jail and one day on
probation. The court remarked that although Simon’s misdemeanor conduct
potentially fell under Wheeler, there was a question regarding the conduct’s
admissibility because the conviction had been expunged. When the court directed

                                         12
Yarnall’s attention to cases interpreting Wheeler, she replied, “I will read them,
Your Honor, but I would ask . . . [you] to inquire, when did Ms. Skinner learn this?
. . . We could have addressed this. We could have briefed it. We could have read
your cases. I could have been ready to argue it.”
      The court decided to give the parties an opportunity to “research these
issues,” and stated that it was necessary “to delay [Dr. Simon’s] further
examination.” In response, Yarnall requested that the court exclude the conviction
under Evidence Code 352, arguing that the conviction had no impact on his
authority or ability to treat Bayter. When the court asked the clerk for further
information regarding the date of the offense, the clerk answered that Simon had
been convicted in 2000 and suffered a suspension of his license in 2002. Skinner
then proposed that the parties simply stipulate that Simon’s license had been
suspended so that she would not “have to get into the details.” The court replied:
“If you can resolve it, if you can stipulate to some way to resolve the issue, it
would [suffice]. Otherwise, this witness will have to return after briefing by the
parties.”
      Following a recess, the court convened another bench conference regarding
Dr. Simon’s conviction. Yarnall stated: “It is Rosh Hashana. [Dr. Simon] has to
be at temple with his family. [¶] Your honor, we ask to bring this up on direct so
[]he can explain, not on cross, not [the] conviction, but just . . . the conduct, as I
think your honor tentatively ruled. That way we would be done with this today,
and the witness can go on with his life.” (Italics added.) Yarnall nonetheless
stated that Simon’s testimony would be presented “over [an] objection.” Simon,
who was present during the conference, stated that he could not testify after lunch
on that date.
      The following colloquy then occurred:



                                           13
         “The Court: Well, the Court has indicated it wanted briefing from your
lawyers, and you’re declining to do that now, and I’m wanting to approach it now,
so the Court has a tentatively final ruling on that.
         “Ms. Yarnall: Let it stand as it is. Do you want me to argue it?
         “The Court: Do you want to further discuss it outside the presence [of the
jury]?
         “Ms. Yarnall: No, your Honor.
         “[Ms. Skinner]: One final comment, your Honor. The Court has not finally
decided that. So you’ll be mak[ing] your decisions at the Court’s suggestion [that]
it can be addressed at a later date?[3]
         “Ms. Yarnall: Yes, your Honor.
         “The Court: And you are wanting to proceed in that fashion? [¶] . . . [¶]
         “Ms. Yarnall: Let my co-counsel [Zeytuntsyan] make the decision.” (Italics
added.)
         Immediately after that remark, Zeytuntsyan reopened his direct examination
of Dr. Simon. When Simon acknowledged that at some point he had been on
probation with respect to his medical license, Zeytuntsyan asked, “Did that have
anything to do . . . with your actions from a medical standpoint? In response,
Simon volunteered a detailed account of his arrest for lewd conduct in 2002, and
also stated that he suffered a “DUI” approximately 15 years before the trial.


               2. Analysis
         We conclude that all of Bayter’s contentions fail. As noted above, his main
contention is that the court’s rulings regarding Dr. Simon’s lewd conduct

3     Although the reporter’s transcript attributes this remark to the court, it
appears to be by Skinner.


                                           14
conviction improperly compelled him to testify regarding that conviction. We
disagree. The record establishes that the court made no final ruling regarding the
admissibility of evidence regarding that conviction. Rather, the court ruled only
(1) that Simon’s testimony would be delayed to permit the parties to brief that
issue, and (2) that if Bayter were to forego the opportunity to submit briefs, it
would render a final ruling. Following those determinations, Bayter’s counsel
declined to submit a brief, and prior to any final ruling, elected to question Simon
on direct examination regarding his conviction.
       Bayter has therefore failed to preserve his contention of error regarding the
admission of that testimony. Generally, “whe[n] evidence of facts likely to be
prejudicial to a party [is] invited, or . . . [is] stated in open court by him, he is under
well-settled principles in no position to complain . . . .” (Zarafonitis v. Yellow Cab
Co. (1932) 127 Cal.App. 607, 609.) Thus, in People v. Ramos (1997) 15 Cal.4th
1133, 1167 (Ramos), the defendant was aware that the prosecutor might rely on the
defendant’s diary to challenge or impeach his testimony. Although the defendant
pressed for a ruling that the diary was inadmissible for any purpose, the trial court
reserved its ruling pending completion of the defendant’s testimony. (Ibid.) To
minimize the diary’s impact, the defendant introduced it himself. (Ibid.) Our
Supreme Court rejected the defendant’s contentions of error regarding the
admission of the diary, stating: “Since [the defendant] ‘is responsible for the
introduction of [this] evidence, he cannot complain on appeal that its admission
was error. [Citations.]’ Estoppel applies even if he acted preemptively to reduce
the diary’s impact: in either situation the record is equally devoid of any basis for
finding error. [Citation.] . . . As matters stand, we can only speculate that the
prosecutor would have sought to introduce it in rebuttal; that the trial court would
have erroneously overruled a proper objection; and that its admission would have



