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March 4, 2026 Get Citation Alerts Download PDF Add Note

Dickerson v. Bickman CA2/3

California Court of Appeal

• Citations: None known
• Docket Number: B333003

• Precedential Status: Non-Precedential

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.2K)

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Combined Opinion

Filed 3/4/26 Dickerson v. Bickman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

BIANCA A. DICKERSON et al., B333003

Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC617242)
v.

TRISTAN EMILY BICKMAN et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Ruth Ann Kwan, Judge. Affirmed.
Tamari Law Group and Robert W. Wright for Plaintiffs and
Appellants.
La Follette Johnson Dehaas Fesler & Ames, Christopher P.
Wend and Jeffrey A. Rector for Defendant and Respondent
Tristan Emily Bickman.
Cole Pedroza, Kenneth R. Pedroza, Cassidy C. Davenport;
Fraser Watson & Croutch, Stephen C. Fraser, Evan A. Guzé, and
Daniel K. Dik for Defendants and Respondents The Regents of
The University of California and Christopher Tarnay.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗

Plaintiffs Bianca Dickerson and Taly Williams appeal the
judgment entered in favor of defendants Tristan Emily Bickman,
M.D., Christopher Tarnay, M.D., and the Regents of the
University of California (the Regents) following trial.
Dickerson gave birth at a medical center operated by the
Regents. Williams is Dickerson’s husband and the child’s father.
Bickman delivered the baby. Dickerson suffered chronic pain
after the delivery. She had three appointments with Tarnay
concerning her postpartum pain. Plaintiffs asserted causes of
action for medical malpractice and loss of consortium against all
defendants. They also asserted a cause of action for fraud
against Bickman, alleging that Bickman intentionally
misrepresented and concealed the extent of Dickerson’s birthing
injuries. The trial court granted Bickman’s motion for nonsuit as
to the fraud cause of action but did not withdraw the issue of
concealment from the jury. The jury returned a verdict in favor
of defendants.
On appeal, plaintiffs contend the trial court reversibly
erred by calling plaintiffs’ attorney unprepared on one or two
occasions, improperly denying plaintiffs leave to amend their
complaint before and during trial, and excluding two of plaintiffs’
witnesses. We affirm the judgment.

2
FACTUAL AND PROCEDURAL BACKGROUND1
Dickerson gave birth to her second child on May 5, 2015, at
Santa Monica UCLA Medical Center, which the Regents own and
operate. Bickman, Dickerson’s obstetrician and gynecologist
(OBGYN), attended the birth and delivered plaintiffs’ child.
After Dickerson arrived at the hospital, she received an
epidural and was numb from the waist down. While Dickerson
was in labor, a nurse bent her legs into the birthing position. The
nurse who was supporting Dickerson’s left leg “inadvertently
looked away, and when she looked away, she removed her body
and her hand.” Dickerson’s left leg then dropped onto or slid
down the mattress from a bent position. Dickerson felt a “really
sharp pull in [her] right rib cage.” Bickman noticed the leg was
down and instructed the nurse to “ ‘get [Dickerson’s] leg up.’ ”
Dickerson did not testify that she alerted any medical provider of
the sensation she experienced as a result of the leg drop.
After the delivery, Bickman repaired sulcal (vaginal wall)
and perineal lacerations Dickerson sustained during childbirth.
Dickerson reported severe pain in her vagina and rectum while in
the hospital. She received pain medications. According to
hospital records, Dickerson was not in pain when she was
discharged on May 7, 2015.
However, Dickerson continued to experience pain after she
was discharged. A week after the birth, Dickerson’s primary care
physician referred her to Tarnay because she appeared to want a
second opinion as to whether she was healing properly. Tarnay is
an OBGYN specializing in urogynecology, or the treatment of

1 Because plaintiffs do not challenge the sufficiency of the
evidence supporting the jury’s verdict, we only briefly discuss the
facts.

