Lee v. Fang CA2/4

Filed 5/21/15 Lee v. Fang CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR

B254326
JE HYUK LEE,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No.BC478526)

v.

ZHEZHU FANG,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Charles
F. Palmer, Judge. Affirmed.
Richard D. Hoffman, for Plaintiff and Appellant.
Mark R. Weiner & Associates, Laurie R. Harrold and Kathryn Albarian, for
Defendant and Respondent.
 INTRODUCTION

Plaintiff Je Hyuk Lee appeals from the entry of judgment against him following a
jury trial. Lee’s lawsuit alleged he was injured in an automobile accident caused by
defendant Zhezhu Fang. Fang admitted liability, but the jury found Lee was not injured
as a result of the accident. The trial court denied Lee’s motion for judgment
notwithstanding the verdict (JNOV) and his motion to tax Fang’s expert witness costs.
Lee now contends the court erred in denying his motions and refusing to grant him a new
trial. We affirm.
FACTUAL AND PROCEDURAL HISTORY
A. The Accident
Lee and Fang were involved in an automobile accident on December 27, 2010.1
Lee contends, and Fang does not dispute, that Lee was driving his 2002 Nissan Pathfinder
northbound on Wilton Place in Los Angeles, at approximately 30 miles per hour.
Without any warning, Fang pulled his 2004 Toyota Camry into traffic from a parking
space on Wilton Place. Fang turned into Lee’s lane and broadsided Lee’s vehicle. Both
vehicles were damaged. Lee’s Pathfinder was considered a total loss, in that the
purported cost to repair it was higher than the vehicle’s value. In his deposition, Fang
testified that he asked Lee at the scene whether he was injured, and Lee said he was not
hurt.
B. The Lawsuit
The parties agree that Lee’s complaint (which is not in the record) alleged a single
cause of action for negligence. Lee claimed between $85,000 and $122,000 in past and
future medical expenses for injuries he allegedly suffered as a result of the accident.

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The majority of the purported facts offered by Lee on appeal are unsupported by
any evidence in the record. As detailed below, Lee has provided the testimony of only
three witnesses who testified at trial (Christine An, Lloyd Martin and Henry Lubow).
Lee also has failed to provide evidentiary support for many of the purported facts on
which he relies. Many of the factual citations in his brief are to his trial brief and his
posttrial motions, rather than to admissible evidence. We therefore can provide only a
limited summary of the facts, based on Lee’s contentions in his opening brief.
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 C. Lee’s Motions in Limine
Prior to trial, Lee filed a motion in limine to exclude the testimony of Fang’s
designated biomechanical/accident reconstruction expert Lloyd Martin. Lee has omitted
his moving papers from the record on appeal, but has included Fang’s opposition. The
parties agree that they reached a stipulation to limit Martin’s testimony, but appear to
disagree regarding the scope of that stipulation. Lee claims, without evidentiary support,
that Fang agreed that “Martin would not give any biomechanical opinions.” In a
declaration submitted in opposition to Lee’s motion for JNOV, Fang’s counsel stated that
the parties stipulated that Martin would testify “as to G Forces, but not to injuries.” The
record does not include any written stipulation, transcript of any proceedings, or order
regarding Lee’s motion or the stipulation.
Lee also claims he filed a motion in limine to “preclude any reference to his
immigration status” and that the trial court granted the motion. The record does not
include Lee’s motion, the transcript of any oral argument, or the court’s ruling on the
motion. The court’s minute orders dated October 21 and 22, 2013 indicate that the
motions in limine were “heard and argued” and the court’s rulings “are stated on the
record and are as fully reflected in the notes of the court reporter.”
D. Trial
The jury trial commenced October 21, 2013. Fang stipulated to liability and the
trial proceeded on the issue of whether Lee was injured and the amount of his damages.
Lee’s chiropractor, Dr. Christine An, testified that she treated Lee from December
28, 2010 (the day after the accident) until May 10, 2011. She stated that Lee presented
with upper, mid, and lower back pain, bilateral shoulder pain, right elbow pain, and
headaches. As of May 10, 2011, Lee reported having “occasional stiffness and
discomfort” to his neck and low back, but did not have any that day. Dr. An then ended
treatment and told Lee to follow up with his treating orthopedist, Dr. Greenfield, for any
persistent symptoms. Dr. An did not take any x-rays and did not review Lee’s MRI from
Dr. Greenfield. She indicated Lee’s prognosis was “guarded,” meaning “most likely that