                                            15
been prejudicial under whatever evidentiary circumstances then prevailed.”
(Ramos, supra, 15 Cal.4th at p. 1168.)
      Ramos is dispositive here. The record shows that Skinner did not intend to
present evidence regarding Dr. Simon’s conviction, but only evidence regarding
his probation; moreover, it is speculation what -- if any -- evidence the trial court
would have admitted upon briefing. Accordingly, Bayter cannot establish his
contention of error.4
      Bayter contends that the trial court’s rulings presented an “unfair choice.”
However, we see no impropriety in those rulings. Generally, courts have broad
and inherent authority to deal with the rights of parties and control the admission
of evidence. (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377, 1378.)
Here, the court reasonably requested briefing regarding the admissibility of
evidence related to Simon’s conviction, and throughout the proceedings related to
that evidence, it displayed an evenhanded regard for the interests of the parties and
Dr. Simon.5
      Bayter’s contention regarding the court clerk’s conduct also fails. Bayter’s
attorneys never objected to the clerk’s providing information regarding Dr. Simon

4      Although Bayter suggests that his attorneys were compelled to elicit the
testimony in question from Dr. Simon because they needed to complete his
testimony and lacked control over him, his briefs on appeal identify no evidence to
support that contention. The record discloses only that when Yarnall told the trial
court that Simon wanted to attend temple on Rosh Hashana, Simon stated, “I’m not
coming back after lunch today, so if you can’t do it before lunch, I’ll see you
another day.” (Italics added.) Bayter’s contention thus fails for want of evidence.
5     In related contentions, Bayter asserts that the court failed to require proper
foundation for admission of the evidence, and conducted no analysis of the
evidence’s admissibility under Evidence Code section 352. For the reasons
discussed above, the court cannot be faulted for declining to address those matters
in order to afford the parties an opportunity to submit briefing.


                                          16
prior to his testimony, and suggested that the clerk had engaged in misconduct for
the first time in their new trial motion. Accordingly, the contention was forfeited.
(See 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court,
§ 21, pp. 602-603.) In sum, Bayter has failed to show reversible error from
Simon’s direct testimony regarding his lewd conduct conviction.


        D. Admission of Defense Expert Reports
      Bayter contends the trial court erroneously admitted reports by Dr. Wilson
and Dr. Rothman, relying on grounds other than Skinner’s noncompliance with
rule 3.25(h)(1) (see pt. B., ante). Following the presentation of evidence, the trial
court admitted the reports over a hearsay objection, apparently concluding that
they fell within the hearsay exception for business records. As explained below,
Bayter has shown no reversible error regarding the reports.


                1. Dr. Wilson’s Report
      In ruling on the new trial motion, the court concluded that admitting
Dr. Wilson’s report, if error, was harmless. We agree with that determination.
Assuming that Wilson’s report was inadmissible hearsay, its admission was not
prejudicial.6
      Dr. Wilson’s six-page report, dated March 30, 2010, was prepared following
his examination of Bayter, which occurred after the underlying litigation was
initiated, but before Bayter underwent surgery. The report described Bayter’s


6      Generally, an expert’s report prepared in anticipation of litigation is not
admissible under the business records exception, unless it displays sufficient
indicia of trustworthiness. (Rovetti v. City and County of San Francisco (1982)
131 Cal.App.3d 973, 981.)


                                          17
“current complaints,” as follows: “[Bayter] continues to have pain about his back
and . . . it bothers him with sitting, driving, walking, bending, and putting on his
shoes and socks.” After providing a brief description of the March 2008 accident,
the report noted that Bayter “decline[] to give any further history regarding the
incident.” Under the section entitled “Current Treatment,” the report stated that
Bayter’s sole treatment was pain medication; in the section entitled “Past Medical
History,” the report identified only the 2007 accident. (Caps omitted.)
      Following a description of the results of Dr. Wilson’s physical examination,
the report contained a final two-page section entitled “Discussion.” There, Wilson
stated that he had reviewed the police report regarding the March 2008 accident
and Bayter’s medical records, and intended to review Bayter’s X-rays when they
became available. Pointing to Bayter’s medical records and the results of Wilson’s
physical examination, Wilson concluded that Bayter suffered from a “longstanding
preexisting lumbar pathology which would not be due to the events of March []
2008.” (Caps omitted.)
      In our view, there is no reasonable chance that the report affected the
verdict, as its material contents were cumulative of Dr. Wilson’s trial testimony.
At trial, Wilson testified that he had examined Bayter in March 2010, and
described the medical records he had reviewed prior to that examination. As in the
report, Wilson opined that Bayter suffered from degenerative disc disease, and
further stated that the reported change in the size of Bayter’s herniation following
the March 2008 accident was “meaningless.”
      Bayter contends the report was likely to confuse the jury because the
“current complaints” and medical records it reflected predated his surgery in
October 2010. However, during cross-examination, Yarnall asked Dr. Wilson
whether he had reviewed the medical records relating to Bayter’s surgery,
including those from Dr. Payne, who performed the surgery. After replying in the

