Filed 11/16/21 Hoyt v. ABM Aviation CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

DARIN HOYT,

Plaintiff and Appellant,

v.

ABM AVIATION, INC.,

Defendant and Respondent.

B299232

Los Angeles County

Super. Ct. No. BC629539

APPEAL from a judgment of the Superior Court of Los

Angeles County, Holly E. Kendig, Judge. Affirmed.

Liddy Law Firm, Donald G. Liddy; Killackey Law Offices, 

Michael A. Killackey; Esner, Chang & Boyer, Stuart B. Esner, 

Andrew N. Chang and Kevin K. Nguyen for Plaintiff and 

Appellant.

Murchison & Cumming and Edmund G. Farrell for 

Defendant and Respondent.

_______________________________________
2

INTRODUCTION

Plaintiff and appellant Darin Hoyt (plaintiff) filed this suit 

against defendant and respondent ABM Aviation, Inc. (ABM) 

after he was injured in a collision with a bus driven by an 

employee of ABM. A jury concluded plaintiff was entirely at fault.

Plaintiff does not challenge the jury’s findings. Instead, 

plaintiff contends the trial court erred by denying his request to 

preclude ABM’s accident reconstruction expert (expert) from 

testifying at trial because ABM’s counsel inadvertently sent the 

expert a copy of plaintiff’s confidential mediation brief. Although 

we agree that disclosure of the mediation brief was improper (see 

Evidence Code section 1119), the record reflects that the expert 

did not rely on the brief in forming his opinions. The expert’s trial 

testimony supports that position as does the fact that the expert 

reviewed the available evidence and completed his initial 

analysis prior to the mediation. Plaintiff speculates that the 

expert may have been subconsciously influenced by the content of 

the mediation brief and therefore should have been disqualified. 

We conclude such speculation is insufficient to support the

disqualification of the expert and, therefore, affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

1. The Injury

Plaintiff dropped off several friends at the curb in front of 

Terminal 2 at Los Angeles International Airport in October 2015.

After saying goodbye, plaintiff returned to the car and opened the 

driver’s side door just as a bus was passing. As plaintiff held the 

car door open, his hand was caught between the car door and an 

indicator light on the right side of the bus, crushing his ring 

finger and amputating a portion of his pinky finger. The bus was 
3

owned and operated by ABM and, at the time of the accident, was 

being driven by an employee of ABM.

2. The Complaint

Plaintiff sued a number of parties including ABM. The 

operative complaint alleged that ABM owned and operated the 

bus involved in the accident and that ABM’s employee, who was 

driving the bus, operated the bus in a negligent manner. The 

complaint sought damages for past and future medical expenses 

as well as lost wages.

3. Plaintiff’s Motion to Exclude the Expert

3.1. Plaintiff’s Motion

Prior to trial, plaintiff filed a motion in limine seeking to 

disqualify the expert. Plaintiff’s counsel had recently deposed the 

expert and examined his file. The file contained plaintiff’s 

confidential mediation1 brief which, according to plaintiff’s 

counsel, contained “attorney thought processes and detailed 

analysis of evidence including photographs and video of the 

incident; an analysis of the testimony and facts as it pertains to 

applicable California law; analysis of portions of witness 

depositions which are strategic to Plaintiff’s case; work product 

including exhibits we intend to use at trial, the use and 

applicability of various CACI jury instructions which will be 

requested at trial; Confidential medical summaries; Insurance 

information and; Settlement Demands.” Plaintiff asserted that

the mediation brief was confidential and inadmissible under

1 The parties participated in mediation in August 2018.
4

Evidence Code2 section 1119 and that ABM’s disclosure of the 

brief to its expert was improper. Further, plaintiff argued, under 

sections 801, subdivision (b) and 803, the court was required to 

exclude any expert testimony “based in whole or in significant 

part on matter that is not a proper basis for such an opinion.” 

Plaintiff urged that the expert “is irreversibly tainted by the 

confidential knowledge he obtained from the mediation brief” and 

asked the court to preclude the expert from testifying at trial.

3.2. ABM’s Opposition

ABM opposed the motion to disqualify the expert. 

Specifically, counsel for ABM explained that disclosure of the 

mediation brief to the expert was accidental. One of ABM’s 

attorneys asked his secretary to send the expert a photograph 

that had been attached to the mediation brief. Instead, the 

secretary sent the entire mediation brief. Moreover, the expert 

stated in a declaration that although he had reviewed the 

mediation brief, he did not rely on it in formulating his analysis 

of the accident nor did he discuss it with ABM’s attorneys.

