Diamond v. Reshko

Filed 8/20/15
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

CHRISTINE DIAMOND et al.,
Plaintiffs and Respondents,
A139251
v.
SERGE RESHKO et al., (San Francisco City & County
Super. Ct. No. CGC-11-511948)
Defendants and Appellants.

I.
INTRODUCTION
Christine Diamond was injured while riding as a passenger in a taxi that was
involved in a collision with another car. Diamond and her husband Andrew (the
Diamonds) brought a negligence action against the drivers and owners of each vehicle.
The Diamonds settled their claims against the taxi driver, Amir Mansouri, the owner of
the cab, Antonin Mastalir, and the Yellow Cab Collective (referred to collectively in the
singular as Yellow Cab). Pursuant to a provision in that settlement, Yellow Cab agreed
to appear and participate as a party defendant at the Diamonds’ jury trial. At the
conclusion of the evidence the jury found both drivers were negligent and attributed 60
percent responsibility to the driver of the other car, Serge Reshko, and his mother
Valentina Reshko (the Reshkos). The trial court entered a judgment on the jury verdict
holding the Reshkos liable to the Diamonds for $406,698.00, plus fees and costs.
On appeal, the Reshkos contend the trial court committed structural error by
excluding evidence of the pretrial settlement between the Diamonds and Yellow Cab.
We hold that, while not structural error, the trial court abused its discretion by excluding

1
this relevant evidence and, under the circumstances, the error was prejudicial. Therefore,
the judgment must be reversed.
II.
STATEMENT OF FACTS
A. Background
The accident that gave rise to this litigation occurred shortly before 7:00 p.m. on
January 4, 2011, at the intersection of California and Cherry Streets in San Francisco.
That segment of California Street consists of four driving lanes, two facing east and two
west, with outside parking lanes on each side. The intersection at California and Cherry
is controlled by traffic lights.
San Francisco Police Officer Mark Lantrip investigated the accident and prepared
a police report. When he arrived at the scene, two vehicles were in the middle of the
intersection, a Yellow Cab taxi that had been broadsided and a Chevrolet Caprice with
front-end damage. The occupants of both vehicles had been transported to San Francisco
General Hospital, where Lantrip went to interview them.
Christine Diamond, a passenger in the cab, made the following statement: “I
remember being in the cab and it was making a U-turn. A motorcycle went by and the
cab driver hits his brakes. After that, the cab driver proceeded to make a U-turn and I
don’t remember anything after that.” Amir Mansouri, the cab driver, told Lantrip that he
picked up his fare on California Street in front of California Pacific Medical Center
(CPMC), and then waited at the intersection with Cherry Street for the light regulating
the cars on California Street to turn yellow. Then, Mansouri reported, “I got situated to
make a U-turn. I started into the intersection to make a U-turn and the light turned red.
As I was making the U-turn, I was making the U-turn [sic] and the car hit me.”
Serge Reshko, the driver of the other car, left the hospital before Lantrip arrived,
so Lantrip contacted him by telephone the day after the accident. Reshko said he was
traveling in the inside (left) lane on California Street, heading toward Cherry Street. As
he approached the light, Reshko reported, “I saw the cab starting to make a U-turn in

2
front of me. I hit my brakes and skidded into the cab. I was going about 35 miles per
hour.”
Lantrip also made telephone contact with an eyewitness to the accident, Joe
Sweeney. Sweeney gave the following statement: “I was the first car at the light on
Cherry street facing south. . . . I saw the cab in the far right lane [on California Street]
beginning to make a U-turn. Cab was halfway into the turn and the Chevy broadsided it.
I spoke to the driver of the Chevy and he said to me ‘That was a stupid thing he did,
making the turn like that’ and I told him, ‘Well, you were speeding.’ And he replied, ‘I
was trying to make the light.’ ”
Lantrip issued a citation to Mansouri for making an improper U-turn from an
outside lane and also cited Reshko for speeding. As part of his investigation, Lantrip
made a determination that the improper U-turn was the primary collision factor in the
accident, and the other vehicle that was traveling too fast for conditions was an associated
factor. Lantrip concluded that the speed of the approaching vehicle was not the primary
factor because “[i]f the U-turn wasn’t made, the speeding vehicle probably would have
made it through the intersection without striking another vehicle. [¶] And our opinion as
traffic accident investigators, the cab driver should have gone around the block instead of
trying to make an illegal U-turn in the middle of an intersection with other vehicles
present.”
B. The Lawsuit
In June 2011, the Diamonds filed this negligence action against Yellow Cab and
the Reshkos. A jury trial was scheduled to begin on September 24, 2012. In their
September 2012 mediation brief, the Diamonds took the position that the extensive
discovery conducted by the parties established that the clear negligence of both drivers
caused Christine Diamond extensive injuries, and that insurance companies for both sets
of defendants had committed bad faith by rejecting the Diamonds’ demands to pay their
respective policy limits.
When the case was called for trial on September 24, 2012, Yellow Cab disclosed
to the Reshkos and the trial court that it had reached a settlement with the Diamonds.

3
The trial was continued, and, a few days later, Yellow Cab filed a motion under section
877.6 of the Code of Civil Procedure for a determination that the settlement with the
Diamonds was reached in good faith. Yellow Cab disclosed the material terms of the
agreement including that: (1) the three Yellow Cab defendants would jointly tender
$350,000.00 to Christine Diamond and $50,000.00 to Andrew Diamond; (2) the attorney
who represented Yellow Cab “agreed to remain an active participant” at the Diamonds’
jury trial; and (3) the Diamonds agreed to provide a covenant not to execute and a release
of all claims against Yellow Cab.
At a hearing on the motion for a good faith determination, the Reshkos argued that
that they did not oppose a good faith finding provided that there was a “recognition at
trial that there’s been a settlement.” Ultimately, the court made a good faith
determination without deciding whether evidence of the Diamond/Yellow Cab settlement
was admissible at trial. The court reasoned that ruling on the admissibility of evidence
was a trial court function, and it was “not going to tell the trial judge what to do.” A
formal order determining good faith settlement was entered on December 7, 2012.
In March 2013, the Diamonds’ jury trial began with preliminary matters, including
a motion in limine by the Reshkos for an order that the jury be informed about the
Diamonds’ settlement with Yellow Cab. They argued the settlement was admissible to
show bias or prejudice arising out of the fact that Yellow Cab and the Diamonds now
were allied against the Reshkos. The Diamonds opposed the motion, arguing that witness
bias generally would not be an issue, but conceded that it would be if the cab driver’s trial
testimony about the accident conflicted with deposition testimony he gave before the
settlement was reached. Yellow Cab joined the Diamonds in opposing the motion,
arguing its trial counsel had a legal right to participate fully at trial. Yellow Cab’s trial
attorney assured the court that he was “not going to be going overboard,” other than on
the issue of liability, claiming that his client had always felt the accident was not its fault.
The Reshkos countered that the settlement affected the trial as to damages, not just
liability. They argued the settlement freed Yellow Cab from having to dispute causation
and damages, and would allow it to force the Reshkos into a “bad guy” role while Yellow

