Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Rolf M. Treu, Judge. Los Angeles County Super. Ct. No. BC354508
Rackohn & Rackohn and Craig D. Rackohn for Plaintiff and Appellant.
Buchalter Nemer, George J. Stephan and Efrat M. Cogan for Defendants and Respondents.
ALDRICH, J.
I.
INTRODUCTION
Plaintiff and appellant Corey Kausch was involved in a personal injury lawsuit as a result of an airline crash. After the case settled in mediation, Kausch brought this lawsuit against his former attorneys, defendants and respondents William H. Wimsatt and the firm of Magaña, Cathcart & McCarthy, collectively Magaña. In a prior opinion involving the same parties, Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137 (Wimsatt I.), we discussed the strict rules of mediation confidentiality (Evid. Code, § 1115 et seq.) and how these rules could preclude parties who resolve their controversies through mediation from suing their attorneys for tortious behavior related to the mediation.
For ease of reference, we refer to the law firm of Magaña, Cathcart & McCarthy and attorney William H. Wimsatt collectively as Magaña. When necessary, we also refer to Wimsatt individually.
This is the second appeal involving the same case. As a logical extension of our holding in Wimsatt I., we are forced to conclude that an attorney is immunized from any negligent and intentional torts committed in mediation when said torts are the result of communications made for the purpose of, in the course of, or pursuant to a mediation, or a mediation consultation. The bottom line is that Kausch is foreclosed from litigating his allegation that Magaña lowered Kausch’s settlement demand without authorization, resulting in a settlement far below the reasonable value of his personal injury lawsuit.
We hold that the trial court: (1) did not err in granting summary adjudication in favor of Magaña on Kausch’s request for punitive damages relating to how Magaña handled Kausch’s settlement check and related costs and expenses; (2) did not abuse its discretion in denying Kausch’s motion to amend his complaint; (3) did not abuse its discretion in denying Kausch’s untimely expert designation; and (4) properly entered judgment in favor of Magaña.
We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Facts relating to the underlying personal injury lawsuit.
Some of the facts have been taken from Wimsatt I., supra, 152 Cal.App.4th 137.
1. Kausch hires counsel for personal injuries suffered in an airplane crash.
On November 18, 2003, Kausch was injured in an airplane crash. In June 2004, Kausch signed a fee agreement with the Magaña firm to represent him in a personal injury lawsuit. Wimsatt was an attorney in the Magaña firm who handled the case. Kausch also hired Attorney Marc Goldstein with regard to his personal injury lawsuit. The defendants in the personal injury lawsuit were represented by Attorney Peter P. Brotzen of Dwyer, Daly, Brotzen & Bruno, LLP, and Attorney Robert Baker of Baker Keener & Nahra LLP.
2. The mediations and the settlement.
Kausch and the personal injury defendants participated in a January 2006 mediation, but the case was not resolved.
On April 21, 2006, Wimsatt sent Kausch a letter regarding the upcoming second mediation to be held a week later. In part, the letter was to assist Kausch in preparing for the session.
The second mediation was scheduled for April 28, 2006 before the Honorable William Sheffield, retired. Prior to this mediation, Brotzen submitted to Judge Sheffield a confidential mediation brief which stated in part that “ ‘[t]he attorneys for [Kausch] have purportedly recently communicated a settlement demand in the sum of $1.5 million.’ ”
Upon receiving a copy of Brotzen’s mediation brief, Goldstein e-mailed Brotzen on April 27, 2006. Goldstein expressed concern over the statement delineated above, and asked where the $1.5 million figure had come from because he was “unaware of any settlement discussions that have taken place since the last mediation in January.” In his e-mail response, Brotzen stated he had obtained the information from Baker, “relating what... [Wimsatt] said to him [directly] and also... [Wimsatt] made that remark during one of our telephone conference calls scheduling the expert depos and touching on whether a second mediation conf[erence] would be worthwhile.”
That same day, Goldstein also sent an e-mail to Wimsatt stating he had read Brotzen’s mediation brief and asking if Wimsatt had had a discussion with the personal injury defendants regarding a settlement offer. Attorney Wimsatt responded by e-mail about five hours later, stating, “I did have a discussion with him about a month ago. I did not make a demand. I did, however, tell him that I had reevaluated the damages; and, that I thought a demand for half of plaintiff’s original demand was more in order. I, also, told him that I had no authority to reduce the original demand.”
At the end of the second mediation held on April 28, 2006, Kausch signed a stipulation for settlement, resolving the personal injury lawsuit for $1,175,000.
3. The costs advanced.
During the personal injury case, Goldstein and the Magaña firm both advanced expenses on Kausch’s behalf.
On May 30, 2006, after the second mediation, Magaña sent Kausch a statement of accounting. It detailed Kausch’s share of the settlement ($660,041.89), the attorney fees ($391,666.66), the expenses incurred by the Magaña firm ($84,068.23), and the expenses incurred by Goldstein ($39,223.22). The accompanying letter invited Kausch to contact Magaña if Kausch had any questions. It also requested Kausch sign an accompanying document verifying that the accounting was made with Kausch’s consent and approval. Kausch signed the document that day. He indicated, by circling the costs assigned to Magaña, he wanted to review those charges before they were released.
On June 6, 2006, the settlement checks totaling $1,175,000 cleared. At Kausch’s direction, the Magaña firm paid Goldstein his share of the attorney fees and costs.
On June 8, 2006, Kausch faxed a letter to Magaña questioning certain expenses and requesting his share of the settlement proceeds. Kausch directed Magaña to “keep everything [in dispute] in your trust account.”
On June 13, 2006, Magaña sent Kausch a check dated June 12, 2006 in the sum of $660,041.89 by overnight mail. An enclosed letter invited Kausch to review the documentation and receipts for the items Kausch questioned, and due to the voluminous nature of the materials, asked Kausch to set up an appointment with Wimsatt to have his questions answered. Kausch received the check and the letter the next day, on June 14, 2006. The Magaña firm maintained in its trust account all sums relating to litigation expenses and costs.
Subsequently, Kausch admitted he only was challenging $8,837.08, which represented about 10 percent of the total expenses claimed by Magaña. (See fn. 9, post.) On December 15, 2006, Magaña sent Kausch by overnight mail a $7,529.75 check for expenses that had been in dispute. Kausch did not deposit the check. Between December 2006 and April 2, 2008, Magaña tendered to Kausch a check for about $3,500.
