Opinion
B304528
10-28-2021
ACTIVE TRANSPORT, Plaintiff and Appellant, v. FRED M. BOERNER MOTOR CO., Defendant and Respondent.
Law Office of Derek L. Tabone and Derek L. Tabone for Plaintiff and Appellant. Mokri Vanis & Jones, Todd A. Jones and Marcia E. Cook for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PC058429, Melvin D. Sandvig, Judge. Affirmed.
Law Office of Derek L. Tabone and Derek L. Tabone for Plaintiff and Appellant.
Mokri Vanis & Jones, Todd A. Jones and Marcia E. Cook for Defendant and Respondent.
COLLINS, J.
Plaintiff Active Transport, LLC (Active) sued defendant Fred M. Boerner Motor Co., dba RWC Group (RWC) alleging faulty repair of Active's truck. Two weeks before the close of expert discovery, Active filed an ex parte application to augment its expert witness designation to add a witness pursuant to Code of Civil Procedure section 2034.610. The trial court denied the application and the case proceeded to a bench trial. At the close of Active's case-in-chief, the court granted nonsuit in favor of RWC.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Active appeals from the subsequent entry of judgment. It contends that the court abused its discretion in denying its application to add an expert witness, arguing that the addition would not have prejudiced RWC, and without that expert, Active was unable to present a complete case. We find no error and therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Complaint and Pretrial Proceedings
Active performs trucking services in California. Active filed its complaint in April 2018, alleging a single claim for breach of contract against RWC. As alleged in the operative first amended complaint, Active brought its truck to RWC for repairs in February 2018. Upon inspection, RWC determined that "there was no compression in cylinder No. 6." Active therefore engaged RWC to replace the cylinder, as well as "the liner, three fuel injections, and more," for $9,640.53. RWC performed the repair and Active paid in full. Two weeks later, the truck's engine failed. Active alleged that while repairing the truck, RWC failed to tighten the bolts on "the connecting rod cap for cylinder No. 5," resulting in "extensive damage" to the truck's engine and "necessitating a complete rebuild."
RWC served its demand for exchange of expert witness information on April 5, 2019. Active served its response on April 30, 2019, listing three individuals from whom it intended to offer expert opinions: (1) Pablo Tabilo at American Guardian Warranty Service, Inc.; (2) the person most knowledgeable at Custom Towing; and (3) Michael Martinez at Westrux International. Active also disclosed that none of these individuals were retained experts.
In May 2019, the court granted the parties' stipulation to continue the trial from June 17, 2019 to September 23, 2019, along with the associated discovery and pretrial deadlines. The parties attended an unsuccessful mandatory settlement conference on July 25, 2019.
II. Active's Ex Parte Application
On August 26, 2019, Active filed an ex parte application to augment or amend its expert witness designation list. In the accompanying declaration, Derek Tabone, Active's counsel, stated that he had "intended to call Pablo Tabilo and the mechanic at Custom Towing to testify at trial regarding their inspection of the engine and the cause of the failure." Tabilo worked for the "warranty company," approved the repairs performed by RWC, and "inspected the engine after its failure." Custom Towing rebuilt the engine following its repair by RWC and subsequent failure. However, Tabone declared that after the parties failed to settle the case at the mandatory settlement conference, he "became aware" that neither Tabilo or the mechanic would cooperate as witnesses. Specifically, Tabilo, "who is based in Illinois, refuses to get involved or even return calls." Similarly, Custom Towing "has closed its shop and nobody associated with the rebuild can be found." As a result, Tabone retained John Kelly III, as an expert "to review the evidence and testify as to the cause of the failure."
Active therefore sought to amend its expert witness designation to remove Tabilo and the Custom Towing mechanic and add Kelly as a retained expert. RWC refused to agree to the amendment, thus necessitating the ex parte application seeking court approval. Active argued that RWC would not be prejudiced by the change, as it had not yet deposed any of Active's designated experts, and the proposed amendment would reduce the number of experts from three to two. Active also asserted that Kelly was "ready to be deposed." It contended that it had acted diligently, as it only realized the issue with its intended witnesses when "making trial arrangements" following the mandatory settlement conference.
RWC opposed the ex parte application. It argued that there was insufficient time before the expert discovery cut-off on September 9, 2019 for RWC to depose the new expert and then evaluate that testimony with its own experts. Further, it argued that Active's strategic choice not to retain an expert "throughout the entire discovery process" did not justify its last minute request and would prejudice RWC if granted. RWC also stated that it had issued deposition notices and subpoenas to the designated experts from Westrux and Custom Towing, but the depositions "were requested to be moved by Plaintiff's office."