4
Cab curried favor with the jury. This distorted role gave the Diamonds and Yellow Cab
traction for a joint theory that the Reshkos were primarily liable for the accident.
The trial court decided to reserve ruling on the Reshkos’ motion, explaining:
“We’re making projections about how things will play out and we are making projections
about how they will appear to the jury and I think it’s more appropriate to see how things
actually unfold.”
C. Trial Evidence Regarding Liability
In addition to testimony about the police investigation of the accident, the jury
heard from four primary percipient witnesses. Christine Diamond testified that shortly
before the accident occurred, she hailed a cab at the curb on California Street outside
CPMC, where she had been visiting her six-week-old son, who had been born
prematurely, and who was in the hospital’s Newborn Intensive Care Unit (NICU). She
got into the rear passenger seat of the cab, which was facing west, and asked the driver to
take her to her home in North Beach, which was east of the hospital. Christine could not
remember if she put on her seatbelt, but testified that it was her habit to wear one. The
next thing she remembered was waking up in an ambulance.
Amir Mansouri testified that after Christine told him where she wanted to go, he
decided to make a U-turn at the intersection of California and Cherry. While still stopped
at the curb on California Street in front of CPMC, he checked his mirrors to make sure
the road was clear and, at that point, he saw a Caprice approaching from “far away.”
Looking forward, Mansouri could see that the light at the intersection with Cherry was
green, so he activated his signal and drove toward the intersection. He moved the cab
completely into the outside driving lane, and when he reached the intersection the light
turned yellow. He then pulled into the intersection and “situated” himself to make a U-
turn by “straddling” both driving lanes and coming to a complete stop to wait for the light
to turn red. When the light turned red and the eastbound California Street traffic stopped,
Mansouri started to make his U-turn. He saw the Caprice approaching in the inside
westbound lane on California Street, but he fully expected it to stop at the light. Instead,
the other driver ran the light and broadsided his cab.

5
 Mansouri testified that he clearly remembered that when he looked in his rearview
mirror before he pulled away from the curb Christine was wearing her seatbelt.1 When
faced with prior deposition testimony that he did not remember if Christine put on her
seat belt, Mansouri reiterated that he did remember seeing her wear the seat belt, but also
acknowledged he could not be 100 percent sure. Under cross-examination, Mansouri
also admitted that he made the U-turn from the outside, right-hand lane, but he insisted
that his turn was not illegal. Mansouri told the jury he went to court to fight his citation
and “won,” but he could not recall why the ticket was dismissed. When asked whether he
accepted any responsibility for the accident that occurred, Mansouri answered “No.”
Serge Reshko testified that he was driving westbound on the inside lane of
California Street along with the speed of traffic as he approached the intersection at
Cherry Street.2 The light was yellow, so he accelerated to about 35 or 40 miles per hour
in order to cross the intersection before the light turned red. To his right, Reshko noticed
Mansouri’s cab, moving alongside the curb in the parking lane at around five miles per
hour with its left turn signal on, and he assumed that it was going to pull into the outside
driving lane next him. Instead, the cab driver looped or arced the cab all the way into the
intersection and, without ever stopping, proceeded to make a U-turn directly in front of
where Reshko was attempting to beat the yellow light. Reshko applied his brake, but hit
the cab at almost a perpendicular angle. Reshko admitted that he was speeding,
apologized for his actions, and accepted responsibility for his part in the accident.
Joe Sweeney testified that he was in his car at the intersection of Cherry and
California when the accident occurred. His car was on Cherry Street facing south
stopped at a red light, but he was looking to his left in anticipation of making a turn onto

1
Mansouri testified: “You know, she tell me where to go and it was—at the same
time I was doing my way bill, looking in the mirror and she told me where she is going
and I remember highly that she had the seat belt on, yeah.”
2
Reshko was 19 years old and had been driving for less than a year when the
accident occurred. These and other facts were used to support the Diamonds’ claim
against Valentina Reshko for negligent entrustment. The jury rejected that claim and it is
not an issue on appeal.

6
California Street. He noticed the cab at the curb in front of CPMC. He also saw when
the cab driver “pulled out and started doing sort of a slow U-turn,” and then an “older car
came just screaming into the intersection and T-boned” the taxi. Sweeney could not see
the signals controlling the traffic on California Street, but he testified that he believed
Reshko ran a red light because his own light was red when the cab started his turn and it
was green at the time of impact. Sweeney also opined that Reshko was driving at a “rate
of speed that makes you scared,” probably 45 to 50 miles per hour. From Sweeney’s
perspective, the cab driver made a “really stupid move,” but he was moving slowly,
unlike the other driver who was speeding.
Sweeney testified that he pulled over after the accident to see if he could help and
found himself talking with Reshko. According to Sweeney, Reshko essentially admitted
that he ran a red light because he was late for a date. Sweeney testified that Reshko was
“blithely unaware of what he had done.” The Reshkos’ trial counsel asked why Sweeney
did not tell Officer Lantrip that Reshko admitted running a red light. Sweeney replied
that the police report was true as far as it went, but the officer was busy dealing with too
many issues and his report was not complete.
The parties presented conflicting testimony regarding the primary cause of the
accident. Jon Landerville, Yellow Cab’s accident reconstruction expert, was called as a
witness by Yellow Cab during the Diamonds’ case-in-chief.3 Landerville’s opinions
included the following: (1) Reshko was speeding at a rate of 50 to 55 miles per hour;
(2) When Mansouri made the decision to do a U-turn, Reshko was two blocks behind
him, too far back for Mansouri to judge Reshko’s speed, which is why Mansouri did not
perceive him as a threat; and (3) If Reshko had not been speeding, the accident would not
have happened. Landerville also testified that the use of a seatbelt would not have
affected the nature or severity of Christine’s injuries and, in any event, there were
indications that she probably was wearing it when the collision occurred.

