Filed 9/14/26 Arches v. Lee CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN
HILBEN ARCHES, B344691 Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 22STCV11529)
v.
DIANE INHA LEE, Defendant and Respondent.
APPEAL from a judgment and order of the Superior Court of Los Angeles County, Karen Moskowitz, Judge. Affirmed.
Gusdorff Law, Janet Gusdorff; Accident Fighters, Alexander J. Zeesman and Diana Zeesman for Plaintiff and Appellant.
Horvitz & Levy, John F. Querio, Steven S. Fleischman;
Courtney D. Flannery & Associates, Michael H. Park and Mariam M. Margaryan for Defendant and Respondent.
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Hilben Arches filed this personal injury action against Diane Inha Lee, alleging Lee was negligent in making a right turn in her car, colliding with Arches on his bicycle. Arches appeals from the judgment entered after the jury found Lee was not negligent. Arches contends the trial court committed multiple evidentiary errors, including allowing Lee’s accident reconstruction expert to testify without having served a pretrial report; declining to conduct an Evidence Code section 402 hearing before allowing Lee’s expert to present reconstruction animations; and excluding from evidence the written report of Arches’s accident expert.
Arches also appeals from the trial court’s postjudgment order awarding Lee $99,800 in expert witness fees and other costs, after the court found Lee’s pretrial offer of $20,000 to settle the case under Code of Civil Procedure section 9981 was enforceable. Arches contends the trial court abused its discretion by considering Lee’s untimely opposition to his motion to tax costs and refusing to consider his objection that the section 998 offer was unreasonable. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Accident At about 1:00 p.m. on April 23, 2021 Lee was driving her white Tesla Model 3 sedan southbound on Haskell Avenue in the North Hills neighborhood of Los Angeles and came to a stop at a red light at the intersection with Lassen Street. Lee was in the
1 Further undesignated statutory references are to the Code of Civil Procedure.
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right (number 2) lane, and she intended to turn right onto Lassen Street. At the same time, Arches was riding his red bicycle southbound on Haskell Avenue and stopped for the red light. Arches was in the number 2 lane to the right of Lee, and he intended to continue traveling south on Haskell Avenue. After the traffic light turned green, Lee proceeded to the intersection and began to turn right, when her car collided with Arches’s bicycle. The bicycle was knocked over, and Arches was thrown at least six feet onto the pavement, sustaining injuries to his head, left shoulder, and knees.
The parties did not summon the police or paramedics, and Arches rode his bicycle home. Arches later began to experience pain and filed a police report. The left handle grip on Arches’s bicycle was damaged, the steering fork required realignment, and Arches’s helmet was scraped. The right rear door of Lee’s car was dented.
B. The Complaint and Pretrial Proceedings On April 5, 2022 Arches filed a complaint for personal injury and property damage, asserting causes of action for negligent operation of a motor vehicle and general negligence. Arches alleged Lee “made a sudden right turn on Lassen Street, hitting [Arches] and causing him to slam on the hood of [her] vehicle.” Arches sought damages for past and future pain and suffering, emotional distress, lost earnings and earning capacity, medical expenses, property damage, loss of use of property, and incidental expenses. Lee denied the allegations and asserted several affirmative defenses, including comparative negligence.
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On July 10, 2023, about three months before the case was set for trial (in October 2023), Lee served Arches with a section 998 offer to settle the case for $20,000 in exchange for dismissal with prejudice, with each party to bear his or her attorneys’ fees and costs. Arches did not accept the offer. Pursuant to stipulations in August 2023 and January 2024, the trial date was continued to May 2024.
On March 29, 2024 Lee served a designation of expert witnesses pursuant to section 2034.310. Lee designated Isaac N. Ikram, P.E., a California-licensed professional engineer, as a retained expert on accident reconstruction and biomechanical engineering. Lee stated in her designation that Ikram would testify “as to the speeds and directions of travel of the vehicles involved in the accident, the sequences of impacts, the impact points to the vehicles, the nature and extent of the vehicle damage and other causative factors in the occurrence . . . as well as any engineering principles, analysis and/or physical forces involved in the reconstruction of the accident.” Ikram would also testify “regarding the amount, nature, and extent of forces on the car and [Arches] as a result of the accident including but not limited to . . . movement of the vehicle, the relationship of the forces to the claimed injuries, analogies of the forces on [Arches] to everyday activities, and the anticipated injuries that would be sustained.” Further, Ikram would “give testimony in the area of injury mechanics on issues of causation” and would provide an opinion on Arches’s expert’s testimony on these topics. Lee’s designation attached Ikram’s curriculum vitae, but it did not include an expert report, stating, “There are no discoverable reports or written materials generated by [Ikram] at this time.” Lee also designated two physicians who would testify as experts
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regarding Arches’s claimed injuries, treatment, and other damages issues.
In May 2024 Arches filed 12 motions in limine (MIL’s), including to exclude expert opinion testimony not stated in the expert’s deposition (MIL 10); evidence not previously disclosed in discovery (MIL 11); and Lee’s three experts from testifying at all (MIL 12.) Arches argued as to MIL 12 that Lee refused to make her experts available for deposition. After Arches filed the MIL’s, the case was reassigned to another trial department, and the trial date was continued to August, and then to October 21, 2024. On October 21 the trial court denied MIL’s 10, 11, and 12 without prejudice to Arches making trial objections. The court also ordered Lee to produce Ikram’s complete file the following morning and set Ikram’s deposition for the afternoon of October 23 (following opening statements).
