Cantu v. Hermansen CA2/6

Filed 8/24/15 Cantu v. Hermansen CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 SIX

PHILLIP CANTU, 2d Civil No. B257534
(Super. Ct. No. CV120256)
Plaintiff and Appellant, (San Luis Obispo County)

v.

MARY HERMANSEN,

Defendant and Respondent.

Respondent Mary Hermansen sideswiped a car driven by appellant Phillip
Cantu. Appellant testified the collision forced his car to hit a curb, rupturing a cervical disc
protrusion that had previously been repaired through surgery. The jury awarded appellant
damages of $22,500, less than the $25,000 statutory offer to compromise made by
respondent. (Code Civ. Proc., § 998.)1 The trial court awarded respondent her expert
witness fees and costs. After the offset for appellant's damages, the judgment awarded
respondent fees and costs of $48,786.94.
Appellant contends the trial court improperly permitted an expert witness to
offer opinions that contradicted admissions made by respondent during discovery. He
further contends the trial court erred when it allowed another expert to testify to the content
of hearsay documents and then admitted those documents into evidence. The trial court
further erred, appellant contends, when it awarded respondent fees and costs pursuant to

1
All statutory references are to the Code of Civil Procedure unless otherwise stated.
section 998 because her settlement offer was ambiguous and therefore unenforceable.
Finally, appellant contends the trial court improperly denied his request for attorney fees and
expenses incurred to prove the falsity of requests for admission denied by respondent.
(§ 2033.420.) We affirm.
Facts
Appellant had cervical spine surgery on March 22, 2010. By May 3, 2010, the
symptoms precipitating the surgery had resolved. On May 12, 2010, respondent was driving
on a surface street in Grover Beach, when she started to change lanes without noticing
appellant's vehicle in the adjacent lane. As she moved into that lane, respondent's SUV
collided with appellant's compact car. Appellant testified that he turned sharply away from
respondent's SUV, hitting the curb. The collision caused only minor damage to both
vehicles.
The next day, appellant experienced headaches, neck pain, and soft tissue
swelling. He visited his primary care physician on May 14, complaining of pain. On May
27, he was referred back to Dr. Phillip Kissel, the neurosurgeon who had performed his
surgery in March. Dr. Kissel concluded appellant had sustained some additional
compression in his cervical spine, at a level just below the sight of his prior surgery. He
advised appellant to take a conservative approach, using ice, heat and anti-inflammatory
medications.
Over the next two months, appellant's most acute symptoms diminished but he
continued to experience constant pain. In June 2010, appellant returned to his job as an RV
repairman. On July 20, 2010, appellant had another MRI. Dr. Kissel testified that the MRI
was nearly identical to one taken in February 2010, before appellant's first surgery. He
opined the images look identical because the May 2010 accident re-injured the disc
previously repaired in surgery. According to Dr. Kissel, appellant "was healing and doing
well following a standard cervical surgery. [Appellant] was vulnerable, he was involved in
a motor vehicle accident, which had forces directed to his neck, which created an instability
and a problem with, basically, the soft tissues, primarily, and then, secondarily, an
instability, which ultimately resulted in a progression on his MRI scan and his need for

2.
surgery." The accident caused "a recurrence of the disc herniation and that's why there was
no change in the MRI scans."
Appellant had several doctor's appointments for various ailments after the July
2010 MRI but did not complain of neck pain. He was involved in another car accident on
February 22, 2011. This accident sent appellant to the hospital emergency room for neck
and back pain. Appellant testified the pain caused by the February 2011 accident lasted
only about two weeks. He did not complain specifically about neck pain again until
November 2011, when his primary care physician referred him to a pain management
physician and back to Dr. Kissel. On November 30, 2011, appellant had a third MRI which
disclosed disc herniation with lateral neurological compression in the same area as his prior
surgery.
Appellant's accident reconstruction and biomechanics expert, Christopher
Gayner, concluded it was possible for appellant to have steered his vehicle into the curb
after being sideswiped by respondent, as he described. Gayner created a series of animated
depictions of the collision, showing the vehicles moving at different speeds. He concluded
it was unlikely the accident occurred at 5 to 10 miles per hour, as described by respondent,
or at 35 to 40 miles per hour, as described by appellant. Instead, the vehicles were more
likely moving at a speed of about 20 miles per hour. Gayner opined the collision would
have caused a "significant jolt" to the occupant of appellant's vehicle. The force of the
collision would have been sufficient to cause the soft tissue injury and disc herniation
described by Dr. Kissel.
Dr. Lawrence Harter, a radiologist called by respondent as an expert witness,
opined that the MRIs taken of appellant's cervical spine in February 2010 and July 2010
were virtually identical. Dr. Harter saw no evidence of a new injury in the July 2010 MRI
images.
Dr. David Frecker, respondent's neurologist, testified that, in his opinion,
appellant suffered "a soft-tissue injury, a strain type of injury[]" in the May 2010 collision
with respondent. The injury did not involve broken bones or shifted or herniated disks. It