3
The record provides no explanation as to how it came to be that Yellow Cab’s
liability expert witness was allowed to be called as a witness out of order and during the
Diamonds’ case.

7
 Brian Doherty, the Reshkos’ accident reconstruction expert, testified during their
case-in-chief to the following opinions: (1) Reshko was driving at approximately 45
miles per hour when he started to apply his brakes but was unable to stop before striking
the left side of the taxi; (2) the primary cause of the accident was the illegal U-turn of the
cab, which was made from the right lane of California Street; (3) Christine suffered a “far
side lateral impact,” meaning that the cab was struck on the opposite side of the vehicle
from where she was sitting; and (4) the far side impact combined with the fact that
Christine was not wearing a seat belt caused her to be thrown across the interior of the
cab, which would not have happened if she had been wearing a seat belt. According to
Doherty, Mansouri was the primary cause of the accident because he crossed two lanes of
traffic to make an illegal U-turn and failed to check for traffic immediately before making
the turn. Doherty also testified that the evidence regarding the location and nature of
Christine’s injuries supported his conclusion that she was not wearing her seatbelt.
D. Christine Diamond’s Injuries
Christine testified that her first clear memory after getting into the taxi was of
being in the ambulance, strapped on her back and feeling very disoriented. She felt “a lot
of pain” between her shoulder blades and spine. When she arrived at the hospital,
emergency room staff gave her pain medication and took X-rays and a CT scan, which
showed that Christine suffered a “left T1 transverse process rib fracture.” She had cuts
and bruises, and a piece of glass had to be removed from her leg. At the emergency
room, Andrew Diamond took photographs of his wife’s injuries that were later admitted
into evidence at the jury trial.
The emergency room doctor offered to admit Christine, but she elected to go home
because her breasts were very engorged and painful from the milk she had been unable to
pump, and even if she had stayed in the hospital, the only treatment recommendation was
rest and pain medication. During the following week, Christine was confined to her bed,
unable to visit with her infant son, and spent most of the time lying on her back because it
was too painful to sit up. She testified that the pain in her back and thoracic area was so
bad that it interfered with her sleep even though she was taking oxycodone and Percocet.

8
She also suffered from headaches, light sensitivity and dizziness. However, Christine
testified that the accident did not cause her to experience any neck pain.4
On January 12, 2011, Christine sought treatment from Dr. Kenneth Light, an
orthopedic surgeon. Light concluded that in addition to the traverse process and rib
fracture, Christine also had a compression of the T3 vertebrae. His initial diagnosis was
that the injuries would heal with time and physical therapy and, in the meantime,
Christine’s pain could be controlled with medication.
On January 24, 2011, Christine sought treatment from Dr. Dean Chou, a
neurosurgeon and professor of neurosurgery at the University of California San Francisco
(UCSF) Spine Center. During that visit, Christine reported minimal neck pain but
continuous upper back pain which she described at the time as “six out of ten sharp,
aching, and exhausting discomfort.” During a physical exam, Christine exhibited a
limited range of motion with regard to the movement of her head, and tender shoulder
muscles. The left rib fracture evident on the emergency room X-rays was indicative of a
forceful impact. Dr. Chou concluded Christine’s injuries would heal with time and, in
the meantime, he prescribed home child care for her infant son, who had been released
from the NICU.
Dr. Light and Dr. Chou continued to monitor Christine’s progress, but her back
pain persisted. At trial, both doctors opined that Christine had a secondary condition
associated with the accident. Dr. Light diagnosed Christine with posttraumatic arthritis,
an inflammatory condition caused by physical stress to the joint of the spine. Light
testified that this type of joint damage is permanent, often causes chronic pain, and that
the symptoms gradually worsen with age. Dr. Chou testified that Christine most likely
has a “myofascial injury” secondary to the accident. This condition occurs when the
muscles, nerves and “fascia” area have been so stretched and inflamed that, although the
“actual trauma is no longer happening, . . . the patient still has severe, severe pain from

4
In years prior to the accident, Christine had suffered from neck pain and sought
treatment from a chiropractor.

9
this inflammatory process.” Chou opined that because Christine’s myofascial injury had
persisted beyond two years it was probably chronic.
The Diamonds also elicited testimony from Christine’s psychiatrist, Dr. Marc
Jacobs. Jacobs testified that Christine first came to see him in April 2011, and that she
should have come to him earlier but it was too painful for her to get around. Jacobs
diagnosed Christine with “Post-Traumatic Stress Disorder “(PTSD) caused by two
closely timed traumatic events, the premature birth of her son and the automobile
accident; these two events reinforced each other, causing a tremendous amount of
anxiety. Dr. Jacobs testified that Christine was still suffering from PTSD at the time of
trial, although she had been doing better. He also anticipated she would require future
treatment because she was pregnant again, and the trial was causing her to relive the
accident.
The Diamonds’ expert economist testified that Christine’s lost income, which
included some projected future loss, was $184,302.22. After the accident, Christine had
six weeks of maternity leave from her job at a financial services company where she
helped clients administer their employee benefit plans. However, she did not feel well
enough to work until August 2011. Initially, she assumed a 20 percent part-time
schedule, and subsequently increased her hours over time, finally returning to a full-time
schedule in September 2012.
The Reshkos presented expert medical testimony from two doctors. Dr. Jeffrey
Meter, an orthopedic surgeon, reviewed Christine’s medical records and examined her in
March 2012. At trial, Dr. Meter agreed with the preliminary diagnosis of both Dr. Light
and Dr. Chou that the type of injuries that Christine suffered during the accident should
have healed with time. However, Dr. Meter opined that the rib and spine fractures did
actually heal without causing permanent damage. He diagnosed Christine with
preexisting thoracic degenerative disc disease and preexisting cervical degenerative disc
disease. Meter testified that his diagnosis was consistent with Christine’s X-rays and
imaging exams, which showed that at the time the accident occurred Christine already
had “fairly significant arthritis in her neck and in her upper back . . . for somebody of her

