Opinion
G053783 C/w G053828
03-06-2018
NILI N. ALAI, M.D. et al., Plaintiffs and Appellants, v. BARBARA YA-HUI SHANG, M.D., Defendant and Respondent.
Everett L. Skillman for Plaintiffs and Appellants. Cole Pedroza, Kenneth R. Pedroza, Maureen M. Home; Carroll Kelly Trotter Franzen McKenna & Peabody and Robert L. McKenna for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2012-00591704) OPINION Appeals from a judgment of the Superior Court of Orange County, Peter J. Wilson and Ronald L. Bauer, Judges. Affirmed. Request for judicial notice. Denied. Request to strike the respondent's brief. Denied. Everett L. Skillman for Plaintiffs and Appellants. Cole Pedroza, Kenneth R. Pedroza, Maureen M. Home; Carroll Kelly Trotter Franzen McKenna & Peabody and Robert L. McKenna for Defendant and Respondent.
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INTRODUCTION
In this medical malpractice case brought by Nili N. Alai, M.D., and her husband, Sam Nabili, M.D., (together, plaintiffs) against Deborah Ya-Hui Shang, M.D., the trial court issued evidentiary sanctions against Alai for her repeated abuses of the discovery process. Plaintiffs also entered into a stipulation with Shang in which they agreed not to introduce certain other evidence at trial. The trial court's orders in this case are a result of either Alai's abuses, including violations of court orders, for which there are consequences, or the enforcement of the parties' stipulation.
After plaintiffs' counsel informed the court that, without the excluded evidence, plaintiffs could not prove their case, the trial court granted Shang's motion for a directed verdict and judgment was entered in Shang's favor. We affirm. The trial court did not err in issuing the evidentiary sanctions or by denying plaintiffs' motion for a new trial.
BACKGROUND
I.
THE COMPLAINT
In August 2012, plaintiffs filed a form complaint against Shang, an ophthalmologist, for medical malpractice and loss of consortium. Plaintiffs' claims were based on the following allegations.
Alai was Shang's patient, "pertaining to the care and treatment of her vision." Some time before Alai's medical visit with Shang on August 17, 2011, Shang became aware that several of her patients had contracted an "EKC infection," but she had "failed to notify any subsequent patients including [Alai] of the prior exposure or take the necessary steps in order to prevent other patients from contracting the disease."
The complaint alleged that on August 17, 2011, Alai contracted "a highly contagious EKC eye infection" during an appointment with Shang "due to unsterile ophthalmologic equipment present in [Shang's] medical office examination rooms." Shang was "further negligent by failing to properly maintain the ophtha[l]mologic office examination rooms and ophtha[l]mologic equipment and waiting areas in such a condition to prevent adenoviruses such as EKC virus from being transmitted from one patient to another" and by failing "to maintain adequate policies and procedures to help maintain the ophthalmologic equipment, examination rooms and waiting rooms, in such a condition to prevent the transmission of adenoviruses such as EKC from infecting other patients."
The complaint also alleged Alai sustained "severe and permanent damage to her vision . . . [which] requires her to undergo ongoing medical treatment and has caused her to miss time away from her dermatology practice." As a result of the foregoing, the complaint alleged Alai would require future medical care for the condition, would suffer loss of past earnings and future earning capacity, and had experienced pain and suffering.
As to Nabili, the complaint alleged that Shang's negligence resulted in him having been and continuing to be "deprived of the consortium and of the conjugal fellowship and sexual relations of his spouse," and would result in the deprivation "of the physical, domestic and other assistance in the operation of [their] home and of the household services of . . . Alai."
II.
SHANG FILES A MOTION FOR TERMINATING SANCTIONS
In February 2015, Shang filed a motion for terminating sanctions under section 2033.030, subdivision (d)(3) of the Code of Civil Procedure as to Alai's medical malpractice claim. The motion was brought on the grounds that plaintiffs had engaged in multiple discovery abuses and willfully and repeatedly violated four of the trial court's orders which "greatly impacted Dr. Shang's ability to defend herself in this action."
