Perry v. Kia Motors America, Inc. ( 2023 )

Filed 5/4/23; Certified for Publication 5/24/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
KAMIYA PERRY,
Plaintiff and Appellant, G060912
v. (Super. Ct. No. 30-2019-01081281)
KIA MOTORS AMERICA, INC., OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Nancy E.
Zeltzer, Judge. Affirmed.
MLG, Jonathan A. Michaels and Matthew Van Fleet for Plaintiff and
Appellant.
Dykema Gossett LLP, James S. Azadian, Cory L. Webster, James P. Feeney, and
Dommond E. Lonnie for Defendant and Respondent.
Plaintiff Kamiya Perry appeals from a judgment in favor of defendant Kia
Motors America, Inc. (Kia) after a jury found in favor of Kia in her automobile defect
trial. She raises three contentions on appeal.
First, she contends the trial court abused its discretion by refusing to
instruct the jury that Kia had concealed evidence (certain engineering documents) during
discovery. However, while the court rejected Kia’s excuses for withholding the
documents, it did not find that Kia intentionally concealed them. Thus, it was appropriate
to refuse such an instruction. Moreover, despite the court explicitly commenting that it
found no concealment, Perry not only failed to bring such comments to our attention in
her brief, but continued to maintain that the court did find concealment. Due to this
misrepresentation, we deem the issue forfeited.
Second, Perry contends the trial court erred by excluding the testimony of
Kia’s paralegal who verified discovery requests relevant to the engineering documents.
We find no abuse of discretion, as the paralegal was simply acting as a corporate agent in
her verifications and did not have personal knowledge that would have been helpful to
the jury.
Finally, Perry contends she was not given a fair trial because the jurors
were required to deliberate in a small room, which, in the midst of the coronavirus
disease 2019 (COVID-19) pandemic, incentivized the jury to complete their deliberations
quickly. The jury returned a defense verdict after approximately one hour of
deliberations. However, Perry did not make a timely objection to the size of the jury
room and thus waived the objection. Accordingly, we affirm.
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FACTS
Our review of the facts in this case was hampered by two factors. First,
Perry’s counsel omitted a significant portion of the trial record. According to Kia, Perry
“designated only half of the transcripts from trial, omitting the entire transcribed
testimony of ten witnesses and parts of the testimony of several others.” We have not
been given a witness list, so we cannot confirm that exact count, but Perry does not deny
it in her reply brief. Moreover, there are large page gaps in the transcript we were given.
For example, volume one of the reporter’s transcript skips from page 258 to page 2,259.
Second, despite the incomplete record, it remains quite large, with 10 volumes of
reporter’s transcript and three volumes of a clerk’s transcript. This becomes problematic
because, in the opening brief, Perry’s counsel failed to cite to the trial record when
reciting the facts. Counsel cited, instead, to a memorandum of points and authorities
from a discovery motion, which is irrelevant and of no help to us. To the extent we could
piece together the facts from the trial record, they are as follows.
On April 21, 2019, Perry was seated in the front passenger seat of a 2015
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Kia Forte (Forte). The car was being driven in the middle lane of a three-lane highway.
The driver decided to make a U-turn from that lane, which involved cutting across the left
lane to reach the lanes moving in the opposite direction. Unfortunately, another car was
driving in that left lane, and as the Forte turned perpendicular to the left lane, the other
car, which was driving 50 miles per hour, smashed into the driver’s side of the Forte,
causing a T-bone accident. The Forte at first skidded down the highway, then tripped on
the passenger side wheels, initiating a rollover in the direction of the passenger side. The
Forte underwent a half roll, coming to rest upside down.
As a result of the crash, Perry suffered a brain injury. According to Kia’s
biomechanical expert, this was a result of a blow that caused swelling to the left side of
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According to the parties’ briefs, the driver was Perry’s brother, who was 17
years old at the time.
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her head. The blow was caused by Perry’s head striking the driver’s seat to her left.