10
age.” These conditions were also consistent with Christine’s report that prior to the
accident she had sought treatment with a chiropractor in 2003 and in 2010. Meter
attributed Christine’s ongoing pain to the degenerative changes caused by her preexisting
arthritis along with being a new mother and having to lift and carry her baby.
The second expert, Dr. Mark Strassberg, is a neurologist and psychiatrist who
conducted a psychiatric examination of Christine in August 2012. Dr. Strassberg testified
that many events in Christine’s life caused her anxiety, but the accident could not have
caused her to suffer from PTSD because Christine could not remember anything about
the accident. According to Strassberg, “PTSD is an anxiety disorder . . . specifically
based around irrational fears reflective of recurrent memories of the event. If you can’t
remember the event, then you can’t develop the irrational fears.” Strassberg testified that
his own experience as well as the pertinent literature showed that a person who has
amnesia about an event cannot develop PTSD from that event.
Eric Drabkin, a forensic economist employed by the Reshkos to evaluate the
Diamonds’ economic losses resulting from the accident, offered damages calculations
that were significantly lower than the plaintiffs’ figures. For example, Drabkin identified
five potential dates when Christine could have returned to work and used those dates to
calculate a range of potential lost earnings of between $25,489.50 to $106,140.00.
E. Closing Arguments
After the close of the evidence the Reshkos requested that the trial court preclude
Yellow Cab from addressing the Diamonds’ damages during closing arguments. They
argued that Yellow Cab and the Diamonds had been in collusion throughout the trial and
that permitting them to “team[]up” against the Reshkos on damages issues would be
prejudicial and improper in light of the fact that Yellow Cab had already settled out of the
case and no longer had a “horse in this race.” Yellow Cab and the Diamonds opposed the
Reshkos’ request. Yellow Cab’s trial counsel argued that his clients did not want to
participate in the trial and “pay the freight,” but that was a term of the settlement, and
they now had the right to participate fully in the trial. The Yellow Cab attorney also
argued that he was very experienced in valuing these types of cases, and that he was

11
“nobody’s puppet.” The Diamonds’ trial counsel chastised the Reshkos for complaining
that people were “ganging up” on them when they were the ones who had wrongfully
refused to settle this case prior to trial. Pointing out that the Reshkos were offered the
“same deal” as was offered to Yellow Cab, the Diamonds argued that the Reshkos’
insurance carrier made the wrong decision by deciding to “roll the dice,” and that
“[e]verybody knew this was coming.”
The trial court denied the Reshkos’ request to restrict the scope of Yellow Cab’s
argument. The court observed that there was a good faith determination and no evidence
of collusion had been presented at trial. Therefore, the court concluded that it had no
legal basis for restricting the judgment of Yellow Cab’s counsel regarding how he wanted
to try this case.
During his closing argument, the Diamonds’ trial counsel argued that Mansouri’s
U-turn may have been technically illegal but that it was reasonable under the
circumstances, and that the only reason Mansouri was negligent was that he failed to take
a second look behind him before completing the U-turn. Plaintiffs’ counsel characterized
the cab driver’s mistake as understandable, pointing out that he did look earlier, before
starting the slow U-turn, and at that point Reshko was far away. In other words, the
Diamonds’ counsel argued, Mansouri did not anticipate Reshko’s “reckless speed.”
Plaintiffs’ counsel then attempted to highlight evidence supporting his recommendations
for each category of damage allegedly suffered by his clients which, when added
together, were in the range of $1 million and $1.2 million for Christine, and around
$200,000.00 for Andrew.
Yellow Cab’s trial counsel argued that Mansouri was the “less culpable” party and
that Reshko was the “bad guy here.” Counsel acknowledged that Mansouri violated the
law by making a U-turn from an outside lane, but he argued that the turn was not a
substantial factor in causing the accident, and that his client used reasonable care under
the circumstances. Thus, Yellow Cab’s trial counsel urged the jury to apportion between
0 and 25 percent of the liability for the accident to his client. Next, Yellow Cab’s
attorney acknowledged that the Diamonds incurred significant medical bills and other

12
losses, and urged the jury to award all of their claimed past economic damages, which
were approximately $294,000.00. Counsel stated that part of the future medical damages
claim was speculative, but he admitted that, “unfortunately,” Christine did have a
different spine as a result of the accident, and he urged the jury to award $150,000.00 in
future economic damages. He recommended $150,000.00 for past general damages, an
additional $150,000.00 for future general damages, and $50,000.00 to $75,000.00 for loss
of consortium. Thus, Yellow Cab argued that the evidence supported a total damages
award of approximately $800,000.00.
The Reshkos’ trial counsel argued that Mansouri was the primary cause of the
accident, relying on the police report and highlighting problems with Mansouri’s trial
testimony. He also criticized the accident reconstruction analysis conducted by Yellow
Cab’s expert and spent time reviewing the damages evidence. Ultimately, the Reshkos
counsel argued that the negligence of both drivers were substantial factors in causing the
accident, the accident was a bad one, and the Diamonds were entitled to compensation for
their injuries. According to the Reshkos, putting aside the speculative figures, the
Diamonds’ damages totaled approximately $302,900.71.
The Diamonds’ first point on rebuttal was that Officer Lantrip had incomplete
information which led him to the erroneous conclusion that Mansouri was primarily
responsible for the accident. Plaintiffs’ counsel then attempted to undermine Reshkos’
contention that the damages claims were speculative. Finally, characterizing the
Reshkos’ damages calculations as “laughable,” plaintiffs’ counsel urged the jury to
compare them to the recommendations of Mr. Bigley, trial counsel for Yellow Cab: “I
mean, they are way under even what Mr. Bigley said. I mean, it just—and, you know,
Mr. Bigley is no fool. He’s not going to get up here and throw a big number up there if
he doesn’t have to. He’s going to put the number up that he knows how to do this, he
knows how to estimate, how to set up damages estimations in arguments like this. He’s
done it lots and lots of times.”