                                          18
affirmative, Wilson stated that he had not recommended surgery when he
examined Bayter. The jury was thus informed that Wilson’s report did not
encompass Bayter’s post-surgery complaints.7
      Bayter also contends that admission of the report was likely to mislead the
jury regarding Bayter’s complaints because it omitted certain key complaints. We
disagree. The report stated: “Medical records related how the patient struck his
forehead on the steering wheel[,] and he was complaining of right and left shoulder
pain, left wrist, left thigh, right forehead and right orbital pain.” During direct and
cross-examination, Dr. Wilson described Bayter’s complaints in March 2010 in
precisely those terms. Because Wilson’s trial testimony tracked the report’s
description of Bayter’s complaints, the admission of the report was not reasonably
likely to have affected the verdict.
      In a related contention, Bayter maintains that the report contained a
prejudicial reference to x-ray results. The report stated: “The patient underwent
radiographs of the bilateral shoulders which showed acromiclavicular joint
separation bilaterally. [¶] If the actual x-ray[] films are available, I request they be
sent to my office for review. [¶] The initial evaluation would be consistent with soft
tissue injuries, musculoligamentous strains/sprains[,] as well as . . . head trauma


7      Bayter suggests that the report falsely stated that in March 2010, Bayter was
receiving no treatment other than pain medication. However, because
Dr. Wilson’s trial testimony never challenged the existence of the surgery or the
accuracy of Dr. Payne’s records, it is not reasonably likely that the report misled
the jury regarding whether Bayter was considering surgery when Dr. Wilson
examined him.
       Bayter also suggests that the trial court improperly limited Yarnall’s
examination of Dr. Wilson regarding his review of Dr. Payne’s records. However,
as that contention is presented on appeal without supporting argument, he has
forfeited it.


                                           19
and contusions.” The report itself thus shows that Dr. Wilson had not seen the x-
rays, and that he deferred placing reliance on them until he saw them. At trial,
Wilson affirmed his initial evaluation that the March 2008 accident caused nothing
more that “soft tissue injuries,” which he predicated on his expertise regarding the
types of injuries caused by car accidents. Accordingly, it is not reasonably likely
that the report led the jury to conclude that x-rays not identified or discussed at trial
supported Wilson’s opinions.


             2. Dr. Rothman’s Report
      For similar reasons, we reject Bayter’s contention regarding Dr. Rothman’s
report.8 Assuming -- without deciding -- that the report was inadmissible hearsay,
its admission was harmless. Rothman’s two-page report states only the opinion he
offered at trial, namely, after the 2007 accident, Bayter’s MRI scans displayed a
degenerative disc, that the MRI scans following the March 2008 accident showed
no material change in that disc, and that a significant herniation in the disc first
appeared in an MRI scan taken in August 2009. There is thus no reasonable
chance that the report affected the verdict. In sum, the admission of the defense
experts’ reports was not prejudicial.


        E. Defense Experts’ Testimony
      Bayter contends the trial court improperly permitted a powerpoint
presentation by Dr. Rothman and testimony regarding certain medical studies by
Dr. Wilson. Aside from challenging those aspects of the experts’ testimony on the


8      We note that because Bayter’s new trial motion did not challenge the
admission of Dr. Rothman’s report, the trial court did not address that report in
ruling on the motion.


                                           20
basis of rule 3.25(h)(1) (see pt. B., ante), Bayter argues that they contravened
Kennemur v. State of California (1982) 133 Cal.App.3d 907 (Kennemur), and
otherwise reflected noncompliance with Eckersley’s discovery obligations. As
explained below, Bayter has failed to establish his contentions.


             1. Governing Principles
      In some circumstances, the trial court may exclude evidence offered by an
expert for noncompliance with discovery rules. (Easterby v. Clark (2009) 171
Cal.App.4th 772, 778 (Easterby); Boston v. Penny Lane Centers, Inc. (2009) 170
Cal.App.4th 936 (Boston).) Under Code of Civil Procedure section 2034.210, any
party may demand information regarding an adverse party’s expert witnesses,
including “all discoverable reports and writings, if any, made by [a designated]
expert . . . in the course of preparing that expert’s opinion” (Code Civ. Proc.,
§ 2034.210, subd. (c)).9 Section 2034.300, subdivision (c), further provides that
the trial court “shall exclude from evidence the expert opinion of any witness”
when the adverse party has “unreasonably failed” to “[p]roduce reports and
writings” subject to an appropriate demand. The trial court’s determination
regarding whether the failure to produce those items was unreasonable is reviewed
for an abuse of discretion. (Boston, supra, 170 Cal.App.4th at p. 950.)
      Section 2034.260 also requires that the parties exchange specified
information regarding expert witnesses, including “a brief narrative statement of
the general substance of the testimony that the expert is expected to give” (Id.,
subd. (c)(2) ). Generally, California courts have interpreted that provision to



