Suarez v. Colosimo

Filed 1/10/07  Suarez v. Colosimo CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.

  COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

                      APPEAL from a judgment of the Superior Court of San Diego County, William  R. Nevitt, Jr., Judge.  Affirmed.

                      In September 2003, plaintiff and appellant, Francisco Suarez (plaintiff), sued defendant and respondent Ryan Colosimo (defendant) for damages for personal injuries arising out of an automobile accident that occurred in September 2002.  When the parties appeared for trial in November 2005, defendant sought dismissal on the basis that no expert medical testimony was available from plaintiff and plaintiff had not shown he would be able to argue or prove causation of injury without it, since other causative factors had been raised as set forth in the affirmative defenses in the answer.  The trial court dismissed the action.

                      Plaintiff appeals, claiming the trial court erroneously applied the law to find that expert testimony would be necessary to prove causation of damages, since this was a rear-end collision and plaintiff believed lay witness testimony would have been sufficient to prove some of his injuries, such as emotional distress.  He also claims the trial court erred or abused its discretion in granting the motion to dismiss and/or refusing to continue the trial to allow other expert testimony to be presented, such as through cross-examination of the defense expert.

                      In response, defendant argues the trial court did not abuse its discretion in making those rulings because the court had the authority to hear a nonstatutory dismissal request and to dismiss the case under these circumstances.  (Gotschall v. Daley (2002) 96 Cal.App.4th 479 (Gotschall).)  We conclude the trial court did not abuse its discretion and there were reasonable justifications for each of the trial court's rulings.  Accordingly, we affirm.

BACKGROUND FACTS

A

Underlying Accident and Pleadings; Case Preparation

                      On appeal, mainly procedural arguments are made regarding the sufficiency of trial preparation, and the record is quite sparse.  We will briefly describe the allegations in the complaint for personal injury and loss of consortium, showing that plaintiff's vehicle was struck from behind by defendant's vehicle in heavy traffic congestion conditions.  Plaintiff alleges defendant was negligent per se due to his violation of the basic speed law.  (Veh. Code, §  22350.)  Plaintiff and Mrs. Suarez filed the complaint in propria persona, and attorney Alvin Gomez substituted in as their counsel two months later.  Defendant was served with the summons and complaint in January 2004.

                      Defendant filed his answer raising a number of affirmative defenses, including comparative fault of others, contributory negligence of plaintiff, and supervening cause through third party actions.

                      In March 2004, a case management conference was held.  In July 2004, the scheduled trial date was continued until after Suarez's recovery from back surgery, which was performed by Dr. Spisak.  In October 2004, another continuance was granted to accommodate defendant's military deployment until July 2005, and also due to a second surgery for plaintiff.  Trial was later continued from August 2005 to October 2005.

                      In October 2005, the parties appeared for trial call, and Suarez's attorney reported that his surgeon, Dr. Spisak, was now in San Jose, had not been deposed and was being uncooperative with counsel's efforts to do so.  The matter was continued a week and plaintiff made some efforts to obtain that deposition.  Meanwhile, Colosimo was required to go back on military deployment and the trial date was continued until he was available, after November 23, 2005.

Motion/Dismiss and Ruling

                      When the parties appeared for trial November 28, 2005, Suarez had not obtained any deposition testimony from the treating surgeon, Dr. Spisak.  Although in 2004 he had consulted other experts and percipient witnesses, he withdrew all subpoenaes.    At trial, he presented a witness list to the court which named a number of these percipient and expert witnesses, including a different expert contacted by Suarez, Dr. Cleary.  The parties agreed to dismiss Mrs. Suarez as a plaintiff.

                      The record does not contain any designation of expert witnesses, although Suarez unsuccessfully sought to augment the record in this court to supply an unconformed copy of one that had never been presented to the trial court.  (Code Civ. Proc., §  2034.210 et seq.; all further statutory references are to the Code of Civil Procedure unless noted.)  Before empaneling a jury, the trial court entertained defendant's oral motion to dismiss the case based on his " point brief" that argued plaintiff's failure to disclose any expert witnesses on the issue of causation was a fatal defect in his case.  Defendant argued that the evidence developed so far showed that plaintiff had experienced other injury-causing events after the automobile accident, such as soccer injuries and construction site work injuries.  Defendant thus contended that expert testimony would be required to provide a legal nexus from an event, to an injury, to treatment.  The defense expert, Dr. Schwab, had prepared reports stating that from a biomechanical standpoint, Suarez would not have been at risk for a significant back injury from the nature of this automobile accident, but perhaps a week-long neck strain. 