From the limited record before us, it appears that Martinez from Westrux was eventually deposed, but the other two experts designated by Active were not.
The court held a hearing on Active's ex parte application on August 27, 2019. The court's minute order states that after considering the moving papers and counsel's oral arguments, the court denied the application. The minute order also notes that there was no court reporter present at the hearing; thus, there is no transcript of the hearing in the record.
III. Trial
The bench trial took place on October 16, 2019. Active presented the following evidence at trial:
It appears from the record that the court held a final status conference on September 13, 2019 and, sometime thereafter, continued the trial date from September 23 to October 16. The parties do not dispute that at the time of the hearing on Active's ex parte application, the trial remained set for September 23, 2019.
Marco Escobar, Active's owner, testified that Active generally purchases used trucks for its fleet. In 2017, he purchased the truck at issue, a 2013 International 4000 Series with an extended warranty and a starting mileage of 182, 755. Escobar admitted that he did not know anything about the maintenance history of the truck prior to his purchase.
Escobar took the truck to RWC in November 2017. At that time, the truck's total mileage was 237, 800 miles. RWC recommended a full "engine in-frame rebuild." However, Escobar's warranty company inspected the truck and refused to authorize a full rebuild under the warranty; instead, it authorized only a repair to cylinder number six. Active approved RWC to perform only the work authorized by the warranty company. In an email to Active in early February 2018, RWC continued to recommend an in-frame rebuild, warning that "[a]t a minimum, the main bearings and the rods should be replaced as there are [sic] significant damage." Escobar refused the additional repairs.
RWC completed its repair work in February 2018. According to Escobar, no one at RWC ever mentioned any problems to him after the repairs were completed. However, RWC produced an invoice at trial, signed by Escobar when he picked up the truck, stating that RWC had advised him of the damage to the main bearings and rods, and because Active "declined further repairs that RWC Group informed them [sic] should be completed, RWC Group places no guarantee or warranty on the work performed."
The truck failed about three weeks later. Active had the truck towed to Westrux. Westrux prepared a report regarding the problem with the engine. Ultimately, the truck needed a full engine rebuild, which was performed by Custom Towing.
Robert Cunningham, Jr., the general manager of RWC, testified that in his experience, this type of engine was "known for having premature catastrophic failure." According to Cunningham, RWC recommended a total rebuild based on a visual inspection showing the poor condition of the engine, plus the discovery that cylinder number six had already failed. RWC inspected cylinder number six and visually inspected the rest of the engine, but did not open or touch any of the other cylinders.
Active also called their sole remaining expert witness, Michael Martinez, a service advisor for Westrux. Martinez acknowledged that he was not a mechanic. He testified that Westrux received the truck at issue in March of 2018 for diagnosis of an engine problem. A Westrux technician inspected the truck, including removing the oil pan, and discovered that the rod cap for cylinder number five was "disconnected and at the bottom of the oil pan." The technicians did not indicate finding any other problem with the engine other than the connecting rod cap being disconnected. Westrux reported to Active that it found the "connecting rod cap disconnected" and recommended "removal and replacement of the engine."
Martinez admitted that he did not personally participate in the inspection or diagnosis of the engine. He initially testified that he had seen photographs of the engine taken by Westrux staff and identified those photographs in court. However, during cross-examination, he admitted that the photographs were taken by an inspector from the warranty company, not by Westrux employees. He further acknowledged that he had no basis to say that the photographs presented at trial depicted the truck at issue, and that he had seen them for the first time at his deposition. The trial court sustained defense counsel's objections to further questions regarding the photographs and to questions seeking Martinez's opinion of the cause of the engine failure.
Active also introduced excerpts at trial from the deposition of RWC's expert, Paul Saedler. He opined that there were two possible causes for a rod cap being disconnected-either normal wear and tear on a bearing, or the cap was not tightened properly. Saedler also testified that "proper cylinder 6 replacement would involve the mechanic checking the torquing of all the bolts on the rods and on the crankshaft."
