Filed 9/30/19 Ghezavat v. Cornes CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

MO GHEZAVAT et al.,

Plaintiffs and Appellants,

v.

SUSANNAH BROCK CORNES, M.D., et al.,

Defendants and Respondents.

A154460

(Contra Costa County

Super. Ct. No. MSC1300167)

In this case, a jury determined that a doctor did not violate a statutory duty to report a patient who had been diagnosed with a seizure disorder. The patient later suffered a seizure while driving and collided with another car, killing its occupants. On appeal, plaintiffs challenge several rulings by the trial court on evidence and jury instructions. We affirm.

BACKGROUND

A.

When a physician diagnoses a patient with a disorder characterized by lapses of consciousness, Health and Safety Code section 103900, subdivision (a) requires the physician to report the patient to the local health officer. The local health officer then reports the patient to the Department of Motor Vehicles, which may restrict the patient’s license to drive. (See Health and Safety Code, § 103900, subd. (b)-(e).) A physician is not required to report a patient, however, if “[t]he patient states that he or she does not drive and states that he or she never intends to drive, and the physician . . . believes these statements made by the patient are true.” (Cal. Code Regs., tit. 17, § 2812, subd. (b).)

B.

Dr. Susannah Brock Cornes, a neurologist, began treating John Harris (hereafter called John to distinguish him from other Harris family members) in early 2011. Several months later, Dr. Cornes diagnosed John with a seizure disorder characterized by a lapse of consciousness. During John’s first three visits, John told Dr. Cornes he relied exclusively on his bicycle for transportation and “was very clear, he did not drive, he did not intend to drive in the future.” Dr. Cornes did not doubt John’s statements. Dr. Cornes did not report John’s diagnosis to a local health officer until after the collision.

C.

Plaintiffs, the decedents’ survivors, sued Dr. Cornes and her employer, The Regents of the University of California, for failing to report John’s diagnosis earlier. The jury found Dr. Cornes did not violate her statutory duty to report John’s diagnosis. The trial court entered a judgment for defendants.

This appeal concerns three rulings by the trial court. First, the court sustained an objection to testimony by Brita Harris (John’s mother) that, after the collision, John told Brita that Dr. Cornes advised John to look for the shoulder of the road if he felt a seizure coming while driving. Plaintiffs’ counsel argued Brita’s testimony would contradict testimony by Dr. Cornes that she did not know John was still driving at the time of the collision. The court ruled it was inadmissible hearsay.

Second, the court granted defendants’ request for a special jury instruction that, for section 2812(b)’s exception to the reporting requirements to apply, a patient is not required to state the precise words “I do not drive” and “I do not intend to drive.” The court instructed the jury as follows: “The statute requires that the substance be conveyed, it’s not the very specific words that must be used verbatim. The idea is whether or not the substance of what the statute or regulation requires is conveyed, not the exact words be used.”

Third, the court excluded proposed testimony by plaintiffs’ neurology expert, Sarah Cheyette, M.D., on whether it was reasonable for Dr. Cornes to believe John’s statements that he was not driving and did not intend to drive.

DISCUSSION

A.

Plaintiffs contend the trial court abused its discretion by excluding Brita’s testimony as inadmissible hearsay. We disagree.

1.

We review evidentiary rulings for abuse of discretion. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.) “ ‘Under the abuse of discretion standard, “a trial courts’ ruling will not be disturbed, and reversal . . . is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (People v. Foster (2010) 50 Cal.4th 1301, 1328-1329.)

2.

We first consider whether the testimony was admissible as nonhearsay.

“ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).) It is generally inadmissible unless an exception to the rule applies. (Evid. Code, § 1200, subd. (b)). When evidence contains multiple levels of out-of-court statements, each level must be analyzed separately to determine whether it is hearsay or nonhearsay, and if hearsay, whether each level falls within a hearsay exception. (Evid. Code, § 1201.)

Brita’s testimony contains two levels of hearsay: (1) Dr. Cornes’ statement to John to pull over to the side of the road if he felt an aura while driving, and (2) John’s statement to Brita after the accident that Dr. Cornes told John to pull over to the side of the road. The parties do not dispute that Dr. Cornes’ statement is hearsay and falls within the party admission hearsay exception (Evid. Code, § 1220). However, plaintiffs argue John’s statement to Brita was not hearsay because it was not offered for the truth of the matter asserted. Plaintiffs maintain they offered John’s statement not to prove that Dr. Cornes told John to drive to the shoulder but, rather, to prove that Dr. Cornes knew John was driving.