Perry’s theory, which the jury apparently rejected, was that her head struck the ceiling.
Perry filed suit against Kia. Although the complaint is not in our record,
the causes of action brought to trial were design defect and negligence.
This appeal primarily concerns a discovery dispute that culminated in a
motion in limine. Perry’s design defect theory focused on the passenger side airbag and
seat belt pretensioner. According to Perry’s opening brief, “A pretensioner is designed to
retract some of the webbing of a seatbelt the instant a collision occurs, tightening the
seatbelt to restrain occupants quickly and reducing the amount they are thrown forward in
a moderate or severe frontal crash.” Neither the airbag nor the pretensioner deployed in
Perry’s accident. In discovery responses, Kia maintained the airbag and pretensioner
were not designed to deploy in accidents of this nature. Perry sought further discovery on
the design of the pretensioner and airbag systems, including a document request for “the
airbag control module specifications for the [Forte].” Kia responded that it “did not
design, test or manufacture the [Forte].” Important here is the distinction between Kia
Motors America, Inc. (the defendant in this case, whom we refer to simply as Kia), which
is an American distributor, and Kia Motors Corporation, which is the company that
designed the Forte. Kia referred Perry to Kia Motors Corporation to obtain design
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documents. Kia’s person most knowledgeable later said in a deposition that he had
never looked at any design documents and they did not have any design documents.
Subsequently, in January 2021, Perry took the deposition of one of Kia’s
experts. Pursuant to the deposition notice, Kia produced over 22,000 pages of documents
that its expert had in his file. This occurred approximately two weeks before the then-
scheduled trial date. Among those documents were certain engineering documents,
which, in Perry’s view, were the very documents Kia had previously said it did not have.
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Kia Motors Corporation was never made a party to this lawsuit, nor, so far
as the record reveals, were any discovery requests directed to Kia Motors Corporation.
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Kia took the position the documents in question pertained to a completely different model
of vehicle.
What followed was not a discovery motion, per se, but instead a motion in
limine seeking alternative relief: in the first instance, Perry sought issue sanctions that
would essentially have determined the seatbelt pretensioners were defectively designed;
alternatively, Perry sought exclusion of Kia’s expert witness and the following jury
instruction: “The [c]ourt has found that Kia attempted to conceal evidence in order to
prevent its being used in this trial. You may consider that fact in determining what
inferences to draw from the evidence in this case.”
In ruling on the motion, the trial court expressed concern about Kia’s
handling of the situation, concluding, “[T]he court does conclude that . . . Kia had an
obligation to produce those documents. I [am] not seeing anything else that excuses
that.” However, the court concluded the remedy sought by Perry was “drastic.” The
court declined to impose issue sanctions, concluding Perry had sufficient opportunity to
review the documents to obviate the sort of prejudice that would warrant such a drastic
remedy. With respect to the alternative remedy of a jury instruction, the court stated the
following: “The problem with a jury instruction is, . . . I don’t want to end up trying the
case of the missing documents here. So I am going to reserve that issue still, and I want
to see what the evidence is and make a determination of what’s appropriate here. Then
make a determination if it’s appropriate.”
The trial began on May 18, 2021, and concluded on July 22, 2021. After
the parties rested, the trial court reconsidered the jury instruction Perry had requested.
The court rejected the instruction, concluding it would be a distraction from the primary
issues regarding design defect that the jury had to decide. The jury returned a complete,
unanimous defense verdict.
