Filed 1/28/20 Mercado v. Department of Transportation CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

LOURDES MERCADO et al.,

Plaintiffs and Appellants,

v.

DEPARTMENT OF TRANSPORTATION,

Defendant and Respondent.

A153752

(Alameda County

Super. Ct. No. HG09486029)

In 2008, Victor Mercado was killed in a vehicle accident on the Interstate 880 freeway. Mercado’s wife and heirs (plaintiffs) sued the California Department of Transportation (Caltrans) for maintaining a dangerous condition of public property. (Gov. Code, § 835.) In a prior appeal, this court affirmed an order granting plaintiffs’ motion for a new trial after a jury returned a verdict in favor of Caltrans. (Mercado v. Department of Transportation (Aug. 11, 2016, A142173) [nonpub. opn.] (Mercado I).) In the present appeal, plaintiffs challenge the judgment entered following the second trial in which the jury again returned a verdict in favor of Caltrans. Plaintiffs contend the trial court (1) abused its discretion in denying plaintiffs’ motion for terminating sanctions based on Caltrans’s repeated discovery violations, (2) violated their right to procedural due process by revoking a prior order without providing plaintiffs an opportunity to be heard, (3) abused its discretion by refusing to rule on a motion for summary adjudication, and (4) erred by excluding relevant evidence at trial. We find no prejudicial error and shall affirm the judgment.

Factual Background

On the morning of June 26, 2008, Mercado was driving a tractor-trailer truck on Interstate 880 in San Leandro, at an approximate speed of 55 miles per hour. That stretch of highway consists of eight lanes, with a concrete barrier dividing the north and southbound traffic. Mercado was traveling southbound in the third lane from the center divide. At the same time, Hiram Torres was driving his Toyota Corolla in the first southbound lane, which was the closest to the concrete divider. Torres lost control of his vehicle when its left rear tire suffered a blowout. He swerved into Mercado’s lane, hitting the front left axle of Mercado’s truck. The impact sent Mercado’s vehicle off course, across two lanes of traffic and into the concrete barrier.

The parties disagree whether Mercado’s truck rode up the barrier or crashed through the base of the wall. In either event, the median broke and Mercado’s vehicle crashed into northbound traffic, setting off a series of collisions, a fire and an explosion. Mercado and another man died. An autopsy showed that Mercado survived the impact of the collisions with the barrier and the other vehicles but died from injuries caused by the fire.

Procedural History

Plaintiffs’ complaint alleged negligence-based claims against Caltrans for creating and maintaining a dangerous and defective condition of the roadway in violation of section 835. Section 835 states: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” The term “dangerous condition” is defined in section 830, subdivision (a), as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”

Caltrans’s answer denied “each and every, all and singular, generally and specifically the allegations against it contained therein.” Caltrans also alleged 17 affirmative defenses including the fourth affirmative defense, which stated: “The alleged condition of the property did not constitute a dangerous condition as it did not pose a substantial risk of injury, and, if there was any risk involved, it was merely a minor, trivial, or insignificant risk, and therefore the State is not liable for the alleged injuries and damages, pursuant to Government Code § 830.2.” Section 830.2 states: “A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.”

Prior to the first trial, plaintiffs sought discovery from Caltrans regarding its fourth affirmative defense. Ultimately, Caltrans withdrew the affirmative defense “without prejudice in the event the plaintiffs introduce evidence at trial that would be applicable to support such withdrawn affirmative defenses.” Later, Caltrans provided responses to a set of special interrogatories stating that it would “not present documents, witnesses to support the contentions in the following affirmative defenses as alleged in its answer to plaintiff’s complaint: [¶] The third and fourth affirmative defense. . . .”

At the first trial, a dispute arose as to whether the withdrawal of its fourth affirmative defense precluded Caltrans from arguing that the barrier did not create a substantial risk of injury. The parties agreed that generally it is a plaintiff’s burden to prove that the risk created by a condition was substantial, not minor or trivial. They disagreed, however, whether Caltrans had conceded that issue by withdrawing its fourth affirmative defense and in its subsequent discovery responses. Ultimately, the question was put to the jury and the jury found that the property was not a dangerous condition at the time of the accident.