In support of her motion, Shang produced evidence showing: (1) plaintiffs repeatedly subpoenaed telephone records without providing proper notice to Shang and/or serving Shang with a copy as required by statute; (2) subpoenaed other third parties without notice or service copies to Shang; (3) repeatedly contacted one of Shang's patients, Cheryl Leggett; (4) sent a mailing to Shang's patients purportedly from someone named Lindsey Smart which requested the disclosure of such patients' medical records; (5) failed to provide contact information for Rezvan Nassiri even though she was a percipient witness; (6) failed to identify individuals who were employed by Alai in August 2011 (Alai had informed Shang that several of her employees had contracted EKC in August 2011); (7) failed to provide a list of Alai's treating ophthalmologists; and (8) violated a court order regarding the production of documents received by third party subpoena.
Shang produced evidence that in mid-November 2014, several of Shang's patients received these packets from Lindsey Smart of "EKCFoundation.org." That website was created on November 5, 2014 which was five days after the court issued a temporary restraining order prohibiting plaintiffs from contacting Shang's patients. Alai admitted she sent the packets which included a letter stating: "[T]hrough the course of recent investigations into a reported cluster of patients infected with the EKC virus following eye exams in Irvine, investigators received information that you and/or your family may have potentially been exposed to a highly contagious viral eye infection called EKC. Preliminary reports have thus far confirmed numerous eye infections associated with an eye doctor on or around July and August 2011. Investigations are ongoing, including 6 reported complaints filed with the Medical Board of California regarding these exposures, and the final outcome is pending your input and medical record confirmations." The letter requested cooperation in releasing any eye related medical records and enclosed medical release forms.
III.
THE TRIAL COURT DENIES SHANG'S MOTION FOR TERMINATING SANCTIONS BUT
ORDERS EVIDENTIARY SANCTIONS AGAINST PLAINTIFFS.
In a minute order dated March 26, 2015 issued by Superior Court Judge Peter J. Wilson, the court ruled:
"Defendant Barbara Ya-Hui Shang, M.D.'s (defendant) motion for terminating sanctions is DENIED, but the Court GRANTS evidentiary sanctions as set forth below.
"The Court finds plaintiff Nili N. Alai, M.D. (plaintiff) has willfully failed to comply with a number of court orders as specified below:
"1. Plaintiff has willfully failed to comply with the court's October 31, 2014 order prohibiting plaintiff and her counsel from contacting any former or current patient of defendant, other than plaintiff's immediate family members or John Pascoe. [Citations.]
"2. Plaintiff has willfully failed to comply with the court's October 30, 2014 order compelling plaintiff to provide further responses as promised in her opposition to defendant's motion to compel further responses to special interrogatories, set three [citation], within 21 days of the order. Plaintiff willfully delayed producing the responses for months until the eve of a motion for issue sanctions before the discovery referee and then produced inadequate responses thereto, particularly as to Special Interrogatory Nos. 115 and 130. [Citations.] These violations are especially egregious in light of plaintiff's use of the medical records of her mother, Rezvan Nassiri, in support of her claims. [Citations.]
"3. Plaintiff has willfully failed to comply with the court's November 6, 2014 order compelling responses to defendant's fifth set of special interrogatories within 20 days of the order. Plaintiff willfully delayed responding to these interrogatories for months until the eve of a motion for issue sanctions heard before the discovery referee, just two weeks shy of the discovery cutoff date. [Citation.]
"The Court therefore GRANTS evidentiary sanctions in favor of defendant and against plaintiff, and ORDERS as follows:
"1. Plaintiff is precluded from calling her mother, Rezvan Nassiri as a witness, and plaintiff is precluded from introducing any evidence mentioning, referring to or pertaining to her mother, Rezvan Nassiri, including any testimony (including but not limited to expert testimony) based on a review of Ms. Nassiri's statements, testimony, or medical records.
"2. Plaintiff is precluded from introducing any evidence concerning any of defendant's former or current patients (1) whose identity plaintiff first became aware of after October 31, 2014, (2) who received an ECKfoundation.org information packet and/or (3) whose identity and/or contact information has not been disclosed as of this time and date.
"Plaintiff is further ORDERED to provide a full and complete verified, supplemental response without objection to defendant's third set of special interrogatories, Nos. 130 and 131, identifying every employee of The Skin Center during the year of 2011, by 5:00 p.m. on Monday, March 30, 2015. Plaintiff's failure to timely provide these responses will likely result in terminating, issue, and/or evidentiary sanctions.