                      In the " point brief," defense counsel anticipated that plaintiff would seek to rely on this defense expert, and contended this was an " unfortunate error" on plaintiff's counsel's part, because he had failed to subpoena or to designate defendant's expert physician as a plaintiff expert as well.  (Gotschall, supra, 96 Cal.App.4th at p. 482.)  Defendant stated that he was not under any obligation to produce his expert for plaintiff to examine.

                      At the hearing, Suarez's attorney told the trial judge that he thought he had an agreement with defense counsel that he could use the defense expert, Dr. Schwab, to prove causation of injury from the automobile accident.  Defendant responded that he was under no separate obligation to call Dr. Schwab without a subpoena, in order to allow plaintiff to examine him as part of his case-in-chief.  In response to questioning by the court, plaintiff suggested that he could now subpoena all the witnesses or he could give the medical records to his newly designated expert Dr. Cleary, who would then give an opinion on causation.  Defense counsel opposed this idea, on the grounds that plaintiff had been given over four months to pursue deposition testimony specifically from Dr. Spisak or from another doctor, but had not done so.

                      Plaintiff then moved for a short or a long continuance to seek further development of his case.   He claimed surprise in that the supposedly arranged agreement to produce Dr. Schwab was now being denied by defense counsel, and he offered to pay for defendant's travel if a continuance were granted.  Defendant objected to any continuance based on his ongoing unavailability to attend trial, as he had to go back in a few days to military duty in Pearl Harbor and it was difficult to obtain shore leave to attend trial.  Also, the defendant noted a brief continuance was inappropriate because it would be difficult to resubpoena the medical witnesses on short notice.

                      The court granted defendant's oral motion for dismissal based upon plaintiff's evident inability to establish an essential element of his case, causation, without expert testimony.    The court also noted that plaintiff was now proposing to start over again and put on a case in an entirely different posture, even though there was currently a total lack of causation evidence.  In fact, the court said it would be pointless to proceed only to have the defense make a motion for nonsuit.

                      Plaintiff appeals the dismissal judgment.

DISCUSSION

I

STANDARDS OF REVIEW

                      Plaintiff seeks to have this court review the record de novo, based on the trial court's alleged error of law in finding that expert testimony was necessary to prove causation and damages in a rear-end auto collision.  Plaintiff also contends the trial court erred or abused its discretion in granting the request for dismissal without proper notice and without allowing a continuance.

                      In response, defendant argues for a standard of review of abuse of discretion based only on the trial court's decision to dismiss the case and deny a continuance.   Neither of these approaches is entirely correct, because they do not adequately account for the evidentiary issues of law presented, nor the discretionary dismissal rules.  This court dealt with a similar problem in Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1119, fn. 9 (Jennings), and found that a hybrid standard of review should apply to a procedural context in which the parties were disputing the appropriate standards for evaluating a trial court's ruling regarding the availability and admissibility of expert testimony.  In that case, we compared the standards of review for an order granting a nonsuit, and those that apply to evaluations of discretionary evidentiary rulings, and reconciled them, because the effect of the subject evidentiary ruling was to grant a nonsuit against plaintiff's claim for damages.  We said:

" Defendants cite numerous cases that have applied the abuse of discretion standard to rulings on the admissibility of expert testimony, but most of those cases involved rulings on whether the witness was qualified to express the opinion [citation], or whether it was a proper subject of expert testimony [citation], issues not present here.   In contrast, [plaintiff] argues we should import the standards applicable to review of an order granting a nonsuit because the effect of the ruling was to nonsuit [plaintiff] on a substantial portion of his damage claim [citation] and the nonsuit standard was applied sub silentio by the trial court.   Under the nonsuit standard, [plaintiff] argues the ruling would be proper only if [the expert's] testimony, viewed most favorably to [plaintiff] and given all the value to which it was legally entitled, and disregarding all conflicting testimony, could not support a verdict in [plaintiff's] favor on the issue of causation.   [Citation.]   We view the standard of review issue in this case as one in which otherwise distinct standards of appellate review merge into a single approach.   [Citation.]   That is, if an expert's opinion on causation would (if credited by the jury) provide legally sufficient support for a finding in the plaintiff's favor on the issue of causation, it would be an abuse of discretion to strike that testimony.   We therefore examine the ruling giving to [the expert Dr.'s] opinion ' " 'all the value to which it is legally entitled [and] indulging every legitimate inference [that] may be drawn from the [opinion] in [plaintiff's] favor.' " '  [Citation.]"   (Jennings, supra, at p. 1119, fn. 9; italics added.)

                      Here too, our analysis must take into account the circumstances that in ruling on the motion to dismiss, the trial court was evaluating causation issues, in terms of the type of proof required for plaintiff to make out a prima facie case at trial.  This evaluation was carried out against the backdrop of admittedly minimal preparation for trial by the plaintiff.  In Jennings, when we analyzed related issues about the necessity of expert opinion, this court stated that when an appellate court evaluates an evidentiary ruling that excludes expert testimony, the court must consider the proposed testimony in light of " the purpose for plaintiff's proffer of his opinion.   In a medical malpractice action, a plaintiff must prove the defendant's negligence was a cause-in-fact of injury.   [Citation.]   'The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based [on] competent expert testimony.   Mere possibility alone is insufficient to establish a prima facie case.   [Citations.]'  "   (Jennings, supra, 114 Cal.App.4th at p. 1118.)  Plaintiff was proposing to address such causation issues through his own testimony.

                      Since these dismissal issues hinge upon the lack of evidence that plaintiff had supplied as of the time of trial, with regard to causation issues, we must evaluate all those issues together for abuse of discretion.  Moreover, it is appellant's burden to overcome the presumption of correctness of a judgment, thus appellant must demonstrate prejudice from any error shown.  (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.)  It is beyond question that appellant is responsible for providing an adequate record demonstrating error.  (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)  Utilizing these combined standards of review, we examine the challenged rulings.

II

NATURE OF ORAL MOTION TO DISMISS

                      Suarez contends the trial court erred in dismissing the complaint based on the procedural history of the case and the point brief presented by defendant.  He argues he was erroneously nonsuited before his opening statement had been presented, without an opportunity to cure the defects.  (§  581c.)  Alternatively, he claims that in effect, summary judgment was granted against him without adequate notice of motion.  (§  437c.)  Defendant's point brief, filed on the day of trial, cited Gotschall, supra, 96 Cal.App.4th 479, 482, in which the trial court had vacated a dismissal granted under the mandatory provisions of section 473, subdivision (b).   The appellate court held this was error because the mandatory provision of that section was inapplicable, because the dismissal granted was not " akin" to a default.  For our purposes, the important portion of Gotschall is not its analysis of section 473, regarding relief from default, but rather the procedural method in which the dismissal was obtained on the day of trial, and later upheld.

                      In Gotschall, supra, 96 Cal.App.4th 479, 482-484, the appellate court analyzed the record and found the plaintiff had been given an opportunity to contest the dismissal motion, which had been made by the defense on the ground that plaintiff had failed to demonstrate he had sufficient evidence to maintain his cause of action.  Specifically, plaintiff's counsel in that case conceded expert testimony was essential to prove causation, but he failed to designate in any expert disclosure document any expert on whom he planned to rely at trial.   The court said, " Without testimony on causation, plaintiff failed to meet his burden on an essential element of the cause of action."   (Id. at p. 484.)  This failure was not due to an unfair deprivation of his day in court, but was rather due to his failure to follow through on his opportunity to present evidence, including evidence concerning causation.  (Id. at pp. 484-485.)  Thus, based on its interpretation of the mandatory provisions of section 473, subdivision (b), the court reversed the trial court's grant of relief to plaintiff, and did not reach the other issues argued.  (Id. at p. 485.)  This authority shows that serious consequences, including dismissal, may properly result from a party's failure to present essential evidence of causation in a timely manner.   (Id. at pp. 482-484.)  It is not essential to the holding in Gotschall that the plaintiff's counsel admitted that such expert testimony was necessary, as that issue of necessity may also be determined objectively.