Perry moved for a new trial, which the trial court denied. In the new trial
motion, Perry advanced the argument that the court should have given the jury instruction
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she requested in her motion in limine. In rejecting that argument, the court expanded on
its rationale: “I did not grant the motion in limine at that time. I did say [the documents]
should have been produced. I didn’t make any determination, I didn’t think I had enough
at that time to state this was . . . a devious plot, or this was for the purpose of
concealment, or this was a point of keeping them away from the plaintiff to gain an
advantage, and I never did reach that point. I did not ever conclude that.” “I did not feel
that to be a concealment with an intent to deprive the other side of its fair trial.” “But we
did receive evidence on that, and the jury heard about that these were late, and they heard
quite a bit about them.” “And then during closing arguments, plaintiff’s counsel . . .
argued that, he said they didn’t give us the documents, they did it for a . . . I don’t
remember the language, but it was something to the effect that they kept it from us, and it
was an evil purpose.” “So the jury did hear that. They did hear there was something not
right about the handling of discovery by the defendant. They heard it both during the
trial and then they heard it from [Perry’s counsel].”
The trial court entered judgment in favor of Kia, and Perry appealed.
DISCUSSION
I. Perry Forfeited the Jury Instruction Issue; In Any Event, There Was No Error
Perry first contends the trial court erred by refusing to give the jury
instruction she requested in her motion in limine. This instruction would essentially have
been a discovery sanction. We review a court’s decision to impose or refuse discovery
sanctions for abuse of discretion. (Van v. LanguageLine Solutions (2017) 8 Cal.App.5th
73, 80 [“Orders imposing discovery sanctions are reviewed under the abuse of discretion
standard and are subject to reversal only for arbitrary, capricious, or whimsical action”].)
We deem this issue to be forfeited by Perry’s counsel’s misrepresentation
of the record in her brief. Perry’s counsel argued as follows in the opening brief: “On
July 20, 2021, the [trial c]ourt ruled that despite finding Kia improperly concealed
documents, the [c]ourt would not give a jury instruction as requested in Perry’s [m]otion
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in [l]imine [n]o. 1 regarding concealment of the documents.” (Italics added.) Elsewhere
counsel argued, “Despite a finding that Kia improperly concealed documents, and that
counsel for Kia should have produced the critical engineering documents during
discovery, the [c]ourt ruled that no jury instruction regarding concealment by Kia and its
counsel would be given.” (Italics added.) As we have already seen above, the court said
exactly the opposite: that it did not find any concealment. Making matters worse,
Perry’s counsel failed to bring the court’s comments to our attention. It was not until we
read the respondent’s brief that we discovered, for the first time, the court actually did not
find any concealment at all. So, Perry’s counsel not only misrepresented the record, but,
ironically, concealed the comments that would have shown their claims to be false.
“An attorney is an officer of the court and owes the court a duty of candor.”
(Levine v. Berschneider (2020) 56 Cal.App.5th 916, 921.) “It is the duty of an
attorney . . . [t]o employ, for the purpose of maintaining the causes confided to him or her
those means only as are consistent with truth, and never to seek to mislead the judge or
any judicial officer by an artifice or false statement of fact or law.” (Bus. & Prof. Code,
§ 6068, subd. (d).) Moreover, “A lawyer shall not: (1) knowingly make a false statement
of fact or law to a tribunal or fail to correct a false statement of material fact or law
previously made to the tribunal by the lawyer . . . .” (State Bar Rules Prof. Conduct, rule
3-3(a)(1) (asterisks omitted).) “‘Honesty in dealing with the courts is of paramount
importance, and misleading a judge is, regardless of motives, a serious offense.’” (Paine
v. State Bar (1939) 14 Cal.2d 150, 154.) “Counsel should not forget that they
are officers of the court, and while it is their duty to protect and defend the interests of
their clients, the obligation is equally imperative to aid the court in avoiding error and in
determining the cause in accordance with justice and the established rules of practice.”
(Furlong v. White (1921) 51 Cal.App. 265, 271; see also Williams v. Superior
Court (1996) 46 Cal.App.4th 320, 330.) Perry’s counsel failed to fulfill that duty here,
and as a result we deem the jury instruction issue forfeited.