C. The Evidence at Trial The jury trial lasted seven days, commencing October 23, 2024. Fact witnesses included Arches, Lee, Arches’s wife, and a physician who treated Arches for neurological complaints. Arches’s expert witnesses included John Smith, an accident investigator who opined about the dynamics of the collision and the biomechanics of Arches’s injury, and a medical expert. Lee’s expert witnesses included Ikram and two medical experts.
Arches testified that as he approached the intersection of Lassen Street while heading southbound on Haskell Avenue, Lee’s vehicle was already stopped at the red light. Arches rode up along the right edge of the number 2 lane next to the curb, and he came to a stop “in front of [Lee’s car] after the side mirror.” Arches could see Lee through the tinted passenger
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window, and he was certain she could also see him because of his position. When the light turned green and Arches began to proceed through the intersection, Lee “right away” made a right turn into his path. Arches tried to avoid her by veering right, but Lee continued her turn, hitting his bicycle with the front bumper of her car.
Lee testified she was the second car in line waiting for the traffic light at Lassen Street. She was looking up and was not on her phone, eating, or drinking. She did not see anyone on a bicycle stopped on her right, and the Tesla’s dashboard computer monitor did not alert her that there was anything on the car’s right perimeter; in her experience, the Tesla computer indicated when a cyclist was present on her right. As she continued onto Lassen Street, she saw Arches and his bicycle on the pavement in the Lassen Street crosswalk in her rearview mirror, and she stopped. Lee testified there was a small dent on the rear passenger door that had been sustained during the collision.
Smith testified that he examined the parties’ deposition transcripts, photographs of both vehicles taken after the accident, specifications for the Tesla Model 3, and Arches’s medical records in forming his opinions. Smith opined that “everybody agrees that there was contact between the passenger side of the Tesla and . . . the left side of the bicycle,”and the primary question was “exactly what sequence did it happen in.” Because there was no video of the accident itself, there was “not enough information” to do a simulation. Smith relied instead on the parties’ accounts. Based on the factual premise that Lee accelerated from a stop and Arches was thrown six feet, Smith opined that Lee’s car was traveling at about six miles an hour—“not an unreasonable speed to be making a turn”—when it struck Arches. But this low speed
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meant that “if Ms. Lee had looked, she would have seen Mr. Arches.” Lee’s version of events, in which Arches rode up behind her car, was not plausible, because it “would require Mr. Arches intentionally . . . run[ning] into the side of the car.” Smith explained that he did not inspect the Tesla because it “won’t tell us anything.” In particular, although the Tesla was equipped with an “event data recorder” to record information about the vehicle’s operations during an accident, the forces involved in this collision were inadequate to activate the device. On cross- examination, Smith admitted there was visual damage to the Tesla’s rear passenger door and no damage to the car’s hood, bumper, or right front fender.
Ikram testified that he inspected the Tesla and documented a dent on the rear passenger door. He also inspected Arches’s bicycle, but the handlebar had been repaired, and Arches no longer had his helmet. Ikram downloaded the Tesla’s event data recorder, but no data had been recorded for the accident; Ikram agreed with Smith that the force of the collision was insufficient to activate the device. Using photographs of the intersection, the parties’ accounts, the damage to the vehicles, a photograph Arches provided of his helmet, and Arches’s location after the collision, Ikram developed three reconstruction scenarios. Computer animations for each scenario were played for the jury during his testimony, but they were not admitted into evidence.
The first animation scenario was based on Arches’s account and assumed that Arches’s bicycle was stopped at the intersection just in front of Lee’s right mirror. Based on published literature concerning motor vehicle acceleration and movement during right turns and bicycle acceleration, Ikram plotted the path of each vehicle assuming they began moving on
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their intended trajectories at the same time. In this scenario, Lee’s front bumper would have collided with Arches’s bicycle and thrown Arches’s body to the left, in the opposite direction from where he landed. In a second scenario based on the same starting position but assuming Arches started pedaling after Lee’s car started moving, the car’s front right fender would have hit the bicycle and knocked Arches to the ground at the point of impact, on the shoulder of Haskell Avenue.
The third scenario was based on Lee’s version of events in which Arches was behind her when she started turning right. Under this scenario, Lee’s vehicle would have struck Arches’s bicycle near the car’s rear passenger door and projected Arches to the right toward Lassen Street, where he landed. Only the third scenario was consistent with the physical evidence on the vehicles and Arches’s position after the collision. Ikram further opined that Smith’s opinion had no scientific basis and relied on the false assumption that Lee could have avoided the accident. Moreover, Smith’s testimony that the Tesla was moving at six miles an hour at the time of impact was flawed because it did not account for the car’s velocity on a curved path and the fact the car sideswiped the bicycle rather than colliding head-on.
D. The Verdict, Judgment, and Costs Award On November 1, 2024 the jury returned a special verdict finding Lee was not negligent. The jury did not reach any other questions on the verdict form. On December 3 the trial court entered judgment against Arches. Arches filed a motion for new trial or, in the alternative, for judgment notwithstanding the verdict (JNOV), which the court denied on February 10, 2025 after a hearing.