In granting plaintiffs’ motion for new trial the trial court found, and this court agreed in Mercado I, that “the litigation strategy employed by Caltrans created an irregularity in the proceedings which resulted in unfair surprise and prejudiced plaintiffs in their ability to present their case to the jury.” This court explained, “Caltrans adopted a litigation strategy which led plaintiffs to reasonably, but mistakenly, believe that Caltrans did not dispute that the risk of injury at the location of the accident was substantial. That strategy included decisions to (1) allege as a fourth affirmative defense that the risk of injury was not substantial, and that if there was any risk, it was trivial; (2) withdraw the contentions asserted in this fourth affirmative defense in order to avoid a legal obligation to respond to discovery; and then (3) use the exact same contentions as the keystone of its defense case at trial. The record supports a finding that both plaintiffs and the trial court were actually, and reasonably, surprised and misled by those decisions.”

Upon remand, discovery was reopened “only with respect to whether the property created a substantial risk of harm.” Plaintiffs again sought responses to form interrogatory 15.1, asking Caltrans, among other things, to identify each denial of a material allegation or affirmative defense and for each state all facts upon which it based its denial or affirmative defense, the contact information for all persons who have knowledge of those facts and identify all documents that support its denial or affirmative defense. In the year leading up to the retrial, plaintiffs moved twice to compel further responses to this discovery. Each time, plaintiffs sought terminating sanctions based on Caltrans’s failure to respond. Both times, the trial court granted plaintiffs’ motion to compel but denied terminating sanctions.

In the meantime, in May 2017, plaintiffs successfully moved to strike Caltrans’s fourth affirmative defense. However, plaintiffs’ motion for summary adjudication of the “waived affirmative defenses and the waived issue of substantial v. trivial risk” was denied. The court found that plaintiffs’ motion was moot as to the fourth affirmative defense, which had been stricken. The trial court explained that Caltrans would be precluded from arguing at trial that the barrier posed only a trivial risk under section 830.2. Whether the barrier posed a substantial risk of harm under section 830, however, would remain an open question at trial. The court explained, “[T]he opinion by the Court of Appeal and this court’s order denying summary judgment do not include any ruling that Caltrans waived its right to dispute Plaintiff’s contentions that Caltrans’s property created a dangerous condition or that the property created a substantial risk of harm. The issues of dangerous condition of public property and substantial risk of harm are elements of Plaintiffs’ claim for dangerous condition of public property, and are not affirmative defenses. Caltrans’s general denial in its answer puts all elements of the claim at issue. Plaintiffs have the affirmative burden to prove that the property was in a dangerous condition at the time of the accident, and that the dangerous condition created a substantial risk of harm.” The court held further that to the extent plaintiffs were seeking to summarily adjudicate whether the accident location was in a dangerous condition, the motion directed to a single issue was not proper under Code Civil Procedure section 437c, subdivision (f)(1).

Caltrans provided its final discovery responses to form interrogatory No. 15.1 on December 1, 2017, three days prior to the start of trial. Again, plaintiffs challenged the responses and the court found the responses inadequate. Plaintiffs moved for terminating sanctions based on the inadequate responses as well as Caltrans’s failure to produce in discovery the results of a “crash test” conducted in 2006. Plaintiffs’ motion explained that they had been seeking discovery on the issue of whether the barrier was a dangerous condition for over seven years and Caltrans had still, on the eve of trial, failed to provide sufficient responses. In addition, plaintiffs explained that they had “recently” learned that Caltrans had withheld documents relating to crash testing of a different type of Caltrans barrier conducted in 2006. The court refused to impose terminating sanctions but did impose some evidentiary sanctions.

The court also ruled on three in limine motions relevant to this appeal. First, the court denied plaintiffs’ motion to preclude references to witnesses and evidence not produced three days prior to the pretrial conference. The court explained that the local rule, on which plaintiffs’ relied, was preempted by the Code of Civil Procedure which permitted the introduction of the evidence.

Second, the court granted Caltrans’s motion to exclude evidence and argument pursuant to section 830.5 and Code of Civil Procedure section 1151 regarding a “new project” involving the highway barrier at the location of the accident. The court found that the new project constituted a subsequent remedial measure so that it was not admissible to prove the property was in a dangerous condition at the time of the accident, but that it could be offered “for another purpose, such as impeachment.”

Third, the court denied plaintiffs’ motion to “preclude any reference to the subject location as posing a trivial or insignificant risk.” The court explained that whether the barrier posed a substantial risk of injury was “the heart of the case.”