13
 F. The Jury Verdict
The jury completed a special verdict form pursuant to which it found that Amir
Mansouri and Serge Reshko were both negligent and substantial factors causing harm to
Christine Diamond. They awarded economic damages in the amount of $258,778.00, and
$137,000.00 in future economic damages. For noneconomic damages, the jury awarded
$150,000.00 for past damages, $150,000.00 for future damages, and $50,000.00 for loss
of consortium. Thus, the total damages award was $745,778.00. Finally, the jury found
that Christine was not negligent, and apportioned responsibility for her harm 40 percent
to Mansouri and 60 percent to Reshko.
On April 19, 2013, the trial court entered judgment against the Reshkos in the sum
of $406,698.00,5 together with costs and interest. In a motion for new trial, the Reshkos
argued that Yellow Cab’s participation as a party defendant deprived the Reshkos of a
fair trial. The trial court issued a tentative ruling to deny the motion pursuant to previous
rulings made during the trial. At a hearing on the motion, the Reshkos requested
clarification regarding the court’s reasoning. Denying the request for clarification and
the motion itself, the trial court stated that it had already addressed the Reshkos’
arguments during the trial.
A July 2013 amended judgment holds the Reshkos liable to the Diamonds for
$406,698.00, together with costs and fees totaling $31,698.48, plus interest.

5
The $406,698.00 figure represents the sum of (1) $210,000.00, which is 60
percent of $350,000.00, the total award of noneconomic damages; and (2) $196,698.00,
which is the balance of the total economic damages award after deducting a credit for the
portion of the Yellow Cab settlement that was paid to compensate the Diamonds for
economic damages. To determine what portion of the $350,000.00 Yellow Cab
settlement was attributable to the Diamonds’ economic damages, the court applied the
following formula: First, it determined that the total economic damages award
constituted 56.88 percent of the total damages award. Second, it determined that 56.88
percent of the Yellow Cab settlement constituted $199,080.00. Third, it deducted
$199,080.00 from the total economic damages award of $395,778.00, which left a
balance of $196,698.00. No challenge to these calculations is made on appeal.

14
 III.
DISCUSSION
A. Standard of Review
“A trial court’s ruling on the admissibility of evidence is generally reviewed for
abuse of discretion. [Citations.]” (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th
1471, 1476; see also Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th
860, 885 [“[w]e review a trial court’s decision to admit or exclude evidence under the
abuse of discretion standard”]; Caira v. Offner (2005) 126 Cal.App.4th 12, 31-32 [order
excluding evidence of a settlement agreement pursuant to Evid. Code, § 1152 reviewed
for an abuse of discretion].)
The Diamonds contend this deferential standard applies here, characterizing the
trial court rulings which prevented the jury from knowing about the Yellow Cab
settlement as “garden-variety” evidentiary rulings. In a separate respondents’ brief in
support of the judgment,6 Yellow Cab agrees with the Diamonds that the standard of
review is abuse of discretion, and goes so far as to argue that admitting this evidence
would have been an abuse of discretion because it would have unfairly prejudiced the
Diamonds by conveying a message to the jury that Yellow Cab was responsible for the
accident.
On the other hand, the Reshkos contend that, under the circumstances presented,
the trial court’s rulings are subject to de novo review because excluding evidence of the
Diamonds’ pretrial settlement agreement with Yellow Cab deprived the Reshkos of a
fundamental right to a fair trial. They argue the jury could not properly assess witness

6
“Anyone who was a party below, whose interest is adverse to or would be
affected by reversal or modification of the appealed judgment, may file a respondent’s
brief, even if not named in the judgment. [Citations.]” (Eisenberg et al., Cal. Practice
Guide, Civil Appeals and Writs (The Rutter Group 2014), ¶ 9:195, p. 9-55.) Yellow Cab
has an interest in this litigation resulting from its contractual obligation under the
settlement agreement to participate in the Diamonds’ trial. (Everman v. Superior Court
(1992) 8 Cal.App.4th 466, 472 (Everman).) That interest would be adversely affected by
a reversal of the judgment.

15
credibility, perceive trial tactics or evaluate trial arguments without knowledge of the fact
that Yellow Cab switched sides before trial. In order to properly do its job, the Reshkos
argue, the jury needed to know that Yellow Cab no longer had any “skin in the game.”
The heightened standard of review that the Reshkos seek is not supported by the
case authority upon which they rely, People v. Waidla (2000) 22 Cal.4th 690, 741
(Waidla). One issue in that appeal from a death penalty judgment was whether the trial
court erred by excluding the appellant from participating in some of the trial proceedings.
Recognizing that a criminal defendant has a constitutional right to be present at his own
trial, the Supreme Court applied a de novo standard of review to that trial court order.
(Id. at p. 741.) However, when reviewing evidentiary rulings from the same trial, the
Supreme Court applied an abuse of discretion standard of review. (Id. at pp. 718, 723.)
Thus, Waidla confirms that our standard of review in this case is abuse of discretion.
B. Analysis
The Diamonds and Yellow Cab contend this case is governed by Evidence Code
section 1152, which provides in relevant part: “Evidence that a person has, in
compromise . . . , furnished or offered or promised to furnish money or any other thing
. . . to another who has sustained . . . loss or damage . . . is inadmissible to prove his or
her liability for the loss or damage or any part of it.” This statute codifies the rule that
evidence of a settlement agreement between a plaintiff and one or more joint tortfeasors
is not admissible to prove the liability of the settling tortfeasor. (Granville v. Parsons
(1968) 259 Cal.App.2d 298, 303; see Brown v. Pacific E.R. Co. (1947) 79 Cal.App.2d
613, 619; Albrecht v. Broughton (1970) 6 Cal.App.3d 173, 178.) This rule does not
resolve the present appeal because the Reshkos did not seek to offer evidence of the
settlement agreement as proof of Yellow Cab’s liability.
As the Reshkos argued in the trial court, evidence of a plaintiff’s settlement with
one or more defendants is admissible at trial to prove witness bias and to prevent
collusion. (Granville v. Parsons, supra, 259 Cal.App.2d at pp. 303-304; Shepherd v.
Walley (1972) 28 Cal.App.3d 1079, 1083; see also 1-200 CACI No. 217 [instructing jury
that evidence of a settlement may not be considered “to determine responsibility for any