9     All further statutory citations are to the Code of Civil Procedure, unless
otherwise indicated.


                                          21
require disclosure of the substance of the expert’s testimony in a witness exchange
list or during a deposition. (Easterby, supra, 171 Cal.App.4th at p. 778.)
      In Kennemur, the plaintiff called an expert at trial to testify regarding the
causation of the plaintiff’s injuries, even though the expert testified during his
depositions that he had no opinion on that issue. (Kennemur, supra, 133
Cal.App.3d at pp. 912-913.) After the trial court barred that testimony, the
appellate court affirmed, stating: “When appropriate demand is made for exchange
of expert witness lists, the party is required to disclose not only the name, address
and qualifications of the witness but the general substance of the testimony the
witness is expected to give at trial. [Citation.] In our view, this means the party
must disclose either in his witness exchange list or at his expert's deposition, if the
expert is asked, the substance of the facts and the opinions which the expert will
testify to at trial. Only by such a disclosure will the opposing party have
reasonable notice of the specific areas of investigation by the expert, the opinions
he has reached and the reasons supporting the opinions, to the end the opposing
party can prepare for cross-examination and rebuttal of the expert’s testimony.”
(Kennemur, supra, 133 Cal.App.3d at p. 919.) The trial court’s determination
regarding whether a party has made an adequate disclosure of the witness’s
testimony is reviewed for an abuse of discretion. (Esterby, supra, 171 Cal.App.4th
at p. 778.)


              2. Dr. Rothman’s Powerpoint Presentation
      We begin with Dr. Rothman’s powerpoint presentation. Bayter argues that
the slides incorporated into the presentation were inadmissible on several grounds,
including that their use contravened Kennemur, and that Eckersley improperly
failed to produce them in discovery.



                                          22
                    a. Underlying Proceedings
      In noticing Dr. Rothman’s deposition, Bayter demanded the production of
all items “that were relied upon . . . in arriving at any expert opinion that
[Rothman] intends to offer at the time of trial,” including “demonstrative evidence
. . . and films.” At the deposition, Rothman testified that he had received and
examined Bayter’s MRI scans taken before and after the March 2008 accident. He
opined -- as at trial -- that after the 2007 accident, Bayter’s MRI scans displayed a
degenerative disc, that the MRI scans taken after March 2008 accident showed no
material change in the disc, and that a significant herniation in the disc first
appeared in an MRI scan taken in August 2009. He also testified that “25 percent
of normal, healthy people have disc herniations and they don’t know it. So the
overwhelming majority of disc herniations have simply nothing to do with
trauma . . . .” Near the end of the deposition, he informed Zeytuntsyan (Bayter’s
counsel) that the night before he was to testify, he planned to prepare a powerpoint
presentation of the MRI scans. At Zeytuntsyan’s request, Rothman identified the
scans he intended to incorporate in the presentation.
      At trial, during Bayter’s case-in-chief, Dr. Simon and Dr. Payne displayed
Bayter’s MRI scans to the jury. Later, Dr. Rothman testified that in evaluating
Bayter’s condition, he had reviewed three MRI scans, “photograph[ed]” them, and
put them in his laptop so that he could project them. When Rothman displayed the
first slide depicting an MRI scan in his powerpoint presentation, Zeytuntsyan
asserted that the slide “lack[ed] foundation” and had not been identified as an
exhibit. After the trial court gave Skinner (Eckersley’s counsel) an opportunity to
lay a foundation, Rothman testified that he had generated the slide from one of
Bayter’s MRI scans, and Skinner informed the court that the underlying MRI scan
had been marked as an exhibit by Bayter. The court overruled Zeytuntsyan’s
objections.

                                           23
      Later, Dr. Rothman displayed a powerpoint slide of a chart showing that 20
percent of normal healthy persons have a herniated disc. Zeytuntsyan raised an
objection under Kennemur, arguing that “the slides were never produced.” He also
asserted that “no foundation” had been laid because there was “no chain of
custody.” In response, Skinner argued that the MRI scans underlying Rothman’s
presentation had already been used as exhibits by Bayter’s expert witnesses, and
that when deposed, Rothman told Bayter’s counsel that he intended to use a
powerpoint demonstration based on the MRI scans. The trial court remarked that
Zeytuntsyan’s “lack of foundation” objection had already been overruled.
Observing that Zeytuntsyan’s remaining objection to the slides was not properly
characterized as “a Kennemur objection,” but rather as “failure of discovery,” the
court overruled it, stating that he saw nothing more than “demonstrative use.”