At the close of Active's case, RWC moved for nonsuit pursuant to section 631.8. RWC argued that Active "clearly failed to meet their burden of proof to establish RWC's work fell below the standard of care . . . [or] caused the subject engine damage." Active argued that the evidence showed it was "more likely than not that [RWC] took the bolts off and didn't tighten them all properly. And how else could they examine and do an evaluation of the bearings showing damage unless you look at the bearings? You can't look at bearings without taking off the caps." RWC responded that there was "no evidence in this case as to what actually caused the failure" and no evidence "that RWC touched the bolts at issue." The court granted the motion for nonsuit. The court entered judgment in favor of RWC on November 13, 2019.
IV. Motion for New Trial
Active filed a motion for a new trial on November 25, 2019. Active again argued that it had intended to call both Tabilo and the mechanic from Custom Towing to testify as to their opinion on the cause of the truck engine's failure. In his accompanying declaration, Tabone stated that when he attempted to contact those witnesses in mid-August, he "realized that one was refusing to cooperate and the other had disappeared." He therefore "promptly" retained Kelly, whom he expected would testify that the engine failure was caused by the negligent repair performed by RWC. Tabone declared that the denial of Active's ex parte application "had the effect of eviscerating Plaintiff's case" and was an abuse of discretion.
The court held a hearing on the motion on January 14, 2020. The minute order from the hearing indicates that defendant did not appear and no court reporter was present. According to the minute order, having considered Active's moving papers and Active's counsel's oral argument, the court denied the motion for new trial. Active timely appealed from the judgment.
DISCUSSION
Active contends the trial court erred by refusing to permit it to add a retained expert to its expert witness list one month before trial. It does not otherwise challenge the trial court's granting of nonsuit or denial of its motion for new trial. Based on the record before us, we find no error.
I. Legal Principles
A. Expert Discovery
The purpose of the expert witness discovery statutes is "to give fair notice of what an expert will say at trial. This allows the parties to assess whether to take the expert's deposition, to fully explore the relevant subject area at any such deposition, and to select an expert who can respond with a competing opinion on that subject area. . . . 'Late disclosure of experts . . . frustrates the very purposes of the discovery statutes, and should be permitted, with appropriate safeguards and limits, only when absolutely necessary to avoid a miscarriage of justice.'" (Bonds v. Roy (1999) 20 Cal.4th 140, 146-147.)
Section 2034.610 governs the procedure for a party to seek to augment an expert witness list. Pursuant to that section: "(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to . . . [¶] (1) Augment that party's expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained." The statute further requires that the parties first meet and confer and that any motion "shall be made at a sufficient time in advance of the time limit for the completion of discovery . . . to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time." (§ 2034.610, subdivisions (a), (b).)
A party moving to augment its expert witness list may do so only where the court finds that "all of the following conditions are satisfied: [¶] (a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses. [¶] (b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits. [¶] (c) The court has determined either of the following: [¶] (1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness. [¶] (2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following: [¶] (A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony. [¶] (B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert . . . on all other parties. . . . [¶] (d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition . . ., and on any other terms as may be just. . . ." (§ 2034.620, italics added.)
B. Standard of Review
A motion to augment or amend an expert witness designation is subject to the discretion of the trial court and will not be disturbed on appeal absent a showing of manifest abuse of that discretion. (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476, citing Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1039.) "Under the abuse of discretion standard, '[w]here there is a [legal] basis for the trial court's ruling and it is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court.'" (People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1552; see also San Bernardino City Unified School Dist. v. Superior Court (1987) 190 Cal.App.3d 233, 240- 241 ["While we may have ruled differently had we heard the motion, the appellate court may not substitute its view as the proper decision."].)
"[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) "'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court.'" (Id. at p. 609.) "'Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].'" (Ibid.) "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error." (Estate of Fain (1999) 75 Cal.App.4th 973, 992; see also Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483 [noting "appellant['s] obligation to provide an adequate record to demonstrate error as well as our obligation to presume that the decision of the trial court is correct absent a showing of error on the record"].)
II. Analysis
Active challenges the trial court's denial of his ex parte application seeking to augment his expert witness list. However, there is no reporter's transcript from the hearing on the ex parte application and the corresponding minute order states only that the court heard argument and denied the application. Thus, we have no record of any factfinding done by the court or the basis for the trial court's ruling. Similarly, there is no transcript and no statement of the reason(s) for the court's rejection of the same argument made in Active's motion for a new trial. In the absence of a reporter's transcript, we must presume the judgment is correct as to any evidentiary findings the trial court made. (See Jameson v. Desta, supra, 5 Cal.5th at pp. 608-609; Estate of Fain, supra, 75 Cal.App.4th at p. 992; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201 [absent a reporter's transcript, "[w]e must . . . presume that what occurred at that hearing supports the judgment"].)
