DOI TODD, Acting P. J.
Plaintiff and appellant Maria T. Aceves brought an action against defendants and respondents Catellus Development Corporation (Catellus) and National Railroad Passenger Corporation, doing business as Amtrak (Amtrak) after she slipped and fell in an employee restroom and sustained injuries. Following a lengthy jury trial, the jury unanimously found that Catellus and Amtrak were not negligent. Appellant contends that multiple errors—including judicial bias, evidentiary error and instructional error—rendered the trial fundamentally unfair.
We affirm. The trial court exhibited commendable professional restraint in the face of an excruciating number of cumulative and redundant witnesses. It properly exercised its discretion in excluding hearsay and cumulative evidence. And it properly instructed the jury in this negligence action. There is no basis to disturb the judgment or the sanctions order that appellant also challenges.
In October 2003, appellant worked at Amtrak as one of seven train provision management system clerks. On October 20, 2003, at approximately 12:30 p.m., appellant went to use the crew base restroom and slipped and fell as she pushed open the door to one of the stalls. Fellow employee Mary Townsend walked into the restroom and saw appellant on the floor; appellant told Townsend she had just fallen because of some water on the floor. Appellant had difficulty walking after the fall.
Bernadette Coles was the operations supervisor on duty when appellant fell. Townsend reported appellant's fall to Coles and then escorted Coles to appellant who was now sitting in a chair down the hall from the restroom. Employee Lynn Solomon then arrived and according to appellant exclaimed: "`Oh my God. I was about to call Catellus to come and clean the water.'" Solomon, however, had no recollection of either making that statement or seeing water on the restroom floor. Coles took appellant to the hospital when she responded affirmatively to Coles' question whether she needed medical attention. At some point that day, Coles telephoned Michael Dwyer, the director of Amtrak's food and beverage operations for the Western United States, to inform him of appellant's injury, and he told her to have Catellus—the building owner—clean up the area where appellant fell. Coles thereafter filled out an injury report (the 260 report) in which she documented that appellant told her she slipped and fell while walking into a toilet stall because the floor was wet.
If Amtrak personnel were to observe water on the floor in the workplace, the normal procedure would be to call Catellus to clean it up. According to an Amtrak log book, Coles wrote that Solomon had reported at approximately 12:15 p.m. that there was water on the restroom floor and that Catellus should be called. But Coles made that entry at 7:30 p.m. that evening when she returned to work from the hospital and her entries may or may not have been appropriately chronological. Coles had never before observed any water on the floor in the restroom where appellant fell. Moreover, although Solomon on occasion had seen water on the restroom floor in the past, she had no recollection of making any report about water on October 20.
Employee Linda Gardner on occasion had heard the sound of running water and noticed water on the restroom floor in the same place where appellant fell. She informed either Coles or Solomon of the condition at various times. The night before appellant's fall another employee, Diane Lesinsky, noticed a small amount of water on the restroom floor and reported the condition to after-hours security. She saw no water on the restroom floor the following day.
One week after appellant's fall, food and beverage manager George Padilla conducted an investigation of the incident for the purpose of avoiding a recurrence of a similar incident. Because he was out of town on the day appellant fell, everything in the report was based on what others told him. As a result of the investigation, he prepared a report (the 405 report) that he, Coles and Robert Stone signed. He submitted the report to central reporting as well as Amtrak's claims and safety departments. The 405 report concluded that appellant's fall was caused by water from a leaky toilet. While he was preparing the report, an employee approached him to tell him that she had observed water on the restroom floor in the past, before appellant was injured. Beyond that, nothing in his report established that Amtrak was aware of the water on the floor or that an employee had failed to report the condition promptly. Nonetheless, to prevent a similar incident from recurring, the 405 report recommended that when a leak occurs there could be "`signs posted, cones put in place, and possible P.A. system to alert office personnel.'"
Appellant did not return to work for several months after her fall. She suffered injuries to her ankle, shoulder and back after the fall, resulting in her undergoing shoulder surgery and a neck fusion, and participating in physical therapy. A doctor opined that appellant would also require back surgery and ongoing medical treatment for her injuries.
Appellant filed a complaint against Catellus and Amtrak in October 2005. Jury selection commenced on April 18, 2008 and a jury was impaneled on April 28, 2008. After 13 days of witness testimony, the jury found that appellant did slip and fall, but that neither Amtrak nor Catellus was negligent. A jury poll revealed that the verdict was 10 to two on the question of whether appellant fell and unanimous on the issue of negligence. The trial court thereafter entered judgment in favor of Catellus only, noting that two causes of action remained to be tried against Amtrak. Appellant later dismissed the remaining causes of action, and the trial court entered judgment in favor of Amtrak on April 27, 2009. Appellant appealed from both judgments and we granted her motion to consolidate the matters.