                 b. Analysis
      The record establishes that the powerpoint presentation included (1) slides
depicting MRI scans and (2) a single slide reflecting the frequency of disc
herniations in healthy people. As explained below, Bayter has shown no reversible
error with respect to either type of slide.
      To the extent Bayter challenges the powerpoint slides depicting MRI scans,
the court correctly concluded that Kennemur did not bar the powerpoint
presentation, as the slides did not exceed the substance of Dr. Rothman’s opinions,
as disclosed at his deposition. During the deposition, Dr. Rothman predicated his
opinions on Bayter’s MRI scans, and he told Zeytuntsyan that he intended to
prepare a powerpoint presentation based on those scans.
      Furthermore, the court correctly overruled the objection based on a failure of
discovery regarding the slides depicting the MRI scans. To obtain exclusion of the
powerpoint slides on that ground, Bayter was obliged to show that Eckersley’s

                                              24
failure to produce the slides was unreasonable (§ 2034.300, subd. (c)). However,
when Dr. Rothman told Zeytuntsyan during the deposition that he intended to
prepare his powerpoint presentation of the MRI scans “the night before [he was]
due to testify,” Zeytuntsyan raised no objection. (Italics added.) Bayter thus
forfeited his contention that he was entitled to obtain the slides in discovery prior
to Rothman’s testimony at trial.
      Bayter’s remaining objection -- which he characterizes on appeal as an
objection to the slides’ authentication -- fails for want of a showing of error.
Authentication of a writing is defined as “(a) the introduction of evidence
sufficient to sustain a finding that it is the writing that the proponent of the
evidence claims it is or (b) the establishment of such facts by any other means
provided by law.” (Evid. Code, § 1400.) Generally, the proponent can show that a
writing is what the proponent claims it to be in many ways, including testimony
from a participant in the creation of the writing (DuBois v. Sparrow (1979) 92
Cal.App.3d 290, 295-296), circumstantial evidence (McAllister v. George (1977)
73 Cal.App.3d 258, 263), and admissions by the opposing party (Evid. Code,
§ 1414, subd. (a)). Here, Dr. Rothman testified that he generated the powerpoint
slides by “photograph[ing]” the MRI scans themselves and putting those
photographs in his laptop so that they could be displayed. In our view, that
testimony was sufficient to authenticate the slides.
      Even if there were some type of error, we would conclude that Bayter failed
to show prejudice. “[A] party challenging a judgment has the burden of showing
reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564,
574.) Here, the record contains no suggestion that the slides were inaccurate
copies of the underlying MRI scans, as Bayter’s counsel requested no continuance
to examine the slides, and never identified any discrepancy between the slides and
the underlying MRI scans, even though their own experts had shown the

                                           25
underlying scans to the jury. Accordingly, nothing before us establishes that there
was a reasonable chance that the slides influenced the verdict due to inaccuracies
in them.
      The record otherwise supports the reasonable inference that excluding the
slides would not have affected the verdict. The trial court stated that Dr.
Rothman’s powerpoint presentation constituted nothing more than “demonstrative
use,” that is, Rothman relied on the slides solely to facilitate the presentation of his
opinions. Accordingly, if the slides had been excluded, Rothman would have
stated the same opinions, albeit by reference to the MRI scans that the jury had
seen during the testimony from Bayter’s medical experts.
      Bayter’s contentions regarding the remaining slide -- namely, the slide
depicting the frequency of disc herniations in healthy people -- fails for a related
reason, namely, the want of a record sufficient to show error. On appeal, “‘error is
never presumed, but must be affirmatively shown, and the burden is upon the
appellant to present a record showing it, any uncertainty in the record in that
respect being resolved against him.’” (People v. Clifton (1969) 270 Cal.App.2d
860, 862, quoting 3 Cal.Jur.2d (1952) Appeal and Error, § 260, p. 781.) The
record contains no copy of the slide in question, and nothing before us shows that
it displayed more than the exact content of Dr. Rothman’s trial testimony regarding
the frequency of disc herniations in healthy people. As the substance of that
testimony was disclosed during his deposition, such a slide cannot reasonably be
regarded as contravening Kennemur or the rules of discovery, or as subject to the




                                           26
authentication requirement. Accordingly, Bayter has failed to show reversible
error regarding Rothman’s powerpoint presentation.10


             3. Dr. Wilson’s Testimony
      Bayter contends the trial court erred in permitting Dr. Wilson to refer to
certain medical studies and offer opinions as a biomechanical expert. The crux of
his contentions is that the studies and opinions were never disclosed during his
deposition or at any other time during discovery.


                    a. Underlying Proceedings
      In noticing Dr. Wilson’s depositions, Bayter demanded the production of all
documents “that establish the basis for [Dr. Wilson’s ] expert opinion(s) to be
rendered in this case.” When deposed, Dr. Wilson testified that car accidents
generally caused injuries other than “soft tissue” injuries only when the speed of a
collision exceeded 50 miles per hour, and that even high speed collisions rarely
cause disc protrusions; he was also examined regarding his opinions, as stated in
his March 30, 2010 report (see pt. E.1., ante). He further testified that although he
had expertise in biomechanics, he intended to offer no specific biomechanical
opinions regarding the injuries likely to arise due to certain factors in a collision,
namely, differences in the speeds of the colliding vehicles and the angle of the
collision. When Zeytuntsyan asked Dr. Wilson to describe the bases of the
opinions he intended to offer at trial, he stated that his conclusions relied on his




10    On appeal, Bayter contends the powerpoint presentation constituted
inadmissible hearsay. As the record reflects no timely and specific objection to the
presentation on that ground, he forfeited it.


