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Salyer v. 396 Investment Co.5/17/2005
e error is not reversible unless `"it is reasonably probable a result more favorable to the appellant would have been reached absent the error. [Citations.]" [Citation.]' [Citations.]" (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.) In the case before us, Clark testified to his opinion that the hillside would have failed even in the absence of the reservoir leakage. Thus, the jury already had before it testimony supporting Anaheim's theory of causation. We cannot conclude that it is "reasonably probable" that a result more favorable to Anaheim would have been reached had the jury been provided with additional testimony to the same effect.
(c) 2001 Groundwater Data
The first complaint in this case was filed in May 1996, the reservoir was emptied in February 1999, and the Phase I trial commenced on April 4, 2001. Anaheim sought to introduce into evidence piezometer and rainfall data obtained as late as March 2001. Anaheim says the data would have shown that the then recent rainfall had elevated the groundwater levels to some of the highest levels ever measured, either before or after the reservoir was drained. However, at the Evidence Code section 402 examination, McLarty acknowledged that the information he sought to offer was based on rainfall data that had been collected at two locations each 10 miles away from the reservoir site and that he had originally obtained the data for the purpose of analyzing a different landslide altogether.
The court expressed concern on three points, i.e., that the rainfall was determined at sites 10 miles away from the reservoir, that the evidence had been prepared for a different trial altogether, and that the information pertained to dates after the discovery cutoff date. The court declined to permit the testimony. We do not see how the court abused its discretion in so doing. (See Tudor Ranches, Inc. v. State Comp. Ins. Fund, supra, 65 Cal.App.4th at pp. 1431-1432.)
(d) Unnoticed Borings
Next, Anaheim complains that it was severely prejudiced when the court excluded evidence of certain geotechnical information and groundwater monitoring data derived from "unnoticed borings." According to Anaheim, the borings were performed on its own property and on streets located in the City of Orange. Anaheim states that it had permission from the City of Orange to perform the borings on that city's streets. Anaheim contends that it was not required to give notice of its subsurface investigations on its own property and on the City of Orange streets, because it was not employing a discovery device.
Both the discovery referee and the trial court disagreed, because of the provisions of case management order number 4. Section 16 of that order states: " ny party desiring to conduct invasive testing on any property owned by any of the Plaintiffs, Anaheim, and/or Orange shall submit notice of said request to all parties. The notice must contain a description of the property to be tested, a description of the type of test and method of testing to be implemented, and a date for the proposed testing. At least two business days' notice must be given for invasive testing of property owned by any Plaintiff. At least seven business days' notice must be provided, unless otherwise approved by the Discovery Referee, for invasive testing of Anaheim's or Orange's property. Any objections to testing on Anaheim's or Orange's property must be submitted, in writing, to the Discovery Referee within five business days from the date of the notice. Thereafter, the Discovery Referee shall consider said objection(s)."
396 brought a motion requesting the imposition of evidentiary sanctions against
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