                      In another case outlining the permissible standards for dismissing an action at trial, Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 759-760 (Atkinson), the court reviewed a judgment of dismissal entered after a nonsuit heard on the trial court's own motion, following a previous denial of leave to amend the complaint.  The court found that although the plaintiff had failed to state a certain statutory cause of action, and nonsuit could have been properly entered on that theory, the trial court had nevertheless erred in declining to allow the plaintiff leave to amend to state an alternative theory that was supported by the same general set of facts.  (Ibid.)

                      Atkinson also stands for the proposition that even where a grant of nonsuit in favor of respondent on the court's own motion was irregular, the order must still be analyzed for prejudice.   (Atkinson, supra, 109 Cal.App.4th at p. 749.)  This is because " [i]n the absence of express statutory authority, a trial court may, under certain circumstances, invoke its limited, inherent discretionary power to dismiss claims with prejudice.   [Citations, including § 581, subd. (m) [the provisions of § 581 shall not be deemed to be an exclusive enumeration of the court's power to dismiss an action or dismiss a complaint as to a defendant]."   (Atkinson, supra, at pp. 748-749.)  However, the power of the court to dismiss actions with prejudice "   'has in the past been confined to two types of situations: (1) the plaintiff has failed to prosecute diligently [citation]; or (2) the complaint has been shown to be " fictitious or sham" such that the plaintiff has no valid cause of action [citation].'  [Citation.]"   (Id. at p. 749.)  Even where neither of those justifications is present, a court will not reverse a dismissal granted in an irregular procedure, unless it finds that plaintiff was prejudiced.   (Ibid., citing, e.g., Cal. Const., art. VI, § 13 [" No judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice" ].)

                      The statutory procedures for granting a nonsuit must also be viewed in light of the statement of public policy, as set forth in the legislative history of the 1998 amendment to section 581c, that these procedures are meant to promote judicial economy.  This purpose is summarized in Atkinson as follows:  " However, we can see no greater waste of court time than to require that a jury be impaneled and plaintiff make an opening statement, before the court could rule as a matter of law that Atkinson was not a [qualified plaintiff] within the meaning of [the subject statutory scheme]."   (Atkinson, supra, 109 Cal.App.4th at p. 749, fn. 11.)

                      Our case differs from Atkinson, supra, 109 Cal.App.4th 739, because plaintiff Suarez is not proposing to amend his pleadings to more fully state a cause of action based on the same set of facts.  Instead, Suarez's case stands or falls on whether he could provide at trial only lay opinion testimony about his pain and suffering (emotional injuries), or alternatively, expert opinion testimony about the causation of same, through cross-examination of the defense expert hired by defendant, a doctor/biomechanical expert that plaintiff had not yet subpoenaed or deposed.  Suarez further claimed to the trial court that his newly retained expert, a different doctor, could prepare for trial if it were continued.  The issue boils down to whether the trial court erred or abused its discretion in dismissing the case on the scheduled day of trial, under all the relevant circumstances.

                      We first set forth rules for evaluating plaintiff's claims that he could have provided sufficient evidence of causation of injury through lay testimony from himself and/or his wife, about his emotional distress after the accident, without regard to whether there were any intervening or supervening causative forces of injury after the accident, such as might have been the subjects of expert testimony.  We then turn to the question of whether the trial court should have allowed further continuances or amendments to cure any defects in the proposed proceedings projected by plaintiff.

III

ISSUES PRESENTED REGARDING CAUSATION

                      Plaintiff first challenges the dismissal judgment by arguing that in this rear-end accident, the defendant must have been negligent and must have caused these injuries.  This challenge raises issues about the nature of the causation showing required of a plaintiff alleging personal injury from negligence, and about the methods by which such a showing can be made, through expert testimony or otherwise.  We discuss these in turn, and then apply them to this record.