3
pelvic floor disorders in women. Dickerson had three visits with
Tarnay. Tarnay diagnosed Dickerson with postpartum perineal
pain, tenderness in her pelvic muscles, a nerve pain issue, and
increased sensitivity. Tarnay recommended a conservative
course of treatment and indicated that Dickerson might need
perineal revision surgery if conservative measures proved
suboptimal. Dickerson also continued to see Bickman until
September 11, 2015.
In May 2016, Dickerson underwent surgery with another
doctor. This surgery, along with physical therapy, alleviated
some of her pain. However, Dickerson continued to suffer from
chronic pain. She testified that as a result of the pain, her close
relationship with her children and her marriage were
“destroyed.” She also had difficulty maintaining employment.
Plaintiffs’ Complaint
Plaintiffs filed this lawsuit in April 2016. The operative
third amended complaint asserted causes of action for medical
malpractice and loss of consortium against all defendants, and
fraud against Bickman on theories of intentional
misrepresentation and fraudulent concealment.
In October 2020, plaintiffs sought leave to file a fourth
amended complaint to assert a claim of fraud against the Regents
based on information they had become aware of “in or around
December 2017.” In April 2021, the trial court denied the
request.
Trial
The approximately five-week trial began on January 17,
2023. Plaintiffs called 17 witnesses in their case in chief,
including 11 retained expert witnesses and three medical
professionals who had treated Dickerson. After plaintiffs rested

4
their case, Bickman moved for nonsuit on all causes of action
asserted against her. Initially, the court denied the motion for
nonsuit with respect to the medical negligence and the loss of
consortium causes of action. The court later granted Bickman’s
motion for nonsuit on the intentional misrepresentation theory of
fraud.2
Subsequently, on February 16, 2023, the case was
submitted to the jury. The following day, the trial court granted
Bickman’s motion for nonsuit as to the fraudulent concealment
theory but did not withdraw the issue from the jury’s
consideration. Following the court’s ruling on the motion for
nonsuit, plaintiffs moved to conform their complaint to proof at
trial. The court denied the request.
The jury returned its verdict on February 21, 2023. It
found that none of the defendants had been negligent for
purposes of medical malpractice and Bickman had not
intentionally failed to disclose any facts.
In July 2023, plaintiffs moved for a new trial. The trial
court denied the motion. Plaintiffs timely appealed.
DISCUSSION
I. The Trial Court Did Not Commit Misconduct By
Commenting on Counsel’s Preparedness Outside the
Presence of the Jury
Plaintiffs contend the trial court committed misconduct
when it reprimanded their attorney for being unprepared. The
court made the comment in chambers. However, Dickerson

2 Although intentional misrepresentation and fraudulent
concealment were alleged as part of the same fraud cause of
action, the trial court deemed them “two different theor[ies]” and
considered them separately.

5
stated in her declaration that the comment was “clearly heard in
the courtroom.” We conclude that plaintiffs forfeited their claim
of judicial misconduct by failing to raise it below. Even if not
forfeited, the court’s statements did not constitute judicial
misconduct.
A. Applicable legal standards
A trial court commits misconduct if it “ ‘persistently makes
discourteous and disparaging remarks’ ” to counsel for one of the
parties, thus creating the impression that “ ‘it is allying itself’ ”
with the other party. (People v. Sturm (2006) 37 Cal.4th 1218,
1233 (Sturm).) “[I]t is critical for a litigant who believes a trial
court is engaging in such misconduct to object immediately,
thereby putting the court on notice of the need to correct its
behavior and creating a record of the problem for appellate
review.” (Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc.
(2018) 19 Cal.App.5th 525, 543 (Arave).)
“It is ‘extraordinary’ for an appellate court to find judicial
bias amounting to a due process violation. [Citation.] The
appellate court’s role is not to examine whether the trial judge’s
behavior left something to be desired, or whether some comments
would have been better left unsaid, but to determine whether the
judge’s behavior was so prejudicial it denied the party a fair, as
opposed to a perfect, trial.” (Schmidt v. Superior Court (2020) 44
Cal.App.5th 570, 589.)
B. Plaintiffs’ claim of judicial misconduct was
forfeited and is without merit
Plaintiffs concede that they failed to object to the trial
court’s purported statements during trial. Although they claim
their attorney “did not and could not know at the time that the
judge was overheard by the jurors in the courtroom,” Dickerson