Toward the end of trial, when the trial court was understandably frustrated by appellant's counsel's once again challenging an evidentiary ruling, the following exchange occurred:
Appellant unfortunately has interpreted the trial court's indication of frustration literally and raised a host of issues that she contends warrant reversal of the judgment. We find no merit to any of her multiple claims.
Appellant's threshold claim is that the trial court erred in failing to give a curative instruction to the jury panel after it told a potential juror she did not have to give up her biases and beliefs. We review trial court rulings pertaining to the conduct of voir dire for an abuse of discretion. (People v. Benavides (2005) 35 Cal.4th 69, 88; People v. Navarette (2003) 30 Cal.4th 458, 490.) Because the trial court confirmed that the juror did not harbor actual bias within the meaning of Code of Civil Procedure section 225, subdivision (b)(1)(C),
During the fourth day of voir dire, prospective Juror No. 18 indicated that her mother had slipped and fallen at work and that although she suffered minor injuries, she did not sue her employer. On the basis of this experience, prospective Juror No. 18 expressed her belief that an employer should not be responsible for that type of workplace injury. After prospective Juror No. 18 disclosed this belief, the trial court further inquired as to how that experience would affect her:
Thereafter, out of the presence of the prospective jurors, appellant requested that the trial court give a corrective instruction, arguing that it was error for the court to say that the jurors need not give up their biases and beliefs.
Our high court has "recognized that the `right to an impartial trier of fact is not synonymous with the claimed right to a trier completely indifferent to the general subject matter of the claim before him,' that the concept of bias refers to a mental attitude or disposition towards a party to the proceedings, that bias in the sense of crystallized point of view about issues of law or policy `is almost universally deemed no ground for disqualification,' and that if bias and partiality are defined to mean the total absence of preconceptions in the mind of the [trier of fact] `"no one has ever had a fair trial and no one ever will"' because all have attitudes which affect them in judging situations. [Citation.]" (John A. v. San Bernardino City Unified School Dist. (1982) 33 Cal.3d 301, 309.) Contrary to appellant's characterization of the trial court's comments to prospective Juror No. 18 as an invitation to inject bias into the proceedings, the trial court simply acknowledged the existence of her preconceptions, yet further inquired to insure that she could serve as a trier of fact notwithstanding her life experiences.
Though involving the denial of a challenge for cause as opposed to a request for a curative admonition, People v. Hillhouse (2002) 27 Cal.4th 469 is instructive. There, a prospective juror disclosed that he believed the defendant to be guilty on the basis of what he had read in the newspapers and also that he knew the prosecution's investigator socially. Nonetheless, he further stated he understood he must base his decision on the evidence and not the newspaper accounts, and that he could be impartial when listening to the evidence. (Id. at p. 488.) Affirming the denial of the defense's challenge for cause, the appellate court reasoned: "On this record, the trial court could reasonably conclude the juror was trying to be honest in admitting to his preconceptions but was also sincerely willing and able to listen to the evidence and instructions and render an impartial verdict based on that evidence and those instructions. Indeed, a juror like this one, who candidly states his preconceptions and expresses concerns about them, but also indicates a determination to be impartial, may be preferable to one who categorically denies any prejudgment but may be disingenuous in doing so. A reviewing court must allow the trial court to make this sort of determination. The trial court is present and able to observe the juror itself. It can judge the person's sincerity and actual state of mind far more reliably than an appellate court reviewing only a cold transcript." (Id. at pp. 488-489.) Here, similarly, the trial court was in the best position to ascertain whether the experience described by prospective Juror No. 18 was an attempt to avoid jury service as opposed to an indication that the juror could not be impartial.
Nor do we find any possibility that the balance of the jury panel was affected by the trial court's inquiry. During jury selection, the trial court instructed the jury panel that the verdict must not be based on "sentiment, sympathy, pity, passion, prejudice, public opinion, public feeling, guesswork, or speculation," and further instructed that "[y]ou are to keep an open mind in the case, and you are not to decide any issue in the case until you've heard all the evidence, heard my final instructions on the law, heard the closing arguments of counsel, and the case is finally submitted to you." After the parties rested, the trial court repeated its instruction that the jury's decision must not be influenced by "bias, sympathy, prejudice or public opinion," and instructed the jury that it "must decide the facts based on the evidence admitted in this trial." The trial court additionally instructed the jury that it should "not guess what I think your verdict should be from anything I may have said or done." We read the instructions as a whole rather than in isolation (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1185) and we presume the jury understood and properly applied the instructions given by the court (People v. Lewis (2001) 26 Cal.4th 334, 390). In view of the trial court's multiple instructions that the verdict must not be influenced by bias or prejudice, we find no basis to conclude that a curative instruction was required or that the trial court's exchange with prospective Juror No. 18 in any way affected the verdict.
Appellant contends that she was deprived of a fair trial because the trial court's bias and animosity toward her infected the proceedings. Preliminarily, we find that appellant's claim is not cognizable because it is raised for the first time on appeal.
