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Christ v. Schwartz, No. D068579 (D4d1 Aug. 12, 2016)

Appeal from a defense verdict in a low-speed car accident case. Plaintiffs are the victim and her husband, who is suing for loss of consortium. Defendant stipulated to negligence and causation of the accident, so the upshot of the defense verdict is that the jury didn’t believe that the victim’s claimed injuries were legit or that they resulted from the accident. Plaintiffs’ contend on appeal that the trial court erred in admitting photos of the damaged cars and evidence regarding victim’s husband’s extramarital affairs.

On the photos, Plaintiffs claim that, in the absence of expert evidence about the significance of the damage, it was error to admit the photographs as evidence of whether the accident was the cause of Plaintiffs’ alleged injuries. But California law does not require an expert to lay foundation for accident scene photos, so long as the judge in his or her discretion believes that the jury can use the photos to draw conclusions within their ordinary common experience. One outlier decision of another state somewhat suggested that rule, but even in that case a later decision walked it back.

Nor did the court abuse its discretion in declining the exclude the photos under Evidence Code § 352. The photos were relevant to show that the collision was a side impact, the general force of the collision, and to impeach Husband’s testimony that the car was more messed up than the photos showed it to be. Given that relevance, it was not an abuse of discretion to let them in.

So far as the affair goes, it had happened almost a decade and a half before the trial. The trial court tentatively denied a motion in limine to keep it out as minimally relevant to loss of consortium, but reserved a decision for trial. When Defendant’s counsel asked a question on the issue, Victim did not object, but she gave an unresponsive answer addressed to other issues. But then she volunteered a bunch of detail on the issue in response to general questions about the nature of her injuries and the state of her relationship with Husband. And then her lawyer addressed the affair issue in depth on redirect.

The court finds that Plaintiffs forfeited the issue by failing to timely object. A tentatively denied motion in limine that is expressly subject to revisitation does not preserve an objection in the absence of an on the record objection at trial under Evidence Code § 353. And in any event, a party seeking loss of consortium puts the state of his relationship into issue. Although the affair occurred a long time ago, Victim affirmatively brought it up during her medical treatment or her alleged injuries, which suggests that it was at least potentially relevant to her.

And regardless, the record was clear that the jury didn’t believe the victim’s testimony about the source and nature of her injuries. She was thoroughly impeached on these issues at trial, including by clandestine video showing her engaged in activities that were completely inconsistent with the the injuries she claimed to have suffered. Under the circumstances, even if it was error to admit either the photos or the testimony about the infidelity, the error was harmless and insufficiently prejudicial to merit reversal.

Affirmed.