B. The initial proceedings in this lawsuit against the Magaña firm and Wimsatt.
1. Kausch’s complaint.
On June 26, 2006, 18 days after Kausch sent his June 8, 2006 letter questioning Magaña’s costs, Kausch brought this lawsuit against the Magaña firm and Wimsatt. (Kausch did not name Goldstein as a defendant.) Kausch stated two causes of action: (1) breach of fiduciary duty; and (2) constructive fraud. Although the complaint was based upon suggestions of malpractice, it did not specifically state a cause of action for legal malpractice. It focused on two theories: (1) Kausch’s personal injury lawsuit settled at a sum less than its reasonable value because Magaña improperly lowered the settlement demand from $3.5 million to $1.5 million; and (2) Magaña improperly handled the costs and expense bill by overcharging and by wrongfully withholding Kausch’s share of the settlement proceeds. Kausch did not allege that he had not consented to the settlement. Kausch did not allege that Magaña failed to work up the underlying personal injury case properly.
Kausch also stated a cause of action for an accounting. Thereafter, Kausch voluntarily dismissed the accounting cause of action.
In addition to general and special damages, Kausch sought punitive damages.
2. The initial discovery dispute.
In this lawsuit against the Magaña firm and Wimsatt, Wimsatt testified in discovery that before the personal injury lawsuit was filed, Kausch made a $3.5 to $5 million settlement demand. Wimsatt denied he had lowered the settlement demand. Wimsatt objected to all questions relating to the mediations based upon mediation confidentiality. (Evid. Code, § 1115 et seq.)
Magaña sought a protective order to prevent Kausch from obtaining certain items in discovery, including: (1) discovery concerning the statements made in any mediation brief in the personal injury case, including the “Confidential Mediation Brief;” (2) discovery concerning the contents of the April 27, 2006 e-mails; and (3) discovery seeking to establish that there was a conversation “in which Bill Wimsatt allegedly lowered [Kausch’s] settlement demand ‘on the eve of the second mediation’ session held on April 28, 2006....” Further, Magaña sought a protective order to seal the mediation statements of the parties, documents which referred to mediation statements, and statements made at, or in connection with, the mediation sessions.
The trial court denied Magaña’s request for a protective order and denied Magaña’s request to seal documents. Magaña filed a petition for writ of mandate challenging the trial court’s rulings. We granted the petition.
3. Our prior opinion.
On June 18, 2007, we filed Wimsatt I., supra, 152 Cal.App.4th 137 . In Wimsatt I., we examined the strict confidentiality rules codified in Evidence Code section 1115 et seq. These rules can be claimed by all participants to a mediation, including the mediator, the parties, and attorneys. (Evid. Code, §§ 703.5, 1121, 1122, subd. (a)(1).) We initially noted that “[t]he Supreme Court has held that the mediation statutes are to be broadly construed to effectuate the legislative intent, even if there are conflicting public policies and even if the equities in a particular case suggest a contrary result.” (Wimsatt I., supra, at p. 142.) We then discussed mediation confidentiality, which the Legislature had deemed essential to effective mediation: “ ‘[T]he mediation confidentiality provisions of the Evidence Code were enacted to encourage mediation by permitting the parties to frankly exchange views, without fear that disclosures might be used against them in later proceedings. [Citations.]’ [Citation.] [¶] Mediation confidentiality is codified in Evidence Code section 1115 et seq. This evidentiary restriction is not limited to those communications made ‘ “in the course of... mediation. [Citation.]” ’ [Citation.] Rather, as delineated in Evidence Code section 1119, the restriction applies to any written or oral communication made ‘for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation,’ as well as all ‘communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation....’ (Evid. Code, § 1119.) Section 1119 also makes such evidence not subject to discovery.” (Wimsatt I., supra, at pp. 150-151.) Further, “[e]ven after mediation ends, communications and writings protected by the statutes are to remain confidential. (Evid. Code, § 1126; cf. id., § 1128 [reference to mediation in subsequent trial is grounds for new trial].)” (Wimsatt I., supra, at p. 152, fn. omitted.)
“ ‘Practitioners and the courts sometimes refer to the confidentiality afforded by [Evidence Code section 1115 et seq.] to communications made in connection with mediation as a “mediation privilege.” [Citations.]’ [Citation.] However, because the mediation confidentiality rules are not ‘privileges’ in the traditional sense [citation], and because the Evidence Code does not use the phrase ‘privilege,’ we will use the term ‘mediation confidentiality.’ [Citation.]” (Wimsatt I., supra, 152 Cal.App.4th at p. 150, fn. 4.)
We acknowledged in Wimsatt I., supra, 152 Cal.App.4th at page 151, that “[s]ome mediation communications and writings are admissible, if the statutory requirements are met. For example, the statutory scheme specifies when written settlements and oral settlements resulting from the mediation process are admissible. (Evid. Code, §§ 1118, 1122, 1123, 1124.) Additionally, communications or writings otherwise protected may be disclosed if there is consent for disclosure, according to the parameters of [Evidence Code] section 1122.”
We then examined the broad scope of mediation privilege noting that “[t]he Supreme Court has repeatedly resisted attempts to narrow the scope of mediation confidentiality. The court has refused to judicially create exceptions to the statutory scheme, even in situations where justice seems to call for a different result. Rather,... [t]he court has stated that ‘[t]o carry out the purpose of encouraging mediation by ensuring confidentiality, the statutory scheme... unqualifiedly bars disclosure of communications [and writings] made during mediation absent an express statutory exception.’ (Foxgate [Homeowners’ Assn. v. Bramalea California, Inc. (2001)] 26 Cal.4th [1,] 15, fn. omitted [(Foxgate)]; accord, Rojas[ v. Superior Court (2004)] 33 Cal.4th [407,] 416 [(Rojas)]; Fair v. Bakhtiari [(2006) 40 Cal.4th [189,] 194.)” (Wimsatt I., supra, 152 Cal.App.4th at p. 152.) Thus, in Foxgate, the Supreme Court refused to craft an exception to mediation confidentiality and therefore refused to permit disclosure of “a mediator’s report [that] indicated the attorney for one party had engaged in a pattern of tactics that were in bad faith and intended solely to delay.” (Wimsatt I., supra, at p. 152.)
In Rojas, supra, 33 Cal.4th 407, items had been submitted in a mediation to resolve litigation between contractors and subcontractors who built an apartment complex. In a subsequent civil lawsuit against entities that had developed and constructed the building, tenants sought to utilize expert reports prepared for and submitted in the mediation to prove allegations that construction defects created health hazards. (Id. at p. 412.) Even though the requested items might have been the only evidence to prove the tenants’ allegations, and even though the allegations related to consumer protections, the Supreme Court held the tenants could not obtain the items that had been submitted in the mediation. (Wimsatt I., supra, 152 Cal.App.4that pp. 154 155.)