"The court will continue the trial date to May 4, 2015 solely (1) For the purpose of allowing defendant to properly notice and take the depositions of the witnesses identified in plaintiff's supplemental response to Special Interrogatory Nos. 130/131. [Citation.] To enable depositions, as appropriate of the two dermatologists who were the subject of the motion before the discovery referee, and (3) To permit discovery directly related to the Medicare Authorization. Discovery is not extended or kept open in any other respect."
IV.
SHANG FILES MOTIONS IN LIMINE TO EXCLUDE ANY EVIDENCE AT TRIAL THAT
REFERRED TO NASSIRI OR LILI NABILI WHICH THE TRIAL COURT GRANTS; PLAINTIFFS'
COUNSEL INFORMS THE TRIAL COURT PLAINTIFFS ARE UNABLE TO PROVE THEIR CASE;
THE TRIAL COURT GRANTS SHANG'S MOTION FOR A DIRECTED VERDICT.
Shang filed a motion in limine seeking an order excluding any mention of Nassiri by name or in the abstract as "another patient," and precluding Alai from testifying that she was present during the ophthalmologic examination of any other patient in reference to Nassiri. Shang asserted she anticipated Alai intended to testify that she was present during the examination of "another patient" and that Shang did not clean equipment between that patient's appointment and Alai's appointment and that the other patient had symptoms of an EKC infection. Shang argued such testimony and references would clearly be against the spirit of the court's prior order precluding the admission of evidence mentioning, referring to or pertaining to Nassiri.
Shang filed another motion in limine in which she sought to exclude any evidence regarding Lili Nabili or her ophthalmology appointment with Shang. The motion asserted that Nabili testified at his deposition that Shang did not clean her ophthalmology instruments between his visit with Shang and Lili Nabili's visit with Shang one week before Alai's and Nassiri's visits with Shang. Shang produced evidence that after plaintiffs refused to produce Lili Nabili for her deposition and filed an ex parte application for a protective order after Shang noticed Lili's deposition, the court ruled that Shang was entitled to take Lili Nabili's deposition. The parties thereafter entered into an agreement regarding evidence related to Lili Nabili, memorialized by plaintiffs' trial counsel as follows: "You have agreed not depose Ms. Nabili if Plaintiffs agree not to call Ms. Nabili in their case in chief, agree not to make reference to Ms. Nabili in any way, and agree not to reference Ms. Nabili's visit on August 10, 2014. Plaintiffs accept those conditions. Accordingly, we ask you to confirm that you will withdraw the deposition request for [L]ili Nabili and we will not move to quash her deposition." In her motion in limine, Shang argued, "as Dr. Shang has not had an opportunity to conduct discovery in relation to Ms. Nabili, there should also be no mention that Sam Nabili was present during the ophthalmology examination of any other patient."
Shang also argued any such evidence was irrelevant given it was undisputed that neither Nabili nor his mother ever contracted EKC in 2011.
Superior Court Judge Ronald L. Bauer granted both motions in limine, stating that the court's interpretation of the language of the evidentiary sanctions order by Judge Wilson as to Nassiri and the language of the parties' stipulation regarding Lili Nabili compelled granting those motions. Later that same day, plaintiffs' counsel informed the court: "Your Honor, as I mentioned to you before coming in chambers, based on the court's ruling to exclude Dr. Alai's and Dr. Nabili's observations of the eye exam equipment not being cleaned between patients, the expert testimony that we have in this case regarding the standard of care is directly hinged on Dr. Alai's observations and further buttressed by Dr. Nabili's but certainly Dr. Alai's would be sufficient in our mind. [¶] If that is excluded, and based on the rulings, then we cannot, in my opinion, make a prima facie case. We don't have sufficient evidence to establish standard of care. [¶] I've advised my clients that I am not prepared to go forward and devote two to three or four weeks into trial that we have no chance of prevailing due to that." Counsel informed the court that plaintiffs disagreed with his assessment and he therefore requested to withdraw as counsel for plaintiffs. Plaintiffs opposed their counsel's request to withdraw.
The court denied counsel's motion to withdraw, stating, "[T]he circumstances are well known to all of us. There's a jury on the premises that's waiting to hear the evidence and the opening statements in this case. And we have been a long time bringing this case to this point. [¶] I think it's now nearly four years old, and it also has a history of changes of attorneys, including some hiatus when plaintiff was self-represented. And I think the change at this point may be one that the court cannot honor because of the circumstances."