3.
was, Dr. Frecker opined, "primarily a problem in the muscles and perhaps the ligaments that
hold our neck together."
Frecker opined that all of the symptoms attributable to the May 2010 collision
had resolved by July 2010. Any care and treatment appellant received after the July 21,
2010 visit with Dr. Kissel was, in Dr. Frecker's opinion, unrelated to the injury appellant
sustained in the accident with respondent. He based this opinion on the fact that appellant
had only one complaint relating to neck pain between July 2010 and November 2011. This
complaint was made during the February 2011 emergency room visit after appellant's
second car accident. During that visit, appellant told the emergency room physician that his
neck pain had resolved after the March 2010 surgery. The emergency room physician
examined appellant's neck and concluded that it was normal.
During discovery, appellant served requests for admission that asked
respondent to admit, "As a result of the SUBJECT ACCIDENT, [appellant] incurred
cervical soft tissue swelling." Respondent denied this statement in response to the first set
of requests for admission, but later admitted in response to a third set of requests for
admission. Respondent's accident reconstruction and biomechanics expert, Peter Burkhardt,
Ph.D., testified in his deposition that, given the forces in the subject accident, he "would not
have expected any injury to the cervical spine." The trial court permitted Dr. Burkhardt's
testimony at trial, over appellant's objection that his opinion contradicted respondent's
admission.
At trial, Dr. Burkhardt testified that, in his opinion, the parties' vehicles could
not have been traveling at 35 to 40 miles per hour as appellant claimed. "First of all, you
can't get the secondary curb contact if Mr. Cantu's vehicle is traveling at 30 to 35 miles an
hour at the moment of contact. It would travel beyond the northeastern curb well into the
intersection and/or beyond. So you can't have the description as he has it. [¶] Number two,
you can't have both vehicles making the turn at the corner. They would both be beyond the
intersection. They both made the turn. [Appellant's] scenario of the speeds of the contact
are physically impossible."

4.
 Dr. Burkhardt also concluded that appellant's car did not hit the curb. "[T]here
was no curb contact. There just isn't enough momentum to get the vehicle to the curb . . . ."
In addition, there was no evidence of damage to the tires on appellant's car and the police
report did not indicate any type of curb contact.
Dr. Burkhardt testified that, in his opinion, respondent's description of the
accident – that both vehicles were traveling between 5 and 10 miles per hour and had only
momentary, glancing contact – was physically possible. Under those conditions, the
collision would have caused "approximately, a one-mile-per-hour change in vehicle speed
. . . . Might be on the order of one G. One G is the acceleration due to gravity. As a
comparison, if you were driving down the road and slammed on your brakes and skidded to
a stop, that would be, roughly, seven-tenths to one G. If you were to cough or sneeze, your
head would experience, roughly, two or three Gs. You're dealing with head accelerations,
which drive the loads to the neck that are very comparable to the forces that one might
readily experience in everyday life . . . ." Dr. Burkhardt testified he had "no way of
disputing" Dr. Frecker's opinion that appellant suffered an injury in the collision. He added,
however, "I can only say that the numbers are what they are."
The jury found respondent negligent and awarded damages of $23,200 to
appellant, comprised of $1,200 in medical expenses and $22,000 in damages for past
noneconomic losses. That amount was reduced by $14,990, which appellant received in a
settlement with another defendant. The trial court awarded respondent expert witness fees
and other costs in the amount of $57,919, pursuant to sections 998 and 1033.5 because
appellant had rejected a section 998 offer of compromise. Consequently, the judgment
awarded respondent net costs of $48,786.94.
Discussion
Expert Testimony Contradicting Admissions
Appellant contends the trial court erred when it permitted Dr. Burkhardt to
testify that the forces present during the collision would not have been sufficient to cause
injury. He contends the statement should have been excluded because it directly