6
stated in her declaration that the court’s comments were “clearly
heard” in the courtroom. Assuming Dickerson was able to make
this statement under penalty of perjury because she personally
heard the court’s comments, there is no reason why she could not
have raised this with her attorney in a timely manner. Plaintiffs’
willingness to let the trial continue without objecting on the
ground of bias forfeits their claim on appeal and strongly
suggests it is without merit. (People v. Guerra (2006) 37 Cal.4th
1067, 1112 (Guerra).)
Citing People v. Seumanu (2015) 61 Cal.4th 1293, plaintiffs
assert that any objection would have been futile. They offer no
analysis in support of this contention, and Seumanu belies their
claim. In Seumanu, our Supreme Court concluded the
defendant’s failure to object at trial forfeited any claim of judicial
misconduct based on the trial judge’s single comment. (Id. at
p. 1320.) It rejected the defendant’s claim that an objection
would have been futile, since “the circumstances in no way
suggest[ed] an objection and a request to have the jury
admonished would have found an unsympathetic jurist.” (Ibid.)
The same is true here.
Even if plaintiffs did not forfeit the claim, we would find no
judicial misconduct here. The trial court made a single
statement in chambers that plaintiffs’ counsel was “unprepared.”
A trial court may properly reprimand attorneys for improper
conduct, such as a failure to be prepared at trial, and may even
do so harshly. (Guerra, supra, 37 Cal.4th at p. 1111.) Plaintiffs
do not establish that the reprimand was unwarranted. Although
Dickerson claimed the court also made “[s]imilar statements” in
chambers approximately a week before, she did not describe
these other statements in any detail. Plaintiffs also did not

7
submit any juror declarations establishing that members of the
jury heard these comments or understood they were addressed to
plaintiffs’ attorney.3
Moreover, even if unwarranted or improper, two such
comments during a month-long trial do not constitute
“persistent” misconduct and did not render plaintiff’s trial unfair.
(See Arave, supra, 19 Cal.App.5th at p. 539 [trial court did not
commit misconduct when it chastised attorney for reading from
documents when questioning witnesses on three occasions;
incidents were “extremely minor” and, “[a]t worst, . . . expressions
of frustration at counsel’s use of trial time”]; see id. at pp. 537–
538.) “As our Supreme Court has indicated, ‘manifestations of
friction between court and counsel, while not desirable, are
virtually inevitable in a long trial.’ ” (Id. at p. 539, quoting People
v. Snow (2003) 30 Cal.4th 43, 78–79.)
Plaintiffs rely on Sturm, supra, 37 Cal.4th 1218, to support
their claim that the court’s comments called its neutrality into
question. The circumstances here are plainly distinguishable. In
Sturm, the trial court belittled the defendant’s expert witnesses,
answered questions on an expert’s behalf, disparaged defense
counsel in the presence of the jury, interposed its own objections
to his questions, and stated it had spent “ ‘an inordinate amount

3 The trial judge found that it was not clear that the jury
could hear her comments. She described the courtroom for the
record. It is approximately 45 feet wide with an “extremely high
ceiling.” The court’s chambers are “literally to the very end of the
other side of the courtroom from the jury.” There is an outer door
to chambers, followed by a seven foot hallway, and an inner door.
The outer door is always closed during discussions in chambers.
The trial court also noted there were “always about six attorneys”
present in chambers.

8
of time’ ” ruling on objections to defense counsel’s questions. (Id.
at p. 1236, italics omitted; see id. at p. 1233–1236.) Our Supreme
Court concluded the trial court’s comments indicated that it did
not take the defense experts seriously, it was allied with the
prosecution, and it believed defense counsel was wasting the
court’s and the jury’s time. (Id. at p. 1238–1240, 1242.) The
cumulative effect of the trial judge’s conduct required reversal.
(Id. at p. 1243.)
Here, the trial judge’s brief, isolated comments, made
outside the jurors’ presence (if not outside their range of hearing),
are not comparable to any single act of the trial court in Sturm,
much less the sum of that court’s conduct. There was no judicial
misconduct.
II. The Trial Court Did Not Abuse Its Discretion or
Commit Prejudicial Error by Denying Plaintiffs
Leave To Amend the Complaint
Plaintiffs contend the trial court abused its discretion by
denying their pretrial request for leave to amend their complaint
to assert a fraud cause of action against the Regents. They also
argue the court erred in denying their request to amend the
concealment cause of action against Bickman to conform to proof
at trial. We find no basis for reversal.
A. Legal principles
Generally, trial courts “will liberally allow amendments at
any stage of the proceeding.” (Falcon v. Long Beach Genetics, Inc.
(2014) 224 Cal.App.4th 1263, 1280.) But this policy of liberality
“ ‘should be applied only “[w]here no prejudice is shown to the