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On December 17, 2024 Lee filed a cost memorandum seeking $144,661 in total costs, including $84,839 in expert witness fees. In a supporting declaration, Lee’s attorney attached Lee’s section 998 offer of $20,000 and attested it was served on Arches on July 10, 2023. On January 3, 2025 Arches filed a motion to tax costs. After further briefing and a hearing, on February 10, 2025 the trial court granted in part the motion to tax costs and awarded Lee $99,800, including $67,966 in expert witness fees (after reducing one of the medical expert’s fees).
Arches timely appealed from the judgment, the order denying his motion for new trial or JNOV, and the order on costs.2
DISCUSSION
A. Standard of Review On appeal, Arches challenges the trial court’s evidentiary rulings concerning the admission and exclusion of expert testimony and exhibits. We review the trial court’s rulings on the admission of evidence for an abuse of discretion. (People v. Trujeque (2015) 61 Cal.4th 227, 278; Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 [“Except to the extent the trial court bases its ruling on a conclusion of law (which we review de novo), we review its ruling excluding or admitting expert testimony for abuse of discretion.”].) A ruling constitutes an abuse of discretion only if it
2 On appeal, Arches does not argue that the court abused its discretion in denying his motion for new trial or that the evidence was insufficient to support the jury’s verdict. We consider only his challenges to the judgment and the costs order.
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is “‘so irrational or arbitrary that no reasonable person could agree with it.’” (Sargon, at p. 773; accord, Onglyza Product Cases (2023) 90 Cal.App.5th 776, 784.)
Even if a trial court abuses its discretion in admitting evidence, the judgment may only be reversed if the error was prejudicial. (ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277, 293; Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 799.) In civil cases, the judgment will be reversed only “‘when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.’” (Grail Semiconductor, at p. 799.) The “[a]ppellant has the burden of establishing an abuse of discretion and resulting prejudice.” (People v. Hill (2011) 191 Cal.App.4th 1104, 1122; accord, Grail Semiconductor, at p. 799.)
B. The Trial Court Did Not Abuse Its Discretion in Admitting Ikram’s Testimony and Reconstruction Animations Arches contends the trial court abused its discretion by allowing Ikram to testify because Lee did not produce Ikram’s report before trial.
1. Relevant proceedings On December 20, 2023 Arches served a deposition notice for Ikram to appear for a remote video deposition on the afternoon of January 9, 2024, approximately one month before the (then) trial date. The notice demanded Ikram produce his work file and any report or draft reports three days before the deposition. A few
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hours before the deposition was set to begin, Arches’s lead lawyer, Alexander Zeesman, sent Lee’s attorney, Marian Margaryan, an email stating he had sent a link for the deposition and intended to file a motion to exclude Ikram’s opinions and testimony because Ikram failed to produce the requested documents in advance of the deposition and Lee did not serve an objection to the notice. Margaryan wrote in response that she had advised Zeesman the previous day that she and Ikram were not available on January 9, and she apologized for a miscommunication with her office during her vacation the previous week that led to a delay in informing Zeesman of their unavailability. Zeesman did not respond, commenced the deposition, and had the deposition reporter issue a certificate of nonappearance.
On January 17, 2024 the parties stipulated to continue the trial date, which the court set for May 20, with expert discovery to track the new trial date but fact discovery to remain closed except for resolution of pending motions to compel. As discussed, in March Lee served her expert designation for Ikram.
Over the next 10 months, Zeesman and his office made three attempts to unilaterally notice Ikram’s deposition, with minimal efforts to coordinate the dates with Margaryan. On April 22, 2024 Arches noticed Ikram’s deposition for May 3; on April 23 Margaryan emailed Zeesman that Ikram was not available and offered May 7 instead; she also served an objection stating Arches unilaterally set the deposition without clearing the date with Margaryan. Zeesman did not respond to Margaryan’s offer, and instead, on May 9 he filed an ex parte application to continue the trial because Lee “failed to produce [her] expert for deposition.” The trial court denied the
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application, finding “the [d]efense did offer dates for the expert deposition, and [p]laintiff offers no explanation as to why the deposition cannot occur before trial.” However, pursuant to the attorneys’ oral stipulation at the May 21 final status conference, the court continued the trial until August 19, with discovery closed “with the exception of the pending expert depositions.”
On May 23, 2024 Zeesman noticed Ikram’s deposition for July 18. Margaryan’s office responded by email that Ikram was unavailable that day but offered July 19. Zeesman’s office did not respond to the proposal and instead requested new dates. Margaryan advised Zeesman that Ikram was on vacation and unavailable between July 22 and August 18.
On July 30, 2024 Zeesman nonetheless noticed Ikram’s deposition for August 9. Margaryan wrote Zeesman that Ikram was unavailable, as she had previously advised, and asked Zeesman to propose three dates she would offer to Ikram. On August 6 (after the trial had been continued to October 21), Zeesman responded, “[w]ith our trial date being pushed back, we can agree to conduct expert depositions a bit further out.” The record does not show any efforts by Zeesman after August 6 to schedule Ikram’s deposition. Zeesman and Margaryan submitted hundreds of pages of their emails in connection with Arches’s MIL to exclude Ikram.
On the October 21, 2024 trial date, the trial court heard the parties’ MIL’s and postponed jury selection until the following day. The court indicated it was familiar with the attorneys’ voluminous correspondence and ordered the parties to meet and confer “to see if there’s any way you can reach some agreement, either withdraw those witnesses or have them deposed this week.” The court added there was “plenty of time that a remote
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deposition can be taken of experts at night” during the trial, and the court would allow experts to be called out of order. After a recess, Zeesman reported that the attorneys agreed to conduct Ikram’s deposition at 5:00 p.m. on the afternoon of October 23.