At trial, plaintiffs argued that prior to the accident Caltrans had made modifications to the concrete barrier that made the freeway dangerous to users. They contended that the dangerous condition was a cause of Mercado’s death because his truck would not have travelled into the northbound traffic if the barrier had performed its intended function. In its defense, Caltrans argued that the roadway did not pose a substantial risk of injury when used carefully, that the accident was caused by Torres’s flat tire, and that nobody anticipated that Caltrans could prevent a big rig from breaking through a concrete median under these circumstances.

The jury returned a verdict in favor of Caltrans, finding that the concrete barrier was not a dangerous condition at the time of the accident. Plaintiffs timely filed a notice of appeal from the subsequent adverse judgment.

Discussion

1. The trial court did not abuse its discretion in denying plaintiffs’ request for terminating sanctions based on Caltrans’s discovery abuses.
2.
Code of Civil Procedure section 2023.030 permits the trial court to impose, against anyone who has engaged in a misuse of the discovery process, monetary sanctions, issue sanctions, evidence sanctions, terminating sanctions, or contempt sanctions. “Under this statutory scheme, the trial court has broad discretion in selecting the appropriate sanction, and we must uphold the trial court’s determination absent an abuse of discretion. [Citation.] Thus, we will reverse the trial court only if it was arbitrary, capricious, or whimsical in the exercise of that discretion.” (Department of Forestry & Fire Prot. v. Howell (2017) 18 Cal.App.5th 154, 191.)

During the course of the ongoing discovery dispute, plaintiffs sought terminating sanctions three times based on Caltrans’s failure to provide an adequate response to form interrogatory 15.1. Caltrans does not dispute that the court repeatedly found that its responses were inadequate but contends the court did not abuse its discretion by refusing to impose terminating sanctions for its violations.

Generally, “terminating sanctions are to be used sparingly because of the drastic effect of their application. [Citations.] Thus, under the statutory scheme, trial courts should select sanctions tailored to the harm caused by the misuse of the discovery process and should not exceed what is required to protect the party harmed by the misuse of the discovery process. [Citation.] Therefore, sanctions are generally imposed in an incremental approach, with terminating sanctions being the last resort. [Citation.] However, even under the Civil Discovery Act’s incremental approach, the trial court may impose terminating sanctions as a first measure in extreme cases, or where the record shows lesser sanctions would be ineffective.” (Department of Forestry & Fire Protection v. Howell, supra, 18 Cal.App.5th at pp. 191-192.)

Caltrans’s first supplemental response to form interrogatory No. 15.1 read in relevant part, “Fourth Affirmative Defense: Defendant asserts this affirmative defense to preserve it. The State had discretion in the design and maintenance of the roadway. All Caltrans records, including construction and maintenance records which are already in the possession of plaintiffs.” In May 2017, the court granted plaintiffs’ motion to compel because the response by Caltrans was inadequate and not verified but denied the accompanying request for terminating sanctions. The court explained, “There has not been a prior motion to compel responses to the supplemental discovery at issue, and thus there is no showing that Caltrans is in violation of a court order. [Citation.] The sanction must be tailored to the harm caused by the withheld discovery and is not intended to put the prevailing party in a better position than it would have been if it had obtained the discovery and it was completely favorable to its cause. [Citation.] Plaintiffs’ assertions about other conduct by Caltrans do not support the conclusion that terminating sanctions are justified at this time based on suspicion by plaintiffs that Caltrans will not comply with a court order to provide verified responses.”

Caltrans’s amended response to form interrogatory 15.1 reads in relevant part, “Form Interrogatory 15.1: [¶] Requires the identification of ‘each denial of a material allegation’ and all supporting facts, witnesses and documents. . . . There were no individual denials of specific allegations in the state’s answer . . . . Instead, the state asserted a general denial . . . . Although no specific denials were asserted and therefore, the state is not required to respond to this part of form interrogatory No. 15.1, in an abundance of caution and given the history of plaintiffs’ counsel’s confusion regarding what their burden of proof is at trial, the State responds here that each and every person deposed and/or who gave testimony at trial, and each and every document produced, and each and every fact asserted by way of witness and/or document, supports the state’s general denial of the allegation that I-880 at or near the Marina Boulevard overcrossing in Alameda County of June 26, 2008, where the subject accident occurred, was a ‘dangerous condition of public property’ as that term is defined by Government Code section 830(a) . . . . [¶] . . . Also, all facts, witnesses and documents that have been produced by the state since the beginning of the discovery period for the second trial support the state’s general denial.”