9
adverse party . . . .” [Citation.]’ [Citation.]” (Atkinson v. Elk
Corp. (2003) 109 Cal.App.4th 739, 761.)
“A long unexcused delay may be the basis for denying
permission to amend pleadings [citations], especially where the
proposed amendment interjects a new issue [citations], which
may require further investigation or discovery procedures
[citations].” (Nelson v. Specialty Records, Inc. (1970) 11
Cal.App.3d 126, 139.) Leave to amend is addressed to the sound
discretion of the trial court. (Branick v. Downey Savings & Loan
Assn. (2006) 39 Cal.4th 235, 242.)
B. Plaintiffs’ pretrial motion for leave to amend
i. Background
The operative third amended complaint asserted a cause of
action of fraud against Bickman only. It alleged that Bickman
intentionally concealed that she had performed an episiotomy on
Dickerson and further concealed the true extent of Dickerson’s
injuries, “i.e., that it was a 4th degree episiotomy and laceration.”
In October 2020, plaintiffs sought leave to file a fourth
amended complaint. Their motion asserted that plaintiffs had
become aware of information suggesting the Regents had also
committed fraud “in or around December 2017,” and they only
learned that the claim may be viable after consulting with their
current attorney. The motion did not identify the proposed
allegations against the Regents in any detail, nor did it disclose
that the proposed amended complaint also altered the allegations
concerning Bickman.
The proposed fourth amended complaint alleged that the
Regents and its employees intentionally concealed “the
anatomical effects of [Dickerson’s] leg being dropped”; the nurse
employed by the Regents who cared for Dickerson “endorsed the

10
behavior of [Bickman] and remained complicit during and after
the injury”; and the Regents concealed that Bickman had
performed an episiotomy. The proposed fourth amended
complaint also changed the factual basis of the fraud claim
against Bickman, alleging that Bickman told Dickerson she had
not suffered a vaginal or perineal laceration of any kind.
In April 2021, the trial court denied plaintiffs’ motion. It
first observed that the motion failed to comply with California
Rules of Court, rule 3.1324. The court also concluded that the
amendment would be prejudicial because the case was nearly five
years old and the modified allegations would require new
discovery and motion practice. Finally, the court noted that
plaintiffs had asserted a fraud claim against Bickman “since the
outset of this action . . . based on the same facts and
circumstances as those in the newly proposed cause of action for
fraud.” Yet, plaintiffs failed to “provide a cogent explanation for
why this claim was not brought against [the Regents] sooner.”
ii. Discussion
Plaintiffs do not dispute that their motion for leave to
amend did not comply with California Rules of Court,
rule 3.1324. The motion did not identify by reference to page,
paragraph, and line number what material plaintiffs had deleted
from the previous complaint or what material they added. (Cal.
Rules of Court, rule 3.1324(a)(2)–(3).) Notably, the motion
indicated that the proposed changes to the complaint only
concerned the Regents. It did not disclose that plaintiffs were
also seeking to change the factual basis of the concealment claim
against Bickman. This failure to comply with the mandatory
requirements of rule 3.1324 provided the court with a reasonable
basis to deny the motion. (See Hataishi v. First American Home

11
Buyers Protection Corp. (2014) 223 Cal.App.4th 1454, 1469 [trial
court did not abuse discretion by requiring plaintiff to file motion
for leave to amend “compliant with the Rules of Court”].)
However, the court also concluded that plaintiffs’ request
was not timely and plaintiffs failed to justify waiting four and a
half years to assert a fraud claim against the Regents. Denying
the motion on this ground was not an abuse of discretion.
From the inception of the case in April 2016, plaintiffs
alleged that Bickman had concealed and misrepresented the
extent of Dickerson’s injuries. Plaintiffs claimed they were
unaware of information suggesting the Regents had similarly
committed fraud until December 2017. Yet, even if plaintiffs only
learned of the relevant facts in December 2017, they still waited
nearly three years to plead a fraud claim against the Regents.
The trial court acted reasonably in denying plaintiffs leave to
amend in light of plaintiffs’ long, unexcused delay in seeking to
amend the complaint to plead fraud against the Regents. (Record
v. Reason (1999) 73 Cal.App.4th 472, 486–487 [no abuse of
discretion in denying leave to amend complaint to allege new
cause of action where plaintiff was aware of facts supporting new
claim almost three years before seeking leave to amend].)
Plaintiffs contend that any cost or burden of additional
discovery would have been “minimal.” However, the Regents
litigated the case for over four years with the understanding that
it was a medical malpractice case subject to the damages cap set
forth in Civil Code section 3333.2. A fraud cause of action would
allow plaintiffs to seek punitive damages, substantially
increasing the Regents’ potential liability. The trial court could
reasonably conclude that both the Regents and plaintiffs would
likely seek additional discovery in connection with the fraud