5.
contradicts respondent's admission that appellant "incurred cervical soft tissue swelling" in
the collision. We disagree.
"Any matter admitted in response to a request for admission is conclusively
established against the party making the admission . . . ." (§ 2033.410, subd. (a).)
Consequently, admissions made in response to requests for admission serve to narrow the
issues for trial and eliminate the need for proof. (Murillo v. Superior Court (2006) 143
Cal.App.4th 730, 735.) Absent leave of court to amend or withdraw an admission, "no
contradictory evidence may be introduced." (Id. at p. 736.) The admission is, however,
binding only to the extent required by a literal reading of the request and the trial court
retains discretion to determine its scope and effect. (Birch v. Gombos (2000) 82
Cal.App.4th 352, 359-360.)
Appellant reads respondent's admission too broadly. Respondent admitted
that appellant incurred cervical soft tissue swelling in the accident; she did not admit any
facts concerning the speed of each vehicle or the forces involved in the collision. Dr.
Burkhardt's testimony focused on how the accident occurred, the speed of each vehicle and
the amount of force generated by the collision. His opinions contradicted appellant's
version of events, not the admission that appellant suffered a soft tissue injury. The trial
court properly allowed Dr. Burkhardt's testimony.
Medical Records
Dr. Frecker testified that, in forming his opinion concerning the extent of
appellant's injury, he considered records created by other medical professionals. These
included records from a chiropractor appellant consulted in 2008, and hospital records
created in 2011, after appellant sought emergency care for a subsequent car accident. No
foundation was provided for the documents: the medical professionals who created them
did not testify, nor were they authenticated by a custodian of records. (Evid. Code, § 1271.)
Over appellant's hearsay objection, Dr. Frecker described the contents of these documents
and two of them were admitted into evidence.
"An expert may rely upon hearsay and other inadmissible matter in forming an
opinion. (Evid. Code, § 801, subd. (b).) But that matter relied upon must 'provide a

6.
reasonable basis for the particular opinion offered.' (Lockheed Litigation Cases (2004) 115
Cal.App.4th 558, 564.)" (Howard Entertainment Inc. v. Kudrow (2012) 208
Cal.App.4th 1102, 1115.) Hospital records, though hearsay, may be used as a basis for an
expert medical opinion. "However, 'a witness's on-the-record recitation of sources relied on
for an expert opinion does not transform inadmissible matter into "independent proof" of
any fact.' (People v. Gardeley (1996) 14 Cal.4th 605, 619 . . . .) 'Although experts may
properly rely on hearsay in forming their opinions, they may not relate the out-of-court
statements of another as independent proof of the fact.' (Korsak v. Atlas Hotels, Inc. (1992)
2 Cal.App.4th 1516, 1524-1525 . . . .) Physicians can testify as to the basis of their opinion,
but this is not intended to be a channel by which testifying physicians can place the opinion
of out-of-court physicians before the trier of fact. (Whitfield v. Roth (1974) 10 Cal.3d 874,
895.)" (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 743.) "Procedurally, if an expert
does rely in part upon the opinions of others, the expert may be cross-examined as to the
content of those opinions. It is improper, however, to solicit the information on direct
examination if the statements are inadmissible." (Mosesian v. Pennwalt Corp. (1987) 191
Cal.App.3d 851, 864.)
Dr. Frecker was entitled to rely on the chiropractor and emergency room
records in forming his opinion concerning the extent of appellant's injuries. (Evid. Code,
§ 801, subd. (b).) The trial court erred, however, when it permitted Dr. Frecker to testify
concerning the content of those medical records and when it admitted the records into
evidence because respondent provided no foundation for them. (Garibay v. Hemmat, supra,
161 Cal.App.4th at p. 743.)
The error was not, however, prejudicial. We may not reverse a judgment
unless appellant demonstrates " 'a reasonable probability that in the absence of the error, a
result more favorable to [appellant] would have been reached.' " (Diaz v. Carcamo (2011)
51 Cal.4th 1148, 1161, quoting Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)
No such showing has been made here. During their testimony, both appellant and Dr. Kissel
confirmed the facts reflected in these documents. Thus, even though the trial court erred
when it allowed Dr. Frecker to testify to the content of the documents and when it admitted