In November 2017, the court again granted plaintiffs’ motion to compel further responses to this interrogatory, finding that the response provided by Caltrans was “essentially nonresponsive.” The court directed Caltrans to “provide a response identifying the facts, witnesses and documents” in support of its general denial and specific denial of the allegation that its property was in a dangerous condition. The court denied the request for terminating sanctions, finding that the “positions of both sides were justified in part.”

Several days before the start of the second trial Caltrans submitted a further response to its amended response to the form interrogatory which repeated and denied plaintiff’s contention that the roadway was a dangerous condition of public property, but also identified 9 specific facts, 10 people and 10 documents in support of its denials. At the start of trial, the court denied plaintiffs’ request for terminating sanctions based on the inadequacy of the prior discovery responses and Caltrans’s failure to disclose the results of the 2006 crash test. As a sanction for Caltrans’s belated discovery responses, the court determined whether the information contained in the documents cited in the final discovery response had been previously disclosed and then limited Caltrans’s use at trial of certain Caltrans manuals and traffic data identified in the final response. The court expressed surprise at Caltrans’s failure to disclose the crash test results, but found no “grave prejudice” to plaintiffs warranting imposition of such “draconian” sanctions because plaintiffs had received the report in “plenty of time to use for trial.”

Plaintiffs’ argument on appeal focuses on “Caltrans’s persistent failure and refusal to provide meaningful responses to discovery” but largely glosses over any showing of resulting prejudice. In their opening brief, plaintiffs argue that they “do not believe Caltrans will ever provide a full, straightforward and complete discovery response regarding its affirmative defenses and denials. . . . If Caltrans is allowed to benefit from its discovery abuse even after it has been exposed, similar abuse will proliferate. If there is no downside to hiding things like crash tests and remedial projects they will continue to be hidden. Caltrans’s litigation strategy . . . cannot be tolerated in California courts.” The only concrete allegation of prejudice made by plaintiffs is that they were unable to take “depositions regarding the crash test, or conduct any discovery on it since it was discovered immediately before trial.” The record shows, however, that plaintiffs had the crash test results in advance of at least some depositions. As plaintiffs emphasize, when considering terminating sanctions, the court should review the totality of the circumstances, including “conduct of the party to determine if the actions were willful; the detriment to the propounding party; and the number of formal and informal attempts to obtain discovery.” (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246, italics added.) The trial court did not abuse its discretion in finding that plaintiffs had not established prejudice warranting terminating sanctions.

Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, relied on by plaintiffs, does not compel a different result. In Doppes, the court held that the trial court abused its discretion by not imposing terminating sanctions. (Id. at p. 993.) The court acknowledged that the result was “unprecedented” and “extraordinary.” (Id. at pp. 971, 933.) The record in that case established that defendant had “engaged in persistent and serious misuse of the discovery process” and “[d]espite monetary and issue sanctions, [defendant] had flagrantly engaged in such further discovery abuses so as to compel the trial court to impose the next level of sanctions—terminating sanctions.” (Id. at pp. 993-994.) There, defendant repeatedly “ ‘failed to timely produce relevant and properly demanded, but potentially damaging, documents’ ” prior to trial, causing the discovery referee to believe that it was “ ‘either withholding documents, or [had] failed to conduct a diligent search to find them.’ ” (Id. at p. 993) Then, it came to light during trial that despite the imposition of monetary and evidentiary sanctions, defendant “still had not complied with discovery orders and directives, had been irresponsible at best in preventing destruction of e-mails, had not fully permitted data mining of e-mails as previously ordered, and had failed to produce documents it should have produced months earlier.” (Id. at p. 994.) The court found that defendant’s conduct “not only impaired plaintiff’s rights, but threatened the integrity of the judicial process.” (Id. at p. 971.) Although we do not condone Caltrans’s discovery violations, its conduct cannot fairly be considered, as plaintiffs suggest, “far more egregious” than that of the defendant in Doppes. Plaintiffs have not established that Caltrans’s conduct impaired their rights or threatened the integrity of the judicial process.

3. The trial court properly denied plaintiffs’ motion for summary adjudication on the “issue of substantial v. trivial risk.”
4.
As set forth above, plaintiffs sought to summarily adjudicate the fact that the barrier was a dangerous condition at the time of the accident. On appeal, they argue the court “refused to rule” on this argument in violation of Code of Civil Procedure section 437c, subdivision (g). Plaintiffs contend the court’s “refusal to rule” is “reversible error per se and should be treated like the failure to render a timely statement of decision.” Plaintiffs’ argument fails for two reasons.