12
cause of action, and that the costs to the Regents of issuing and
responding to this discovery would not be minimal.
C. Any error in denying plaintiffs’ request to
conform the complaint to proof was not
prejudicial
i. Background
The operative complaint alleged that Bickman intentionally
concealed that she had performed an episiotomy on Dickerson
and concealed the true extent of Dickerson’s injuries, “i.e., that it
was a 4th degree episiotomy and laceration.” It did not allege
that Bickman intentionally concealed the leg drop or its effects
from plaintiffs.
During opening argument, plaintiffs’ attorney asserted that
Bickman “failed to disclose the extent of [Dickerson’s] injuries,
concealing them, failed to disclose the extent of the laceration in
her pelvis, [and] the existence of the leg drop and the effect of
that leg drop on [Dickerson’s] body.” He further argued that this
concealment prevented Dickerson from understanding her
injuries, which resulted in a delay of her diagnosis and “a
catastrophic worsening of her condition.”
Dickerson testified about her experience of the leg drop and
plaintiffs’ experts testified that Dickerson sustained hip and
nerve injuries as a result of it.
Dickerson also testified that Bickman “concealed and
omitted a material fact . . . [by] omitting in her operative reports
that [Dickerson] had sustained intrapartum complications, such
as dropping of [Dickerson’s] leg.” She asserted that Bickman
“knew the physiology of the body and [she] knew when
[Dickerson’s] leg was down and the other leg was up that
[Dickerson] had been injured.” Dickerson testified about the

13
things she would have done differently if she had full information
about the leg drop. Williams testified that he believed Bickman
concealed “what [Dickerson’s] injuries were, the degree of them,
that the leg drop had anything to do with anything.” He stated
that, if the leg drop had been disclosed, “[they] would have got it
addressed.” Plaintiffs’ nursing expert also testified that she
believed that the leg drop “was intentionally left out of
[Dickerson’s] record to avoid any issues and to conceal this
information.”
Plaintiffs’ attorney twice questioned Bickman about the leg
drop. Bickman testified that she did not remember anything
about Dickerson’s delivery eight years prior. She did not
remember a leg drop occurring during any patient’s delivery and
testified that she “probably” would remember if such a thing had
happened.
On February 9, 2023, Bickman’s counsel argued the court
should grant nonsuit on the fraud claim because the evidence at
trial did not substantiate the allegations in the complaint. No
medical professional testified that Dickerson had undergone an
episiotomy or sustained a fourth degree perineal laceration, the
theory of fraudulent concealment alleged in the operative
complaint. The only expert who testified that the perineal
laceration was a third degree laceration, rather than a second
degree laceration, was a radiologist. He testified that it would
not surprise him if a clinician graded the injury as a second
degree laceration as “there can be a difference between what is
perceived clinically and what is seen radiologically.” Bickman’s
counsel also asserted the “leg drop” theory of fraudulent
concealment was never pled in the complaint. The trial court
asked plaintiffs to find case law that supported their claim that