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he will still have some pain.” She admitted on cross-examination that she did not know
anything about Lee’s work history or the severity of the accident.
Lloyd Martin, Fang’s accident reconstruction expert, testified that Fang’s airbag
did not deploy, suggesting he was most likely traveling under 14 miles per hour when he
hit Lee’s vehicle. He opined that Lee’s vehicle on impact experienced a decelerating
gravity force (G-force) of 1.9 G’s, at the most, and a lateral accelerating force of 0.8 G’s.
That was consistent with Lee’s statement that his car never moved out of its lane and
Martin’s conclusion that it was not a “significant side impact.”
Fang’s counsel asked Martin what the G-forces of the accident would be “similar
to in normal life.” Outside of the jury’s presence, Lee’s counsel objected that the
question asked for “a biomechanic [sic] opinion which it had been ruled by the court this
witness is not to give.” Fang’s counsel responded that Martin “was going to testify about
the forces involved in this accident” and what those forces are “similar to.” The court
agreed that “as long as [Martin] doesn’t talk about the injuries, I guess he can talk about
what [the forces are] similar to.” Lee’s counsel objected that “that sounds like exactly
what a biomechanic would testify to.” The court indicated its understanding that
“biomechanical testimony” encompasses both “the physics and the injury,” and that
Martin was therefore allowed to give “some sense of what the physical force is,” but
could not get into “any injuries that might result.” Lee’s counsel contended that
testifying that the force “is just like sitting down in a chair” would give “a biomechanical
implication which I don’t think is permissible.” The court disagreed, holding that
Martin’s “expertise encompasses that.”
Martin then testified that the physical force in this accident would be “one and a
half G’s forward deceleration,” which would be “the equivalent of what someone would
experience in a head-on bumper car collision.”
Dr. Henry Lubow, Fang’s medical expert, offered a lengthy criticism of Dr. An’s
treatment, testifying that her evaluation was “inadequate,” her diagnoses were “poorly
supported and improbable,” and the treatment she provided to Lee “was not medically
necessary” and was “not the appropriate treatment.” Lubow did not believe Lee suffered

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the soft-tissue injuries that he claimed. In particular, he noted that Lee claimed new areas
of injury one month after the accident, that Lee continued to work full time following the
accident and admitted never taking the medication he was prescribed. Lubow opined that
Lee’s MRI showed “normal degenerative cervical spine.” He also testified regarding
Lee’s behavior during the defense medical examination, including that Lee moved “very
freely” without any obvious back or neck problems before Dr. Lubow introduced himself.
He also observed Lee get onto and off of the examination table and do a “full squat” to
pick up his shoes without any difficulty. Lubow concluded “that it’s entirely possible
that someone in this accident could have sustained a sprain/strain injury to their neck,
perhaps their back. Could have. But in this particular case, it is so surrounded by at least
exaggeration, if not outright fabrication . . . it’s not possible to discern in this case what’s
real from what’s not real.” If Lee were injured, Lubow opined, “it would necessarily
have to have been very, very minor.”
In addition to the above witnesses, the following witnesses also testified at trial:
Lee and Parivash Chong for plaintiff, and Fang and Jason Lance for defendant. The
videotaped depositions of several witnesses, including Fang, Mr. Martin, and Dr.
Lubow,2 also were played for the jury.
On October 29, 2013, the jury returned a special verdict finding that Lee was not
harmed as a result of Fang’s actions.
E. Posttrial Motions and Judgment
The trial court entered judgment for Fang on November 14, 2013. On November
18, 2013 Fang filed a memorandum of costs requesting $49,279.73 in trial costs,
including expert fees. Lee filed a motion for JNOV or, in the alternative, for new trial, on
December 6, 2013. The same day, he filed a motion to tax costs, seeking to strike or
reduce the expert fees claimed by Fang. The record does not include any hearings or
rulings on either of Lee’s motions. However, the court entered an amended judgment on