First, a court’s violation of Civil Procedure section 437c, subdivision (g) is not a reversible error per se. To the contrary, in Taswell v. Regents of University of California (2018) 23 Cal.App.5th 343, 364, the court recognized that a trial court’s failure to perform its statutory duty under Code of Civil Procedure section 437c, subdivision (g) “ ‘does not automatically require a reversal. [Citation.] The de novo standard for appellate review of an order granting summary judgment frequently means the lack of a proper order constitutes harmless error.’ ” (Quoting Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1057.) More importantly, the court did rule on plaintiffs’ motion. The order reads, “Finally, plaintiffs’ motion, in the alternative, for summary adjudication that . . . the accident location was in a dangerous condition . . . is DENIED.” Citing Code Civil Procedure section 437c, subdivision (f)(1), the court explained that plaintiffs’ motion in this regard “seek[s] adjudication of the individual elements of a claim against a public entity for dangerous condition of public property. The court does not have authority to rule on these individual issues, which do not completely dispose of ‘a cause of action, an affirmative defense, a claim for damages, or an issue of duty.’ ” On appeal, plaintiffs have not addressed the ground relied on by the court. We find no error in the denial of their motion.  

5. The trial court did not violate plaintiffs’ right to procedural due process.
6.
Plaintiffs contend the court violated their procedural due process rights by “revoking a court order on the eve of trial” without giving them the opportunity to be heard. (See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1097, 1108-1109 [recognizing court’s authority to reconsider interim rulings but requiring the parties be given an opportunity to be heard before doing so.].) Plaintiffs argue that the court’s denial of their motion in limine “to preclude reference to the issue of trivial risk” was inconsistent with and reversed its prior rulings on plaintiffs’ motion to strike and motion for summary adjudication. Consequently, plaintiffs argue, the court violated their right to procedural due process by not allowing them an opportunity to brief or argue the issue. Plaintiffs’ arguments are unsupported by the record.

In denying plaintiffs’ in limine motion the court explained, “We’re talking here as a matter of fact. You have to prove the dangerous condition, and I am not excluding evidence that Caltrans wants to introduce that negates [that]—whether it was a trivial or insignificant risk. We’ve been around and around and around on this. And there’s a general denial and it was an improper affirmative defense to begin with.” Plaintiffs’ counsel attempted to clarify, “At the motion to strike, the court ruled that the issue of trivial risk was out [but] that the issue of substantial risk and their general denial was in.” Counsel conceded that Caltrans could “contest at trial as a matter of fact . . . [plaintiffs’] contention that this was a substantial risk” but argued that Caltrans should be precluded from arguing that the risk was “trivial.” The court denied the motion without permitting further discussion.

The court’s in limine ruling is consistent with its prior orders quoted extensively above, which clearly indicated that it was plaintiffs’ burden to establish a dangerous condition as part of their cause of action. To the extent that plaintiffs’ in limine motion sought to preclude Caltrans from arguing that the risk was trivial or insignificant while still allowing it to argue the risk was not substantial, the motion was properly denied. Characterizing any risk as trivial is simply another way of saying it was not substantial. Indeed, the statute specifically defines a dangerous condition as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury.” (§ 830, subd. (a).)

Plaintiffs continue to assert that Caltrans waived its right to challenge whether the barrier was a dangerous condition when it withdrew its fourth affirmative defense. But the trial court did not change its ruling in this regard. To the contrary, the court consistently held that the affirmative defense was improper and confusing, but that plaintiffs were required to prove the barrier was a dangerous condition. Plaintiffs were not denied procedural due process.

7. The trial court did not err in excluding evidence of the new project.
8.
Prior to trial, the court granted Caltrans’s motion to exclude evidence and argument regarding a new project involving the replacement of the highway barrier at the location of the accident. According to plaintiffs, the new project involved the replacement of the existing highway barrier with a new type of barrier “due to the very issues raised in Mercado’s lawsuit: the barrier’s failure to meet minimum mandatory standards, and because there was a problem of ‘errant vehicles with high centers of gravity (trucks) crossing the barrier into oncoming traffic.’ ” The court held that the new project constituted a subsequent remedial measure so that it was not admissible to prove the property was in a dangerous condition at the time of the accident, but that it could be offered “for another purpose, such as impeachment.”