Zeesman argued with respect to MIL 11 that Ikram’s report should be excluded at trial because Lee never produced Ikram’s work file in connection with the deposition noticed in January 2024, the March 2024 expert designation, or in supplemental discovery responses. Zeesman asserted, “the day of the trial, we still don’t have a single report, a single calculation, or a single analysis by Mr. Ikram.” Margaryan responded that at the time of the expert designation, there were no reports or documents. She added, “As of today, actually, there’s nothing in writing. [Ikram]’s working on his demonstrative [slide presentation], which he’ll give to me hopefully by the end of the day today.”
The trial court asked if Ikram currently had “any reports, analysis, documents that he’s basing his opinion on,” to which Margaryan answered yes, stating “my understanding is it’s a lot of diagrams and links.” Margaryan explained the files were not produced because Ikram’s deposition had not been noticed since Ikram prepared them. The court ordered the materials produced by 10:00 a.m. the following day (October 22). The court granted the MIL to exclude unproduced expert documents, but ruled “as to Mr. Ikram specifically, we’ll take that up at the time of his testimony, depending on the deposition and how many documents are produced and when.” The court denied the other MIL’s regarding the experts’ testimony without prejudice to Arches’s attorneys raising objections during trial.
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That evening (October 21) Margaryan produced Ikram’s 20-
gigabyte file. The production included Ikram’s demonstrative slideshow, comprising 20 slides with photographs and five accident reconstruction animations addressing the three scenarios (each lasting from five to 13 seconds).
Ikram’s deposition commenced on the afternoon of October 23 (after opening arguments), and Zeesman ended the deposition in less than three hours. The next morning Zeesman moved to exclude Ikram’s opinions and animations, stating he did not have an opportunity to review the file and play the animations, and he therefore was unable to depose Ikram about the animations. Margaryan stated the animations had been produced on the evening of October 21 (two days before the deposition), and Zeesman did not ask Ikram to play the animations during the deposition, focusing instead on questioning Ikram about his pretrial unavailability. The court denied Arches’s motion to exclude Ikram from testifying but excluded any documents produced after the October 22 deadline.
Ikram testified on October 30 as the last witness for the defense case. Before Ikram took the stand, Zeesman objected under Evidence Code section 402 to the accident reconstruction animations being played for the jury. Zeesman argued, “There’s no testimony that supports any of those . . . videos. It would be confusing, misleading and really a waste of time. And more importantly, it doesn’t meet the test to come to court and show a jury those types of documents.” Specifically, “[Ikram] has multiple versions of Mr. Arches standing on the corner. However, none of those have a vehicle in front of [Lee] as she testified to. You can’t pick and choose the data points that he wants and put
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that in front of a jury. It’s confusing, misleading, fails to comply with the code . . . and a waste of time. . . .”
Margaryan responded that the animations were based on deposition and trial testimony, and Zeesman did not ask Ikram about the animations during the deposition. The trial court ruled, “Mr. Zeesman, you keep bringing up things that the court has already ruled on. . . . So we’re not doing a 402 for Mr. Ikram.” [GF12.1]
2. Law governing expert disclosures Section 2034.260 provides that when an appropriate demand for expert exchange is made, a party is required to disclose “[a] brief narrative statement of the general substance of the testimony that the expert is expected to give.” (§ 2034.260, subd. (c)(2); accord, Valencia v. Mendoza (2024) 103 Cal.App.5th 427, 449 (Valencia).) “Although a party is required to ‘“disclose the substance of the facts and the opinions to which the expert will testify,”’ this ‘does not require disclosure of specific facts and opinions.’” (DePalma v. Rodriquez (2007) 151 Cal.App.4th 159, 165.) Section 2034.270 provides that if a demand is made, “all parties shall produce and exchange” at the time specified in the demand, “all discoverable reports and writings, if any, made by any designated expert. . . .”
Section 2034.410 provides that a party is entitled to depose any expert on the opposing party’s witness list. After a deposition notice has been served, the expert “shall, no later than three business days before his or her deposition, produce any materials or category materials, including any materials or category of materials, including any electronically stored information, called for by the deposition notice.” (§ 2034.415.)
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The code requirements for expert disclosure are intended to allow the opposing party in taking an expert’s deposition “to fully explore the relevant subject area . . . and to select an expert who can respond with a competing opinion on that subject area.” (Bonds v. Roy (1999) 20 Cal.4th 140, 146-147; accord, Valencia, supra, 103 Cal.App.5th at p. 449; see Dozier v. Shapiro (2011) 199 Cal.App.4th 1509, 1518-1519 [parties are required to “‘“‘disclose the substance of the facts and the opinions to which the expert will testify, either in his witness exchange list, or in his deposition, or both’”’”]; accord, Easterby v. Clark (2009) 171 Cal.App.4th 772, 778.) “‘“When an expert is permitted to testify at trial on a wholly undisclosed subject area, opposing parties . . . lack a fair opportunity to prepare for cross- examination or rebuttal.”’” (Dozier, at p. 1519; accord, Valencia, at p. 449.)