Plaintiffs’ argument is unpersuasive. An out-of-court statement is not hearsay if it is offered for a purpose independent of the truth of the matter. “That means that the statement must be capable of serving its nonhearsay purpose regardless of whether the jury believes the matters asserted to be true.” (See People v. Hopson (2017) 3 Cal.5th 424, 432.) “ ‘[I]f in fact the statement must be true for the inference desired, then the ostensible nonhearsay use is invalid.’ ” (Ibid., quoting 2 McCormick, On Evidence (7th ed. 2013) The Hearsay Rule, § 249, p. 189, fn. 2.) Here, the inference plaintiffs wanted to draw (that Dr. Cornes was aware that John was driving) required the jury to believe John’s statement was true (that Dr. Cornes told John to pull over to the shoulder of the road if he started to feel an aura while driving). The trial court properly ruled it was hearsay.

We also reject plaintiffs’ theory that Brita’s testimony is evidence of “operative facts.” Under this doctrine, “[i]f a fact in controversy is whether certain words were spoken or written and not whether the words were true, evidence that these words were spoken or written is admissible as nonhearsay evidence.” (People v. Fields (1998) 61 Cal.App.4th 1063, 1068.) For example, contractual words, such as acceptance of an offer, will make a binding contract even if the speaker had no intention to be bound. (See State of Oregon v. Superior Court (1994) 24 Cal.App.4th 1550, 1555 fn.1, disapproved on other grounds in Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 465, fn. 8.) John’s statement, however, does not carry any legal significance unless the contents of his statement are true.

3.

Having established that the statement is hearsay, the question becomes whether an exception to the hearsay rule applies. Plaintiffs offer several exceptions, but none of them applies.

First, John’s statement is not admissible as a statement of his then-existing or previously existing mental state (Evid. Code, §§ 1250, 1251) because the statement is not offered to prove or explain John’s state of mind.

Second, John’s statement is not a declaration against interest. (Evid. Code, § 1230.) Although John’s statement appears “contrary to [John’s] pecuniary or proprietary interest” by confirming he was driving when unfit to drive, it also had an exculpatory effect of shifting blame onto Dr. Cornes. (Id.) But plaintiffs must also demonstrate that, given the context of the statement and the motivation of the declarant, the declaration was sufficiently reliable to warrant admission despite being hearsay. (People v. Lucas (1995) 12 Cal.4th 415, 462.) The trial court found that it was not reliable. The court did not abuse its discretion. After causing such a tragic accident, John had good reasons to shift blame to Dr. Cornes by telling his mother that he followed the doctor’s directions. (See People v. Duarte (2000) 24 Cal.4th 603, 611-612.)

Third, Evidence Code section 1224 does not apply. Section 1224 provides for the admission of a declarant’s statement in an action where the liability of the party against whom the statement is offered is based on the liability of the declarant. John’s liability is based on his negligent driving, which was independent of Dr. Cornes’ liability for her alleged failure to report John’s diagnosis.

B.

Plaintiffs contend the trial court should have instructed the jury that a doctor cannot rely on the reporting exception in section 2812(b) unless a patient uses the exact words in the regulation. In other words, the exception is invalid unless John said to Dr. Cornes, “I do not drive” and “I never intend to drive.” We review the propriety of jury instructions de novo. (Mize-Kurzman v. Marin Cmty. College Dist. (2012) 202 Cal.App.4th 832, 845.)

The trial court did not err. We must interpret the regulation using its plain language and common sense meaning. (See Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) The regulation does not specify that a patient must use specific words, nor can we imagine why the Legislature would elevate form over substance in such a manner. The regulation is based on Health and Safety Code section 103900, subdivision (d), which creates an exception to the reporting requirement if the patient is “unlikely to represent a danger that requires reporting.” The important thing is not the precise words that the patient uses but rather that the patient convinces the doctor that he or she is not going to drive and thereby risk an accident. Indeed, given that the exception applies only if the doctor believes the patient (§ 2812(b)), they should have a meaningful conversation about the issue, not simply recite two short sentences. The trial court correctly instructed the jury to focus on the substance of the regulation’s requirements rather than a verbatim recitation.

C.

Finally, we reject plaintiffs’ argument that the trial court abused its discretion when it excluded expert testimony by plaintiffs’ neurologist, Dr. Cheyette, who would have opined that it was negligent for Dr. Cornes to believe John’s statements that he would not drive. Trial courts have broad discretion to admit or exclude expert testimony. (People v. McDowel (2012) 54 Cal.4th 395, 426.) Assuming the question was whether Dr. Cornes reasonably believed John (we note that section 2812 does not explicitly include a reasonableness requirement), the jury was perfectly capable of determining the issue without expert guidance. (See Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1183 [expert testimony is not needed when the jury is equally competent to weigh the evidence]; Evid. Code, § 801, subd. (a).)

We have considered plaintiffs’ other arguments and find them to be without merit.

DISPOSITION

The judgment is affirmed.

 

_________________________

BURNS, J.

WE CONCUR:

_________________________

JONES, P. J.

_________________________

NEEDHAM, J.

A154460