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Gerez v. 16th District Agricultural Association of the State of California2/27/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
In this personal injury action, Donna Gerez appeals from the judgment entered after jury trial in favor of the State of California and the 16th District Agricultural Association, which conducts the California Mid-State Fair. Appellant contends that the trial court abused its discretion in denying her motion for a new trial. The motion was based on newly discovered evidence impeaching respondents' expert witness. We affirm.
Facts And Procedural History
Appellant filed a complaint against respondents alleging that she had been injured when a tree branch fell on her at the California Mid- State fairgrounds. Appellant claimed that respondents had negligently maintained the tree, causing a dangerous condition.
The trial lasted five days. The jury heard testimony from 14 witnesses. The record on appeal includes a reporter's transcript of the testimony of only one witness: Gary Clodfelter, respondents' designated expert. His testimony was as follows:
In his deposition, Clodfelter claimed to have received a Bachelor of Science Degree in biology from California Polytechnic State University (hereafter Cal Poly). He had completed the required "curriculum" for the degree and had gone "through the graduation ceremonies." However, after his deposition he discovered that the degree had not been awarded because his "senior project" had not been "recorded." Clodfelter was not accepted into the graduate program at Cal Poly, but he had "continued on with graduate studies" "in psychology, advanced plant pathology, advanced plant physiology, advanced plant anatomy."
After attending Cal Poly, Clodfelter worked in agriculture. He was licensed as an agricultural pest control adviser. In addition, he was certified and licensed as a qualified applicator in landscape maintenance, plant agriculture, and forestry. Clodfelter had falsely represented himself to be a licensed qualified applicator years before the license was issued.
Starting in the winter of 1998-1999, Clodfelter oversaw the pruning of trees on the fairgrounds. He inspected the trees on a quarterly basis. The tree from which the branch had fallen had been properly maintained. Shortly before appellant was injured, tree trimmers had removed approximately 40 percent of the tree's canopy.
The jury returned a special verdict. It found that the fairgrounds were not in a dangerous condition at the time of appellant's injury .
In her motion for a new trial, appellant alleged that Clodfelter had perjured himself regarding his academic qualifications. She submitted records from Cal Poly showing that he had been several courses short of meeting the requirements for the Bachelor of Science degree. The records do not support Clodfelter's allegation that he had "continued on with graduate studies" at the university. Appellant also submitted a copy of Clodfleter's application for an agricultural pest control adviser license. Appellant alleged that the application does not accurately list the courses that Clodfelter had completed at Cal Poly.
The trial court denied the motion in a minute order without explanation.
Motions on Appeal
Appellant has moved to augment the record to include Clodfelter's deposition and the expert witness declaration prepared by respondents' attorney pursuant to Code of Civil Procedur
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