Even if appellant's claim had been preserved for appeal, it would not prevail. Judicial bias or prejudice consists of a mental attitude or disposition regarding a party. (Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4th 716, 724 (Roitz).) Bias may be evidenced by a trial court's making persistent disparaging or discourteous comments about a party, lawyer or witnesses; or conveying the impression they are not trustworthy or the case lacks merit. (People v. Fudge (1994) 7 Cal.4th 1075, 1107.) When reviewing a claim of bias, "`the litigants' necessarily partisan views should not provide the applicable frame of reference. [Citations.]'" (Roitz, supra, at p. 724.) Rather, we view the trial court's conduct under an objective standard to determine whether a reasonable person would entertain doubts about the court's impartiality. (Hall v. Harker (1999) 69 Cal.App.4th 836, 841, disapproved on another ground by Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 349.) Bias and prejudice must be clearly established: "Neither strained relations between a judge and an attorney for a party nor `[e]xpressions of opinion uttered by a judge, in what he conceived to be a discharge of his official duties, are . . . evidence of bias or prejudice. [Citation.]'" (Roitz, supra, at p. 724.) The appellant bears the burden of establishing facts supporting a claim of judicial bias and showing prejudice. (People v. Fudge, supra, at p. 1109; Betz v. Pankow (1993) 16 Cal.App.4th 919, 926.)
Appellant failed to meet her burden. As her only example of the trial court's bias that supposedly permeated the entire proceedings, appellant cites two exchanges that occurred outside the presence of the jury. First, the trial court ruled inadmissible an expert's power point presentation because it was beyond the scope of the matters that the expert had identified during his deposition. Shortly thereafter, the trial court described appellant's effort to show the jury an expert's inadmissible biomechanics calculations as a "sneaky way to get [them] in front of the jury." Though we find no error with the trial court's evidentiary rulings, we note that even "adverse or erroneous rulings, especially those that are subject to review, do not establish a charge of judicial bias. [Citation.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1112.)
Indeed, our review of the record reveals no indication of judicial bias. Instead, the trial court necessarily made numerous rulings adverse to appellant—typically outside the presence of the jury—in response to appellant's repeated efforts to present cumulative or otherwise inadmissible evidence before the jury. The trial court demonstrated tremendous restraint in the face of appellant's endeavoring to circumvent its rulings. For example, outside the presence of the jury, the trial court admonished appellant's counsel when he attempted to have a witness testify about a document that the trial court had already ruled was inadmissible hearsay: "Mr. Lockshin, I've never held a lawyer in contempt, and I don't want to start with you. Do not consider this to be a warning re contempt. I'm not setting up all the hoops I have to jump through to do that just yet. I'm just letting you know that this is totally, completely improper, and you will not defy the court's orders again. I said you will not use that document, and you will—you did. I will not hear anything more from you." Statements demonstrating that the trial court was, on several occasions, piqued at appellant's counsel's conduct do not establish judicial bias. (Roitz, supra, 62 Cal.App.4th at p. 725; see also People v. McWhorter (2009) 47 Cal.4th 318, 373 ["`"[i]t is well within [a trial court's] discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the court's instructions, or otherwise engages in improper or delaying behavior"'"].) In sum, appellant's claim fails.
Appellant next complains that the trial court prejudicially abused its discretion in excluding certain documents and limiting the testimony of certain witnesses. We review the trial court's exclusion of evidence for an abuse of discretion. "The trial court is `vested with broad discretion in ruling on the admissibility of evidence.' [Citation.] `[T]he court's ruling will be upset only if there is a clear showing of an abuse of discretion.' [Citation.] `"The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." [Citation.]'" (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431.) Moreover, if the exclusion of evidence is proper on any theory of law applicable to the case, the exclusion must be affirmed regardless of the basis for the trial court's ruling. (Philip Chang & Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, 173; see also People v. Zapien (1993) 4 Cal.4th 929, 976.) "[E]ven where evidence is improperly excluded, the error is not reversible unless `"it is reasonably probable a result more favorable to the appellant would have been reached absent the error. [Citation.]" [Citation.]'" (Tudor Ranches, Inc. v. State Comp. Ins. Fund, supra, at pp. 1431-1432; see also Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) We find no abuse of discretion, nor do we find that appellant was prejudiced by any ruling even if there had been error.
During the testimony of Charles Turnbow, one of appellant's experts who was a professional safety engineer and testified that the wet restroom floor was unsafe and would cause someone to slip, the trial court sustained several objections to inquiries about the National Safety Council's "Accident Prevention Manual for Industrial Operations" (Manual).