In Wimsatt I., supra, 152 Cal.App.4th 137, we further discussed the Court of Appeal cases that had addressed mediation confidentiality. These cases also rendered decisions appearing to be inequitable. (Id. at pp. 155-156.) For example, in “Eisendrath[ v. Superior Court (2003)] 109 Cal.App.4th 351, a former husband moved to correct a spousal support agreement negotiated in mediation. (Id. at p. 355.)... [He] argued many of the conversations that occurred before the agreement was signed would demonstrate it did not accurately reflect the parties’ understanding. Eisendrath held the discussions, which purportedly were inconsistent with the finalized mediated agreement, were inadmissible. [Citation.] Eisendrath concluded that... mediation confidentiality cannot be impliedly waived. (Eisendrath, supra, at p. 362.) The Legislature mandated this result, even if it gave great power to the spouse who refused to expressly waive mediation confidentiality. [Citation.]” (Wimsatt I., supra, at p. 155.) “In Doe 1 v. Superior Court (2005) 132 Cal.App.4th 1160 (Doe 1), 26 Catholic priests were successful in stopping the Los Angeles Archdiocese from disclosing written summaries of personnel records of priests who were accused of sexually molesting minors. [Citation.] The summaries were confidential because they had been prepared for the mediation of 500 cases alleging child sexual molestation. [Citation.]” (Wimsatt I., supra, at p. 156.)
We additionally discussed Rinaker v. Superior Court (1998) 62 Cal.App.4th 155 (Rinaker) and Olam v. Congress Mortg. Co. (N.D.Cal. 1999) 68 F.Supp.2d 1110 (Olam), two cases that had “deviated from a broad application of the mediation confidentiality statutes.” (Wimsatt I., supra, 152 Cal.App.4th at p. 156.) We noted that Foxgate, supra, 26 Cal.4th at pages 15 to 17, had narrowly construed these cases to “apply to their unique facts.” (Wimsatt I., supra, at p. 156.) In Rinaker, supra, 62 Cal.App.4th 155, two minors were accused in a delinquency matter of vandalizing a car. Rinaker permitted the testimony of the mediator who had resolved the victim’s civil harassment lawsuit, over the mediator’s objection. Mediation confidentiality gave way to the constitutional rights of the minors and the mediator could testify at the delinquency proceedings about statements made by the victim during the mediation. In Olam, supra, 68 F.Supp.2d 1110, the plaintiff contended an agreement reached in mediation was not enforceable because she was incapable of giving consent. “[T]he plaintiff waived confidentiality and the defendant expressly agreed to a limited waiver of confidentiality covering the key facts to be addressed. [Citation.] The testimony of the mediator was found to be essential to doing justice and was admissible. [Citation.]” (Wimsatt I., supra, at p. 156, fn. 9.)
In Wimsatt I., supra, 152 Cal.App.4th 137, we first held that the trial court should have issued a protective order prohibiting or soliciting information in discovery “with regard to the mediation briefs produced on behalf of Kausch and the personal injury defendants, including the confidential mediation brief written for the second mediation.” (Id. at p. 159.) In so holding, we stated that “[m]ediation briefs epitomize the types of writings which the mediation confidentiality statutes have been designed to protect from disclosure. Mediation briefs are part and parcel of the mediation negotiation process.... Mediation briefs are designed to facilitate an open and frank dialogue with the hope that the case can be resolved in the mediation.... Thus, mediation briefs are an integral part of the mediation process and are ‘prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation,’ and are to remain confidential. (Evid. Code, § 1119, subd. (b).)” (Wimsatt I., supra, at pp. 158-159.)
We also held that the April 27, 2006 e-mails, written the day before the second mediation, were protected from disclosure. We stated, in part, that “[t]he purpose of the e-mails was to clarify statements made in all the mediation briefs as such statements would significantly affect the mediation negotiation to be held the next day. The e-mails would not have existed had the mediation briefs not been written. The e-mails were materially related to the mediation that was to be held the next day and are to remain confidential. [Citation.] To conclude otherwise would permit mediation participants to extract excerpts from a mediation brief and avoid confidentiality by publishing the contents of the brief in another medium.” (Wimsatt I., supra, 152 Cal.App.4th at p. 159.)
We then addressed Kausch’s request “to gather information through discovery about statements Wimsatt made in which he purportedly lowered Kausch’s settlement demand.” (Wimsatt I., supra, 152 Cal.App.4th at p. 160.) We declined to issue a protective order with regard to the statement(s) because the record lacked sufficient information from which we could conclude that the statement(s) were linked to the mediation, an issue that would entail an examination of “the timing, context, and content of the communication” and “if they are materially related to, and foster, the mediation. [Citations.]” (Ibid.)
Lastly, in Wimsatt I., supra, 152 Cal.App.4th 137, we held the trial court erred in creating an exception to mediation when the lower court concluded that the mediation confidentiality rules did not bar admission of statements made if they would show that a party was committing perjury. (Id. at pp. 162-163.) In so holding, we stated that “the Supreme Court has declared that exceptions to mediation confidentiality must be expressly stated in the statutes. (Foxgate, supra, 26 Cal.4th at p. 15; Rojas, supra, 33 Cal.4th at p. 416; Fair v. Bakhtiari, supra, 40 Cal.4th at p. 194.) [C]ases have shielded evidence of sanction able conduct (Foxgate, supra, 26 Cal.4th 1), criminal conduct (Doe 1, supra, 132 Cal.App.4th 1160), and statements that purportedly were inconsistent with those made in a mediation (Eisendrath, supra, 109 Cal.App.4th at p. 351). Cases have rejected a good cause exception (Rojas, supra, at pp. 423-424), refused to find implied waivers to mediation confidentiality (Eisendrath, supra, at pp. 362-363), and acknowledged that in doing so, the mediation participants accused of misconduct might be protected.” (Wimsatt I., supra, at p. 162.) These cases “foreclosed litigants from gathering evidence that might prove toxic molds and other microbes created health hazards (Rojas, supra, 33 Cal.4th 407), precluded a propria persona litigant from proving the terms of a mediated agreement (Eisendrath, supra, 109 Cal.App.4th 351), and shielded from view evidence of criminal conduct (Doe 1, supra, 132 Cal.App.4th 1160).” (Wimsatt I., supra, at p. 164.) “Even though in each of these cases strong reasons existed to permit the introduction of the evidence, the results were dictated by the comprehensive statutory scheme devised by the Legislature.” (Id. at p. 162.)