Section 2034.300 provides that upon a party’s objection, “the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] . . . [¶] . . . [s]ubmit an expert witness declaration . . . [¶] [p]roduce reports and writings under [§ 2034.270] [¶] [or] “[m]ake that expert available for deposition under [§ 2034.270 et seq.].” (§ 2034.300, subds. (b)-(d); accord, Valencia, supra, 103 Cal.App.5th at p. 449.) A party’s failure to comply with the rules for expert disclosure “may be found to be ‘unreasonable’ when [that] party’s conduct gives the appearance of gamesmanship, such as undue rigidity in responding to expert scheduling issues.” (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447.)
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3. The trial court did not abuse its discretion in allowing Ikram to testify
Arches argues the trial court abused its discretion in allowing Ikram to testify because Lee’s eleventh-hour production of Ikram’s work file and report (i.e., the demonstrative presentation with reconstruction animations) violated the expert designation and deposition requirements of sections 2034.260, 2034.270, and 2034.410. Arches has failed to show that Lee materially violated her expert disclosure obligations.
Lee’s March 29, 2024 expert designation provided a more than adequate “narrative statement of the general substance” of Ikram’s anticipated testimony. (§ 2034.260, subd. (c)(2).) Ikram disclosed that he would testify as to the speeds and directions of the vehicles, the impact sequences, the vehicle damage, and other causes of the accident, “as well as any engineering principles, analysis and/or physical forces involved in the reconstruction of the accident.” Arches contends the disclosure was an empty “word salad” and it did not reveal that “Ikram would present animations, that he made notes of his inspection of Lee’s vehicle, or that he had downloaded [the] Tesla [event data recorder].” But Ikram was not required under section 2034.260 to disclose the “specific facts” supporting his opinions (DePalma v. Rodriquez, supra, 151 Cal.App.4th at p. 165), such as the items he inspected or how he would present his opinions at trial, i.e., as computer animations. Rather, Lee met her disclosure obligations by designating Ikram as her “accident reconstructionist” and stating he would discuss specified factors in his “reconstruction of the accident.”
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Arches also failed to show that Ikram withheld “discoverable reports and writings” in violation of section 2034.270. Lee stated in her March 2024 designation that Ikram had not generated any reports and writings at that time. Although Arches’s lawyers argued this was implausible, they had the opportunity to examine Ikram about his involvement in the case at his deposition yet failed to adduce any evidence that Ikram generated discoverable writings before March 2024.
Arches likewise did not show that Lee “unreasonably failed” to make Ikram available for his deposition. (§§ 2034.270, 2034.300, subd. (d).) It is true that Ikram did not appear for his deposition on January 9, 2024 and Lee failed to serve an objection (or responsive documents). However, Zeesman was aware at least a day before the deposition that Ikram and Margaryan were unavailable, yet Zeesman took Ikram’s nonappearance and threatened to move to compel the deposition instead of rescheduling. For the next 10 months, Zeesman made three attempts to schedule Ikram’s deposition—for May 3, July 18, and August 9. Further, Zeesman unilaterally set all three dates without checking with Margaryan first. Ikram was unavailable on each of the three dates, and Zeesman never responded to Margaryan’s offers of alternative dates. And for the third date, Zeesman set the deposition for the week that Ikram was on vacation despite Margaryan giving notice of the vacation dates the month before. And Zeesman did not attempt to schedule the deposition in the more than two months before trial. The trial court reasonably found defense counsel did not obstruct the taking of Ikram’s deposition and that Arches’s attorneys could have taken Ikram’s deposition prior to trial.
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Finally, Arches contends his lawyers were prejudiced because he only had a day to review Ikram’s work files with 20 gigabytes of data prior to making his opening statement and taking Ikram’s deposition. But Arches made no showing at trial, in his new trial motion, or on appeal of what was contained in the file that was voluminous or difficult to digest. The only evidence in the record showing what was in the files are the five animations that lasted from six to 16 seconds. In addition, although Ikram’s deposition was taken after opening statements, it concluded before the first day of testimony, two days before Smith’s testimony, and more than a week before Ikram testified.
Under these circumstances, the trial court did not abuse its discretion in balancing Lee’s right to present an expert who was properly disclosed and Arches’s right to a “‘“fair opportunity to prepare for cross-examination or rebuttal.”’” (Dozier, supra, 199 Cal.App.4th at p. 1519; see Fatica v. Superior Court (2002) 99 Cal.App.4th 350, 353 [trial court abused its discretion in granting MIL to exclude expert opinions from plaintiff’s doctor where doctor had not reviewed plaintiff’s medical records in preparation for doctor’s deposition, observing “the court could have . . . order[ed] [the expert] to submit to a further deposition” instead of “gutting [plaintiff’s] case”].)
4. The trial court did not abuse its discretion in allowing Ikram to use computer animations as a demonstrative aid
Arches contends the trial court abused its discretion with respect to Ikram’s computer animations by “declin[ing] to view the animations or hold any foundational hearing before they were displayed to the jury.” The court did not abuse its discretion.
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Computer animations are demonstrative aids, not substantive evidence. As the Supreme Court explained in People v. Duenas (2012) 55 Cal.4th 1 (Duenas) in contrasting a computer-generated animation of an expert’s reconstruction of a shooting with simulation software used to generate forensic conclusions from data inputs, “‘Animation is merely used to illustrate . . . testimony while simulations contain scientific or physical principles requiring validation. [Citation.] Animations do not draw conclusions; they attempt to recreate a scene or process, thus they are treated like demonstrative aids.’” (Id. at p. 20; see People v. Hood (1997) 53 Cal.App.4th 965, 969 [computer animations of a shooting “were tantamount to drawings by the experts from both sides to illustrate their testimony”].)
