Filed 6/26/20 Kottas v. Beverly Hot Springs CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

ZOI KOTTAS,

Plaintiff and Appellant,

v.

BEVERLY HOT SPRINGS,

Defendant and Respondent.

B286667

(Los Angeles County

Super. Ct. No. BC596158)

APPEAL from a judgment of the Superior Court of Los Angeles County, Laura Ellison. Affirmed.

Alison Minet Adams, for Plaintiff and Appellant.

Hartsuyker, Stratman & Williams-Abrego, Fred B. Smith; Veatch Carlson, Serena L. Nervez, for Defendant and Respondent.

___________________________________

Zoi Kottas was injured by a door at a spa, and sued the owner for negligence. She appeals from a defense judgment after a jury trial, contending the court erred in excluding evidence of post-accident remedial efforts and in precluding her from impeaching a defense expert. If the record is inadequate to support these contentions, Kottas argues due process requires that she be provided a free, complete reporter’s transcript. We reject all contentions, and affirm the judgment.

BACKGROUND

Beverly Hot Springs owns and operates a spa, which Kottas patronized. In April 2014, Kottas opened a heavy glass door to enter a steam room, and after stepping in reached behind her to muffle the sound of the door’s closing. The door closed on her hand, injuring her. Kottas sued Beverly Hot Springs for negligence, alleging the door’s closing mechanism had been adjusted so as to slam the door. After the accident, Beverly Hot Springs readjusted the mechanism to reduce the door’s closing speed.

Before trial, the court granted Beverly Hot Springs’s motion in limine to exclude evidence that a contractor reduced the closing speed of the spa door after the accident.

At trial, Kottas testified: “So I open the door. I step in. And as I do at a sauna, I always, you know, want to turn around and close the door behind me because I’m mindful I’m at a spa. You’re quiet. You don’t talk; you whisper. You lightly, you know, close-the-door-behind-you-kind-of-thing, again, to be respectful of where you are. But this door came slamming so fast I never had a chance to even grab the handle to close it behind me; so it just pushed my hand in between this cement and the door, and the door just came—I mean the door is what pushed my hand because it came slamming so fast. So it pushed my hand against the cement, the glass door.” She testified the injury caused pain in her right hand that radiated to the right side of her neck and later to the left side, and may have resulted in thoracic outlet syndrome in the area of her left shoulder, which will require lifelong treatment.

John Brault, a biomechanics expert, testified he examined the subject door two years after the accident, and found it was not unsafe. He described it as a normal, frameless glass door that would swing left to right when opening, with an automatic closing mechanism at the top. The door closed at two different speeds, a sweep speed for the first 78 degrees and a faster latch speed for the final 12 degrees, or about 5-6 inches. The speed could be adjusted. Brault testified that the door was unremarkable and violated no building codes. The door could have closed on Kottas’s hand only if she placed her hand between the closing edge and the jamb, but there would have been no reason to do so because the door had a handle. Brault further testified there was no mechanism by which a door closing on Kottas’s right hand could cause pain to the left side of her neck.

On cross-examination, Brault admitted that he had not tested the spa door prior to 2016, and relied on representations by spa employees that the door he tested in 2016 was the same door that had injured Kottas in 2014. When asked whether his opinion was based on the door operating in the same manner on the date of accident as it had on the date of the inspection, Brault stated that he made certain assumptions, for example that the door opened and closed from the same side, and had the same handle, glass, jamb, and closer. When asked about the closing speed of the door, Brault testified that on the day he inspected it, it closed at between 1.16 and 1.26 miles per hour. The trial court sustained objections to repeated questions about the closing speed at the time of the accident, reasoning that Brault had no firsthand knowledge about the original closing speed.

The jury found Beverly Hot Springs had not been negligent.

Kottas appealed. During appellate briefing, Kottas twice requested that we afford her a full reporter’s transcript without charge, representing that the partial transcript she was able to obtain with the assistance of the state’s Transcript Reimbursement Fund (Bus. & Prof. Code, §§ 8030.1-8030.9) was inadequate to present a complete record on appeal. We denied the requests.

DISCUSSION

Kottas contends the trial court erred by precluding her from putting on evidence that Beverly Hot Springs adjusted the closing speed of the offending spa door after her injury. We disagree.

It has long been well settled in this and other jurisdictions that “evidence of precautions taken and repairs made after the happening of the accident is not admissible to show a negligent condition at the time of the accident.” (Helling v. Schindler (1904) 145 Cal. 303, 312; see also Dusenbery v. United States (2002) 534 U.S. 161, 172 [122 S.Ct. 694, 702, 151 L.Ed.2d 597, 607-608]; Fed. Rules Evid., rule 407.)

Evidence Code section 1151 (hereafter “section 1151”) codifies the rule: “When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event.”