Instead, he relied on three videos from airport security cameras, 

photographs and measurements taken by the airport police, and 

additional photographs taken by representatives of ABM and by 

plaintiff’s girlfriend, who was at the scene of the accident. The 

expert also examined the bus involved in the accident and 

inspected the accident site. And, in any event, because the trial 

had initially been set to begin in September 2018, the expert had 

examined the evidence and completed most of his work before the 

August 2018 mediation. Finally, ABM explained that the expert 

2 All undesignated statutory references are to the Evidence Code.
5

was its only liability expert and that his disqualification on the 

eve of trial would be exceptionally prejudicial.

3.3. Ruling

The court heard and ruled on several motions in limine on 

March 28, 2019. The court deferred ruling on the motion 

regarding the expert, however. The minute order from the 

following day indicates the court made a ruling on the motion as 

follows: “The court will speak with the expert before he testifies. 

Plaintiff will draft an order in regards to this ruling.” The record 

does not contain an order and no reporter was present at the 

hearing.

4. Trial

On April 2, 2019, just before the trial began, the court met 

with counsel to resolve outstanding issues. One issue noted by 

the court was the motion in limine regarding ABM’s expert. The 

court indicated that, before the expert testified, it would speak 

with the expert about any work performed after the mediation 

and determine whether any of that work related to material 

disclosed only in plaintiff’s mediation brief. The court asked 

counsel to provide advance notice of the expected date the expert

would testify so that the court could schedule time for 

questioning outside the jury’s presence.

The jury was empaneled on April 4, 2019 and the parties 

presented evidence and argument over four days.3 At the 

beginning of the third day of trial, outside the presence of the 

jury, the court addressed several pending matters including 

3 Because plaintiff does not challenge the jury verdict on his negligence 

claim, we do not recite the evidence presented in detail.
6

defense objections to excerpts of the expert’s videotaped 

deposition to be played by plaintiff. But although plaintiff’s 

counsel mentioned plaintiff’s objections to the expert at the 

beginning of the hearing, the court made no further ruling on 

those objections. After plaintiff played a series of video clips from 

the expert’s deposition, plaintiff rested and the defense presented 

its first witness. Immediately thereafter, the defense called the 

expert to testify. Plaintiff did not renew his objection to the 

expert’s testimony.

The expert testified that he had reviewed “the traffic 

collision report, various scene photographs, surveillance video 

obviously from LAX,” transcripts of several depositions including 

those of plaintiff, an eyewitness, and plaintiff’s accident 

reconstruction expert, and that expert’s file materials. The expert 

also obtained aerial photographs of the accident scene and 

inspected the scene and the bus himself. The expert explained 

how he and other members of his team used the video footage, 

photographs, and measurements taken at the scene to create a 

simulation of the accident. Using that simulation, the expert 

opined about the distance between plaintiff’s car and the bus as 

well as the likely speed and position of the bus at the time of the 

accident.

Ultimately, the jury found that neither ABM nor its 

employee bus driver was negligent. A judgment in favor of ABM 

was entered on May 13, 2019. Plaintiff timely appeals.

4

4 Plaintiff’s request for judicial notice, filed on June 18, 2021, is 

granted.
7

DISCUSSION

1. Scope and Standard of Review

We review the court’s order on the disqualification motion 

for an abuse of discretion. (Rico v. Mitsubishi Motors Corp. (2007) 

42 Cal.4th 807, 819 (Rico).) We review a trial court’s factual 

findings under the substantial evidence test. (In re Charlisse C. 

(2008) 45 Cal.4th 145, 159.) In doing so, we resolve every 

evidentiary conflict and indulge every reasonable inference in 

favor of the prevailing party if the evidence supporting the 

challenged ruling is of ponderable legal significance, and if it has 

reasonable, credible, and solid value. (Oregel v. American Isuzu 

Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.)

An appellant has the burden not only to show error but 

prejudice from that error. (Cal. Const., art. VI, § 13.) If an 

appellant fails to satisfy that burden, his argument will be 

rejected on appeal. (Century Surety Co. v. Polisso (2006) 139 

Cal.App.4th 922, 963.) “[W]e cannot presume prejudice and will 

not reverse the judgment in the absence of an affirmative 

showing there was a miscarriage of justice. [Citations.]” (Ibid.)

2. The court did not err by denying plaintiff’s 

disqualification motion.

2.1. Disclosure of the confidential mediation brief 

was improper.