A computer animation is admissible “‘“it is a fair and accurate representation of the evidence to which it relates. . . .”’” (Duenas, supra, 55 Cal.4th at pp. 21-22 [objection that shooting animation was based on speculation about the participants’ position and the sequence of events failed “[b]ecause the animation accurately depicted the conclusions of the prosecution experts who testified”]; see People v. Caro (2019) 7 Cal.5th 463, 509 [“We allow the admission of a computer animation as demonstrative evidence of expert testimony, but only if certain conditions are met. The animation must accurately depict an expert opinion, the expert opinion must fairly represent the evidence, the trial court must provide a proper limiting instruction, and the animation must be otherwise admissible under Evidence Code section 352.”].)
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Arches’s attorney objected at trial that the computer animations were inconsistent with Lee’s testimony because they did not depict a vehicle sitting at the red light in front of Lee’s vehicle, and Ikram improperly selected the data points he wanted to use in the animations. However, Ikram was free to select what to depict in the animations so long as the animations accurately reflected Ikram’s testimony. (People v. Duenas, supra, 55 Cal.4th at p. 22 [“Although defendant frames his argument as a challenge to the admissibility of the animation, his real quarrel is with the conclusions the prosecution’s experts drew from the evidence.”].) Arches had ample opportunity during cross-examination to question Ikram about why the animations did not depict another vehicle at the stoplight and to explore whether the presence of another vehicle in front of Lee would have impacted Ikram’s opinions.
On appeal, Arches also argues the trial court abused its discretion in failing to make findings under Evidence Code section 352 and in not giving a “proper limiting instruction” before allowing Ikram to use the animations.3 But at trial Arches did not make an objection under section 352 or request a limiting instruction, thereby forfeiting the issues. (People v. Partida (2005) 37 Cal.4th 428, 433-434 [“‘we have consistently held that the “defendant’s failure to make a timely and specific objection”
3 Evidence Code section 352 allows a trial court to exclude evidence that is otherwise admissible “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
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on the ground asserted on appeal makes that ground not cognizable’”].)
To the extent Zeesman preserved his section 352 objection by arguing at trial that the animations were misleading and would waste time, the court overruled the objection, impliedly finding the animations were not unduly prejudicial. Arches has not shown how this ruling was an abuse of discretion. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 [“[T]he burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.”].)
Arches’s reliance on People v. Caro, supra, 7 Cal.5th at page 509 to support his contention the trial court erred in not giving a limiting instruction to the jurors is misplaced. The court in Caro observed that courts must be “mindful of the powerful impact computer animations may have on jurors.” (Ibid.) In contrast to this case, however, the Caro court considered the admissibility of a blood-splatter expert’s animation of the shooting of three children that showed “three-dimensional, mannequin-like re-creations” with some facial features and a Winnie the Pooh doll dripping with blood. (Id. at pp. 508-510.) The court held the animation was admissible because it was consistent with the expert’s testimony, did not include “highly emotional details,” and the jury was given limiting instructions that “the animation was an aid for understanding an expert’s opinion.” (Id. at pp. 509-510.) Nothing in the Caro decision requires a trial court in a civil action sua sponte to give a limiting instruction regarding an expert’s use of animations.
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C. The Trial Court Did Not Abuse Its Discretion in Excluding Smith’s Report 1. Relevant proceedings During his direct examination of Smith, Zeesman moved to admit Smith’s 22-page report into evidence. The trial court overruled Lee’s attorney’s objection to the jury having the report in the jury room and admitted the report. Smith’s report included a nine-page summary of the parties’ discovery responses, deposition testimony, and other evidence concerning the collision, including the police report filed by Arches and Lee’s phone records. The report also included a five-page summary of the medical records provided by approximately a dozen physicians and specialists who treated Arches, including recitation of their diagnoses and clinical observations. Only four pages of the report provided Smith’s opinions on the accident reconstruction and the biomechanics of Arches’s injuries.
During the direct examination of Ikram, Zeesman objected to the admission of Ikram’s slide presentation into evidence as hearsay and for lack of foundation under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez). Zeesman argued, “there’s medical records that are just loaded inside of this witness’ report.” Margaryan responded that it would be unfair to exclude Ikram’s report given that the “the court allowed John Smith to admit his entire file which also contained a summary of medical records.” After taking the matter under submission, the trial court sustained Arches’s objection. The court further ruled, “The court on its own motion is going to take this opportunity under its inherent authority to correct erroneous rulings, and I am going to exclude [Smith’s report], which I had previously admitted over objections. . . . I believe it is unnecessarily confusing to the jury.
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It’s going to be excluded under Evidence Code [section] 352.” The court declined to hear further argument.
2. Smith’s report was properly excluded because it contained inadmissible hearsay Arches contends the trial court abused its discretion “[b]y withdrawing a key exhibit after admitting it” where counsel justifiably relied on admission of the report. Arches further argues the court failed to address whether Smith’s report was inadmissible under Sanchez, supra, 63 Cal.4th at page 686 and instead invoked Evidence Code section 352 as a “free-floating justification.” Arches has not shown the court abused its discretion.