The next morning, appellant's counsel argued that Turnbow should be permitted to testify about several aspects of the Manual's description of the standard of care, including that slip and fall accidents are a leading cause of workplace injuries; that "complacency" is one of the primary causes of workplace accidents; and that management should encourage proper safety behavior, including "that with regard to floor surfaces that when a risk is recognized, it should be immediately abated. It should be immediately warned about and routine training should exist. Employees should receive continuing information, and training meetings are recommended on such topics as slip-and-fall prevention." Amtrak's and Catellus's counsel argued, on the other hand, that under the Federal Employers Liability Act, title 45 United States Code section 51 et seq. (FELA) Amtrak had a duty to use ordinary care to furnish a reasonably safe workplace, and that appellant's reference to the Manual improperly suggested that Amtrak was subject to a heightened standard.
Reiterating its prior ruling sustaining Amtrak's and Catellus's objection, the trial court ruled that "[p]ursuant to defense motion in limine number 2, which was granted, the standard of care in a negligence action is an issue of law the court will instruct the jury on." The trial court explained that "[t]his jury does not need instructions from a safety expert concerning whether it's safe to let water accumulate on the floor." Accordingly, the trial court directed that "there will be no questions regarding the standard of care, safety standards, safety regulations, nothing about the National Safety Council."
The trial court properly exercised its discretion in precluding Turnbow from testifying about the standard sets forth in the Manual, as such standards improperly suggested that Amtrak and Catellus were under a duty to use more than reasonable care. As explained in Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546: "The formulation of the standard of care is a question of law for the court. [Citations.] Once the court has formulated the standard, its application to the facts of the case is a task for the trier of fact if reasonable minds might differ as to whether the defendant's conduct has conformed to the standard. [Citations.] [¶] In most cases, courts have fixed no standard of care for tort liability more precise than that of a reasonably prudent person under like circumstances. [Citations.] `But the proper conduct of a reasonable person under particular situations may become settled by judicial decision or be prescribed by statute or ordinance.'" Here, the Manual's recommendations fell short of any judicially, legislatively or administratively prescribed standard of care. The trial court was justifiably concerned about the possibility of the jury's being confused by any conflict between Turnbow's testimony concerning the Manual's suggested conduct and the standard of care described in the jury instructions.
Moreover, the trial court's exclusion of the Manual is consistent with the nationwide majority view. "There is a split of authority concerning the admission of safety codes or standards, . . . promulgated by voluntary industry organizations, such as the National Safety Council. [Citation.] One view, referred to as the majority view, is that they are inadmissible on the ground that they do not have the force and effect of law and represent merely the opinion of their authors, not delivered under oath and not subject to cross-examination. [Citations.]" (Brown v. Clark Equipment Co. (1980) 62 Haw. 530, 618 P.2d 267, 275.) While the Brown court ultimately followed the minority view and affirmed the admission of an engineer's testimony about a National Safety Council pamphlet, we find more persuasive the reasoning of the court in DaFoe v. Michigan Brass and Elec. Co. (Mich.App. 1989) 175 Mich.App. 565, 438 N.W.2d 270. There, the plaintiff injured himself when he fell on a stairway at the defendant's business. In support of his contention that the defendant had negligently maintained the stairway, the plaintiff sought to elicit expert testimony that a marginally steeper stairway would be classified as a "ladder" under the National Safety Council standards. (Id. at p. 271.) Affirming the exclusion of the testimony, the appellate court concluded that a trial court properly excludes testimony of safety standards "where any peripheral reference which the regulations may have to the parties' conduct `would certainly be far outweighed by the confusion to the jury.' [Citation.]" (Id. at p. 272.) The court rejected the notion that testimony about the standards would have served as a "`critical frame of reference'" for determining whether the stairway was properly maintained. (Ibid.)
The same was true here. With respect to whether Amtrak was negligent, the trial court instructed the jury that Amtrak owed appellant a nondelegable duty to "use reasonable care under the circumstances to provide its employees with a reasonably safe place to work and with reasonably safe and suitable tools, machinery and appliances. The reasonableness of care depends on the danger associated with the workplace or the equipment. The failure to use reasonable care is negligence." Correspondingly, the trial court instructed the jury that Catellus owed a duty to "use reasonable care to discover any unsafe conditions and to repair, replace or give adequate warning of anything that could be reasonably expected to harm others." The trial court then outlined, by way of example, the factors the jury could consider in deciding whether Catellus used reasonable care, including "(A) the location of the property, (B) the likelihood that someone would come on to the property in the same manner as Maria Aceves did, (C) the likelihood of harm, (D) the probable seriousness of such harm, (E) whether Catellus knew or should have known of the condition that created the risk of harm, (F) the difficulty of protecting against the risk of such harm, (G) the extent of Catellus's control over the condition that created the risk of harm." In the face of these instructions, the trial court properly exercised its discretion to exclude Turnbow's proffered testimony about proper safety behavior recommended by the Manual because the testimony had the potential to confuse the jury by providing a different definition of the standard of care. (See, e.g., Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1183 ["when an expert's opinion amounts to nothing more than an expression of his or her belief on how a case should be decided, it does not aid the jurors, it supplants them"].)