Evidence of subsequent repairs is inadmissible in part because public policy strongly favors encouraging improvement to public safety, and “ ‘admission of evidence of subsequent repairs to prove negligence would substantially discourage persons from making repairs after the occurrence of an accident.’ ” (Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 119.) Moreover, subsequent remedial measures are not considered particularly probative of prior negligence, “because later carefulness may simply be an attempt to exercise the highest standard of care.” (Herzog v. Lexington Township (1995) 167 Ill.2d 288, 300 [212 Ill.Dec. 581, 587, 657 N.E.2d 926, 932].) As stated in the Advisory Committee Notes on Federal Rules of Evidence, rule 407, the prohibition against use of subsequent measures to prove negligence rejects the notion that “ ‘because the world gets wiser as it gets older, therefore it was foolish before.’ ” (Advisory Committee Notes on Fed. Rules Evid., rule 407, 28 U.S.C. Appen., p. 864 (1994 ed.).)

However, evidence of subsequent remedial measures is admissible to demonstrate control over property, when disputed (Herzog v. Lexington Township, supra, 167 Ill.2d at p. 301 [212 Ill.Dec. at p. 587, 657 N.E.2d at p. 932]), or to impeach the testimony of a witness (Daggett v. Atchison, T. & S.F. Ry. Co. (1957) 48 Cal.2d 655, 661). For example, “[i]f one in charge of installing safety measures were to testify that, in his opinion, the construction which was questioned was proper and it should develop that he himself ordered the performance of additional safety measures, it would be legitimate in cross-examination to ask him whether he had not adopted new measures at variance with his statement of previous safety.” (Westbrooks v. Gordon H. Ball, Inc. (1967) 248 Cal.App.2d 209, 216.)

We review the admission of expert testimony for abuse of discretion (Hart v. Wielt (1970) 4 Cal.App.3d 224, 229), and will not interfere with the trial court’s determination unless it was beyond the bounds of reason and resulted in a manifest miscarriage of justice (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 596).

Kottas acknowledges the reach of the exclusionary rule set forth in section 1151 but contends admission of evidence of Beverly Hot Springs’s post-accident remedial measures was admissible here for several reasons. First, she argues the evidence was necessary to impeach Brault’s testimony, who misled the jury by implying the offending door closed at the same speed in 2014, when it injured her hand, as it did in 2016, when he examined it.

The argument is without merit because nothing in the admittedly incomplete record suggests Brault discussed the door’s closing speed as it existed either in 2014 or 2016. He testified about the door’s physical characteristics and operating geometry, but left out any mention of closing speed until queried about it on cross-examination. Further, Brault acknowledged that he had made no inspection before 2016, and credited employee reports that the door had not been replaced since the accident.

Alternatively, Kottas argues that Brault’s evidence lacked foundation and was insufficient as a matter of law because he either did not know how fast the door closed at the time of the accident or failed to account for the closing speed, and thus could not opine that it was safe in 2014. This argument too is meritless.

Because an accident investigator is not a percipient witness, he or she normally has no firsthand knowledge of conditions existing at the time of the accident. The expert must examine the mechanism of injury after the fact and determine whether the available information is so incomplete or circumstances have so changed as to make reasoned conclusions impossible. It is not clear what Brault knew about the 2014 door closing speed, but whatever he knew, no principle or authority prescribes the information upon which he must have relied to form his opinion. Evidence Code section 801 requires only that opinion testimony be based on matter that is “of a type” an expert may reasonably rely upon. (Evid. Code, § 801.) Brault apparently believed that his 2016 examination of the spa door provided a reasonable foundation for his opinion, perhaps because a door is a normal, everyday obstacle, and one does not normally put one’s hand between the jamb and the edge of even a slow-closing door. No authority known to us suggests that the door’s closing speed was an indispensable factor for Brault’s opinion, and Kottas certainly offers no explanation why he could not infer from 2016 circumstances that the door was safe in 2014.

Whether Brault’s conclusion was ultimately persuasive depended on whether the jury accepted his inference that the functioning of the door had not materially changed by 2016. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772 [court determines only whether matter relied on can provide a reasonable basis for the opinion, not whether the opinion is persuasive].) Kottas had occasion to examine the validity of the inference at trial, and did so. She testified that in 2014 the door would “slam” shut, and elicited Brault’s testimony that he did not examine the door before 2016. The reasonableness of his inference was thus squarely before the jury, and afforded Kottas an ample opportunity to undermine his opinion.

II. Free Reporter’s Transcript

Kottas argues that our rulings denying her a free reporter’s transcript precluded her fairly presenting her case on appeal, resulting in a miscarriage of justice. We disagree.