We conceded that “[t]he stringent result we reach here means that when clients, such as Kausch, participate in mediation they are, in effect, relinquishing all claims for new and independent torts arising from mediation, including legal malpractice causes of action against their own counsel. Certainly clients, who have a fiduciary relationship with their lawyers, do not understand that this result is a by-product of an agreement to mediate. We believe that the purpose of mediation is not enhanced by such a result because wrongs will go unpunished and the administration of justice is not served.” (Wimsatt I., supra, 152 Cal.App.4th at p. 163, fn. omitted.) In our discussion, we noted that courts in Texas have used a less stringent approach in “addressing situations akin to the present case....” (Id. at p. 163, fn. 15.) For example, “[i]n Avary v. Bank of America, N.A. (Tex.App. 2002) 72 S.W.3d 779, discovery was permitted when beneficiaries alleged breach of fiduciary duty by an executor in rejecting a higher settlement demand in mediation. [In] Alford v. Bryant (Tex.App. 2004) 137 S.W.3d 916, a client sued his attorney for malpractice in connection with settlement reached in mediation. Alford concluded that the testimony of the mediator was admissible over the client’s objection because the client waived confidentiality, the information was likely outcome determinative, and the mediator’s testimony was critical evidence.” (Wimsatt I., supra, at p. 163, fn. 15.)
We acknowledged that “[t]he inequities of California’s mediation statutes have not gone unnoticed. Peter Robinson, the associate director of the Straus Institute for Dispute Resolution and assistant professor of law at Pepperdine University School of Law, has gathered a number of cases across the country in which courts have been asked to enforce or avoid mediated agreements. He suggests strict confidentiality (such as codified in Evid. Code, § 1115 et seq.) results in absurd enforcement, when contrasted with another approach to the enforcement of mediated settlements. The non exhaustive list of cases includes situations raising arguments about whether a mediated agreement was reached, whether there was fraud, duress or mistake, and whether the agreement violated public policy. The situations include cases where a party was lied to by her own attorney, the mediator, and a third party[ and] parties claimed their own attorney coerced them into signing a settlement agreement; a mother waived parental rights; and the parties agreed to perform an illegal act in the mediated agreement. (Robinson, Centuries of Contract Common Law Can’t Be All Wrong: Why the UMA’s Exception to Mediation Confidentiality in Enforcement Proceedings Should be Embraced and Broadened, 2003 J.Disp. Resol. 135.)” (Wimsatt I., supra, 152 Cal.App.4that pp. 163-164.)
While we were bound by California precedent that repeatedly precluded courts from exploring and justly deciding controversies arising out of mediations, we suggested that “[g]iven the number of cases in which the fair and equitable administration of justice has been thwarted, perhaps it is time for the Legislature to reconsider California’s broad and expansive mediation confidentiality statutes and to craft ones that would permit countervailing public policies be considered. [¶] In light of the harsh and inequitable results of the mediation confidentiality statutes (Evid. Code, § 1115 et seq.), such as those set out above, the parties and their attorneys should be warned of the unintended consequences of agreeing to mediate a dispute. If they do not intend to be bound by the mediation confidentiality statutes, then they should ‘make [it] clear at the outset that something other than a mediation is intended.’ (Doe 1, supra, 132 Cal.App.4th at p. 1166.)” (Wimsatt I., supra, 152 Cal.App.4th at p. 164.)
We issued a writ of mandate “directing the trial court to enter a new and different order granting the motion of petitioners Magaña, Cathcart & McCarthy and Attorney William H. Wimsatt for a protective order prohibiting the disclosure of the mediation briefs and the e-mails, only. A protective order is not to be granted with regard to the conversation in which Wimsatt purportedly lowered Kausch’s settlement demand.” (Wimsatt I., supra, 152 Cal.App.4th at p. 165.) We denied “the request of Magaña, Cathcart & McCarthy and Attorney William H. Wimsatt to seal the documents and [we denied] the request to redact the documents.” (Ibid.)
After our decision in Wimsatt I., supra, 152 Cal.App.4th 137 was rendered, the case returned to the trial court.
4. Magaña’s three motions.
In July 2007, Magaña filed a (1) motion to dismiss; (2) a motion for judgment on the pleadings; and (3) a motion to strike certain paragraphs from Kausch’s complaint (Code Civ. Proc., §§ 435, 436). In all three motions, Magaña relied upon the mediation confidentiality statutes (Evid. Code, § 1115 et seq.), Wimsatt I., supra, 152 Cal.App.4th 137, Solin v. O’Melveny & Myers (2001) 89 Cal.App.4th 451, and McDermott, Will & Emery v. Superior Court (2000) 83 Cal.App.4th 378. Magaña argued it was impossible for it to defend against Kausch’s allegations without revealing information protected by mediation confidentiality and thus, due process required dismissal of Kausch’s case. Magaña detailed the evidence it believed was required to defend itself.
In its offer of proof, Magaña identified the mediation-related evidence necessary to defend against Kausch’s mediation-related accusations, including: (1) the mediation briefs, the April 27, 2006 e-mails, and the April 21, 2006 letter from Wimsatt to Kausch; (2) testimony from the April 28, 2006 second mediation participants concerning the factors discussed bearing on Kausch’s acceptance of the settlement offer, including that Kausch had been caught on a sub rosa videotape performing tasks his purported injuries should have precluded; (3) testimony regarding settlement demands, offers and negotiations occurring in the second mediation; and (4) Wimsatt’s testimony regarding his meeting with Kausch to prepare for the second mediation.
On September 4, 2007, the trial court denied Magaña’s motion to dismiss and the motion for judgment on the pleadings. However, the trial court struck paragraphs 11, 12, and 13 and the last sentence of paragraph 14A of the complaint. The allegations in paragraph 14 that were not stricken alleged that the settlement reached in mediation was “done without the knowledge, permission or consent of [Kausch].” (See fn. 11, post.)
On appeal, Kausch has not challenged this ruling.
5. Magaña’s motion for a protective order.
Magaña also filed a motion for a protective order, seeking to preclude discovery of mediation-related matters. The trial court granted the motion and precluded the parties from conducting discovery concerning or utilizing at trial: (1) any communication made for the purpose of, in the course of, or pursuant to a mediation or mediation consultation or conduct covered by the protective order, including what was said during the second mediation and the April 21, 2006 letter Wimsatt sent to Kausch before the second mediation; (2) the mediation briefs; and (3) the April 27, 2006 e-mails.
On appeal, Kausch does not challenge this ruling.