Appellant next complains that the trial court abused its discretion by excluding or unfairly limiting the testimony of two witnesses. First, appellant sought to call janitor Lucia Portillo for the ostensible purpose of impeaching Talamontes's testimony regarding the restroom cleaning schedule. Appellant argued through an offer of proof that Portillo would testify the restroom was cleaned only once the day preceding appellant's injury, which contradicted Talamontes's testimony that the restroom was cleaned twice. But appellant's offer of proof consisted of Portillo's deposition testimony, in which she answered "`No'" to the question "`Do you know whether anyone from OneSource ever did anything, whether that be in inspection or cleaning, or any work of any kind in the women's crew base restroom at any time during the day or night other than your own work that you did there at the end of your shift at about 10:00 o'clock each night?"
Second, appellant sought to have Dwyer, Amtrak's western food and beverage director, read into the record Amtrak's safety rules. Though the trial court admitted a copy of the safety rules into evidence, it declined to permit Dwyer to read the rules aloud on the ground that three witnesses had already testified about the safety rules and his proposed testimony was therefore cumulative. We find no basis to disturb the trial court's ruling. (See Evid. Code, § 352 [trial court has discretion to exclude relevant evidence if its probative value is outweighed by the fact it is cumulative]; see also Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371 ["`the exclusion of evidence which has only a cumulative effect will not justify reversal on appeal'"].)
Appellant also argues that the trial court abused its discretion by excluding from evidence both documents and testimony that would have helped to establish that Amtrak and Catellus had notice of water on the restroom floor prior to appellant's fall. Again, we find no error.
Exhibit 1 was a one-page injury report prepared by appellant following her accident.
As explained in People v. Beeler (1995) 9 Cal.4th 953, 978-979: "Evidence Code section 1271 states that a document is admissible as a business record only if `[t]he sources of information and method and time of preparation were such as to indicate its trustworthiness.' [Citation.] The proponent of the evidence has the burden of establishing trustworthiness. [Citations.] The trial court, however, has `. . . wide discretion in determining whether sufficient foundation is laid to qualify evidence as a business record. On appeal, exercise of that discretion can be overturned only upon a clear showing of abuse.' [Citation.]" Here, the trial court determined that appellant failed to meet her burden to show trustworthiness because the report was not made by someone having the duty to observe and report. (See Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 126 ["business records are not admissible under this exception when they are `not based upon the report of an informant having the business duty to observe and report'"].) This duty was a critical element present in a case relied on heavily by appellant, Levy-Zentner Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 785-786, where the court found two accident reports "sufficiently trustworthy" as business records because they were prepared by an employee whose job it was to investigate and determine the causes of industrial accidents. We decline to disturb the trial court's exercise of discretion in determining that Amtrak's requiring an injured employee to make a personal statement was not the equivalent of imposing on her a duty to observe and report contemplated by Evidence Code section 1271.
Nor do we find any basis to disturb the trial court's conclusion that Exhibit 1 was not admissible as an adoptive admission. Evidence Code section 1221 "provides that `[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.' [Citation.]" (People v. Fauber (1992) 2 Cal.4th 792, 851.) "The statute contemplates either explicit acceptance of another's statement or acquiescence in its truth by silence or equivocal or evasive conduct." (People v. Combs (2004) 34 Cal.4th 821, 843.) "Silence may be treated as an adoptive admission if, under the circumstances, a reasonable person would speak out to clarify or correct the statement of another were it untrue." (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2010) ¶ 8:1164, p. 8D-40 (rev. #1, 2009), citing People v. Riel (2000) 22 Cal.4th 1153, 1189.) Here, appellant presented no evidence to suggest that it would have been reasonable for Amtrak or Catellus to dispute appellant's personal statement or that they engaged in any other conduct that manifested their belief in the truth of her account.
Each crew base supervisor at Amtrak was responsible for maintaining a log book to document events occurring during each shift. Appellant claims the trial court improperly excluded from evidence four log entries—two by Coles on the date of appellant's fall and two by operations supervisor Gerard Griffo on the following date.
The first entry stated "12:15 [p.m.] approximately, per Lynn Solomon, water on the bathroom floor. Call Catellus." Though appellant contends that the entry was not admitted into evidence, Coles read the entry into the record verbatim and was questioned about it by appellant's counsel, over Amtrak's objection. Subsequently, the trial court expressly ruled that "the 12:15 reference can be received." Accordingly, we reject appellant's contention. (See People v. Bolden (2002) 29 Cal.4th 515, 542 [absence of an adverse ruling precludes any appellate challenge].)
The second was a 12:35 p.m. entry stating "`Notified by Norma Talamontes that Maria Aceves had fallen in the bathroom.'" The trial court excluded the entry on the ground it contained multiple levels of hearsay, including a statement by Talamontes reporting a statement by appellant. "When multiple hearsay is offered, an exception for each level of hearsay must be found in order for the evidence to be admissible. (Evid. Code, § 1201.)" (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1205.) The trial court properly exercised its discretion to determine that while the log entry itself was not hearsay as a business record, no exception to the hearsay rule covered the statements of Talamontes and appellant. (See Alvarez, supra, at pp. 1205-1206 [emergency call logs excluded as having multiple levels of hearsay].)