Our Supreme Court recently held that “an official court reporter, or other valid means to create an official verbatim record for purposes of appeal, must generally be made available to in forma pauperis litigants upon request.” (Jameson v. Desta (2018) 5 Cal.5th 594, 599 (Jameson).) The Court had no occasion to decide under what circumstances a free copy of the reporter’s transcript must be made available to an in forma pauperis litigant for appeal, but observed that “a number of California appellate court decisions have held that an in forma pauperis litigant is not entitled to obtain a free reporter’s transcript in an ordinary civil action.” (Id. at pp. 623-624.)

Kottas argues that the testimony of Carl Sheriff, her expert, and of Eddie Huh, the spa operator, as well as several sidebar conferences, none of which was transcribed, was necessary to show that when Brault testified about the condition of the door in 2016 he knew that the closing speed had been adjusted, and the door had closed faster in 2014. Kottas argues record of this evidence would have enabled her to argue on appeal that the 2014 door adjustment was admissible to impeach Brault’s testimony that the condition of the door in 2016 was as it had been in 2014. She argues that Jameson’s rule requiring provision of free trial recording services is meaningless without corresponding transcription services, and we should order that she receive them. We disagree.

We reject the contentions, primarily because nothing in the record Kottas represents is missing would have mattered. That Brault knew the door had been adjusted in 2014 would not have impeached him, because his opinion that the door was safe was independent of its closing speed.

In any event, nothing in the record establishes that Kottas exhausted other avenues of obtaining the reporter’s transcript she desired.

Jameson is instructive on this issue. There, the plaintiff could not afford a private court reporter in a civil matter, and trial proceeded unreported. The trial court granted a defense motion for nonsuit after opening statements, and the appellate court affirmed without reaching the merits because plaintiff’s legal contentions could not be reviewed on appeal absent a reporter’s transcript. (Jameson, supra, 5 Cal.5th at p. 599.) As noted above, the Supreme Court held that the superior court was obligated to provide a reporter. The remaining issue was whether the error was harmless. The defendant argued it was, because even had the trial been reported, the plaintiff was not entitled to a free transcript.

Declining to decide whether or not an in forma pauperis litigant is entitled to a free transcript, the Supreme Court rejected the defendant’s prejudice argument on another ground: Because avenues would have existed for the indigent plaintiff to obtain a reporter’s transcript—had there been one to obtain—sufficient for appeal, failure to provide a reporter in the first instance could not be deemed harmless.

“First, the California Legislature, by statute, has created a Transcript Reimbursement Fund to assist indigent civil litigants in paying for a reporter’s transcript. (See Bus. & Prof. Code, §§ 8030.1-8030.9.) Although defendant notes that the amount that is available to an individual pro se litigant from this fund in a given case is quite limited . . . , the transcript that would have been required would not have been extensive and the sum that the fund could potentially provide may well have been adequate.” (Jameson, supra, 5 Cal.5th at p. 624, fn. omitted.)

“Second, even if plaintiff could not have obtained the needed sum for a transcript from the Transcript Reimbursement Fund, plaintiff might have been able to obtain representation on appeal from a nonprofit legal services provider or pro bono counsel (as he has before this court), and those entities might have been willing and able to advance the costs of obtaining a reporter’s transcript, costs that would be recoverable from the opposing party if plaintiff were to prevail on appeal.” (Jameson, supra, 5 Cal.5th at p. 624.)

“Third, even if plaintiff were unable to obtain funds for a reporter’s transcript, the existence of the notes of a court reporter who had reported the proceedings would be useful and valuable in enabling plaintiff to obtain an adequate settled or agreed statement to be utilized on appeal.” (Jameson, supra, 5 Cal.5th at pp. 624-625.)

Kottas argues none of these alternative avenues for obtaining a sufficient reporter’s transcript was available to her. She asserts, as she did in her motions to augment the record, that she was able to obtain only a partial transcript on her own, and even the assistance of the Transcript Reimbursement Fund would have been inadequate, as it would provide only $1,500 and require that she proceed without an attorney, making it virtually impossible to designate appropriate subparts of the reporter’s notes for transcription. She asserts her appellate attorney, although taking the case on contingency, was unable to advance funds for a transcript, and no settled or agreed statement was possible because trial counsel was unable to reconstruct from memory the pertinent findings necessary for such a statement.

We find none of these factors to be either established or compelling. First, that a lay pro se litigant might not know what portions of a transcript are needed on appeal cannot be the basis for our finding that resort to the Transcript Reimbursement Fund is ineffective. A pro se litigant must be presumed able to litigate his or her case effectively, either by her own efforts or with assistance. If some mechanism is needed to measure a litigant’s abilities and resources against his or her appellate needs, we leave it to the Legislature to fashion it. Second, that Kottas’s current appellate attorney is unable to front transcript fees does not mean no attorney would be, and we have no indication whether any was solicited. Finally, trial counsel’s failure to maintain notes adequate to originate a settled statement creates no obligation on the public fisc to provide a litigant with a free, complete transcript.

DISPOSITION

The judgment is affirmed. Each side is to bear its own costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J.

WHITE, J.*