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American Construction & Environmental Services11/7/2002
ented to it.
Furthermore, we question American Construction's contention that the trial court in the present case could not reopen Mosleh's case absent a formal showing of "good cause." American Construction's authority for this proposition, Sanchez v. Bay General Hospital (1981) 116 Cal.App.3d 776 (Sanchez), pertains to the standard of reviewing a denial of a motion to re-open that was made in response to a motion for a directed verdict after presentation of all of the evidence in a jury trial. In contrast to Sanchez, the present case involved a court trial, a motion for judgment made at the close of plaintiff's evidence, and a trial court's unilateral decision to reopen plaintiff's case. Thus, Sanchez is inapposite.
American Construction did not make a motion for a directed verdict although that was the terminology it used. Because this case involved a court trial, American Construction's motion for judgment was governed by section 631.8 of the Code of Civil Procedure. At least one court has interpreted section 631.8 as affording the opportunity to rebut a motion for judgment by presenting additional evidence. (Howard Contracting, Inc. v. G.A. MacDonald Construction Co. (1998) 71 Cal.App.4th 38. 59.) Furthermore, as a general matter, a court conducting a court trial has broad discretion to reopen a matter prior to entry of final judgment. (Ibid.; Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611-1612.)
In the present case, American Construction's motion for judgment was based on the contention that there was no evidence of damages because Mosleh's testimony about the cost to re-pipe and rinse the tank containers would be inadmissible hearsay if offered for the truth of the matter asserted. This hearsay objection was untimely since the testimony was already admitted at trial without objection. In any event, the trial court did not abuse its discretion by re-opening Mosleh's case with the consent of both parties so that it could consider additional evidence pertaining to cost of repair damages.
E. The Mediation Privilege
American Construction argues that testimony obtained from its president, Bailey Neff, regarding the cost to re-pipe the tank and rinse out the containers was barred by the mediation privilege codified in section 1119, subdivision (a), of the Evidence Code. According to American Construction, this evidence was barred because Neff calculated the repair costs while the parties were in mediation. Evidence of statements or admissions made during mediation are not admissible at trial. However, Neff was not asked to testify as to any statements or admissions he made during mediation. He was asked whether he knew how much it would cost to re-pipe the tank and rinse the containers. Answering those questions did not violate Evidence Code section 1119 simply because Neff obtained the relevant factual information while the parties were in mediation.
V. DISPOSITION
The judgment is affirmed.
We concur:
Kline, P.J.
Ruvolo, J.
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