                                           27
medical experience, training, and “knowledge of all the literature,” and that he had
not done a “literature search in this particular case.”
      Prior to trial, Bayter filed a motion in limine under Kennemur, requesting
that Dr. Wilson’s trial testimony be limited to the opinions he provided in his
deposition. The court granted the motion. At trial, when Skinner asked Dr.
Wilson whether he had training in biomechanics, Yarnall (Bayter’s counsel)
objected on the ground that Dr. Wilson had “stated no opinions.” The court
decided to permit Skinner to establish Dr. Wilson’s qualifications as an expert in
biomechanics, and defer ruling on any Kennemur objections until Dr. Wilson was
asked specific questions.
      Later, in response to Skinner’s questions regarding Bayter’s injuries, Dr.
Wilson stated: “Disc protrusions aren’t caused by car accidents.” In support of
that statement, Dr. Wilson identified and briefly described three medical studies.
Yarnall objected as follows: “Your Honor, I’m going to ask for [a] sidebar.
Kennemur again. None of this was produced in literature research.” The court
overruled the objection.
      During Dr. Wilson’s cross-examination, he stated that some twisting
motions can cause a disc protrusion. Yarnall asked whether the forces generated in
the March 2008 accident were likely to cause Bayter to twist his body. Dr. Wilson
replied, “Significantly, no.” Soon afterward, in response to objections from
Skinner, the court conducted a bench conference. The court said to Yarnall: “The
court is not understanding. There was an objection about Kennemur and
biomechanics. You go right into the heart . . . .” Yarnall replied, “My
understanding was that your Honor did allow [Skinner] to question. He
specifically said that you can hurt your spine with a rotation. I’m establishing that
that’s what happened here. He even said that he was certified. He’s taught
biomechanical . . . .” (Italics added.)

                                           28
      Following the bench conference, through a hypothetical question, Yarnall
asked whether the March 2008 accident was likely to cause the type of twisting
responsible for a disc protrusion. Dr. Wilson replied, “That wouldn’t occur.”


                    b. Analysis
      Bayter contends the court erred under Kennemur in permitting Dr. Wilson to
offer biomechanical opinions during his cross-examination. We disagree. The
record reflects that the court intended to address Kennemur objections to
Dr. Wilson’s testimony on a question-by-question basis. As explained above (see
pt. E.3.a., ante), because Yarnall elicited the testimony in question, Bayter has
forfeited his contention of error regarding it.
      Bayter also contends the court improperly permitted Dr. Wilson to discuss
studies never disclosed in his deposition or during discovery. Although we agree
that the court erred in failing to exclude Dr. Wilson’s references to the studies, the
error cannot be regarded as prejudicial. At the outset, we observe that neither
Kennemur nor section 2034.300, subdivision (c), required the exclusion of Dr.
Wilson’s opinion testimony related to the reports. Dr. Wilson’s opinion testimony
at trial did not contravene Kennemur because it never went beyond the “general
substance” of his opinions, as disclosed in his deposition. (Kennemur, supra, 133
Cal.App.3d at p. 919.) Nor did Dr. Wilson’s references to the studies warrant
exclusion of his testimony under section 2034.300, as those studies were not
“made by” Dr. Wilson. (Boston, supra, 170 Cal.App.4th at pp. 950-955;
§ 2034.210, subd. (a).) Under the circumstances, the appropriate course of action
was to exclude Dr. Wilson’s references to the studies at trial. (See Doppes v.
Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991; § 2023.030.)
      On the record before us, there is no reasonable chance that exclusion of
those references would have affected the verdict. As Dr. Wilson’s deposition

                                           29
testimony discloses, he was prepared to opine that car accidents rarely cause disc
protrusions on the basis of his general knowledge of the available medical
literature. Furthermore, Yarnall elicited his opinion that the specific forces
involved in the March 2008 accident were unlikely to cause a disc protrusion. In
sum, Bayter has failed to establish reversible error regarding Dr. Rothman’s
powerpoint presentation and Dr. Wilson’s testimony.


        F. The Surveillance Video Recording
      Bayter contends the trial court erred in permitting Eckersley to impeach him
with the surveillance video recording, which showed him walking without a limp
on September 1, 2010, notwithstanding his testimony that he developed a limp in
2009. He challenges the presentation of the video recording on several grounds,
including that Eckersley improperly failed to produce the video recording during
discovery. As explained below, we reject his contentions.