16
harm,” but may only be considered to decide whether witness who has settled is “biased
or prejudiced” or whether his testimony is “believable”]; 2-5000 CACI No. 5003 [in
deciding whether to believe a witness’s testimony, the jury may consider whether he
showed “any bias or prejudice” or if he has “a personal relationship with any of the
parties involved in the case” or “a personal stake in how the case is decided”].)
In fact, when a defendant is a party to a sliding scale settlement, which is also
called a “Mary Carter” agreement, that agreement must be disclosed to the jury if the
settling defendant testifies at trial, unless the court finds that the disclosure will create a
substantial danger of undue prejudice. (Code Civ. Proc., § 877.5, subd. (a)(2); Alcala Co.
v. Superior Court (1996) 49 Cal.App.4th 1308, 1316 (Alcala); see also Moreno v. Sayre
(1984) 162 Cal.App.3d 116, 125.)7
The Diamond/Yellow Cab settlement was not a sliding scale agreement, although
the specific term of the settlement which is at issue in this appeal also appears in the
standard sliding scale agreement—that is, the term requiring the settling defendants to
participate as parties at the plaintiffs’ jury trial. In this context, the justification for
allowing a settling defendant to participate at trial is to prevent the nonsettling defendants
from making an “empty chair” argument by ascribing “fault to an actor who is not
present to defend himself.” (Everman, supra, 8 Cal.App.4th at p. 470.)
Pertinent authority establishes that a term in a settlement agreement requiring the
settling defendant to stay in the case during trial is not per se improper, but the settling
defendant’s position should be revealed to the court and jury to avoid committing a fraud
on the court, and to permit the trier of fact to properly weigh the settling defendant’s
testimony. (Pellett v. Sonotone Corp. (1945) 26 Cal.2d 705, 713 (Pellett); Everman,
supra, 8 Cal.App.4th at p. 473.)

7
“The typical ‘Mary Carter’ agreement is secret, calls for the settling defendant to
participate in the trial on the plaintiff’s behalf, and provides for a settling defendant to be
credited for amounts the plaintiff recovers from nonsettling defendants. [Citation.] Its
collusive nature and potential for fraud have been well documented and recognized.
[Citation.] The interests of the parties are clearly realigned in a manner not apparent to
the trier of fact.” (Alcala, supra, 49 Cal.App.4th at p. 1316.)

17
 Pellett, supra, 26 Cal.2d 705, was an appeal from a judgment of nonsuit in favor
of several defendants in a personal injury action arising out of the negligent manufacture
of a hearing aid. The issue before the court was whether the plaintiff’s pretrial settlement
with one defendant constituted a release which, under the law at that time, would have
constituted a release of all joint tortfeasors. (Id. at p. 710.) Although that issue is not
relevant here, the Pellett court also withheld its approval of a provision in the settlement
which required the settling defendant to appear as a party at trial and to defend the
lawsuit without disclosing the settlement to the court or parties. As the court explained,
“While the trial court did not find, and we cannot hold as a matter of law, that there was
any fraud or collusion in this case, such an agreement might lead to a fraud upon the
court by concealing the position of a party who is an important witness in the action.”
(Id. at p. 713.) Ultimately, the Pellett court elected not to decide whether the settlement
term was invalid because: (1) the parties had not raised the issue on appeal; and (2) the
record established that, notwithstanding the requirement of secrecy, the agreement had
been disclosed. Therefore, “the court or jury could weigh the testimony of [the settling
defendant] in the light of the knowledge that, since the agreement provided that judgment
could not be enforced against him, he was not a witness who was adverse to the
plaintiff.” (Ibid.)
In Everman, supra, 8 Cal.App.4th 468, the plaintiff was seriously injured when a
postal service jeep he was driving was struck by a pickup truck. The pickup truck driver
claimed he was distracted by an oncoming trash truck that crossed over the center line a
short distance ahead of where the accident occurred while attempting to make a right
turn. Plaintiff sued the pickup truck driver and his employer, the trash truck driver and
his employer, and the city for designing and maintaining a dangerous road. (Id. at
p. 469.) Prior to trial, the plaintiff entered into a proposed settlement with the pickup
truck driver defendants, which was conditioned on securing a good faith determination.
(Id. at p. 470.) The trial court denied a motion for a good faith determination, finding
that a term in the agreement requiring the pickup truck driver to participate and be
represented at trial was collusive “ ‘in the sense that it is not above board when you have

18
a person who is insulated from further liability, who is fully settled, sitting in a case, in a
sense taking a position on behalf of the plaintiff.’ ” (Ibid.)
The Everman court reviewed the trial court order pursuant to a petition for writ of
mandate. (Everman, supra, 8 Cal.App.4th at p. 469.) The nonsettling defendants argued
the settlement was inherently collusive and deceitful because the jury would likely not be
advised about the agreement, and thus would not know the truck driver defendant’s “true
status as a defendant facing no monetary liability.” (Id. at p. 471.)
Applying Pellett, the Everman court concluded that a settlement agreement which
is “otherwise within the good faith ‘ball park’ . . . is not subject to disapproval solely
because it provides for continuing participation in the trial of the lawsuit by a settling
defendant” but, “[a]s a general rule, the possible bias of such a participating defendant
should be disclosed to the jury” in order to avoid committing a fraud on the court.
(Everman, supra, 8 Cal.App.4th. at p. 473.) In the case before the Everman court, the
settling defendants had already agreed to disclose the agreement and therefore, the trial
court abused its discretion by denying the motion for good faith settlement solely because
the agreement contained a term requiring the settling defendant to continue to participate
in the trial. (Ibid.)
Pellett and Everman establish that an agreement requiring a settling defendant to
participate as a party and/or witness at a subsequent jury trial is presumptively admissible
evidence at that trial. Without this evidence, the jury is prevented from fully assessing
the motivations of both the plaintiff and the settling defendant, and from properly
weighing the credibility of their witnesses. (Pellett, supra, 26 Cal.2d at p. 713; Everman,
supra, 8 Cal.App.4th at pp. 471-473; see also Bobrow/Thomas & Associates v. Superior
Court (1996) 50 Cal.App.4th 1654, 1663, fn. 5 [recognizing that a trial court may
introduce evidence of settlement agreement to help explain why the plaintiff no longer
blames the settling defendant for its injury]; Zelayeta v. Pacific Greyhound Lines, Inc.
(1951) 104 Cal.App.2d 716, 729 [evidence that trial witnesses settled their own claims
against defendant was admissible to show bias].)