6. Magaña’s motion for summary adjudication on punitive damages.
In his complaint, Kausch alleged he was entitled to punitive damages because Magaña wrongfully charged him for costs and expenses, did not provide backup documentation, delayed reimbursing him for such costs and expenses, and delayed paying him his share of the settlement. On January 4, 2008, Magaña moved for summary adjudication on Kausch’s punitive damages request. On April 9, 2008, the trial court granted Magaña’s motion for summary adjudication on punitive damages. A notice of entry of order granting summary adjudication was entered.
7. Kausch’s motion to amend his complaint.
On April 3, 2008, 25 days before the scheduled April 28, 2008 trial, Kausch moved to amend his complaint to add a cause of action for legal malpractice. The proposed amendments would add allegations to Kausch’s complaint that Magaña’s handling of the underlying personal injury case fell below the applicable standards of professional conduct by settling the underlying case “for far less then the reasonable value of [Kausch’s] claim....” Kausch claimed he did not become aware of the need for this amendment until after consulting with Attorney Phillip Feldman.
A day after Kausch moved to amend his complaint, Magaña filed motion in limine No. 2 on April 4, 2008, seeking to exclude Feldman from testifying. In motion in limine No. 3, Magaña sought to preclude Kausch from presenting expert opinions on subjects not previously addressed by experts in depositions. Magaña also filed motion in limine No. 13 to preclude Kausch from introducing all evidence in his case-in-chief because mediation confidentiality precluded the introduction of vital evidence.
The motions came for hearing on April 24, 2008. The trial court granted motion in limine No. 2 finding that Kausch had not properly designated Feldman as an expert. The court granted Magaña’s motion in limine No. 13. The trial court denied Kausch’s motion to amend his complaint.
After ruling on the motions, Kausch’s counsel responded “no” to the trial court’s inquiry as to if there was “anything else left to adjudicate in this trial....” The trial court then asked, “is there any reason why the Court should not... order judgment for the defendants based upon the prior rulings... ?” To which, counsel for Kausch stated, “No, your honor.”
The trial court ordered judgment be entered in favor of the Magaña firm and Wimsatt. Kausch timely appealed. We affirm.
III.
DISCUSSION
A. The trial court did not err in granting summary adjudication on Kausch’s punitive damages claim.
Kausch contends the trial court erred in granting summary adjudication on his request for punitive damages. This contention is not persuasive.
1. The burden of proof on a motion for summary adjudication, the torts of breach of fiduciary duty and constructive fraud, and punitive damages.
“A party may move for summary adjudication as to one or more causes of action within an action,... [or] one or more claims for damages,... if that party contends that the cause of action has no merit or... there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code....” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication... shall proceed in all procedural respects as a motion for summary judgment....” (Code Civ. Proc., § 437c, subd. (f)(2).)
Our review of a ruling granting summary adjudication is de novo. (Drouet v. Superior Court (2003) 31 Cal.4th 583, 589; Greenfield v. Superior Court (2003) 106 Cal.App.4th 743, 747; 1349; Nathanson v. Hecker (2002) 99 Cal.App.4th 1158, 1162.) We must determine if there are triable issues of fact as to whether Kausch could prove entitlement to punitive damages. (Code Civ. Proc., § 437c, subd. (c).) “In doing so, we liberally construe all conflicting facts in the light most favorable to the party opposing the motion. [Citations.]” (Nielsen v. Beck (2007) 157 Cal.App.4th 1041, 1048; Baudino v. SCI California Funeral Services, Inc. (2008) 169 Cal.App.4th 773, 781.)
In his complaint, Kausch stated two causes of action: breach of fiduciary duty and constructive fraud.
To prove a breach of fiduciary duty, a plaintiff must prove, “(1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach. [Citation.]” (Mosier v. Southern Cal. Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1044, citing Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.)
Contrary to its label, the tort of constructive fraud does not require a finding of fraud. It permits conduct insufficient to constitute actual fraud to form the basis of a claim where the parties stand in a fiduciary or confidential relationship. “Most acts by an agent in breach of his fiduciary duties constitute constructive fraud.” (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562.) “ ‘ “[A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent.” ’ ” (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415, quoting Salahutdin v. Valley of California, Inc., supra, at p. 562; Civ. Code, § 1573 [defining constructive fraud].)
A plaintiff seeking recourse for the breach of an obligation not arising from contract who proves, by clear and convincing evidence, that a defendant has acted with oppression, fraud, or malice is entitled to punitive damages. (Civ. Code, § 3294, subd. (a).) In this context, “ ‘[m]alice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1).) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2).) And, “ ‘[f]raud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3).)
“ ‘ “[A] breach of a fiduciary duty alone without malice, fraud or oppression does not permit an award of punitive damages. [Citation.]... Punitive damages are appropriate if the defendant’s acts are reprehensible, fraudulent or in blatant violation of law or policy.... Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff’s rights, a level which decent citizens should not have to tolerate.” ’ [Citation.]” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, 1051.)
2. Discussion.
Kausch contends punitive damages are appropriate because Magaña unreasonably and with oppression, fraud, or malice, delayed paying him settlement proceeds, improperly handled the cost dispute, and sought reimbursement for an excessive cost bill. Kausch’s contention is not persuasive.
First, there are no triable issues of fact with regard to Kausch’s accusation that Magaña delayed paying him his share of the settlement. The personal injury defendants’ settlement checks cleared on June 6, 2006. Magaña sent Kausch a settlement check by overnight mail on June 13, 2006, in the sum of $660,041.89. A delay of seven days cannot be deemed unreasonable, let alone reprehensible conduct constituting oppression, fraud, or malice. (Cal. Rules. Prof. Conduct, Rule 4-100, subd. (B)(4) [requiring attorneys to promptly pay or deliver to clients funds clients are entitled to receive]; In the Matter of Malek–Yonan (Review Dept. 2003) 4 Cal. State Bar Ct. Rptr. 627, 636 [critical date for examining delay is when attorney receives entrusted funds and not the date a client signs a release or case settles]; Stanley v. Richmond, supra, 35 Cal.App.4th at p. 1086 [scope of attorney’s fiduciary duty owed to client may be determined as matter of law by California Rules of Professional Conduct, together with statutes and general principles relating to other fiduciary relationships].)
Second, Kausch argues Magaña could not avoid the consequences of its conduct by tendering payment after the lawsuit was filed as reimbursement for costs and expenses. In raising this argument, Kausch notes that Magaña did not pay for the contested costs and expenses until after this litigation began with the payment of $7,529.75 on December 15, 2006, and an additional approximate $3,500 paid sometime between that date and April 2, 2008, for a total of $11,029.75.