The third entry made by Griffo at 6:00 a.m. the following day reported a telephone conversation he had with Dwyer in which Dwyer relayed a conversation he had with Gardner that she saw water on the restroom floor one week before appellant's fall and reported the condition to Catellus. The trial court ruled that the entry was inadmissible because it involved multiple levels of hearsay from Dwyer and Gardner.
Finally, appellant complains that the trial court admitted only a portion of the fourth log entry made at 6:55 a.m. the day after appellant's fall regarding repairs made to the restroom. But while the trial court initially limited the admission of the entry to the first of its three sentences, it later permitted appellant to introduce the balance of the entry into evidence "as past recollection recorded." The trial court read the entry into the record when appellant's counsel misstated the entry. We find no basis to disturb an evidentiary ruling that was favorable to appellant.
Appellant also contends that the trial court abused its discretion by limiting the examination of several expert witnesses who sought to offer testimony regarding causation and damages. Notwithstanding that appellant presents no reviewable claim given that the jury did not reach the issue of damages, we find no abuse of discretion. The trial court has the inherent authority to "provide for the orderly conduct of the proceedings before it . . . ." (Code Civ. Proc., § 128, subd. (a)(3).) Exercising this authority, the trial court permitted appellant to elicit extensive opinion testimony from Wilson Hayes, Ph.D., whom appellant characterized as "probably the nation's foremost expert in injury causation . . . ." Dr. Hayes opined that appellant's injuries to her spine, neck and shoulders were all the result of her October 20, 2003 fall. Appellant fails to explain the relevancy of the excluded portion of Dr. Hayes's proposed testimony regarding the precise amount of water on the floor or describe how she was prejudiced by its omission.
Given that the jury heard causation testimony from the nation's foremost expert, the trial court properly acted within its discretion in excluding cumulative causation testimony from Ronald Karzel, M.D., on the same issue. (See People v. Stoll (1989) 49 Cal.3d 1136, 1159, fn. 20 [Evid. Code, § 352 grants the trial court broad discretion "to limit the number of competing experts, or to exclude cumulative or confusing expert testimony altogether"].) After noting that it had allowed Dr. Hayes to testify for one and one-half days on causation, the trial court explained that it was excluding Dr. Karzel's further testimony on the ground it was cumulative: "Over defendants' objections, plaintiff was adamant Dr. Hayes should be permitted to give these [causation] opinions, and the court permitted them. Additional opinions on the same topics from Dr. Karzel, however much more probative they may be concerning causation are cumulative. Any added probative value is outweighed by the time entailed of getting it into the record. The court warned the plaintiff early in Dr. Hayes's testimony that cumulative testimony on causation would not be permitted, so we will proceed."
The trial court made the same ruling in connection with the proposed testimony of Michael Alan Kropf, M.D., precluding him from offering cumulative opinions but allowing him to testify about the effect of appellant's past injuries that she had sustained preceding her fall. Though appellant complains that Dr. Kropf was also precluded from testifying about whether appellant's injuries could have been caused by the normal aging process, the record shows otherwise. Appellant's counsel asked Dr. Kropf if he had "any opinion whether any of these pain complaints or the surgery were the result of the normal aging process or something else?" The trial court sustained Amtrak's and Catellus's objection, limited to "the `something else' part." Notwithstanding that qualification, appellant's counsel did not follow up with an appropriate inquiry confined to the aging process. That the trial court later precluded appellant from cross-examining Amtrak's and Catellus's causation expert with opinion testimony never elicited was the result of appellant's failure to inquire of her own witness—not any trial court ruling.
In any event, even if the trial court abused its discretion in any respect by excluding or limiting the evidence that appellant sought to present, we would find no basis to reverse the judgment because appellant has failed to meet her burden to demonstrate that she was prejudiced by the rulings. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, § 354; see Poniktera v. Seiler (2010) 181 Cal.App.4th 121, 142.) Though appellant repeatedly bemoans the "unfair" nature of the trial court's rulings, she has failed to demonstrate how the admission of the excluded evidence would have lead to a more favorable outcome. The jury heard multiple witnesses and received multiple exhibits in support of appellant's contentions that there was water on the restroom floor, that employees had notified Amtrak and Catellus of water on the floor on previous occasions, that appellant slipped and fell because of the water, and that she suffered injury as a result of the fall.