Shang moved for a directed verdict in her favor. The trial court granted her motion and discharged the waiting jury.
V.
THE TRIAL COURT DENIES PLAINTIFFS' EX PARTE APPLICATION SEEKING
RECONSIDERATION OF THE TRIAL COURT'S RULINGS; JUDGMENT IS ENTERED IN SHANG'S
FAVOR; THE TRIAL COURT DENIES PLAINTIFFS' MOTION FOR A NEW TRIAL AND MOTION
FOR A DIRECTED VERDICT IN PLAINTIFFS' FAVOR; PLAINTIFFS EACH APPEAL.
Plaintiffs applied ex parte for an order setting aside the trial court's ruling on the motion in limine excluding testimony regarding Nassiri, referring the matter to Judge Wilson for reconsideration, and suspending or vacating the directed verdict in Shang's favor pending Judge Wilson's decision. Judge Bauer denied the ex parte application. Judgment was thereafter entered in favor of Shang and against plaintiffs.
The trial court denied Alai's motion for a new trial and motion for judgment notwithstanding the verdict. Alai and Nabili each filed a notice of appeal from the judgment. This court ordered the plaintiffs' separate appeals consolidated for all purposes.
PLAINTIFFS' REQUEST FOR JUDICIAL NOTICE AND MOTION TO STRIKE
SHANG'S RESPONDENT'S BRIEF
Plaintiffs filed a request for judicial notice in which they ask this court to take judicial notice of (1) the appellate briefs and record on appeal in plaintiffs' prior appeal (Alai v. Ya-Hui Shang (Aug. 29, 2017, G053136) [nonpub. opn.]); (2) two articles by the United States Department of Health and Human Services, Center for Disease Control and Prevention regarding EKC outbreaks; and (3) documents plaintiffs obtained pursuant to the Freedom of Information Act "evidencing Medicare and Medicaid billings by" Shang "at relevant times for treatment of patients with EKC virus." Plaintiffs' request does not explain how any of the documents subject to their request are relevant to the issues presented in this appeal. The request for judicial notice is denied.
In that appeal, we issued an unpublished opinion in which we affirmed the trial court's order denying plaintiffs' motion to disqualify Shang's counsel. (Alai v. Ya-Hui Shang, supra, G053136.) --------
Plaintiffs also filed a motion to strike Shang's respondent's brief on the ground it "contains incorrect and/or unsupported factual statements, as well as irrelevant factual statements. It is full of distortions, misrepresentations, misleading arguments and other artifices which are not properly part of an appellate proceeding."
The only examples plaintiffs provide of "non-complaint" portions of Shang's 64-page respondent's brief are: (1) at page 27, the respondent's brief states both that Shang did not discuss patient Leggett with Alai and that "Leggett's call to schedule an appointment was in the second set of phone records" without supporting record citation for either statement; (2) at page 28, Shang "states in her brief that Dr. Alai 'had knowledge of the [October 31, 2014] order [banning communication with other patients],' but did not give the date as to when Dr. Alai gained knowledge of the order, thereby misleading the Court of Appeal into believing that she had this knowledge of the order on October 31"; and (3) at page 47, Shang "states in her brief that 'Plaintiff Alai contacted Dr. Shang's patients and duped them into releasing their medical records under the guise of research, when she fully intended to use their records in this lawsuit'" when, plaintiffs assert, "there is no evidence whatsoever that even one single person gave Dr. Alai a medical records release in response to the EKC Foundation letter."
Even assuming these three examples demonstrate a noncompliance with the California Rules of Court, we exercise our discretion to disregard any such noncompliance. (Cal. Rules of Court, rule 8.204(e)(2)(C).)
DISCUSSION
I.
THE TRIAL COURT DID NOT ERR BY IMPOSING EVIDENTIARY SANCTIONS AGAINST ALAI.
Plaintiffs contend the trial court abused its discretion by imposing evidentiary sanctions against Alai. For the reasons we will explain, the trial court did not abuse its discretion.
A.
Standard of Review and Applicable Legal Principles
"Imposition of sanctions for misuse of discovery lies within the trial court's discretion, and is reviewed only for abuse." (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991 (Doppes).) The abuse of discretion standard has been described in these general terms: "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.) A trial court exceeds the bounds of reason when, in light of the evidence and the applicable law, the court's decision was not a permissible option. "The abuse of discretion standard . . . measures whether, given the established evidence, the act of the lower tribunal falls within the permissible range of options set by the legal criteria. 'The scope of discretion always resides in the particular law being applied, i.e., in the "legal principles governing the subject of [the] action . . . ." Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an "abuse" of discretion.'" (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831.)