14
they could advance theories of fraud at trial that went beyond the
allegations of the complaint.
On February 14, the trial court concluded that the cases
plaintiffs had identified did not support their claim that they
were allowed to expand their theory of fraud at trial. In
response, plaintiffs argued in part that they should be allowed to
conform the complaint to proof at trial. The court replied that
the complaint should have been amended prior to trial. It
granted the motion for nonsuit as to the intentional
misrepresentation theory of fraud but deferred ruling on the
concealment theory.
On February 16, the trial court instructed the jury that
Dickerson was required to prove “that [Bickman] intentionally
failed to disclose certain facts, namely, that [Dickerson’s] leg drop
during her delivery resulted in serious injuries to her, including
but not limited to pudendal nerve injury and/or that she suffered
a third-degree perineal laceration and that those facts were only
known to [Bickman] and that [Dickerson] could not have
discovered.” In closing argument, plaintiffs’ counsel argued that
expert witness testimony established “that there was a leg drop,
that it was concealed in the medical record, concealed by not
being included in the medical records, and that [Dickerson]
should not have been allowed to support her legs and her leg to
drop, which ultimately wound up causing her injuries.”
Bickman’s counsel challenged plaintiffs’ claim that Bickman
“concealed that the leg drop caused some heinous injury here.”
He also repeated the portion of the instruction on fraudulent
concealment concerning the leg drop.
The following day, the trial court granted Bickman’s motion
for nonsuit as to the fraudulent concealment theory. The trial

15
court observed that the theory of concealment presented at trial
based on the leg drop was not consistent with the allegations of
the operative complaint. Nevertheless, the court considered the
leg drop theory when evaluating the fraudulent concealment
claim. The court concluded that the evidence, when viewed in the
light most favorable to plaintiffs, did not support a finding that
Bickman intentionally failed to disclose that the “leg drop”
resulted in serious injuries. The court found there was no
testimony establishing that “an OB-GYN[ ] somehow should have
known[,] or that there’s any indication that [Bickman] ha[d] any
inkling that that drop onto the mattress of the bed resulted in
serious injuries.” The court further reasoned that, “[i]f anything,
[Dickerson] knew . . . more about the consequences of that leg
drop than anybody else did in that room,” yet there was “no
indication . . . that she told any of the staff about those issues and
that associated pain.” Without expert testimony to “connect the
dot[s],” the court concluded “it would be a complete leap to say
that Dr. Bickman . . . intentionally failed to disclose the fact that
the leg drop resulted in serious injuries, that Dr. Bickman was
even aware of any injuries, let alone serious injury.” The trial
court also observed that plaintiffs could not prove reliance
because “[t]he entire case is about how [Dickerson] immediately
embarked on an immediate investigation of her medical
condition.” The court concluded: “So even if one were to overlook
all the specificity issue[s] and the defective pleading, based on the
state of the testimony, the court is going to grant the non-suit.”
Plaintiffs then formally moved to amend the complaint to
conform to proof at trial. Plaintiffs’ counsel did not specify the
proposed amendments or relevant proof. The court denied the
request.

16
Despite granting nonsuit as to the entire fraud cause of
action, the trial court did not withdraw the issue of fraudulent
concealment from the jury. In the section of the special verdict
form titled “Fraud: Concealment,” the jury found that Bickman
did not “intentionally fail to disclose certain facts that were
known only to her and that [Dickerson] did not know and could
not reasonably have discovered.”
ii. Discussion
We need not decide whether the court abused its discretion
in denying plaintiffs’ request to conform the complaint to proof at
trial. Even if the court erred, plaintiffs fail to establish that the
error had any impact on the outcome of this case.
Although plaintiffs failed to plead the leg drop concealment
theory they presented at trial, the trial court fully considered the
theory when it ruled on Bickman’s motion for nonsuit on the
issue. Plaintiffs do not challenge the court’s ruling on the motion
for nonsuit with respect to concealment or intentional
misrepresentation.
Moreover, the jury instructions stated that the leg drop was
part of the fraudulent concealment theory. Plaintiffs argued the
leg drop theory to the jury as part of the fraudulent concealment
claim. Despite the ruling on the nonsuit, the court did not
withdraw the issue of fraudulent concealment from the jury. We
must therefore presume that the jury considered all of the
evidence presented to it, including related to the leg drop. The
jury rejected that theory when it found Bickman had not
unlawfully concealed any facts from Dickerson, and when it
returned a verdict in Bickman’s favor.
Plaintiffs argue they suffered prejudice from the denial of
their pretrial and trial requests for leave to amend their