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The issue is likewise forfeited under a separate, though related duty: the
duty to provide a complete statement of facts. Rule 8.204(a)(2)(C) of the California
Rules of Court imposes a duty on an appellant to “[p]rovide a summary of the significant
facts limited to matters in the record.” The significant facts are not simply the facts
favoring the appellant. Rather, “An appellant must fairly set forth all the significant
facts, not just those beneficial to the appellant.” (In re S.C. (2006) 138 Cal.App.4th 396,
402.) “And as to this, the leading California appellate commentary instructs: ‘Before
addressing the legal issues, your brief should accurately and fairly state the critical facts
(including the evidence), free of bias; and likewise as to the applicable law. [Citation.]
[¶] Misstatements, misrepresentations[,] and/or material omissions of the relevant facts
or law can instantly ‘undo’ an otherwise effective brief, . . . may draw sanctions
[citation], and may well cause you to lose the case.’ [Citation.]” (Pappas v.
Chang (2022) 75 Cal.App.5th 975, 985.) Perry’s counsel fell well short of that duty as
well. Accordingly, the contention the trial court erred by failing to give Perry’s jury
instruction is deemed forfeited.
In any event, we would not find an abuse of discretion for a very simple
reason: the trial court cannot give an instruction that Kia concealed evidence without a
finding that Kia concealed evidence. Since the court made no such finding, the
instruction was not appropriate.
II. There Was No Abuse of Discretion in Excluding the Testimony of Kia’s Paralegal
Perry contends the trial court committed reversible error by excluding the
testimony of the paralegal who verified Kia’s discovery responses regarding the
engineering documents. We find no error.
First, the background: This issue relates to the previous issue in that it
concerns the same discovery responses discussed above. An employee of Kia, Deborah
Avalos, who is a paralegal, signed the verification of the discovery responses. In her
verification, she stated she was “an authorized agent of Kia Motors America, Inc.,
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authorized to make this verification for and on behalf of [Kia] . . . . I am informed and
believe, and on that ground, allege that the matters stated in [Kia’s] Amended Responses
. . . are true.” Perry wanted to call Avalos at trial to cross-examine her regarding her
verification.
Kia filed a motion in limine to exclude her, which the trial court granted.
The court concluded, “I do not think that the testimony is sufficiently probative to
overcome the potential severe prejudice and confusing the issues. The documents
basically are self[-]authenticating and counsel even stipulated to authentication. They
can be read right into the record anytime you like, but I just, based upon all these factors,
and the dangers of risking information, that is protected under the attorney/client and/or
attorney work product privilege, and the consumption of time . . . in balancing that
against the benefit of being received, I do not think justifies the risk.” Although the court
did not explicitly cite it, it is clear the court’s ruling was pursuant to Evidence Code
section 352. We review a court’s ruling excluding evidence under Evidence Code section
352 for abuse of discretion. (People v. Pineda (2022) 13 Cal.5th 186, 222.) There was
no abuse of discretion.
It is common sense when discovery requests are propounded on a business,
particularly a large business, no single person is likely to have personal knowledge of
everything the business collectively knows. Rather than have the business respond with a
chaotic multitude of verifications from every employee who knows anything relevant, the
business is permitted to authorize an agent to verify the responses on the business’s
collective behalf. (Code Civ. Proc., § 2030.250, subd. (b) [“If that party is a public or
private corporation, or a partnership, association, or governmental agency, one of its
officers or agents shall sign the response under oath on behalf of that party”].) The agent
does not have personal knowledge of everything included in the responses; the business
itself does. Generally, this means the agent will sign the verification based on
information and belief. “Under such circumstances, ‘information and belief’ is the only
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realistic way to verify answers on behalf of the entity.” (Weil & Brown, Cal. Practice
Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 8:1106, p. 8F-51.) This
is entirely proper and what occurred in this case.