Section 1119 protects the confidentiality of mediationrelated matters. It provides:

“Except as otherwise provided in this chapter:

“(a) No evidence of anything said or any admission made 

for the purpose of, in the course of, or pursuant to, a mediation or 

a mediation consultation is admissible or subject to discovery, 
8

and disclosure of the evidence shall not be compelled, in any 

arbitration, administrative adjudication, civil action, or other 

noncriminal proceeding in which, pursuant to law, testimony can 

be compelled to be given.

“(b) No writing, as defined in Section 250, that is prepared 

for the purpose of, in the course of, or pursuant to, a mediation or 

a mediation consultation, is admissible or subject to discovery, 

and disclosure of the writing shall not be compelled, in any 

arbitration, administrative adjudication, civil action, or other 

noncriminal proceeding in which, pursuant to law, testimony can 

be compelled to be given.

“(c) All communications, negotiations, or settlement 

discussions by and between participants in the course of a 

mediation or a mediation consultation shall remain confidential.”

Plaintiff contends, and ABM does not dispute, that counsel 

violated section 1119 by sending a copy of plaintiff’s confidential 

mediation brief to its expert. We agree. Plaintiff goes on to argue, 

at length, that a new trial is required under section 1128. On that 

point, we disagree with plaintiff.

Section 1128 provides: “Any reference to a mediation 

during any subsequent trial is an irregularity in the proceedings 

of the trial for the purposes of Section 657 of the Code of Civil 

Procedure. Any reference to a mediation during any other

subsequent noncriminal proceeding is grounds for vacating or 

modifying the decision in that proceeding, in whole or in part, 

and granting a new or further hearing on all or part of the issues, 

if the reference materially affected the substantial rights of the 

party requesting relief.” And plaintiff cites several cases relating 

to the discovery or use of confidential mediation materials and 

the remedy afforded under that section.
9

For example, in Foxgate Homeowners’ Assn., Inc. v. 

Bramalea California, Inc. (2001) 26 Cal.4th 1, plaintiff 

homeowners’ association moved for sanctions against defendant 

developer and its attorney under Code of Civil Procedure

section 128.5, for failing to participate in court-ordered mediation 

in good faith and to comply with an order of the mediator. 

(Foxgate, at pp. 6–8.) In support of the sanctions motion, plaintiff 

attached the report of the mediator and a declaration by 

plaintiff’s counsel reciting statements made during the mediation 

session. (Id. at p. 8.) The trial court accepted the evidence and 

granted the sanctions motion. (Ibid.) The Supreme Court 

reversed, holding that sections 1119 and 1121 unambiguously 

conferred confidentiality on the material at issue, making it 

inadmissible for any purpose. (Foxgate, at pp. 13–14.) 

Accordingly, the court reversed the sanctions order under 

section 1128 and noted that if plaintiff elected to pursue the 

sanctions motion on remand, no evidence of communications 

made during the mediation could be admitted or considered. 

(Foxgate, at p. 18.)

Although plaintiff’s legal analysis is correct, it is 

inapposite. ABM did not elicit any testimony from the expert 

relating to the mediation or the mediation brief. Neither did ABM 

attempt to use any material relating to the mediation during 

trial. In other words, because no “reference to a mediation during 

any subsequent trial” occurred, section 1128 is inapplicable.

2.2. An expert’s exposure to confidential mediation 

materials does not necessarily require 

disqualification.

Plaintiff’s primary contention is that “experts who review 

privileged and confidential information such as an opposing 
10

party’s mediation briefs, reports and other similar work product 

materials are disqualified and precluded from giving expert 

testimony in subsequent trial proceedings.” Although exclusion or 

disqualification of an expert exposed to confidential information 

or attorney work product may be appropriate in some situations, 

it is not always required, as plaintiff claims.

Plaintiff notes, correctly,that an expert’s opinion is limited 

to an opinion based on matters “of a type that reasonably may be 

relied upon by an expert in forming an opinion upon the subject 

to which his [or her] testimony relates.” (§ 801, subd. (b).) Upon 

objection, a court “shall” exclude opinion testimony “that is based 

in whole or in significant part on matter that is not a proper basis 

for such an opinion.” (§ 803.) The Law Commission comment to 

section 803 explains the scope of the exclusionary rule: “Under 

Section 803, as under existing law, an opinion may be held 

inadmissible or may be stricken if it is based wholly or in 

substantial part upon improper considerations. Whether or not 

the opinion should be held inadmissible or stricken will depend in 

a particular case on the extent to which the improper 

considerations have influenced the opinion. ‘The question is 

addressed to the discretion of the trial court.’ [Citations.] ... If a 

witness’ opinion is stricken because of reliance upon improper 

considerations, the second sentence of Section 803 assures the 

witness the opportunity to express his opinion after excluding 

from his consideration the matter determined to be improper.” In 

other words, contrary to plaintiff’s contention, an expert witness 

will not necessarily be disqualified if he or she relies on improper 

considerations. Instead, the scope of the expert’s opinion may be 

restricted to reflect only those opinions based upon proper 

matters. (Cf. Fox v. Kramer (2000) 22 Cal.4th 531, 541 [excluding 
11

medical expert opinion where expert “relied substantially” on 

confidential peer review materials in formulating his opinion]; 