2
The court indicated it was limiting live examination to those areas that were not
covered in these depositions.

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February 19, 2014, awarding costs to Fang in the amount of $44,179.73. Lee timely
appealed.
DISCUSSION
A. Record on Appeal
As an initial matter, Fang complains that Lee’s notice designating the record on
appeal violated California Rules of Court, rule 8.130. Lee’s notice requested only a
partial reporter’s transcript. Under rule 8.130, when the appellant requests preparation of
a reporter’s transcript and “designates less than all the testimony, the notice must state the
points to be raised on appeal.” (Cal. Rules of Court, rule 8.130(a)(2).) Lee’s notice
designated only the testimony of Dr. An, Dr. Lubow, and Mr. Martin, but did not state the
points he intended to raise on appeal.3 Fang therefore requests that we dismiss his appeal
on that basis. Because we conclude that Lee’s designation of such a limited record
renders him unable to demonstrate any reversible error, as discussed below, this issue is
moot.
B. Jury’s Finding That Lee Was Not Injured
Lee contends there was insufficient evidence for the jury to conclude that he was
not injured as a result of the accident and the court therefore erred in denying his motion
for JNOV. We disagree.
1. Standard of Review
When a party contends insufficient evidence supports a judgment following a trial,
we apply the substantial evidence standard of review. “[T]he power of an appellate court
begins and ends with the determination as to whether, on the entire record, there is
substantial evidence, contradicted or uncontradicted, which will support the
determination. . . .” Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874. The
substantial evidence standard has two components: “First, all conflicts in the evidence

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It appears Lee may have had some confusion on this point. He checked the box in
section 5.c of his notice to indicate (erroneously) that the designated testimony included
“all of the testimony in the superior court.” The instructions on the notice form state that
“[i]f the designated proceedings DO NOT include all of the testimony, state the points
that you intend to raise on appeal.” Lee left that section blank.
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must be resolved in favor of the prevailing party; second, all reasonable inferences from
the evidence (all conflicts already having been properly resolved) must be drawn in favor
of the prevailing party. [Citation.]” Tien Le v. Lieu Pham (2010) 180 Cal.App.4th 1201,
1205-1206. “It is not our task to weigh conflicts and disputes in the evidence; that is the
province of the trier of fact. . . . [I]f two or more different inferences can reasonably be
drawn from the evidence this court is without power to substitute its own inferences or
deductions. [Citations.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
2. Substantial Evidence Supports the Verdict
Although he acknowledges that our inquiry into the evidence supporting the
verdict must be made on “the entire record,” Lee has failed to provide that record for our
review. Instead, he has included the trial testimony of just three witnesses—Dr. An (his
treating chiropractor), Dr. Lubow (defendant’s medical expert), and Mr. Martin
(defendant’s accident reconstruction expert). Incredibly, although Lee cites to his own
testimony, medical records, and the testimony of Dr. Greenfield (his treating physician
and purported medical expert) in support of his argument that “there was clear and
undisputed evidence that Lee was injured,” he did not include that evidence in the record.
Lee’s citations to summaries of that testimony from his own motion papers are improper
and unsupported by any evidence in the record.
The judgment and “‘order[s] of the lower court [are] presumed to be correct on
appeal, and all intendments and presumptions are indulged’” in their favor. (Schnabel v.
Superior Court (1993) 5 Cal.4th 704, 718, quoting In re Marriage of Arceneaux (1990)
51 Cal.3d 1130, 1133.) Appellant bears the burden to overcome this presumption by
showing error on an adequate record. Where the appellant fails to provide an adequate
reporter’s transcript, “it is presumed that the unreported trial testimony would
demonstrate the absence of error.” (Estate of Fain (1999) 75 Cal.App.4th 973, 992; see
also Smith v. Laguna Sur Villas Condominium Assn. (2000) 79 Cal.App.4th 639, 646-
647; Brown v. Boren (1999) 74 Cal.App.4th 1303, 1320-1321.) “Failure to provide an
adequate record on an issue requires that the issue be resolved against [appellant].”

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(Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502
(Hernandez).)
Here, Lee fails to meet his burden to provide an adequate record on appeal.
Without all of the evidence introduced at trial regarding his alleged injuries, Lee cannot
possibly show that the jury’s conclusion that he was not injured was, as he argues,
“squarely against the weight of the evidence.” We must affirm the judgment for this
reason alone.
Moreover, even if we were to consider the limited record before us, it contains
ample evidence from which a jury could reasonably conclude that Lee was not injured.
For example, there was evidence that Fang’s airbag did not deploy and Lee’s vehicle
remained in its original lane, suggesting the force of the impact was minimal. This was
further supported by Martin’s testimony regarding the likely minimal extent of the crash,
given Fang’s speed from a parked position and the angle at which he was traveling. Dr.
Lubow also testified at length regarding his disagreement with the diagnoses and
treatment offered by Lee’s doctors and his opinion that Lee had either fabricated or
exaggerated his injuries.
Thus we find substantial evidence supports the verdict and the trial court’s denial
of Lee’s motion for JNOV. The fact that some evidence at trial could have allowed the
jury to reach the opposite conclusion and find that Lee was injured does not alter this
result. (See, e.g., Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631.)
C. Martin’s Testimony
Next, Lee argues that the trial court erred in allowing Fang’s expert, Martin, to
testify regarding the G-forces experienced in the accident and comparing the impact to a
bumper car collision. We find no error.
First, Lee asserts the testimony violated the parties’ agreement that Martin would
not testify regarding biomechanics and was therefore an “improper back-door effort to
offer a biomechanical opinion that included causation of injury.” However, the only
evidence in the record of the parties’ stipulation is a declaration filed by Fang’s counsel
in opposition to Lee’s motion for JNOV, stating that the parties stipulated that Martin