             1. Underlying Proceedings
      After Bayter testified on cross-examination that he began to limp in August
2009, Skinner (Eckersley’s counsel) requested leave to present the video recording,
which displayed a time stamp indicating that it was made on September 1, 2010,
the month before his surgery.11 In opposition, Yarnall (Bayter’s counsel)
maintained that Eckersley had failed to produce the video recording during
discovery, arguing that when Bayter propounded a special supplemental
interrogatory on August 1, 2011, seeking such recordings, Eckersley failed to


11    Although Skinner initially stated that the video recording was made on
October 1, 2010, the parties later agreed that its time stamp reflected a creation
date of September 1, 2010.


                                          30
acknowledge its existence. Skinner replied that she should be permitted to
impeach Bayter, notwithstanding any discovery violation.
      After viewing the video recording, the court stated: “It’s definitely
impeach[ment] of . . . his testimony to this panel. But there’s been a failure in
discovery, in the court’s assessment. . . . [T]he court cannot permit something that
doesn’t appear to be true to stand . . . .” The court thus permitted the video
recording to be presented to the jury. Prior to that ruling, Bayter’s counsel asserted
no objection regarding the video recording other than that there was a failure of
discovery, and counsel requested no continuance to examine the video recording.
After the jury viewed the video recording, Yarnall and Skinner questioned Bayter
regarding it, who acknowledged that it showed him and his daughter.
      Bayter’s motion for a new trial asserted that the presentation of the video
recording entitled him to a new trial. In opposition to the motion, Skinner
maintained that there had been no improper failure of discovery regarding the
video recording. She submitted a declaration stating: “Both parties conducted pre-
trial discovery in this matter. [Bayter] served his demand for production of
documents, set one, on January 20, 2010, and his supplemental request for
production of documents, set one, on June 8, 2010. At the time [Eckersley]
responded, the sub rosa video [she] used at trial did not exist. [Bayter] served a
second supplemental request for production of documents on August 4, 2011.
[Eckersley] objected to this request as untimely on September 7, 2011.”
      In denying the new trial motion, the court found that there was no failure of
discovery, stating: “The video was not in existence at the time of the original
demand . . . and supplemental demand . . . . A second supplemental demand on
August 4, 2011 was untimely.”




                                          31
                 2. Analysis
        We conclude that Bayter has failed to establish his contentions. We reject
his principal contention, namely, that Eckersley engaged in improper “discovery
gamesmanship” regarding the video recording. Demands for the production of
documents are directed toward documents “in the possession, custody, or control
of the party on whom the demand is made.” (§ 2031.010, subd. (b), italics added.)
Eckersley was thus not required to produce the video recording before discovery
closed, as Bayter’s requests pre-dated its creation. Furthermore, “[o]nce the
discovery cut[-]off date has run and discovery has closed, the only means provided
in the Civil Discovery Act for reopening discovery is a motion for leave of court.”
(In re Marriage of Boblitt (2014) 223 Cal.App.4th 1004, 1024.) Nothing before us
suggests that Bayter was entitled to production of the video recording after
discovery closed.12
        Bayter contends that no evidence was presented to authenticate the video
recording or establish the accuracy of the time stamp on it. As Bayter never
objected to the video recording on those grounds prior to his new trial motion, he
has forfeited his contention of error. (Kirkpatrick v. Tapo Oil Co. (1956) 144
Cal.App.2d 404, 410 [relevance and hearsay objections to document before trial




12     Although Bayter’s briefs assert that the trial court erred in determining that
Bayter’s August 4, 2011 supplemental demand was untimely, the only evidence in
the record regarding that matter is Skinner’s declaration. Bayter’s contention thus
fails on the record he had provided.
      Bayter also suggests the trial court’s decision to allow presentation of the
video recording cannot be affirmed on appeal because the ruling relied on an
incorrect rationale, namely, that impeachment evidence not properly produced
during discovery may nonetheless be admitted at trial. It is unnecessary for us to
resolve whether that rationale is incorrect, however, because we may affirm the
(Fn. continued on next page.)


                                          32
court insufficient to preserve challenge to its authentication]; see Dell Merk, Inc. v.
Franzia (2005) 132 Cal.App.4th 443, 446, fn. 2 [challenge to document’s
authentication raised on appeal forfeited due to absence of authentication objection
before trial court].)13 Moreover, Bayter’s own testimony identifying himself in the
video recording was sufficient to authenticate the recording.
      Bayter also contends the video recording was inadmissible because it
constituted “‘“unfair surprise.”’” He argues that he “had no opportunity to have
any expert examine the video, no opportunity to cross-examine any person
connected with either creating or editing the video, and no opportunity to see the
out-takes of the video.” We disagree.
      Evidence is not rendered inadmissible merely because it is not produced in
discovery, despite correct application of discovery procedures by the parties. (See
Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 674.) In Kelly, the
appellate court concluded that such evidence is not properly excluded under
Evidence Code section 352 on the purported ground of “unfair surprise,” stating:
“‘Discovery . . . and pretrial conference . . . are means of preventing such surprise.
And if, despite diligent preparation and use of these procedures, evidence is