The Supreme Court in Sanchez held, “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert’s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth.” (Sanchez, supra, 63 Cal.4th at p. 686; accord, People v. Garton (2018) 4 Cal.5th 485, 505 [coroner’s testimony conveying the details and findings of an autopsy performed by her retired predecessor was hearsay under Sanchez (and violated defendant’s confrontation rights)]; see People v. Nadey (2024) 16 Cal.5th 102, 163 [“[a] ‘hearsay problem arises when an expert simply recites portions of a report prepared by someone else’”].) The court in Sanchez explained that “[c]asespecific facts” are “those relating to the particular events and
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participants alleged to have been involved in the case being tried.” (Sanchez, at p. 676.)4 Sanchez reaffirmed that an expert witness “may still rely on hearsay in forming an opinion and may tell the jury in general terms that he [or she] did so.” (Sanchez, supra, 63 Cal.4th at p. 685; accord, People v. Curiel (2023) 15 Cal.5th 433, 457.) An expert may tell the jury “generally the kind and source of the ‘matter’ upon which his [or her] opinion rests. . . . There is a distinction to be made between allowing an expert to describe the type or source of the matter relied upon as opposed to presenting, as fact, case-specific hearsay that does not otherwise fall under a statutory exception.” (Sanchez, at p. 686; accord, People v. Camacho (2022) 14 Cal.5th 77, 128 [“an expert may ‘tell[] the jury the expert relied on additional kinds of information that the expert only generally describes’”].)
Smith’s report was suffused with case-specific hearsay (and double hearsay), including his summaries of the medical records and the police report. (See Sanchez, supra, 63 Cal.4th at p. 675 [“An emergency room report, for example, may record the observations made by the writer, along with statements made by the patient. If offered for its truth, the report itself is a hearsay statement made by the person who wrote it. Statements of
4 Although Sanchez concerned expert testimony in a criminal prosecution implicating constitutional confrontation rights, “its intention was to ‘clarify the proper application of Evidence Code sections 801 and 802, relating to the scope of expert testimony.’” (In re Marriage of Lietz (2024) 99 Cal.App.5th 664, 673.) “Thus, the Sanchez rule concerning state evidentiary rules for expert testimony applies in civil cases.” (Ibid.; accord, Conservatorship of K.W. (2017) 13 Cal.App.5th 1274, 1282 [“Sanchez is not . . . limited in its application to criminal proceedings.”].)
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others, related by the report writer, are a second level of hearsay.”].)
In his testimony Smith properly provided a more general description of the evidence on which he relied in forming his opinions, and he did not recite the case notes in his report. Thus, Smith’s report not only contained inadmissible hearsay, but it was untethered from his testimony. Moreover, the four pages of Smith’s report containing his findings were cumulative of his oral testimony. Under these circumstances, the court did not abuse its discretion in excluding the report under Evidence Code section 352 as unnecessarily confusing to the jury. (See Briley v. City of West Covina (2021) 66 Cal.App.5th 119, 133-134 & fn. 7 [trial court did not abuse its discretion in excluding as confusing under Evid. Code § 352 an investigator’s report and testimony about statements she gathered from witnesses on the basis the investigator testified “about the nature of the allegations she had investigated, the witnesses she had interviewed . . . , the basis for her findings, and in some cases the very statements she relied on”].)
Arches argues the trial court abused its discretion because his attorneys detrimentally relied on the trial court’s initial ruling to admit the report. He points out that during cross- examination, Smith denied a suggestion he ignored Lee’s version of events, stating “I have several pages discussing her deposition in my notes.” Arches asserts his attorney did not on redirect ask Smith to address his analysis of Lee’s testimony because his attorney assumed the jury would have the report in the jury room. Arches offers no authority for his argument that a trial court is estopped from correcting a clearly erroneous evidentiary ruling later at trial based on an attorney’s purported reliance.
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Moreover, Arches’s attorney could have requested to recall Smith after the court’s ruling but failed to do so.5
D. The Trial Court Did Not Err in Awarding Expert Costs 1. The trial court did not abuse its discretion in accepting Lee’s untimely opposition to the motion to tax costs
Arches filed his motion to tax costs on January 3, 2025, with a January 31 hearing date. Lee filed her opposition on January 23, which was six days late under section 1005, subdivision (b) (requiring filing and service of opposition papers nine days before the hearing). Lee’s opposition stated the late filing was due to “attorney error” and asked the court to consider the untimely submission, allowing Arches to have an opportunity to reply. Arches filed a reply seeking to strike the opposition,and the trial court continued the hearing and authorized Arches to file a supplemental reply, which he did on February 5.
Arches contends the trial court erred by considering the opposition. However, “[a] trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765; Cal. Rules of Court, rule 3.1300(d) [“No paper may be rejected for filing on the ground
5 Because we find that none of the trial court’s challenged evidentiary rulings was an abuse of discretion, we reject Arches’s claim of cumulative error. (People v. Ramirez (2021) 10 Cal.5th 983, 1020 [“‘Because we have found no error, there is no cumulative prejudice to evaluate.’”].)
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that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”]; see Levingston v. Kaiser Foundation Health Plan, Inc. (2018) 26 Cal.App.5th 309, 314 [“a trial court has discretion to consider late-filed papers without the need of granting relief from default”].) Arches has not met his burden on appeal to present legal argument or evidence showing the trial court abused its discretion or otherwise erred. (Jameson v. Desta, supra, 5 Cal.5th at pp. 608-609.) Nor has he shown that he was prejudiced by the court’s ruling continuing the hearing and authorizing an additional reply brief.