A

Cause in Fact and Supervening Cause Defense

                      General rules of causation do not allow the imposition of liability on a defendant without a showing by the plaintiff that his or her injuries were caused by the act of that particular defendant, or by an instrumentality under the defendant's control.   (Sindell v. Abbott Laboratories (1980) 26 Cal.3d 588, 597-598.)  These causation rules apply both to accidental injuries or to harm allegedly resulting from the use of a defective product.   (Ibid.)  We must reject any argument by plaintiff that the causation rules as developed in the specialized context of toxic torts or liability are necessarily inapplicable to this fact situation.  Rather, those particular kinds of complex causation questions represent extensions of basic principles.

                      In the factual context of an automobile accident allegedly resulting in injury to a plaintiff, a defendant driver's breach of duty must be the proximate or legal cause of the plaintiff's injury, before the defendant driver may be held liable.   (See 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 1181, p. 548.)  It is necessary to determine both the existence of any liability, and the extent of such liability, under comparative fault principles.  (Id. at § 1182, p. 549.)

                      Under these well accepted principles, a plaintiff must show cause in fact as an element of causation, in the case-in-chief, by bringing forward evidence that would permit " a reasonable finding that the defendant's conduct had some effect," and then the question will arise whether that effect was a substantial factor in bringing about the harm.  (See 6 Witkin, Summary of Cal. Law, supra, Torts, § 1182, p. 550 , citing, e.g., Wilson v. Blue Cross of So. California (1990) 222 Cal.App.3d 660, 673.)

          Plaintiff apparently believes he can shortcut these rules by pleading that defendant rear-ended plaintiff's car and defendant was exceeding the basic speed rule.  He may be relying on the doctrine of res ipsa loquitur (" the thing speaks for itself" ).  (See 1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof, § 129, p. 267, citing, e.g., Mercer v. Perez (1968) 68 Cal.2d 104, 126 [plaintiffs' car was struck from behind by defendants' car].)  This doctrine represents a rebuttable presumption of negligence, in cases in which " (1) The accident must be caused by an agency or instrumentality under the exclusive control of the defendant; (2) the accident must be of a type that ordinarily does not happen unless someone is negligent; (3) it must not have been due to any voluntary act or contributory fault of the plaintiff.   When these conditions are shown, a presumption arises that the accident arose from the defendant's want of proper care.   [Citations.]"   (1 Witkin, Cal. Evidence, supra, § 114, p. 250.)

          We assume plaintiff is arguing " something akin to a res ipsa loquitur theory of causation," as was also the case in Jennings, supra, 114 Cal.App.4th 1108, 1116, footnote  7.  However, the trial court correctly rejected any reliance by plaintiff on such a shortcut to prove that defendant's negligence, if any, was the operative force in harming him.  Rather, in addition to the affirmative defenses pled, including supervening cause, the trial court was presented with the defendant's oral motion to dismiss based on the point brief, raising an apparent failure of proof due to multiple other possible factors leading to causation of any of plaintiff's injuries.  We will next outline the rules regarding personal injury claims in which expert evidence will be found essential on causation.

          First, however, we seek to emphasize that we are restricted to the issues raised by this record and need not set forth all the theoretical ways in which expert evidence may or may not be essential to prove causation.  In our case, plaintiff came to trial without any expert witness preparation or subpoenaes, and he intended to rely solely on lay testimony about causation of emotional distress injury and damages.  In the alternative, he sought to examine the defense expert on the mechanism of injury, before the defense case began.  Otherwise, he would have sought a continuance to examine a new expert.  This procedural background must be considered together with the rules about the appropriateness of expert evidence regarding causation of personal injury, where the issues were joined to include disputes about causation.

Expert Testimony:  Legal Rulings Leading to Dismissal

                      In response to plaintiff's argument that lay testimony alone should be enough to establish damages for emotional distress arising out of the accident with defendant, we observe that he is relying on cases in which there was already a sufficient showing of causation of physical injury, from which the related emotional distress clearly followed.  For example, in Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 892-893 (Capelouto), the Supreme Court cited authority holding that when a personal injury cause of action has otherwise been established, "   'it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of.'   [Citation.]   In general, courts have not attempted to draw distinctions between the elements of 'pain' on the one hand, and 'suffering' on the other; rather, the unitary concept of 'pain and suffering' has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness  .  .  .  ."   (Id. at p. 893, fn. omitted.)