7.
them into evidence, the error was not prejudicial because the facts reflected in the
documents were established through other, non-hearsay testimony. There is no reasonable
probability appellant would have obtained a more favorable verdict had the documents, or
Dr. Frecker's testimony regarding their contents, been excluded.
Section 998 Offer
Respondent served a section 998 offer to compromise that read: "COME
NOW [respondent] who hereby offers to allow judgment to be taken against [respondent], in
favor of [appellant] in the amount of TWENTY FIVE THOUSAND AND NO/100
DOLLARS ($25,000), plus taxable cost, inclusive of any and all liens." Appellant contends
the offer was unenforceable because the phrase "inclusive of any and all liens" is
ambiguous. The offer did not describe or define the liens at issue. Appellant contends a
judgment entered on the offer could, therefore, have shifted "liability entirely onto
[appellant] for any financial obligations to third parties, including those lien holders
unknown to [appellant] at the time of service." We are not persuaded.
A section 998 offer to compromise must be clear and specific. This means
that, "from the perspective of the offeree, the offer must be sufficiently specific to permit the
recipient meaningfully to evaluate it and make a reasoned decision whether to accept it, or
reject it and bear the risk he [or she] may have to shoulder his [or her] opponent's litigation
costs and expenses. [Citation.] Thus, the offeree must be able to clearly evaluate the worth
of the extended offer." (Berg v. Darden (2004) 120 Cal.App.4th 721, 727.) An offer may
include nonmonetary terms, or provide for the payment of attorneys fees and costs in an
amount yet to be determined, without being fatally uncertain. (Elite Show Services, Inc. v.
Staffpro, Inc. (2004) 119 Cal.App.4th 263, 268-269; Valentino v. Elliott Sav-On Gas, Inc.
(1988) 201 Cal.App.3d 692, 697.) "Because applicable statutory and rule provisions set
forth a procedure for determining the amount of attorney fees to be awarded pursuant to a
contractual provision [citation], the fact that the offer does not specify a particular amount
of attorney fees does not leave the matter open for the parties' future agreement, nor does it
create an uncertainty that renders it unenforceable." (Elite Show Services, Inc., v. Staffpro,
Inc., supra, 119 Cal.App.4th at p. 269.)

8.
 "In interpreting a section 998 offer, general contract principles apply when
they neither conflict with nor defeat the statute's purpose of encouraging the settlement of
lawsuits prior to trial." (Elite Show Services, Inc., v. Staffpro, Inc.supra, 119 Cal.App.4th at
p. 268.) The words of a contract are to be understood in their ordinary and popular sense.
(Butler v. City of Palos Verdes Estates (2005) 135 Cal.App.4th 174, 181; Civ. Code,
§ 1644.) They are also to be explained "by reference to the circumstances under [the
contract] was made, and the matter to which it relates." (Civ. Code, § 1647.) These long-
established rules of contract interpretation compel us to conclude that the phrase "inclusive
of any and all liens" refers to liens filed by creditors of appellant against his recovery in this
matter. It cannot reasonably be understood to refer to a lien securing respondent's financial
obligations, or to debts owed to or by a stranger to appellant. Thus, appellant could readily
evaluate the offer because he would know whether any such liens existed. There was no
ambiguity sufficient to render the offer unenforceable.
Costs Under Code of Civil Procedure Section 2033.420
The closer question is whether the trial court correctly determined that
appellant failed to obtain a more favorable judgment than the section 998 offer. "When the
defendant's offer includes costs, it is to be compared with the plaintiff's judgment plus
preoffer costs including attorney fees." (Heritage Engineering Const., Inc. v. City of
Industry (1998) 65 Cal.App.4th 1435, 1441.) Appellant contends the trial court erred when
it found his judgment was less than respondent's $25,000 offer to compromise because it
ignored $4,495 in costs and attorney fees appellant was entitled to recover under Code of
Civil Procedure section 2033.420.
Section 2033.420, subdivision (a) provides: "If a party fails to admit the
. . . truth of any matter when requested to do so under this chapter, and if the party
requesting that admission thereafter proves the . . . truth of that matter, the party requesting
the matter may move the court for an order requiring the party to whom the request was
directed to pay the reasonable expenses incurred in making that proof, including reasonable
attorney's fees." The award of costs is mandatory. (§ 2033.420, subd. (b).)