19
 Neither set of respondents provides this court with a substantive response to
Pellett or Everman. Instead, Yellow Cab contends that Pellett is not good law because it
was overruled by Leung v. Verdugo Hills Hospital (2012) 55 Cal.4th 291, 302, footnote 1
(Leung). In Leung, the Supreme Court disapproved the “common law release rule,” and
partially overruled prior decisions, including Pellett, to the extent they applied that rule.
(Ibid.) The part of Pellett upon which we rely has nothing to do with the common law
release rule and remains good law. For their part, the Diamonds contend that even if
evidence of the settlement agreement was potentially admissible, the Reshkos cannot
establish that the trial court abused its discretion because the record shows that the court
“assessed and reassessed its decision not to inform the jury of the settlement three times.”
(Original italics.)
“While trial judges ordinarily enjoy broad discretion with respect to the admission
and exclusion of evidence in ruling on motions in limine [citation], a court’s discretion is
limited by the legal principles applicable to the case. [Citation.] ‘ “The scope of
discretion always resides in the particular law being applied, i.e., in the ‘legal principles
governing the subject of [the] action . . . .’ Action that transgresses the confines of the
applicable principles of law is outside the scope of discretion and we call such action an
‘abuse’ of discretion.” ’ [Citations.]” (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th
1288, 1294.)
In the present case, although the trial court refused to inform the jury about the
settlement agreement at least three times, the record does convey precisely why the court
made these rulings. As best as we can determine from this unclear record, the court
concluded that the good faith settlement determination precluded it from admitting
evidence of the settlement unless some other evidence of bias or collusion was uncovered
during the trial. This ruling transgressed the confines of the applicable legal principles in
at least three ways.
First, the good faith settlement determination did not limit the trial court’s
authority to admit evidence of that settlement at trial. To the contrary, as the superior
court judge who made the good faith settlement determination in this case recognized, the

20
decision whether to admit evidence of the settlement was for the trial court to make.
(Alcala, supra, 49 Cal.App.4th at pp. 1317-1319.) Alcala was a mandate proceeding
challenging a good faith determination of a sliding scale settlement agreement. The
Alcala court not only denied the writ, it also denied a request to direct the lower court to
amend its order containing the good faith determination to explicitly require the
disclosure of the settlement agreement and all of its terms at the trial because, as the
appellate court explained, “[t]hat is a matter for the trial court to decide through in limine
motions and evidentiary rulings.” (Id. at p. 1318, fn. 7, italics omitted.)
Second, a good faith determination of a settlement agreement which contains a
term requiring continued participation by a settling defendant is premised on a
presumption that the jury will be made aware of the settlement in some way. As
discussed above, the very reason a term in a settlement agreement which requires
ongoing participation by the settling defendant is not per se collusive is because evidence
of that settlement can and should be disclosed to the jury at trial. (Everman, supra, 8
Cal.App.4th at p. 468.)8
Alcala, supra, 49 Cal.App.4th 1308 makes this same point in the context of a
review of a sliding scale agreement. The nonsettling defendants in that case argued that a
term in the agreement requiring the continued participation of the settling defendants was
collusive because of the unique way the parties had structured the settlement and
calculated the settling defendants’ liability. Rejecting this contention, the Alcala court
reasoned that although the settlement created a “complicated” relationship among the
various parties, it was not beyond the jury’s understanding and “[w]ith proper disclosure

8
“ ‘ “Collusion has been variously defined as (1) ‘a deceitful agreement or
compact between two or more persons, for the one party to bring an action against the
other for some evil purpose, as to defraud a third party of his right’; (2) ‘a secret
arrangement between two or more persons, whose interests are apparently conflicting, to
make use of the forms and proceedings of law in order to defraud a third person, or to
obtain that which justice would not give them, by deceiving a court or its officers’; and
(3) ‘a secret combination, conspiracy, or concert of action between two or more persons
for fraudulent or deceitful purposes.’ [Citation.]” [Citation.]’ [Citation.]” (Andrade v.
Jennings (1997) 54 Cal.App.4th 307, 327.)

21
by the court of the terms of the settlement agreement and the relationship of the parties,
the jury may be made aware of the realignment of the interests of the parties and the
potential bias on the part of the settling defendants and their witnesses.” (Id. at p. 1317.)
Third, the trial court appears to have based its rulings on the Diamonds’ and
Yellow Cab’s shared misperception about the relevance of settlement agreement evidence
when a settling defendant appears and fully participates at trial. This evidence is not
relevant simply to explain a bias that has otherwise been brought to the attention of the
jury. Rather, the evidence is independently relevant because disclosing the realignment
of the interests of all of the parties who appear at trial prevents collusion, and assists the
jury in making reasoned determinations regarding liability and damages by facilitating
informed evaluations of trial tactics, the credibility of the parties and their respective
counsel, and, ultimately, the substantive trial evidence.
Therefore, we conclude it was an abuse of discretion for the trial court to exclude
evidence of the Diamond/Yellow Cab settlement, including the clause that required
Yellow Cab to attend and participate in the trial. In answer to Yellow Cab’s assertion
that the Diamonds would have been prejudiced by the admission of settlement evidence,
nothing in this record suggests any reason why this concern could not have been deftly
avoided through the use of a limiting instruction. (See Shade Foods, Inc. v. Innovative
Products Sales & Marketing, Inc.(2000) 78 Cal.App.4th 847, 915; 1-200 CACI No. 217
[Evidence of Settlement]; 2-5000 CACI No. 5003 [Witnesses].)
Furthermore, the trial court’s initial erroneous assessment of the settlement
evidence led to two subsequent and additional errors. After waiting to see how the
proceedings would unfold, the trial court overlooked later presented evidence of witness
bias. During his deposition, Mansouri testified that he did not remember whether
Christine had her seat belt on, but at trial he testified that he looked in his rearview mirror
before pulling away from the curb and saw that Christine was wearing her seatbelt.
While the testimonial discrepancy itself was revealed, the jury was deprived of evidence
which could have supported a conclusion that Mansouri was biased in favor of the
plaintiffs now that he had settled his case with the Diamonds. Indeed, when the matter of