17
complaint because they were purportedly “precluded . . . from
exercising their rights to produce material evidence, expert
witnesses, and fully cross-examine adverse witnesses.” We have
already concluded the court did not abuse its discretion in
denying the pretrial motion. The record demonstrates that there
was a single express request to conform the complaint to proof at
trial, which plaintiffs made after they rested their case and the
jury began deliberations. The court’s denial of that request could
not have impacted the case plaintiffs were able to present.
III. The Trial Court Did Not Abuse Its Discretion In
Excluding Any Witness
Plaintiffs contend the trial court abused its discretion in
excluding the testimony of Angela Cirilli, Dickerson’s best friend
who is also a doctor, and Lee Dellon, a treating physician.
We review a trial court’s exclusion of evidence for abuse of
discretion. (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th
1471, 1476.) “[E]ven where evidence is improperly excluded, the
error is not reversible unless ‘ “it is reasonably probable a result
more favorable to the appellant would have been reached absent
the error. [Citations.]” [Citation.]’ [Citations.]” (Tudor Ranches,
Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431–
1432.)
A. The trial court did not abuse its discretion by
excluding Cirilli’s testimony
Plaintiffs’ sought to offer Cirilli’s testimony “as to her
understanding of the circumstances” while Dickerson was in the
hospital, based on phone and FaceTime calls she had with
Dickerson; “whether or not [Cirilli] believed there was some
concealment of the injuries”; what Dickerson’s “condition really
was”; and how Dickerson’s “experience was not, in [Cirilli’s]

18
opinion, a normal or reasonable experience.” The trial court
excluded the testimony because plaintiffs had not disclosed Cirilli
as an expert, yet testimony on the issues of concealment, and
whether Dickerson’s experience was reasonable, would constitute
expert testimony. The court also concluded Cirilli’s testimony
about Dickerson’s experiences would be hearsay, since Cirilli was
not present at the hospital.
Plaintiffs contend statements Dickerson made to Cirilli
about her pain while in the hospital would fall within the “state
of mind” hearsay exception under Evidence Code section 1250.
They further argue Cirilli’s testimony was not hearsay because
she was a percipient witness to Dickerson’s pain. We disagree.
As a preliminary matter, plaintiffs’ attorney neither
informed the court that he intended to elicit testimony from
Cirilli concerning Dickerson’s pain levels while in the hospital,
nor argued that Cirilli’s testimony was admissible under
Evidence Code section 1250. “ ‘[T]o preserve an alleged error for
appeal an offer of proof must inform the trial court of the
“purpose, and relevance of the excluded evidence
. . . .” [Citation.]’ ” (People v. Valdez (2004) 32 Cal.4th 73, 108.)
“[W]e cannot hold the trial court abused its discretion in rejecting
a claim that was never made.” (Id. at p. 109.)
Plaintiffs also fail to establish that Cirilli’s testimony would
be admissible under the “state of mind” hearsay exception. This
exception provides that “evidence of a statement of the
declarant’s then existing state of mind, emotion, or physical
sensation (including a statement of intent, plan, motive, design,
mental feeling, pain, or bodily health) is not made inadmissible
by the hearsay rule when: ¶ The evidence is offered to prove
the declarant’s state of mind, emotion, or physical sensation at

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that time or at any other time when it is itself an issue in the
action.” (Evid. Code, § 1250, subd. (a)(1).) “The exception is
limited to out-of-court statements describing a relevant mental
state being experienced by the declarant at the time the
statements were made.” (People v. Whitt (1990) 51 Cal.3d 620,
642–643 [defendant’s statements concerning “events and feelings
experienced before” prison interview were inadmissible to prove
their truth].)
Cirilli testified at her deposition that she could not recall
whether she spoke with Dickerson while Dickerson was at the
hospital or after Dickerson had returned home. When asked to
estimate how many days had passed between the delivery and
when she and Dickerson spoke, Cirilli stated only that she did
not remember the date. Dickerson’s trial testimony indicated
that she spoke with Cirilli after she returned home, but not
necessarily before. The record does not establish that Dickerson
told Cirilli about her pain levels while she was experiencing that
pain, as is required for the statements to be admissible under
Evidence Code section 1250.
Further, even if Cirilli was a percipient witness to
Dickerson’s pain, her testimony was cumulative. Cirilli was not
the only person who could testify to Dickerson’s pain levels at the
hospital. Williams testified based on his personal observations
about Dickerson’s pain levels the day after she gave birth and
upon her discharge from the hospital. Dickerson also testified at
length about the pain she experienced. The trial court did not
abuse its discretion in excluding Cirilli’s testimony.
B. Plaintiffs agreed not to call Dellon as a witness
Plaintiffs contend the trial court committed structural error
by excluding Lee Dellon’s testimony. However, the record