"California discovery law authorizes a range of penalties for conduct amounting to 'misuse of the discovery process.'" (Doppes, supra, 174 Cal.App.4th at p. 991.) As relevant here, misuses of the discovery process include "[u]sing a discovery method in a manner that does not comply with its specified procedures" (Code Civ. Proc., § 2023.010, subd. (b)); "[f]ailing to respond or to submit to an authorized method of discovery" (id., subd. (d)); "[m]aking an evasive response to discovery" (id., subd. (f)); and "[d]isobeying a court order to provide discovery" (id., subd. (g)).
Code of Civil Procedure section 2023.030 authorizes a trial court to impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against "anyone engaging in conduct that is a misuse of the discovery process." As to evidence sanctions: "The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence." (Id., subd. (c).)
In Doppes, we explained that in selecting the appropriate sanction, a trial court "should consider both the conduct being sanctioned and its effect on the party seeking discovery," and should tailor the sanction to fit the harm caused by the abuse of the discovery process. (Doppes, supra, 174 Cal.App.4th at p. 992.) "The trial court cannot impose sanctions for misuse of the discovery process as a punishment." (Ibid.)
B.
The Trial Court Did Not Abuse its Discretion in Imposing Evidentiary Sanctions
Against Alai.
In their appellate briefs, plaintiffs do not argue insufficient evidence supports the trial court's factual findings in the evidentiary sanctions order, although they disagree with the court's resolution of disputed facts based on conflicting evidence. In fact, plaintiffs acknowledge in their opening appellate brief that Alai failed to respond to discovery and failed to comply with certain of the court's orders.
Plaintiffs argue the portion of the evidentiary sanctions order precluding Alai's testimony from referring to Nassiri was not tailored to fit the harm caused by plaintiffs' discovery abuses, but instead was impermissibly punitive. The record shows Alai failed to provide in a timely fashion contact information for Nassiri that would have enabled Shang to depose her and otherwise discover information about her experience and observations during her August 17, 2011 visit to Shang's office and any infection she might have suffered thereafter. Consequently, Shang was unable to conduct such discovery related to Nassiri before she left the country and ultimately passed away. Under these circumstances, as fairness dictated an order precluding evidence related to Nassiri or her visit to Shang's office, such an order did not constitute an abuse of discretion.
Plaintiffs argue "[t]he evidentiary sanctions order caused prejudicial error, because the trial judge ostensibly used it as the sole basis for excluding Dr. Alai's testimony, which the trial court knew was the foundation for Plaintiffs' medical expert's opinions, which is clearly an essential element to any medical malpractice case." The trial court did not issue an order barring Alai from testifying at trial; the order only precluded evidence referring to Nassiri. Alai was therefore free to testify regarding her own experience at Shang's office, without reference to Nassiri, and introduce other evidence to try to prove she contracted the EKC infection due to Shang's alleged malpractice. In forming his expert opinion, plaintiffs' medical expert, in turn, was free to rely on that testimony and any other evidence not precluded by the evidentiary sanctions order. Plaintiffs have failed to show the trial court's order constituted an abuse of discretion.
II.
THE TRIAL COURT DID NOT ERR BY GRANTING SHANG'S MOTION IN LIMINE SEEKING TO
EXCLUDE ALAI'S PERCIPIENT TESTIMONY AS TO NASSIRI'S APPOINTMENT WITH SHANG.
"Motions in limine are designed to facilitate management of a case by deciding difficult evidentiary issues in advance of trial." (McMillin Companies, LLC v. American Safety Indemnity Co. (2015) 233 Cal.App.4th 518, 529.) "Like many evidentiary rulings, orders on motions in limine are generally reviewed for abuse of discretion." (Ibid.)