County Sanitation Dist. v. Watson Land Co. (1993) 17 

Cal.App.4th 1268, 1282 [holding that “ ‘[w]hen the testimony of a 

valuation witness is based on considerations which are proper as 

well as those which are improper, the court in its discretion may 

strike the testimony or permit it to remain and consider the 

impropriety in determining the weight to be given it’ ”].)

Plaintiff relies on two California5 cases to support his claim 

that experts who have been exposed to confidential materials 

must always be disqualified. Both cases are distinguishable.

In Rico, supra, 42 Cal.4th 807, plaintiff’s attorney obtained 

notes written by defense counsel “through inadvertence” on the 

part of the defense. (Id. at p. 812.) The notes discussed defense 

counsels’ litigation strategy and summarized a meeting with 

their expert witnesses in which the weaknesses of the case were 

discussed. The notes also included lead counsel’s thoughts and 

analysis of potential pitfalls. Plaintiff’s attorney read through the 

notes, made copies, analyzed their contents, shared the notes 

with his co-counsel and plaintiff’s experts, and used the notes in 

deposing defendants’ experts. (Id. at pp. 812–813.) The 

defendants moved to disqualify plaintiff’s counsel and experts 

under Code of Civil Procedure section 2018.020, based on the 

5 Plaintiff also discusses numerous federal district court cases. Federal 

cases are not binding on California courts but may be persuasive 

authority in appropriate circumstances. (Aleman v. AirTouch Cellular

(2012) 209 Cal.App.4th 556, 576, fn. 8.) Because California law is clear 

and resolves the issues presented in this case, we do not rely on the 

federal authority cited by plaintiff. 
12

misuse of defense counsel’s confidential and privileged work 

product. The trial court granted the motion. (Rico, at p. 813.)

The Supreme Court affirmed. After considering the 

standard to be applied when counsel inadvertently receives 

materials that appear to be privileged, the court considered what 

remedy should be available if counsel fails to comply with that 

standard. The court held that “ ‘ “mere exposure” ’ ” to an 

adversary’s confidences is insufficient to warrant disqualification, 

which the court regarded as a “draconian” result, but stated that 

disqualification “ ‘might be justified if an attorney inadvertently 

receives confidential materials and fails to conduct himself or 

herself in the manner specified above, assuming other factors 

compel disqualification.’ ” (Rico, supra, 42 Cal.4th at p. 819.) In 

the case before it, the court found disqualification of plaintiff’s 

counsel and experts was justified due to the extreme harm caused 

by counsel’s dissemination and use of opposing counsel’s notes on 

strategy and expert witnesses. (Ibid.) The use of the document 

“undermined the defense experts’ opinions and placed defendants 

at a great disadvantage” such that without disqualification of 

plaintiff’s counsel and their experts, “the damage caused by 

[counsel’s] use and dissemination of the notes was irreversible.”

(Ibid.)

We assume, without deciding, that confidential mediation 

materials are subject to the same protection as attorney work 

product. Even so, Rico is distinguishable. First, unlike counsel in 

Rico, counsel here did not intentionally disclose the mediation 

brief to its expert. Second, counsel did not discuss the brief with 

the expert and encourage the expert to take advantage of its 

contents, as counsel did in Rico. Third, and as discussed in detail 

post, the expert did not use or rely upon the mediation brief. And 
13

finally, there is no evidence that the mediation brief contained 

information of similar strategic value as the notes disclosed in 

Rico, which summarized the defense experts’ analysis of the 

weaknesses of the defense case and counsel’s notations about 

defense strategy related thereto.

Plaintiff also cites Peat, Marwick, Mitchell & Co. v. 

Superior Court (1988) 200 Cal.App.3d 272 (Peat Marwick), a case 

involving a battle of accountancy experts. After plaintiff’s 

accountancy firm (Main Hurdman) had performed substantial

work on the matter, defendant (Peat Marwick) acquired Main 

Hurdman, creating an obvious conflict of interest. Main 

Hurdman then abruptly terminated its work with plaintiff. In 

addition, plaintiff had heard rumors of the potential acquisition

earlier, but Peat Marwick had repeatedly assured plaintiff no 

merger would take place. (Id. at pp. 278–281.) Due to the extreme 

prejudice resulting from the acquisition, plaintiff moved to enjoin 

the merger and, in the alternative, sought sanctions against Peat 

Marwick, precluding the firm from contesting the issues upon 

which Main Hurdman would have testified. (Id. at pp. 280–281.) 