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establishes that plaintiffs’ attorney agreed not to call Dellon as a
witness. The trial court did not err.
Before trial, plaintiffs’ counsel stated that he had “what
[he] believe[d] to be ten full days of testimony.” The court said it
would hold plaintiffs to that estimate. Witness testimony began
on Wednesday, January 18, 2023. A week later, on January 25,
plaintiffs’ attorney informed the court that plaintiffs were
running behind schedule. When discussing the remaining
witnesses plaintiffs intended to call, the trial court expressed
frustration because plaintiffs had identified over 100 experts and
changed their minds about who they would call, including Dellon.
The court indicated it would decide whether Dellon and others
could testify based on whether plaintiffs had time left.
On January 30, plaintiffs’ counsel identified two witnesses
he expected to call and stated: “We do have another witness, if
necessary. We have Lee Dellon.” (Italics added.) The court
informed counsel that plaintiffs were “going way over now.”
Plaintiffs’ counsel responded that plaintiffs would not call Dellon
if they did not have time. The trial court disputed that it had
approved Dellon. Plaintiffs’ attorney stated, “That’s fine,” and
that plaintiffs would call the other two witnesses. The trial court
expressed frustration that plaintiffs’ attorney came up with new
names every time he spoke with his clients. Plaintiffs’ attorney
again stated that plaintiffs were “fine” with the other witnesses.
In support of plaintiffs’ motion for a new trial, Dickerson
submitted a declaration stating that “Dellon would have testified
that [her] injuries were specifically caused by the incident during
[her] pregnancy when [her] leg was dropped and one leg was left
standing and the other flat.” In arguing the motion, plaintiffs’
counsel asserted that Dellon was “the only neurosurgeon and

21
treating doctor to testify” and his “testimony concerning
causation here was critical.”
However, when discussing witnesses with the trial court
during trial, plaintiffs’ counsel had not argued that Dellon’s
testimony concerning causation was critical to plaintiffs’ case.
Rather, he indicated that Dellon’s testimony was perhaps
unnecessary and ultimately agreed not to call Dellon. The court
did not exercise its discretion and therefore did not abuse it.
Even if we assumed the court’s statements were
tantamount to an order excluding Dellon’s testimony, a trial
“court may, at any time before or during the trial of an action,
limit the number of expert witnesses to be called by any party.”
(Evid. Code, § 723.) The trial court permitted plaintiffs to call 11
expert witnesses. Plaintiffs do not dispute the trial court’s
observation that some of those experts opined that the leg drop
caused Dickerson’s injuries. They also do not contend that
Dellon’s causation testimony would have differed in any material
respect from that of other expert witnesses. Plaintiffs therefore
fail to establish that Dellon’s testimony was essential to proving
causation, or that the exclusion of that testimony would
constitute an abuse of discretion or structural error. (Gordon v.
Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1114.)
Plaintiffs contend several of their witnesses were precluded
from relying on Dellon’s records in their testimony under People
v. Sanchez (2016) 63 Cal.4th 665. However, they do not identify a
single instance in which the trial court sustained a defense
objection to testimony concerning Dellon’s records. (Duarte v.
Chino Community Hospital (1999) 72 Cal.App.4th 849, 856
[argument unsupported by citations to the record may be deemed
waived].) Moreover, Sanchez provides that testimony is hearsay

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“[w]hen any expert relates to the jury case-specific out-of-court
statements, and treats the content of those statements as true
and accurate to support the expert’s opinion.” (Sanchez, at
p. 686, italics added.) Sanchez does not limit what experts may
consider when forming their opinions. Indeed, three of plaintiffs’
experts testified that they had reviewed Dellon’s records.
Finally, plaintiffs fail to demonstrate that additional
evidence concerning causation would have altered the outcome
here. The jury found that neither Bickman nor the Regents was
negligent. It therefore did not reach the issue of whether either
party’s negligence was the cause of Dickerson’s injuries.

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DISPOSITION
The judgment is affirmed. Defendants shall recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

ADAMS, J.

We concur:

EDMON, P. J.

HANASONO, J.

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