9.
 The trial court has discretion to determine whether a party has proven the
matter at issue and is therefore entitled to recover costs of proof. (Stull v. Sparrow (2001)
92 Cal.App.4th 860, 864.) A party is entitled to recover expenses only when the fact that
was the subject of the request for admission has been "proven." (§ 2033.420, subd. (b).)
"Proof is something more than just evidence. It is the establishment of a fact in the mind of
a judge or jury by way of evidence. [Citation.] Until a trier of fact is exposed to evidence
and concludes that the evidence supports a position, it cannot be said that anything has been
proved." (Stull v. Sparrow, supra, 92 Cal.App.4th at pp. 865-866.) Given this definition of
proof, "preparation for trial or arbitration is not the equivalent of proving the truth of a
matter so as to authorize an award of attorney fees under section [2033.420]. Expenses are
recoverable only where the party requesting the admission 'proves . . . the truth of that
matter,' not where that party merely prepares to do so." (Wagy v. Brown (1994) 24
Cal.App.4th 1, 6.)
Here, respondent initially denied a requests for admission that the collision
caused injury to appellant and that appellant was not at fault for the collision. After
appellant incurred expert witness costs and attorney fees in preparing to prove his injuries,
respondent admitted causation in response to a third set of requests for admission. On the
first day of trial, she admitted that appellant was not at fault for the collision. Appellant
now contends he is entitled to recover costs of proof under section 2033.420 because
respondent's expert testimony required him to present evidence and prove that he was
injured by the collision and was not at fault for it. Respondent contends appellant is not
entitled to recover costs of proof because she admitted those facts prior to trial. We agree.
Appellant needed expert testimony to prove the extent of his injuries, not their cause or the
absence of comparative fault. As a result, he did not "prove" the facts identified in the
requests for admission and he was not entitled to recover costs of proof under section
2033.420.
Appellant's treating neurosurgeon testified that the accident caused soft tissue
injury and re-herniated the disc appellant had previously had surgically repaired. His
accident reconstruction expert testified it was possible for appellant's car to have struck the

10.
curb as he claimed, and that the collision could have been forceful enough to cause the
injuries described by the neurosurgeon. Appellant could not have prevailed without this
testimony because respondent's experts testified the accident caused only a minor injury,
that it was physically impossible for the accident to have occurred as appellant claimed, and
that the forces created by the collision were minimal. The expert testimony was, however,
relevant to prove the extent of appellant's injuries, not their cause because causation was not
in dispute. By contrast, appellant's requests for admission related to the cause of his
damages, not their extent. We conclude the trial court did not abuse its discretion when it
declined to award appellant his costs of proof under section 2033.420. (Bloxham v.
Saldinger (2014) 228 Cal.App.4th 729, 753; Stull v. Sparrow, supra, 92 Cal.App.4th at p.
864.)
Conclusion
The judgment is affirmed. Respondent shall recover her costs on appeal.
NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

11.
 Barry T. Labarbera, Judge
Superior Court County of San Luis Obispo
______________________________

Law Offices of Daniel J. O'Neil; Daniel J. O'Neil and Brian C. O'Neil, for
Appellant.

Henderson & Borgeson, Jay M Borgeson, for Respondent.

12.