Moreover, the record Active has provided does not demonstrate that the trial court abused its discretion. We reject Active's assertion that it "had a statutory right" to augment its expert witness list pursuant to section 2034.610. That section does not allow Active to augmentation as a matter of right. Rather, section 2034.610 requires a noticed motion made sufficiently in advance of the applicable discovery deadlines, in which case the court "may" grant leave to a party to augment its expert witness list only if it finds the party met all of the requirements set forth in section 2034.620. Apart from citing to the statute, Active provides no authority to suggest that the court was required to grant Active's request to augment its expert witness list.
Additionally, the record supports the court's exercise of its discretion in denying Active leave to add an expert witness one month before trial and two weeks before the expert discovery cutoff. Indeed, because of the belated nature of its request, Active had to move ex parte rather than bringing a noticed motion. For that reason alone, the court could have found that Active failed to meet the requirements of section 2034.610, as it did not bring a motion in sufficient time before the discovery cutoff. Further, as of April, 2019, Active had chosen to proceed with three non-retained experts to support its case. Active offered no evidence of any steps taken to secure the cooperation of these witnesses until the middle of August, when Tabone attempted to contact the witnesses regarding the trial scheduled for the following month. When those plans fell through, Active retained an expert and filed its ex parte application on August 26, 2019. At that point, RWC would have had only a handful of days in which to depose the new expert and make any adjustments to its own expert testimony and trial plan. Under these circumstances, the court was well within its discretion to find that Active failed to meet its burden to establish all of the requirements of section 2034.620. For example, the court could have concluded that RWC had relied on the original expert witness list, RWC would suffer prejudice as a result of the late addition of a retained expert, Active had not been reasonably diligent in deciding to use a retained expert, and/or Active's lack of diligence was not the result of "mistake, inadvertence, surprise, or excusable neglect."
Active contends it was surprised when its witnesses refused to cooperate and it acted promptly in retaining an expert, offering that expert for deposition, and seeking to augment its expert witness list. We cannot reweigh the evidence and disturb the trial court's findings on appeal. (See, e.g., People ex rel. Harris v. Sarpas, supra, 225 Cal.App.4th at p. 1552.)
We are not persuaded otherwise by Active's reliance on Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1442 (Staub). That case is distinguishable both legally and factually. In Staub, the court did not address a request to augment or amend an expert witness list under sections 2034.610 and 2034.620. Instead, that case addressed Defendant's motion to exclude Plaintiff's expert pursuant to section 2034.300, based on an expert designation that was approximately nine days late. (Id. at p. 1443.)
Conducting a de novo review because the issue concerned statutory interpretation, the appellate court considered section 2034.300, which provides for exclusion of an expert where a party "unreasonably" failed to comply with an expert demand, provided the objecting party "made a complete and timely compliance" with its own expert witness disclosures. (Staub, supra, 226 Cal.App.4th at p. 1445.) Because the defendants had erred in setting the date for the original expert exchange, the court concluded they lacked standing under section 2034.300 to object to the testimony of the plaintiff's expert. (Id. at p. 1446.) The court also found that "the record does not support the trial court's implicit conclusion that plaintiffs behaved so unreasonably as to warrant exclusion of their experts' opinion testimony," citing to plaintiffs' counsel's good faith efforts to designate the expert, defense counsel's "strategic choice" not to depose the experts, and the fact that excluding the experts "was in effect a terminating sanction, as it eviscerated plaintiffs' case." (Id. at pp. 1447-1448.)
Here, unlike in Staub, Active bore the burden to meet the requirements of sections 2034.610 and 2034.620 in order to augment its expert witness list. The trial court's conclusion that Active did not do so is supported by the record. Thus, the court did not abuse its discretion in denying Active's ex parte application. For the same reasons, we also find no error in the court's denial of Active's motion for a new trial.
We also reject Active's claim that the court's order "amounted to a death knell ruling" leading inexorably to nonsuit. Active provides no factual support for this contention. Notably, the court did not expressly grant RCW's nonsuit based on Active's lack of a retained expert. Nor does Active explain how Kelly's proffered testimony could have overcome a key evidentiary failure-Active had no witness with personal knowledge of the engine repair and failed at trial to authenticate the photographs purporting to show the engine at issue.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
We concur: WILLHITE, ACTING P.J., CURREY, J.