For example, notwithstanding the exclusion of Exhibit 1—her personal statement about the incident—appellant testified at length about the same information contained in Exhibit 1, describing her fall and resulting injuries in great detail. "Where independent evidence from other witnesses to substantially the same effect as the excluded evidence is placed before the trier of fact, the erroneous exclusion of such cumulative or repetitious evidence is ordinarily nonprejudicial." (Guardianship of Levy (1955) 137 Cal.App.2d 237, 250; accord, Exclusive Florists, Inc. v. Kahn (1971) 17 Cal.App.3d 711, 716 [no prejudicial error to exclude cumulative documents]; Weller v. Chavarria, supra, 233 Cal.App.2d at p. 247 [same]; see also Hoagland v. Chargin (1955) 134 Cal.App.2d 466, 474 [where evidence of counsel's admissions was only cumulative, "any error in excluding it cannot be considered as prejudicial within the meaning of article VI, sec. 4½ of the state Constitution"].) Because the jury received the information contained in excluded exhibits and testimony, any error was inherently nonprejudicial. Moreover, the exclusion of evidence related to issues the jury did not reach was likewise nonprejudicial. (See Burns v. 20th Century Ins. Co. (1992) 9 Cal.App.4th 1666, 1675-1676.) Evidentiary error, if any, presents no basis for reversal.
Appellant sought to recover from Amtrak on the basis that it was negligent under the FELA and from Catellus under a theory of common-law negligence. Accordingly, the trial court instructed the jury with the standard Judicial Council civil instructions (CACI) on FELA liability, premises liability and negligence. The trial court declined to give two special FELA instructions requested by appellant, No. 35 and No. 36, which read, respectively: "Amtrak is under the following additional non-delegable duties: [¶] To institute and oversee reasonably safe procedures and methods for the performance of the work assigned to its employees," and "[t]o make proper inspections to discover dangers in the places where employees are assigned to work and after ascertaining the existence of such dangers, if any; to take reasonable precautions for the safety of the employees."
"Although a railroad's duty to use reasonable care in furnishing employees a safe place to work is not stated explicitly in the statute, it has become an integral part of the FELA." (Ragsdell v. Southern Pacific Transp. Co. (9th Cir. 1982) 688 F.2d 1281, 1283.) Accordingly, upon a party's request, the FELA requires that the jury be instructed on this duty. (Ibid.) In accordance with this principle, the trial court instructed the jury with the pattern FELA negligence instructions, CACI Nos. 2901 and 2903, which provided: "A railroad must use reasonable care under the circumstances to provide its employees with a reasonably safe place to work and with reasonably safe and suitable tools, machinery, and appliances. The reasonableness of care depends on the danger associated with the workplace or the equipment. The failure to use reasonable care is negligence. A railroad is not negligent if, using reasonable care, it could not reasonably have foreseen that the particular condition could cause injury. Amtrak is responsible for the negligence of any of its officers, agents or employees. The duty to furnish a reasonably safe place to work is a nondelegable duty. Nondelegable means that where, as in this case, there is a duty required of an employer to provide a reasonably safe place to work for its employees. That duty and responsibility may not be transferred in any manner or in any degree to anyone else so as to relieve the employer of that duty." Appellant does not contend that these instructions were inaccurate or misstated the law in any respect; she claims only that they were incomplete. We disagree. (See People v. Berryman (1993) 6 Cal.4th 1048, 1079 [observing that appropriate standard of review in considering whether trial court failed to give requested special instruction was unclear, but declining to clarify because claim failed under de novo standard of review], overruled on another ground by People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
A trial court does not err by refusing instructions "which are repetitious in substance and would serve only to emphasize unduly a party's theory of the case and which so far as they contain correct statements of the law are adequately covered by the instructions given." (Kraft v. Nemeth (1952) 115 Cal.App.2d 50, 54.) Here, the FELA instructions given by the trial court more than adequately informed the jury of the relevant legal principles governing Amtrak's liability for negligence; in particular, they emphasized that Amtrak owed appellant a non-delegable duty to provide a reasonably safe workplace. Elaboration on the scope of that duty was unnecessary. (See, e.g., Arato v. Avedon (1993) 5 Cal.4th 1172, 1189, fn. 11 ["It is not error, of course, to refuse to give an instruction requested by a party when the legal point is covered adequately by the instructions that are given"]; Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343 ["reversal of a judgment may not be based upon the failure to give particular instructions if the point is covered adequately by instructions which were given"]; Howard v. Howard (1960) 186 Cal.App.2d 622, 627 ["[I]f the jury is correctly instructed as to the applicable legal principles, a party cannot complain that the instructions were not couched in particular language . . . . This is true even though the requested instruction is more precise, or states the principles more clearly, than that which was actually given"]; cf. Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 581-582 [even the erroneous refusal of a "pinpoint" instruction may be deemed harmless error when there is no reasonable probability the jury was misled].)