ruling on the ground that there was no discovery failure. (Grimshaw, supra, 119
Cal.App.3d at pp. 785-786.)
13     Bayter argues that Yarnall’s comments during the bench conference
preceding the video recording’s presentation alerted the court to a challenge
regarding authentication. We disagree. When Skinner requested leave to present
the video recording, Yarnall stated, “I don’t know when it was taped,” noted that
Bayter had made several discovery requests for surveillance video recordings, and
then remarked, “It may be very recent, that’s fine, if so.” (Italics added.) Viewed
in context, Yarnall’s remarks related to her argument that Eckersley may have
failed to produce the video recording in discovery. The record otherwise shows
that Bayter first challenged the authentication of the video recording in his new
trial motion.


                                          33
introduced which is so important and so wholly outside reasonable anticipation that
the other party is harmed by its sudden introduction, the appropriate remedy is a
request for a continuance. [Citation.]’” (Kelly, supra, 49 Cal.App.4th at p. 674,
quoting 1 Witkin, Cal. Evidence (3d ed. 1986) Circumstantial Evidence, § 307, p.
277, italics added.) Here, Bayter requested no continuance.
        Bayter’s reliance on several decisions is misplaced. In some of the cases,
the court concluded only that upon a proper request, a party is entitled to discovery
regarding a surveillance video recording to be used at trial.14 In the remaining
cases, the appellate court concluded that a surveillance video recording may not be
presented at trial when there is a breach of a discovery or procedural rule, or a
timely and correct evidentiary objection.15 As explained above, none of those



14    Suezaki v. Superior Court of Santa Clara County (1962) 58 Cal.2d 166, 170-
179; Fisher v. National R.R. Passenger Corp. (S.D. Ind. 1993) 152 F.R.D. 145,
150; Forbes v. Hawaiian Tug & Barge Corp. (D. Hawaii 1989) 125 F.R.D. 505,
507; Snead v. American Export-Isbrandtsen Lines, Inc. (E.D. Pa. 1973) 59 F.R.D.
148, 151; Kane v. Her-Pet Refrig. (N.Y.App.Div. 1992) 587 N.Y.S.2d 339 [181
A.D.2d 257, 260-268]; Camelback Contractors, Inc. v. Industrial Com’n (Ariz.
App. 1980) 608 P.2d 782, 784.
15      Chiasson v. Zapata Gulf Marine Corp. (5th Cir. 1993) 988 F.2d 513, 515-
517 [proponent of video recording failed to disclose it, in contravention of federal
discovery rules]; Clark v. Matthews (La.App. 5 Cir. 2005) 891 So.2d 799, 803-805
[trial court correctly excluded video recording when proponent improperly failed
to produce it in discovery]; Roundy v. Staley (Utah App. 1999) 984 P.2d 404, 407-
409 [proponent of video recording failed to disclose it, in contravention of state
discovery rules]; Pistella v. W.C.A.B. (Samson Buick Body Shop) (Pa. Comwlth.
1993) 159 Pa.Commw. 342, 348 [633 A.2d 230, 232] [administrative judge
improperly admitted video recording over authentication objection]; La Villarena,
Inc. v. Acosta (Fla.Dist.Ct.App. 1992) 597 So.2d 336, 338 [proponent of video
recording failed to disclose it, in contravention of pre-trial order]; Williams v. Dixie
Elec. Power Ass’n (Miss. 1987) 514 So.2d 332, 335-337 [proponent of video
recording failed to disclose it, in contravention of state discovery rules]; Crist v.
(Fn. continued on next page.)


                                          34
circumstances is present here. In sum, Bayter has shown no error regarding the
presentation of the surveillance video recording.16




Goody (1972) 31 Colo.App. 496, 499 [507 P.2d 478, 480] [proponent of video
recording failed to disclose it, in contravention of state procedural rules].
       We recognize that in one of these decisions, Kopytin v. Aschinger (2008)
2008 Pa. Super. 68 [947 A.2d 739, 747-749], the appellate court held that a video
recording was improperly admitted because it was more prejudicial than probative
and lacked authentication, without noting the existence of timely evidentiary
objections before the trial court. Nonetheless, under Pennsylvania law, challenges
to evidence, including those based on lack of authentication, are forfeited in the
absence of a timely objection. (Wachovia Bank, N.A. v. Gemini Equip. Co. (2006)
1 Pa. D. & C.5th 235, 244-245.)
16    In view of our determinations, it is unnecessary for us to address Eckersley’s
cross-appeal.




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                                   DISPOSITION
      The judgment is affirmed. Eckersley is awarded her costs on appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                MANELLA, J.


We concur:




WILLHITE, P. J.



EDMON, J.*




______________________________________________________________
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.




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