                      In such a case, " [t]he absence of medical testimony cannot of itself serve to foreclose recovery for pain and suffering; expert testimony is not a prerequisite to the framing of a question for the jury on this issue."   (Capelouto, supra, 7 Cal.3d at p. 895.)  However, plaintiff cannot appropriately rely on this type of authority to claim that his own testimony (or his wife's) would sufficiently establish causation and damages for pain and suffering, because a finder of fact could not have reasonably inferred from such testimony that such pain actually resulted from injury directly caused by this defendant's negligence.  (Id. at pp. 895-896.) 

                      If plaintiff is relying on the cases concerning intentional or negligent infliction of emotional distress, he is mistaken, because he did not plead such a cause of action.  The special rules allowing emotional distress damages without proof of physical injury attributable to the defendant's acts do not apply here.  (See Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 986 ["   'damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact . . . ."   '; "   'physical injury is not a prerequisite for recovering damages for serious emotional distress,' especially where 'there exists a " guarantee of genuineness in the circumstances of the case."   [Citation.]'  [Citation.]" .])

                      For example, in Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1384-1385, a toxic tort case, the court distinguished between proof of the physical aspect of the alleged emotional injuries, as opposed to proof of physical injury caused by exposure to harmful chemicals.  (Id. at p. 1388.)  Regarding the manner of proof of physical injury from exposure to harmful materials, the Court of Appeal relied on basic liability rules, stating: "   'The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.   Mere possibility alone is insufficient to establish a prima facie case.   [Citations.]   That there is a distinction between a reasonable medical " probability" and a medical " possibility" needs little discussion.   There can be many possible " causes," indeed, an infinite number of circumstances which can produce an injury or disease.   A possible cause only becomes " probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.'  "   (Id. at pp. 1384-1385.)

          Thus, expert testimony is normally required on the issue of causation " if the matter is so beyond lay experience that it can be explained only through experts."   (Cal. Practice Guide:  Personal Injury (The Rutter Group 2006) ¶¶ 2:996-2:996.1, p. 2-318.4.)  One such example is the cause of cancer, as in Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.  In this treatise, the authors further explain:  " Where the matter is beyond common lay knowledge, the trier of fact cannot dispense with or ignore expert testimony and simply infer causation from the totality of the circumstances. A plaintiff who fails to present competent expert testimony on the issue fails to establish a prima facie case and a judgment of nonsuit or dismissal is proper."   (Cal. Practice Guide:  Personal Injury, supra, ¶¶ 2:996.1, p. 2-318.4.)

                      In the opposite situation, expert testimony will not be admitted where the particular subject matter " is of such common knowledge and experience that persons of ordinary education could evaluate the issue by resort to lay knowledge."   (Cal. Practice Guide:  Personal Injury, supra, ¶ 2:1005.6, p. 2-318.8.)  " Most expert testimony is of the same force and effect as all other evidence.   The jury must decide the weight to give the testimony and how to resolve conflicts between the testimony of the various experts. " (Id. at ¶ 9:447, p. 9-108.)

                      In light of these guidelines, it is clear that plaintiff could not properly rely on lay testimony to establish causation and damages from this accident, simply by arguing that " the cause-and-effect relationship of the auto accident and Appellant's injuries were sufficiently obvious to be considered within the common knowledge of laymen."   Rather, the trial court correctly determined that in view of the alternative possible causes of his injuries, as pled in the answer (supervening cause, comparative fault, etc.), the defendant had made enough of a showing about other injuries sustained by plaintiff during the relevant time periods (soccer and construction site work injuries) to require that expert testimony be supplied by plaintiff to show causation of injury.  This issue is sufficiently beyond the realm of common experience that a medical expert's opinion would have been necessary to assist a trier of fact in determining causation.   Plaintiff had not made sufficient efforts to provide such evidence on his own behalf, but the nature of his claim, as disputed by the defendant's answer, was such that he was required to do so.