The cases cited by appellant do not compel a different result. The court in Shenker v. Baltimore & Ohio R. Co. (1963) 374 U.S. 1, 10-11, determined that a jury was properly instructed that there is no exception to a railroad's non-delegable duty to provide a reasonably safe workplace. And while the court in Fonts v. Southern Pacific Co. (1916) 30 Cal.App. 633, 645, 646-647, sanctioned an instruction that a master owed a servant a non-delegable duty to "`exercise reasonable and ordinary care to adopt safe rules and methods of work'" in the context a claim involving the duty of railroad to maintain a reasonably safe workplace, the law is clear that it is not error "to refuse an instruction excerpting specific language from an opinion if the principle expressed by the excerpted language is encompassed by the more general instruction already given. [Citations.]" (Traxler v. Varady (1993) 12 Cal.App.4th 1321, 1333.) The instructions given accurately described Amtrak's duties under the FELA and the trial court was "not required to instruct in the specific words requested by a party so long as the jury [was] adequately instructed on the applicable law. [Citations.]" (Id. at pp. 1332-1333.)
Appellant's final challenge is to the $1,750 in sanctions that were imposed against her counsel in connection with the denial of her motion for a protective order. We review the trial court's imposition of discovery sanctions for an abuse of discretion. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 401; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496-497.) This broad discretion is subject to reversal only if the sanction order is "arbitrary, capricious, whimsical, or demonstrates a "`manifest abuse exceeding the bounds of reason. . . ."' [Citations.]" (In re Marriage of Chakko (2004) 115 Cal.App.4th 104, 108.)
During discovery, appellant moved for a protective order seeking to "control" the conduct of Amtrak's and Catellus's counsel by precluding counsel from interposing objections to certain types of questions on the basis of attorney-client privilege, telling deponents not to guess, making objections that suggested the deponent's answer, coaching the deponents and insulting opposing counsel. At the conclusion of a January 2007 hearing, the trial court denied the motion and imposed sanctions on appellant's counsel in the amount of $1,750 for filing a frivolous motion. The trial court ruled: "By this motion, plaintiff asks this court to issue a prior restraint on counsel's speech to prevent him from lodging objections at future depositions of defendant's agents and/or employees. Plaintiff presents no legal grounds for the motion and it is completely improper. If plaintiff's counsel believes that defense counsel's instructions to the witnesses not to answer certain questions on the ground of attorney-client privilege are erroneous, the proper means of seeking relief is a motion to compel that response, not to seek an unconstitutional restraint on defense counsel's ability to do its job."
Code of Civil Procedure section 2025.420, subdivision (d), provides in relevant part that "[t]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." Appellant seeks to invoke the first exception to the mandatory nature of this provision, and further argues that the trial court improperly addressed a constitutional issue in ruling on the protective order without permitting briefing.
First, she contends that she acted with substantial justification because she made an adequate showing that Amtrak's and Catellus's counsel interposed unwarranted objections and improperly instructed deponents not to answer. It is improper to instruct a witness not to answer a question "unless it pertains to privileged matters or deposing counsel's conduct has reached a stage where suspension is warranted." (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015.) Local rules likewise preclude counsel from directing a deponent to refuse to answer a question unless the question seeks privileged information or is "manifestly irrelevant" or "calculated to harass"; the rules also direct counsel not to coach a deponent. (Super. Ct. L.A. County, Local Rules, rules 7.12(e)(8) & (9).)
Appellant has offered several examples of conduct she asserts violated these principles and thus demonstrated her substantial justification for the motion. Our review of the record, however, demonstrates that Amtrak's and Catellus's counsel's conduct—though juvenile at times—fell well short of anything warranting a protective order. While Amtrak's and Catellus's counsel instructed the deponents not to speculate perhaps one too many times, that was the extent of the "coaching." Counsel was justified in directing an employee deponent to refuse to answer questions about attorney notes made during an interview. (See Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 814 ["When a witness's statement and the attorney's impressions are inextricably intertwined, the work product doctrine provides that absolute protection is afforded to all of the attorney's notes"].) And while many of the heated exchanges between counsel occurred in connection with questions about deposition scheduling, we fail to see how those inquiries were reasonably calculated to lead to the discovery of admissible evidence. (See Code Civ. Proc., § 2017.010.)
Nor do we find that the trial court denied the motion for a protective order on constitutional grounds. Rather, the trial court analogized appellant's motion to an unconstitutional prior restraint as a means of illustrating why it was an inappropriate request. In any event, the authorities on which appellant relies are inapposite. (See People v. Talhelm (2000) 85 Cal.App.4th 400, 408, fn. 5 [observing that "[i]t is not our role as an appellate court to render advisory opinions on constitutional issues," appellate court resolved commitment process issue on statutory ground only and determined its resolution was supported by the fact that neither party had briefed the constitutional issue]; see also Cooper v. Superior Court (1961) 55 Cal.2d 291, 302-303 [trial court acted improperly by, at a minimum, failing to ask counsel to brief a question before interrupting jury deliberations with a prepared statement].) Accordingly, we find no basis to disturb the trial court's exercise of discretion in imposing discovery sanctions.
The judgment is affirmed. Catellus and Amtrak to recover their costs on appeal.
We concur.
ASHMANN-GERST, J.
CHAVEZ, J.