Plaintiffs do not dispute that the “new project” evidence was not admissible to prove that the barrier was a dangerous condition. (See § 830.5, subd. (b) [“The fact that action was taken after an injury occurred to protect against a condition of public property is not evidence that the public property was in a dangerous condition at the time of the injury.”].) They argue, however, that section 830.5 does not “bar the use of evidence of subsequent remedial acts for the purposes of establishing that defendant had knowledge of the dangerous condition and control over it, or the feasibility of precautionary measures, where such issues are disputed in the case” and that the trial court “abused its discretion by denying plaintiffs the opportunity to introduce evidence of the new project at trial for any purpose.”

Contrary to plaintiffs’ argument, as set forth above, the court ruled only that the evidence was not admissible to prove the property was in a dangerous condition at the time of the accident. The court acknowledged that the evidence could be offered “for another purpose.” Plaintiffs, however, did not attempt to introduce the evidence for any purpose other than impeachment.

At trial, plaintiffs argued that because Caltrans’s expert had testified that the barrier was “absolutely fine,” they “should be able to ask this witness if he has any idea why they’re changing [the barrier] if there’s nothing wrong with it.” Caltrans responded that it had presented only evidence as to what they knew prior to the 2008 accident and that upgrading a roadway based on new information is not evidence of a dangerous condition. The court reiterated its ruling that the evidence was inadmissible for the purpose of showing that the barrier was a dangerous condition. Plaintiffs offer no argument demonstrating why the court’s ruling was error.

9. The trial court did not err in precluding plaintiffs’ expert from comparing Mercado’s accident to the 2006 crash test.
10.
Evidence of a 2006 crash test was admitted through the testimony of a former Caltrans employee. In closing argument, plaintiffs’ counsel relied heavily on the crash-test results to demonstrate that Caltrans could have had a barrier that would have “successfully contained” Mercado’s truck. Plaintiffs contend on appeal, however, that the court abused its discretion by precluding their accident reconstruction expert from testifying about the 2006 crash test without providing a reason or explanation. They argue that the court excluded the evidence despite Caltrans having “never challenged [the expert’s] ability to compare the test to the accident” or having never “objected based on a claim that [the witness] was not ‘qualified’ to testify as an expert due to lacking special knowledge, skill, experience, training or education about the subject to which the testimony will relate.” Plaintiffs’ arguments are not supported by the record.

Contrary to plaintiffs’ suggestion, Caltrans repeatedly objected to the expert’s testimony as lacking in foundation and exceeding the scope of the witness’s expertise, and the trial court sustained those objections. Plaintiffs offer no argument in their opening brief regarding the merits of the court’s rulings. In their reply brief, plaintiffs argue summarily that “accident reconstructionists are permitted to rely on unrelated or third party tests, so long as the proponent of the evidence demonstrates that it was conducted under circumstances substantially similar to those of the actual occurrence” and they fault the court for not giving them “an opportunity to demonstrate that the test was conducted under substantially similar circumstances.” The record does not demonstrate that plaintiffs attempted but were denied the opportunity to make any such foundational showing. To the contrary, plaintiffs’ counsel asked their expert a series of questions establishing that he uses standard calculations to determine the forces that are created in an accident and then attempted to ask the expert how the force generated by Mercado’s truck when it crashed into the barrier compared to the force of the truck on the barrier in the crash test. The court sustained Caltrans’s objection to the expert’s testimony as lacking in foundation and exceeding the scope of the witness’s expertise. Plaintiffs fail to explain why this ruling was incorrect or otherwise address the merits of the ruling.

In any event, as Caltrans points out, any potential error regarding the exclusion of this evidence was harmless. Plaintiffs argue that “[p]rohibiting [the expert’s] testimony on this issue was prejudicial because it precluded plaintiffs from showing that Caltrans had a barrier at its disposal that would have prevented this accident.” Because the jury found that the barrier was not a dangerous condition, the exclusion of this evidence—which was relevant to whether Caltrans could have taken measures to protect against the purportedly dangerous condition—did not prejudice plaintiffs. Plaintiffs also argue the evidence could have been used to impeach the Caltrans witness who testified that a barrier rigid enough to withstand a truck the size of Mercado’s truck would have crushed the occupant in the cab. However, the crash test results were admitted into evidence and could have been used for impeachment.

Disposition

The judgment is affirmed.

 

_________________________

POLLAK, P. J.

WE CONCUR:

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STREETER, J.

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BROWN, J.

A153752