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“could testify as to G Forces, but not to injuries.” The other citations on which Lee relies
are to his own motion papers, not evidence. Thus, Lee’s contention that the parties
agreed more broadly that Martin would not “give any biomechanical opinions” is without
support in the record. Martin’s testimony did not offer any opinion regarding Lee’s
injuries and therefore complied with the parties’ stipulation as reflected in the limited
record before us. Lee asserts that while Martin may not have directly testified regarding
injury, his testimony comparing the forces to a bumper car collision implied that Lee was
not injured in the accident. While that may be an inference a juror could draw, the only
opinions actually offered by Martin stayed within the apparently agreed-upon scope of
testimony and did not include any opinion regarding possible injury.
Further, we reject Lee’s contention that Fang avoided an admissibility hearing
under Evidence Code, section 402, and “sandbag[ged]” him at trial. While there was
apparently no need for a pretrial evidentiary hearing given the parties’ stipulation, the
court evaluated the admissibility of Martin’s testimony following Lee’s objection at trial.
At that point, the court had the benefit of Martin’s foundational testimony regarding his
training and expertise, as well as Lee’s legal argument from his motion in limine and his
oral objection. Lee has not shown any abuse of discretion in the court’s mid-trial
consideration and ultimate admission of this evidence.4
D. Cross-Examination Regarding Driver’s License
Lee contends that Fang’s cross-examination of him regarding whether he had a
California driver’s license violated the trial court’s prior ruling excluding evidence of his
immigration status. The record before us does not include the trial court’s ruling on

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Lee also claims Martin’s “bumper car” testimony was “misleading, unreliable, and
not based on generally accepted scientific procedures.” It appears (based on Fang’s
opposition) that Lee raised at least some of these same objections in his motion in limine,
but Lee did not include it for our review. Moreover, because we do not have the court’s
original analysis and ruling (to the extent there was one) on this issue, we must presume
no error and affirm on that basis. (Hernandez, supra, 78 Cal.App.4th at p. 502.) We also
note that Lee did not raise this objection at trial, thereby waiving it on appeal. (Evid.
Code, § 353.)

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Lee’s motion in limine. More importantly, the record does not include any of Lee’s
testimony, including the cross-examination question(s) to which he objects. We therefore
have no basis upon which to evaluate whether Fang’s cross-examination violated the
court’s prior order, was otherwise improper, or even whether Lee properly preserved this
objection by raising it below. We are therefore compelled by the state of the record to
presume no error and affirm. (Hernandez, supra, 78 Cal.App.4th at p. 502.)
E. Lee’s Motion to Tax Costs
Finally, Lee contends the trial court erred in denying his motion to tax costs,
because Fang’s settlement offer of $3,000 pursuant to Code of Civil Procedure section
998 was a mere token and Fang’s claimed expert fees were unreasonable. 5 Once again,
Lee has failed to provide us with a sufficient record to evaluate this claim. In particular,
we do not have the trial court’s ruling on Lee’s motion or any discussion of the court’s
reasoning regarding the reasonableness of Fang’s settlement offer or the expert witness
fees he claimed. Thus, Lee cannot meet his burden to demonstrate error and we must
affirm. (Hernandez, supra, 78 Cal.App.4th at p. 502.)
DISPOSITION
The judgment is affirmed. Fang is awarded his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

WILLHITE, Acting P. J.

MANELLA, J.

5
Under Code of Civil Procedure section 998(c)(1), if plaintiff does not accept a
pretrial written settlement offer made by defendant in accordance with that section and
“the plaintiff fails to obtain a more favorable judgment or award, the plaintiff . . . shall
pay the defendant’s costs from the time of the offer.”
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