The ethical rules to be followed by California attorneys anticipate that attorneys and clients might have disagreements over how settlements funds, expenses and costs are calculated and distributed, and outline the procedures to be followed when such circumstances arise. If there is such a dispute, attorneys must take affirmative steps to resolve the dispute. (Cf. In the Matter of Kaplan (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 547, 560-561; In the Matter of Kroff (Review Dept. 1998) 3 Cal. State Bar Ct. Rptr. 838, 854.)
Here, Magaña followed the applicable procedures. On May 30, 2006, after the second mediation, but before the defendants in the personal injury lawsuit tendered the settlement checks to Magaña, Magaña sent Kausch a statement of accounting detailing Kausch’s share of the settlement and the costs and expenses expended by Magaña and Goldstein. An accompanying seven-page document itemized the costs and expenses to which Magaña believed were reimbursable. An accompanying letter stated in part, “[p]lease feel free to call me should you have any questions.” Eight days later, on June 8, 2006, Kausch faxed a letter to Magaña asking for documentation and directing Magaña to keep “everything” in Magaña’s trust account. Magaña left in its trust account all sums attributable to costs and expenses, abiding by its ethical obligations to maintain in its trust account funds disputed sums until the dispute was resolved. (Rules Prof. Conduct, rule 4-100(A)(2).) Magaña sent Kausch a check for his share of the settlement. Magaña also requested Kausch contact Wimsatt so Kausch’s concerns could be addressed. On June 13, 2006, Magaña invited Kausch to call for an appointment so he could view the voluminous documentation supporting the cost and expense itemization. It does not appear that Kausch accepted Magaña’s offer to discuss the dispute or to examine Magaña’s records. Rather, Kausch filed this lawsuit 13 days later, on June 26, 2006.
Thereafter, the parties engaged in discovery, and Kausch admitted he was contesting only about 10 percent (or $8,837.08) of the total costs and expenses claimed by Magaña. Kausch disputed expenditures for telephone charges, forensic nursing services, copying charges, service of process, delivery charges, parking expenses and Wimsatt’s travel expenses. Magaña could not have acted with oppression, fraud, or malice by concluding that each of these items was covered by the parties fee agreement as the fee agreement stated that Magaña was entitled to be reimbursed by Kausch for costs and expenses, including “but... not limited to, investigation charges, court filing fees, process servers and messenger fees, depositions, court reporters, photocopies, medical records, long distance telephone, computer data base fees, postage, parking, travel and experts, including medical and nursing reviews.”
The questioned items represented the following charges: (a) long distance telephone ($525.23); (b) forensic nursing reviews done in-house by Linda Alweiss ($5,107.50); (c) copying ($584.29); (d) in-house service of process ($176.23); (e) in house pick-up and delivery services ($256.50); (f) AT&T long distance conference call ($167.09); (g) parking ($48.00); and (h) Wimsatt’s travel expenses ($1,972.24).
Further, Magaña acted promptly to try and resolve the cost dispute and Magaña provided Kausch with an opportunity to review Magaña’s records. However, Kausch short-circuited Magaña’s attempts to resolve the dispute informally by filing this lawsuit. Thereafter, Magaña paid Kausch all sums to which Kausch claimed entitlement, when Magaña paid Kausch a total of $11,029.75 by April 2, 2008.
In an April 2, 2008 discovery hearing, Magaña’s counsel informed the trial court that “[t]here was a second check that was tendered to [Kausch] for about $3,500....” To which Kausch’s counsel stated, “That’s about right, Your Honor.”
Therefore, even if Magaña delayed in paying Kausch all sums to which he was entitled, Magaña’s acts were not done with conscious disregard of Kausch’s rights, nor were Magaña’s acts despicable. There were no intentional misrepresentations. Thus, there were no actions by Magaña that could raise a triable issue of fact to show Magaña’s acts were oppressive, fraudulent, or malicious.
Kausch suggests punitive damages were warranted because the delay in reimbursement resulted in lost interest on the funds Magaña withheld. However, Magaña paid Kausch a total of about $11,029.75, more than the total of $8,837.08 in costs and expenses Kausch challenged. Kausch did not demonstrate that this overpayment by Magaña failed to fully compensate him for all sums owed, including any interest. Further, while we could foresee a situation in which an attorney withheld funds as a ploy to coerce a client into accepting a settlement, this is not that case. The dispute over the proper allocation of expenditures and costs apparently escalated because Kausch filed this lawsuit and did not accept Magaña’s offer to resolve the dispute informally.
Lastly, even if some of the costs and expenses claimed by Magaña were unreasonable, Kausch’s request for punitive damages was not supportable as there was no clear and convincing evidence of any conduct that could be considered fraudulent, malicious, or oppressive. (Cf. American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, supra, 96 Cal.App.4th at pp. 1053-1054 [summary judgment in favor of attorney regarding ex-clients request punitive damages even though attorney’s conduct was improper and violative of Rules of Professional Conduct as clients could not prove, by clear and convincing evidence, fraud, malice, or oppression].)
Thus, there are no triable issues of fact with regard to Magaña’s handling of the cost and expense dispute.
B. The trial court did not abuse its discretion in denying Kausch’s motion to amend his complaint.
We are not persuaded by Kausch’s argument that the trial court abused its discretion in denying his motion to amend the complaint.
1. Additional facts.
The remittitur in Wimsatt I., supra, 152 Cal.App.4th 137 issued on August 20, 2007. About two weeks later, on September 4, 2007, the trial court ruled on Magaña’s motion to strike. The court struck from Kausch’s complaint paragraphs 11, 12, 13, and the last sentence of paragraph 14 because mediation confidentiality (Evid. Code, § 1119 et seq.) would prevent Kausch from proving those allegations. In so ruling, the trial court eliminated from consideration all allegations that the purportedly unauthorized lowering of Kausch’s settlement demand resulted in a settlement far less than Kausch could have otherwise received. On appeal, Kausch has not challenged the motion to strike ruling.
The trial court struck the following from Kausch’s complaint:
On April 3, 2008, 25 days before the scheduled April 28, 2008 trial, Kausch moved to amend the complaint. Kausch sought to add a cause of action labeled “legal malpractice” and to add a paragraph stating that Magaña failed to “comply with the standards of professional conduct in the community in handling [Kausch’s underlying] action in his [personal injury] civil case... by settling his [underlying] claim for far less than the reasonable value of [Kausch’s] claim....” Kausch claimed the case had “always been a legal malpractice case” and he suggested his motion to amend was precautionary, i.e., if the first cause of action for breach of fiduciary duty was insufficient to raise legal malpractice. Kausch stated he did not become aware of the fact that there might be a pleading problem until the issue was discussed with his expert, Feldman.