Plaintiffs argue the trial court erred by granting Shang's motion in limine to confirm the exclusion of Alai's percipient testimony that she was present during Nassiri's appointment and saw that Shang failed to clean equipment in between Nassiri's appointment and her own. Plaintiffs also argue the court's ruling improperly expanded the scope of the evidentiary sanctions order issued by Judge Wilson. Not so. The evidentiary sanctions order precluded evidence of any reference to Nassiri. Alai was free to testify, as long as she did not refer to Nassiri, directly or indirectly. Otherwise, Alai would gain by her discovery abuses—enabling her to reference Nassiri even though Shang was deprived of the opportunity to discover what Nassiri saw or did not see in between her appointment and Alai's appointment. The order granting the motion in limine constituted an appropriate interpretation of the prior evidentiary sanctions order.
In their opening appellate brief, plaintiffs argue: "Here, the court knew its expansive granting of Defendant's Motion in Limine no.3 would mean the complete exclusion of Dr. Donzis's [plaintiffs' medical expert witness] testimony, since it would eliminate all percipient evidence of Defendant's failure to clean her tonometer just prior to the incident. Indeed, as an officer of the court, and in light of the rulings on the motions in limine, Plaintiffs' counsel was required to inform the court that Plaintiffs did not have sufficient evidentiary support for an essential element of their medical malpractice claim against Defendant. It was then immediately after that disclosure to the court—in keeping with counsel's ethical duties—that defense counsel's motion for directed verdict was made, and granted. For these reasons, the court's April 20, 2016 order granting of Defendant's Motion in Limine no. 3 constitutes prejudicial error, and should be reversed."
Plaintiffs' argument wrongly suggests that because they lacked enough evidence unrelated to Nassiri to prove their malpractice case against Shang, they automatically should be permitted to refer to Nassiri notwithstanding Alai's discovery abuses. Plaintiffs' argument regarding how critical Alai's testimony referencing Nassiri's appointment is to their case only underscores the unfairness of their repeated refusals to disclose Nassiri's contact information or make her available for deposition.
Furthermore, contrary to plaintiffs' suggestions in their appellate briefs, plaintiffs' need to introduce evidence at trial referring to Nassiri did not convert the evidentiary sanctions imposed into a terminating sanction. The court's order granting the motion in limine also did not involve the court's reconsideration of the evidentiary sanctions order or an expansion of it, as plaintiffs suggest.
III.
THE TRIAL COURT DID NOT ERR BY GRANTING THE MOTION IN LIMINE ENFORCING THE
PARTIES' STIPULATION TO EXCLUDE EVIDENCE REFERENCING LILI NABILI.
Plaintiffs argue the parties' stipulation regarding the exclusion of evidence referencing Lili Nabili did not include an agreement to exclude Sam Nabili's "percipient testimony as to what he personally observed after Ms. Nabili's visit was over." In granting Shang's motion in limine regarding evidence referencing Lili Nabili, the trial court permitted Sam Nabili's testimony regarding what he observed at Shang's office, as long as it did not refer to Lili Nabili "in any way" and did not refer to her either directly or indirectly as "another patient." The court's order was based on a proper interpretation of the parties' stipulation and did not constitute error.
IV.
THE TRIAL COURT DID NOT ERR BY DENYING PLAINTIFFS' MOTION FOR A NEW TRIAL.
An order denying a motion for a new trial is not directly appealable but is reviewable on appeal from the underlying judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) In reviewing an order denying a motion for a new trial, we "'must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial.'" (Ajaxo Inc. v. E*Trade Group Inc. (2005) 135 Cal.App.4th 21, 46-47.) This differs from our review of an order granting a motion for a new trial, which we review for abuse of discretion. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 194.)
Code of Civil Procedure section 657 provides that a new trial may be granted for an "[i]rregularity in the proceeding" caused by an adverse party which prevented another party from having a fair trial, or because of "[n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial." Plaintiffs argue their motion for a new trial should have been granted because Shang's attorney allegedly engaged in misconduct and because they had discovered new evidence.
We have reviewed the record. Not only have plaintiffs failed to show Shang's counsel engaged in misconduct, they failed to show that any instance of alleged misconduct interfered with their right to have a fair trial or otherwise affected their substantial rights within the meaning of Code of Civil Procedure section 657. Furthermore, plaintiffs failed to show that their proffered "[n]ewly discovered evidence" could not have been discovered, with reasonable diligence, before Shang's motion for a directed verdict was granted. (Ibid.) The trial court did not err by denying plaintiffs' motion for a new trial.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
FYBEL, J. WE CONCUR: O'LEARY, P. J. MOORE, J.