The court granted the request for issue sanctions under its 

inherent authority to curb abuse of the litigation process. (Id. at 

pp. 286–287.)

Peat Marwick is plainly inapplicable here. Plaintiff does not 

seek to invoke the inherent authority of the court nor is there any 

evidence that ABM abused the litigation process to plaintiff’s 

detriment.

In sum, plaintiff overstates the scope of the exclusionary 

rule set forth in section 803. If an expert relies on improper 

matters—here, the confidential mediation brief—the expert’s

testimony should be limited to those matters unaffected by the 
14

improper material. As we now explain, however, plaintiff failed to 

demonstrate that the expert relied on the mediation brief in any 

respect.

2.3. Plaintiff fails to establish that the expert relied 

on the confidential mediation brief.

The evidence in the record indicates that the expert did not 

rely on the confidential mediation brief, i.e., he did not base his 

opinion “in whole or in significant part on matter that is not a 

proper basis for such an opinion.” (§ 803.)

In opposition to plaintiff’s motion in limine, the expert 

acknowledged that he received and reviewed the mediation brief

but attested that he did not rely on it in formulating his analysis 

of the accident nor did he discuss it with ABM’s attorneys. 

Instead, the expert explained, he relied on three videos taken by 

airport security cameras, photographs and measurements taken 

by the airport police, and additional photographs taken by 

representatives of ABM and by plaintiff’s girlfriend who was at 

the scene of the accident. The expert also examined the bus 

involved in the accident and inspected the accident site.

The expert’s trial testimony confirmed that he relied on 

“the traffic collision report, various scene photographs, 

surveillance video obviously from LAX,” and reviewed transcripts 

of depositions of plaintiff, an eyewitness, and plaintiff’s accident 

reconstruction expert, and that expert’s file materials. The expert 

also obtained aerial photographs of the accident scene and 

inspected the scene and the bus himself. The expert explained 

how he and other members of his firm used the video footage, 

photographs, and measurements taken at the scene to create a 

simulation of the accident. Based upon that simulation, the 

expert opined about the distance between plaintiff’s car and the 
15

bus as well as the likely speed and position of the bus at the time 

of the accident.

Furthermore, the expert had examined the evidence and 

completed most of his work before the August 2018 mediation

because the trial had initially been set to begin in September 

2018. We can therefore infer that the mediation brief did not 

substantially influence the expert’s approach to his analysis.

This evidence notwithstanding, plaintiff argues that the 

“mediation brief necessarily informed [the expert]’s impressions 

of the case and influenced his subsequent investigation and 

document review, and ultimately his opinions.” This is not a 

reasonable inference from the evidence just discussed, 

particularly in light of the expert’s statements that he reviewed 

the available evidence, conducted his in-person inspection of the 

accident site and the bus, and completed his initial analysis prior 

to the mediation.

Alternatively, plaintiff contends that the disclosure of the 

mediation brief was inherently prejudicial. He asserts, for 

example, that “[t]he extent of the damage done in terms of how 

much the mediation brief affected the expert, again consciously or 

unconsciously, in shaping his approach and his opinion, is neither 

knowable nor sufficiently remediable without exclusion.” Further, 

plaintiff suggests that “[i]t is impossible to know the extent to 

which Plaintiff’s mediation statement[ ] influenced [the expert]’s 

opinions.” Plaintiff cites no California6 law suggesting that this 

sort of speculation could justify, let alone require, the 

6 Plaintiff relies extensively on Irwin Seating Co. v. International 

Business Machines, (W.D. Mich., Feb. 14, 2007, No. 1:04-CV-568) 2007 

WL 518866, an unpublished federal district court case. As already 

noted, however, California law is well established.
16

disqualification of an expert. More importantly for our purposes, 

by this argument plaintiff effectively concedes that he cannot 

establish prejudice on this record. (Century Surety Co. v. Polisso

(2006) 139 Cal.App.4th 922, 963 [“[W]e cannot presume prejudice 

and will not reverse the judgment in the absence of an 

affirmative showing there was a miscarriage of justice. 

[Citations.]”].)

DISPOSITION

The judgment is affirmed. Respondent ABM Aviation, Inc.

shall recover its costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

LAVIN, J., Acting P. J.

WE CONCUR:

EGERTON, J.

VIRAMONTES, J.*

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.