On April 8, 2008, Magaña opposed the amendment motion. Magaña argued: (1) in light of Wimsatt I., supra, 152 Cal.App.4th 137, the mediation confidentiality rules precluded Kausch from proving that his personal injury lawsuit was settled for an unreasonably low amount; (2) in issuing the order to strike paragraphs 11, 12, 13, and a portion of paragraph 14A, the trial court already had determined that Kausch was precluded from offering evidence to prove the settlement was inadequate; (3) the motion to amend was untimely because, as Kausch admitted, he always knew the present lawsuit was about legal malpractice; and (4) to allow Kausch to amend the complaint 10 days before the scheduled trial would be prejudicial to Magaña.
On April 24, 2008, four days before the scheduled trial, the trial court denied the motion to amend. The trial court also granted Magaña’s motion in limine No. 13, which sought to preclude Kausch from presenting all evidence. The trial court ruled that communications protected by mediation confidentiality were required in order for there to be a discussion about whether Magaña lowered the settlement demand without Kausch’s consent. The trial court ruled that “[n]othing is to be proffered by either side on the issue of the settlement since the settlement is inextricably connected to the mediation.”
2. Discussion.
In the furtherance of justice, courts may permit a party to amend a pleading. (Code Civ. Proc., § 473, subd. (a)(1).) Courts have wide discretion in determining whether amendments should be allowed, and such rulings are upheld unless a manifest or gross abuse of discretion is shown. (Record v. Reason (1999) 73 Cal.App.4th 472, 486.)
In Wimsatt I., supra, 152 Cal.App.4th 137, we analyzed the strict confidentiality rules applicable to all communications made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation. (Evid. Code, § 1119.) We held that these rules prohibited the disclosure of the confidential mediation brief written by Brotzen and the e-mails transmitted the day before the second mediation. We stated that the mediation confidentiality rules prohibited disclosure of the statements linked to the mediation, i.e., those whose “the timing, context, and content of the communication” demonstrated they “materially related to, and fostered, the mediation.”
In this second matter by Kausch involving the exact same case, we are bound by our prior decision, which is law of the case. (People v. Stanley (1995) 10 Cal.4th 764, 786-787; accord, Clemente v. State of California (1985) 40 Cal.3d 202, 211-212.)
We did not hold in Wimsatt I., supra, 152 Cal.App.4th 137, nor do we hold in this appeal, that all plaintiffs are foreclosed from pursuing all legal malpractice-related lawsuits when the client’s case is settled in mediation. The key is whether the accusations can be proven without delving into what occurred in the mediation and without using any communication made “for the purpose of, in the course of, or pursuant to, a mediation or mediation consultation....” (Evid. Code, § 1119.) Thus, for example, had the facts been different, Kausch might have been able to pursue allegations that Magaña did not properly address the cost and expense dispute.
Kausch’s motion to amend the complaint sought to add allegations to his complaint alleging Magaña’s conduct fell below the professional standard of care by settling Kausch’s personal injury lawsuit for a sum less than its reasonable value. However, in order to assess these allegations, by necessity, Kausch would have to discuss the second mediation, including the back-and-forth conversations, negotiations, and reasoning of the parties occurring in that mediation session. Crucial evidence would include the factors motivating Kausch to accept the settlement and if there was some logical explanation for that acceptance. As we held in Wimsatt I., such communications are protected by California’s strict mediation confidentiality rules. (See also, Evid. Code, § 1128 [any reference to a mediation during any subsequent trial is an irregularity in the proceeding].) Thus, Kausch would be unable to address any issues with regard to whether the settlement was appropriate because to do so would require facts that are inextricably connected to the mediation and the settlement reached therein.
On appeal, Kausch argues Magaña should have made an offer of proof specifying the mediation-related evidence it required to defend itself. However, Magaña made such an offer. (See ante, fn. 6.) Kausch also argues he should have been given an opportunity to waive mediation confidentiality so he could present his case. However, in the trial court Kausch often raised mediation confidentiality in objecting to Magaña’s discovery requests. Thus, his suggestion at this point in the litigation that he might waive mediation confidentiality is disingenuous. Further, all participants to the mediation may claim the protections of mediation confidentiality and must also waive these protections. (Eisendrath v. Superior Court, supra, 109 Cal.App.4th 351.) There is no showing that they would do so here.
Therefore, as the trial court appropriately ruled in denying Kausch’s motion to amend, Kausch would never be able to prove the allegations he wished to add to his complaint as the factual underpinnings are protected by mediation confidentiality. (Cf. Solin v. O’Melveny & Myers, supra, 89 Cal.App.4th 451[legal malpractice case dismissed because attorney defendant could not defend itself without revealing attorney-client confidences]; McDermott, Will & Emery v. Superior Court, supra, 83 Cal.App.4th 378 [shareholder derivative lawsuit against corporate counsel could not proceed because attorney-client privilege effectively foreclosed counsel from mounting a meaningful defense].)
Further, Kausch has not appealed from the trial court’s ruling striking paragraphs 11, 12, 13, and part of 14 of the complaint. By this ruling, the trial court had already eliminated from the case the allegations that Kausch sought to add by the amendment.
The trial court did not abuse its discretion in denying Kausch’s motion to amend the complaint.
C. The trial court did not abuse its discretion in declining to permit Kausch from filing a supplemental expert designation.
Kausch contends the trial court abused its discretion in refusing to permit him to designate Feldman as an expert. We find this contention not persuasive.
1. Additional facts.
Magaña designated attorneys G. Dana Hobart and Ellen Anne Pansky as expert witnesses. Hobart was to focus on Magaña’s compliance with fiduciary relationships in the underlying matter and the reasonableness of the fees and costs. Pansky was to render an opinion on Magaña’s compliance with legal and ethical duties and with the Rules of Professional Conduct.
In his designation of experts, Kausch identified the following persons as non-retained experts: Wimsatt, Wimsatt’s partners Brian Magaña and Peter Cathcart, and their co-counsel in the underlying personal injury case, Goldstein. Kausch did not specify the scope of their expected testimony. Thereafter, Kausch withdrew Goldstein as a non-retained expert. Neither Wimsatt, Brian Magaña, nor Peter Cathcart agreed to testify for Kausch.
Thereafter, Kausch filed a “supplemental expert disclosure” identifying Feldman as a retained expert. Feldman was to testify that Magaña’s conduct fell below the standard of care, breached fiduciary duties, failed to comport with the rules under the State Bar Act and Rules of Professional Conduct, and improperly handled costs and expenses.