                      Moreover, there was no indication Dr. Schwab knew anything about plaintiff's other injuries.  " Thus, proffering an expert opinion that there is some theoretical possibility the negligent act could have been a cause-in-fact of a particular injury is insufficient to establish causation."   (Jennings, supra, 114 Cal.App.4th 1108, 1118.)  In such a case, " the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff's injury."   (Ibid.)  No such evidence was known to be available.

                      We next address whether the procedural arguments plaintiff makes on appeal should have entitled him to a continuance or an amendment to cure the defects raised in this respect.

C

Remaining Procedural Arguments

                      Plaintiff argues the trial court abused its discretion when it denied his request for a continuance to conduct discovery or to otherwise address the defects found in his case, before it was dismissed.  He relies on cases such as Atkinson, supra, 109 Cal.App.4th 739, in which the court discussed nonsuit standards and described the 1998 amendment to section 581c, addressing the propriety of granting a nonsuit before plaintiff had made an opening statement.  Currently, section 581c, subdivision (a) states:   " Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for judgment of nonsuit."   The court explained this italicized section had been added  to change "   'the Code so that a motion for nonsuit may not be made before completion of the plaintiff's opening statement, and [it] specified the intent of the Legislature in this regard.'  "   (Ibid.)

                      Plaintiff accordingly argues he should have had the opportunity at least to make an opening statement.  In Atkinson, the key factor was that even though the plaintiff did not have any cognizable statutory causes of action as originally alleged, the trial court nevertheless erred in denying him leave to amend to state causes of action under other applicable statutory schemes and/or common law fraud.  (Atkinson, supra, 109 Cal.App.4th 739, 759-760.)  Although in some cases, a trial court may deny leave to amend, where the conduct of the moving party or his belated presentation of the amendment is unacceptable, that was not the case in Atkinson.   (Ibid.)  Thus, the appellate court required amendment to be allowed and then other appropriate proceedings could take place to let the parties test its legal sufficiency.   (Id. at p. 760.)

                      Here, plaintiff has not shown his proposals of retaining and preparing a new expert witness on the day of trial, or using the defense expert who had not yet been subpoenaed or deposed by him, were acceptable alternatives to establish causation of his alleged injuries.  The trial court was not required to accept his claim of " surprise" that the defense expert would not be called on his behalf.  Plaintiff offers only inconsistent theories on appeal.  Unlike in Atkinson, supra, 109 Cal.App.4th 739, 749, plaintiff cannot show the necessary undue prejudice that would allow this court to set aside even an irregular type of dismissal on the day of trial, in the nature of a nonsuit ruling.  On the record before us, it is clear that the trial court appropriately considered the respective diligence of the parties in pursuing their witness and trial preparation.  There was no expert designation before the trial court.  The record provided by Suarez on appeal does not support any conclusion he was prepared for trial or was reasonably likely to be prepared in the foreseeable future, with respect to the necessity for expert testimony on causation of plaintiff's back injuries or other injuries, in light of the evidence developed thus far, showing there had been other independent incidents of harm. 

                      Also, although both parties had contributed to the need for the previous five continuances of trial, defendant made an adequate showing that he had previously made himself available for trial at several points in the proceedings, but was unable to do so in the next few months due to military duty in Hawaii at that time.  Defendant wanted to show he was personally contesting the case by being present at any trial, but he had unavoidable obligations elsewhere.  This was an adequate showing to justify a denial of another continuance, in light of the history of the case.

                      As long as there exists a reasonable or even fairly debatable justification under the law for the action taken by the trial court, it will not be disturbed on appeal, even if, as a matter of first impression, we might have taken a different view of the issue from that of the trial court.  (Gonzales v. Nork (1978) 20 Cal.3d 500, 507.)

                      Faced with the significant lack of support in the record for Suarez's trial preparation and expert witness proposals, we cannot find any reasonable probability that a result more favorable to him would have been reached in the absence of the alleged errors.  The record as a whole shows the trial court did not abuse its discretion when it granted the motion to dismiss on the day of trial.

DISPOSITION

                      The judgment is affirmed.  Costs are awarded to the respondent.

HUFFMAN, J.

WE CONCUR:

                                                BENKE, Acting P. J.

                                                                                AARON, J.

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