This also means Avalos had little, if anything, to offer in terms of probative
testimony in this case. Moreover, a lay jury is not likely to understand the subtleties of
corporate discovery responses. They may be misled into thinking the authorized
responder is simply a lackey who was lying under oath on behalf of the company, and to
avoid that implication, Kia would need to spend valuable trial time explaining a legal
context that is of no relevance to the underlying issues at trial. This is the sort of “undue
consumption of time,” and “substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury” that a court is permitted to take into account under
Evidence Code section 352. Moreover, the trial court permitted Perry to read Kia’s
discovery responses into the record, and in closing argument, Perry’s counsel spent
substantial time impugning Kia for its inadequate discovery responses. Avalos’s
testimony was not needed to make that argument. Consequently, there was no abuse of
discretion in excluding her testimony.
III. Perry Waived Any Objection to the Size of the Jury Deliberation Room
Perry’s final contention is that the size of the jury deliberation room
violated her due process rights because the jurors deliberated for only one hour, which, in
Perry’s view, must have been the result of them fearing to contract COVID-19 in a small
deliberation room rather than any deficit in the quality of Perry’s evidence. Perry moved
for a new trial on this ground, contending the deliberation room amounted to an
“irregularity in the proceeding.” (Code Civ. Proc., § 657, subd. (1).) The trial court
denied the motion, observing that none of the jurors had raised any concerns about the
pandemic or their own health. Based on the court’s own observations, the jury appeared
to be engaged and did not seem particularly concerned about COVID-19 protocols. Perry
contends the court erred.
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However, in order to preserve an objection based on an irregularity in the
proceeding, a timely objection is required. “The rule is well settled that when at any time
during trial a party or his counsel becomes aware of facts constituting misconduct or
irregularity in the proceedings of the jury, he must promptly bring such matters to the
attention of the court, if he desires to object to it, or he will be deemed to have waived the
point as a ground for a motion for a new trial.” (Weathers v. Kaiser Foundation
Hospitals (1971) 5 Cal.3d 98, 103.) The purpose of this rule is “to prevent a party who,
personally or through counsel, has discovered some jury misconduct during the course of
the proceedings from gambling on the outcome of the jury’s deliberations while secretly
preserving the error to be raised on a motion for a new trial in the event of an unfavorable
verdict.” (Ibid.)
There is nothing in the reporter’s transcript indicating that Perry objected to
the deliberation room before deliberations began. All we have is a declaration from
Perry’s motion for a new trial in which her counsel attested, “[Perry’s counsel] made a
request that the jurors . . . be allowed use of the entire courtroom for their deliberation
process, but the request was denied.” However, that request does not appear anywhere in
the reporter’s transcript. To the extent it was made off the record, it is well established
that an off-record objection is inadequate to preserve an issue for appeal. (Protect Our
Water v. County of Merced (2003) 110 Cal.App.4th 362, 364 [“When practicing appellate
law, there are at least three immutable rules: first, take great care to prepare a complete
record; second, if it is not in the record, it did not happen; and third, when in doubt, refer
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back to rules one and two”].) Accordingly, the issue has been waived.
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This case illustrates why an off-record objection is inadequate. While
Perry’s counsel attested he made a “request” that the jury be permitted to use the entire
courtroom, Kia’s counsel filed a counter-declaration that no such request or objection
was made. We are thus left with diametrically opposing declarations. Had an objection
been made on the record, this would not be an issue.
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DISPOSITION
The judgment is affirmed. Kia shall recover its costs incurred on appeal.
O’LEARY, P. J.
WE CONCUR:
MOORE, J.
GOETHALS, J.
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Filed 5/24/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
KAMIYA PERRY,
Plaintiff and Appellant, G060912
v. (Super. Ct. No. 30-2019-01081281)
KIA MOTORS AMERICA, INC., ORDER GRANTING REQUEST
FOR PUBLICATION
Defendant and Respondent.
Respondent Kia Motors America, Inc. has requested that our opinion, filed
May 4, 2023, be certified for publication. It appears that our opinion meets the standards
set forth in California Rules of Court, rule 8.1105(c)(1). The request is GRANTED. The
opinion is ordered published in the Official Reports.
O’LEARY, P. J.
I CONCUR:
GOETHALS, J.
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