2. Lee’s section 998 offer was enforceable Concurrently with filing his February 5, 2025 supplemental reply in support of the motion to tax costs, Arches filed a twopage “objection to defendant’s [section] 998 statutory offer to compromise” (capitalization omitted), in which he argued the offer was “unreasonable and unenforceable on the grounds that it is premature, unreasonable, and not in good faith in that [Arches] has not had an opportunity to depose the experts in this matter, and testimony and evidence was unavailable, including records from Tesla. As demonstrated from [Arches’s] papers during and even post-trial, the information available was insufficient to evaluate the offer as presented.” This was the first time Arches raised any objection to the section 998 offer; in his motion to tax costs, Arches argued only that Lee’s expert witness fees were not properly documented and “some of these alleged costs may have been incurred prior to [Lee’s] July 10, 2023 Code of Civil
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Procedure 998 Offer to Compromise and are thus not compensable.”6 In its February 10, 2025 order on costs, the trial court found Arches’s objection to the section 998 offer was untimely because it was filed after the judgment was entered against him, and further, “no such objection can be made within a supplemental brief for a motion to tax costs, thereby depriving [Lee] of the opportunity to respond to this objection.” The court therefore did not consider the objection. We agree with Arches that the court erred to the extent it concluded a challenge to the reasonableness of a section 998 offer cannot be raised in a motion to tax costs. (See Covert v. FCA USA, LLC (2022) 73 Cal.App.5th 821, 832 (Covert) [“On a motion to strike or tax costs, ‘[t]he burden is on the offering party to demonstrate that the offer is valid under section 998.’”]; Ignacio v. Caracciolo (2016) 2 Cal.App.5th 81, 86 [same].)
However, Arches failed to address at the February 10, 2025 hearing the court’s additional finding that he could not challenge the section 998 offer for the first time in his supplemental reply, denying Lee a chance to respond. As a general matter, forfeiture “results when a party fails to reserve a claim by raising a timely objection.” (Lynch v. California Coastal Com. (2017) 3 Cal.5th 470, 476.)
Even if Arches did not forfeit his challenge to the section 998 offer, his challenge lacks merit. “‘“We independently review whether a section 998 settlement offer was valid.”’” (Covert,
6 Arches’s motion to tax costs stated, “[Arches] also incorporates his objection to Defendant’s Offer under [section] 998.” But no “objection” was filed, and Arches has not argued he inadvertently omitted an objection.
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supra, 73 Cal.App.5th at p. 832.) “Only settlement offers made in good faith are effective under section 998.” (Id. at p. 833; accord, Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 924.) “‘“‘Where . . . the offeror obtains a judgment more favorable than its offer, the judgment constitutes prima facie evidence showing the offer was reasonable and the offeror is eligible for costs as specified in section 998.’”’” (Covert, at pp. 833-834; see Adams v. Ford Motor Co. (2011) 199 Cal.App.4th 1475, 1484.) “However, an offer is only made in good faith if the offer ‘“‘carr[ies] with it some reasonable prospect of acceptance.’”’ [Citations.] ‘Whether a section 998 offer has a reasonable prospect of acceptance is a function of two considerations, both to be evaluated in light of the circumstances “‘at the time of the offer’” and “‘not by virtue of hindsight.’” [Citations.] First, was the 998 offer within the “range of reasonably possible results” at trial, considering all of the information the offeror knew or reasonably should have known? [Citation.] Second, did the offeror know that the offeree had sufficient information, based on what the offeree knew or reasonably should have known, to assess whether the “offer [was] a reasonable one,” such that the offeree had a “fair opportunity to intelligently evaluate the offer”?’” (Covert, at p. 834; accord Licudine, at pp. 924-925; Adams, at p. 1485.) “‘Although the party making a 998 offer generally has the burden of showing that [the] offer is valid [citations], it is the 998 offeree who bears the burden of showing that an otherwise valid 998 offer was not made in good faith.’” (Covert, at p. 834; accord, Licudine, at p. 926.)
Arches’s superficial argument in the objection that he could not evaluate Lee’s offer because he had not had a chance to depose the experts or to obtain records from Tesla does not
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satisfy his burden of showing Lee’s offer was premature and therefore unreasonable. The offer was served 15 months after Arches filed the lawsuit, and his deadline to respond was two months before the upcoming trial date. The parties’ stipulations to continue trial indicate that by this time substantial discovery had been conducted. Arches does not cite any authority for the proposition that a section 998 offer is premature when experts have not been deposed, but in any event, Arches had possession of his medical records and other damages evidence, and he could have reasonably assumed that Lee’s accident reconstruction expert would present a case that Lee was not at fault.
Arches has failed to show what records Arches might have received from Tesla that would have changed his valuation of the case (especially given that his expert agreed the Tesla would not have recorded the accident). Moreover, at the time of the section 998 offer, Arches would have known that this was a lowspeed collision from which he rode home with minimal damage to his bicycle and Lee’s car, he would have known the extent of his injuries, and there were no percipient witnesses. Accordingly, Arches has not identified any basis to conclude Lee should have known in propounding the offer that Arches had insufficient information to determine whether $20,000 was reasonable such that he had a “‘“fair opportunity to intelligently evaluate it.”’” (Covert, supra, 73 Cal.App.5th at p. 834.)
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DISPOSITION
The December 3, 2024 judgment and the February 10, 2025 order awarding costs are affirmed. Lee is to recover her costs on appeal.
FEUER, J.
We concur:
MARTINEZ, P. J.
STONE, J.