22
the settlement’s admissibility was argued to the court at the start of the trial, counsel for
the Diamonds essentially conceded the fact of the settlement with Yellow Cab would be
relevant in the event Mansouri’s trial testimony materially departed from his earlier
deposition testimony.
Finally, by the time Yellow Cab presented closing argument on the damages issue
its bias in favor of the Diamonds and against the Reshkos was indisputable. Yellow Cab
helped the Diamonds make their case against the Reshkos by characterizing Serge
Reshko as “the bad guy.” It went further by disavowing explicitly the contributory
negligence defense, even temporally allying its own liability expert witness with the
Diamonds’ during the latters’ case-in-chief. Yellow Cab’s counsel then conceded during
his closing argument virtually all of the Diamonds’ claimed damages, and proposed an
evaluation of those damages that the Diamonds subsequently approved while vouching
for the credibility of Yellow Cab’s attorney.
Yellow Cab contends that their litigation strategy and damages evaluation had
always conflicted with the Reshkos’ approach, and they insist that they had a legal right
to present their version of this case to the jury. This contention is unsupported by a
citation to authority and ultimately is beside the point. The bias inherent in a settling
defendant’s realignment with the plaintiff’s interest may or may not affect the conduct of
the plaintiff or settling defendant at trial, but that is a question for the jury to decide.
Because the settlement agreement was kept secret, the jury in this case was deprived of
its right to determine whether Yellow Cab’s evidence, arguments, and concessions were
substantively genuine, or whether that its presentation was biased and it had tactically
joined forces with the Diamonds for reasons unrelated to the merits of the Diamonds’
case.
C. Prejudice
The Reshkos argue that the erroneous trial court rulings amounted to a “structural
error,” requiring per se reversal of the judgment. Structural errors are “ ‘structural
defect[s] in the constitution of the trial mechanism . . . affecting the framework within
which the trial proceeds, rather than simply an error in the trial process itself.’ ” (In re

23
Angela C. (2002) 99 Cal.App.4th 389, 394.) “A structural error requires reversal without
regard to the strength of the evidence or other circumstances. [Citation.] [¶] The United
States Supreme Court has found structural errors, however, only in a very limited class of
cases: the total deprivation of the right to counsel at trial [citation], a biased judge
[citation], unlawful exclusion of members of the defendant’s race from a grand jury
[citation], denial of the right to self-representation at trial [citation], denial of the right to
a public trial [citation], and erroneous reasonable-doubt instruction to jury [citation].
[Citation.]” (Id. at pp. 394-395.) In other words, a structural error is one that, by its very
nature “implicates the fundamental fairness of judicial proceedings.” (Id. at p. 395.)
Excluding evidence of the Diamond/Yellow Cab settlement in a civil trial was not
structural error. Instead, a “trial court’s error in excluding evidence is grounds for
reversing a judgment only if the party appealing demonstrates a ‘miscarriage of justice’—
that is, that a different result would have been probable if the error had not occurred.
[Citations.]” (Zhou v. Unisource Worldwide, supra, 157 Cal.App.4th at p. 1480.)
“ ‘ “[A] ‘miscarriage of justice’ should be declared only when the 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.” ’ [Citation.]” (Pool v. City of Oakland (1986) 42
Cal.3d 1051, 1069.)
On appeal, both sets of respondents contend that the Reshkos cannot meet this
high standard of prejudice. The Diamonds argue “there is no evidence in the record that
the evidence that came in at trial would have been any different if the trial court judge
had told the jury about the settlement.” The flaw in this theory is that the settlement
agreement itself is the material evidence that was improperly excluded from this trial.
Yellow Cab argues there is nothing in the trial record to indicate that the fact of the
settlement actually impacted any witness testimony. First, as discussed above,
Mansouri’s testimony about whether Christine wore her seatbelt strongly suggests that
the settlement agreement directly impacted his testimony. Second, in assessing prejudice,
the question is not simply whether the settlement affected the witness testimony but more

24
fundamentally whether knowledge of the settlement agreement would have affected the
jury’s assessment of the conflicting evidence that was actually produced at this trial.
Because it was prevented from learning that the Diamonds had already settled
their case against Yellow Cab, the jury was denied the opportunity to consider the effect
of that settlement on the trial strategies the parties employed in their respective efforts to
influence the jury’s resolution of the material conflicts in the trial evidence. Many of
those conflicts, which we highlighted in our factual summary of this case, bore directly
on the jury’s most difficult tasks of determining the primary cause of the accident and the
extent of Christine’s damages. In our opinion, it is reasonably probable that the jury’s
resolution of conflicting evidence pertaining to at least some of the material disputed
issues would have been more favorable to the Reshkos if the jury had been made aware
of the fact that the Diamonds settled their case against Yellow Cab prior to trial.
Indeed, this case serves as a virtual textbook illustration as to why Pellett and
Everman hold that evidence of a pretrial settlement between the plaintiff and one or more
defendants who participate fully in the ultimate trial is relevant and ordinarily should be
disclosed to the jury. (Pellett, supra, 26 Cal.2d at p. 713; Everman, supra, 8 Cal.App.4th
at pp. 471-473.) Without that evidence, the jury was prevented from fully assessing the
credibility of the witnesses called by the Diamonds and Yellow Cab, and from evaluating
the tactical motivations underlying the presentations and arguments that the Diamonds
and Yellow Cab advanced at trial. On this record, the errors could well have affected the
outcome of the trial. Therefore, not only was it an abuse of discretion to exclude
evidence of the Diamond/Yellow Cab settlement, but it was prejudicial to the Reshkos,
requiring a reversal of the judgment entered following the jury’s verdict.
IV.
DISPOSITION
The judgment is reversed. Costs on appeal are awarded to the Reshkos against all
respondents.

25
 _________________________
RUVOLO, P. J.

We concur:

_________________________
REARDON, J.

_________________________
STREETER, J.

A139251, Diamond v. Reshko

26
Trial Court: San Francisco Superior Court

Trial Judge: Hon. Peter J. Busch

Counsel for Appellants: Law Office of Michael F. Brown and
Michael F. Brown

Sedgwick LLP, Christina J. Imre,
Douglas J. Collodel, Michael M. Walsh

Counsel for Respondents Gilbert, Kelly, Crowley & Jennett LLP,
Amir Mansouri and Antonin Timothy W. Kenna, Paul A. Bigley,
Mastalir: Rebecca J. Smith

Counsel for Respondents Bartko, Zankel, Bunzel & Miller,
Christine Diamond and Andrew Stephen T. Cox, Simon R. Goodfellow
Diamond:

A139251, Diamond v. Reshko

27