On April 22, 2008, Kausch took the depositions of Hobart and Pansky. Because they had not been retained to address issues relating to the events on or before the April 28, 2006 mediation, they did not testify about any issues regarding the value of Kausch’s personal injury lawsuit, the amount of the settlement, or if Magaña committed malpractice in representing Kausch in the airplane crash case. They did not address whether Magaña properly worked up the medical damages in the underlying case.
At his April 21, 2008 deposition, Feldman testified Kausch had authorized the settlement and Kausch was not damaged by the delay in distributing settlement funds. He also testified that Magaña had not worked up the personal injury case properly, although Feldman admitted he had not evaluated the underlying personal injury case, had no opinion on damages, and had not reviewed Magaña’s entire case file for the personal injury lawsuit.
Magaña objected to the supplemental designation on various grounds, including that the designation had not comported with procedural requirements, was untimely, and Feldman’s expected testimony was irrelevant because it was beyond the substance of the testimony to be given by Magaña’s experts and beyond the allegations in the complaint.
In motion in limine No. 2, Magaña sought to preclude Feldman’s testimony. In his opposition to this motion in limine, Kausch argued he had “a right to supplement his expert witness [designation] by adding an expert to cover subjects on which the opposing party plans to offer at time of trial, and on which he had not previously retained an expert to testify....” Kausch asserted he had complied with the expert designation rules. He noted that the case against Magaña had always involved accusations that Magaña’s handling of his personal injury case caused the case to settle for less than was reasonable.
At the April 24, 2008, pretrial conference, Kausch stated Feldman would testify that the medicals in the underlying personal injury case were not worked up properly as Magaña neglected to assess post-concussion head syndrome injuries and back injuries, and Magaña improperly relied on loss of income history to support Kausch’s damage request. Kausch claimed Feldman’s testimony would address lack of informed consent based upon a conversation Goldstein had with an unnamed jurist. Purportedly, in that conversation the jurist stated Kausch’s personal injury lawsuit was worth $6 to $8 million. According to Kausch, had he known of this conversation, he would not have accepted the mediated settlement and the mediation outcome would have been different. In rendering an expert opinion, Feldman would rely on his review of medical records, depositions, and expert reports from the underlying personal injury lawsuit. Kausch stated he intended to call an undesignated doctor to prove-up damages.
With regard to Kausch’s accusations that there was a breach of the standard of care, lack of informed consent, and noncompliance with the ethical obligations pursuant to the Business and Professions Code, the trial court asked why these subjects were not known to Kausch before his original expert designation. Kausch’s attorney replied that he had “not thought through the case well enough to foresee that those would be issues that would be raised in this case.”
The trial court ruled that Kausch’s designation of Feldman as an expert was untimely as it did not comply with the rebuttal provisions in the Code of Civil Procedure. The court granted Magaña’s motion in limine No. 2.
2. Discussion.
a. The exchange of experts.
The Code of Civil Procedure contemplates a mutual and simultaneous exchange by the parties of a list of those witnesses expected to present expert opinion at trial. (Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1025; Code Civ. Proc., § 2034.210.) The simultaneous exchange, which any party may demand, is designed to prevent either party from taking advantage of the other party. (Code Civ. Proc., § 2034.210.) “[T]he very purpose of the expert witness discovery statute 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.” (Bonds v. Roy (1999) 20 Cal.4th 140, 146-147.) Thus, when designating an expert, a party must reveal sufficient facts and opinions so the opposing party can decide if the expert should be deposed and the opposing party can be prepared for cross-examination at trial. (Ibid.)
“A party may submit a supplemental expert witness list within 20 days after the exchange, but only ‘if the party supplementing the expert witness list has not previously retained an expert to testify on that subject.’ [Citation.]” (Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1723; Code Civ. Proc., § 2034.280, subd. (a).) A party may not use a supplemental designation to substitute experts simply because that party is unhappy with the original designated expert. (Basham v. Babock, supra, at p. 1723.) Also, when the parties anticipate certain issues will be disputed at trial, parties may not wait to designate an expert to see who the other party has designated and then name experts purportedly as rebuttal witnesses. (Fairfax v. Lords, supra, 138 Cal.App.4th at p. 1021.)
The decision to grant relief from the failure to designate an expert witness is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of manifest abuse of that discretion. (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950; Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476.) We note, however, that “[t]he trial court must exclude from evidence the expert opinion of any witness offered by any party who has unreasonably failed to list the witness as an expert. [Citation.]” (Basham v. Babcock, supra, 44 Cal.App.4th at p. 1723; Code Civ. Proc., § 2034.300.)
b. The trial court did not abuse its discretion.
Kausch contends on appeal that Magaña’s experts and Feldman would be testifying on the same subjects, and additionally, Feldman was to provide expert opinion on Magaña’s “breach of the standard of care and causation of injury in support of Kausch’s proposed [fourth] cause of action for legal malpractice.”
Kausch’s characterization of the record is not accurate. Feldman was not to address the same subjects as Magaña’s experts Hobart and Pansky who were to testify about issues that arose after the April 28, 2006 mediation, such as the costs and expenses dispute. In contrast, Feldman was to provide expert testimony on whether Magaña breached the standard of care by failing (1) to give Kausch informed consent; and (2) to work up the medicals in the underlying case. Additionally, the subjects of Feldman’s proposed testimony were no longer before the court, as the trial court had denied Kausch’s motion to amend the complaint. Lastly, to the extent that Feldman was to address other issues, Kausch was aware of these issues before he filed his original designation.
Thus, the trial court did not abuse its discretion in refusing to permit Feldman from testifying.
D. The trial court did not err in entering judgment in favor of the Magaña firm and Wimsatt.
The trial court properly entered judgment for Magaña because the trial court’s rulings, which we have upheld, effectively disposed of Kausch’s allegations.
IV.
DISPOSITION
The judgment in favor of defendants and respondents William H. Wimsatt and Magaña, Cathcart & McCarthy is affirmed. William H. Wimsatt and Magaña, Cathcart & McCarthy are awarded costs on appeal.
We concur: KLEIN, P. J. CROSKEY, J.
“11. In late 2005 or early 2006, [Kausch] authorized his attorneys to demand $5 and 6 million dollars for settlement at a mediation hearing. By the end of the mediation [Kausch] authorized his attorneys to lower his demand to 3.5 million [dollars] for the injuries he suffered in the plane crash.
“12. In or about April of 2006, a second mediation was scheduled for the purpose of trying to settle the airplane crash case. Defendants requested that [Kausch] sign a form authorizing Defendants to greatly lower the settlement demand before the second mediation, which [Kausch] refused to sign. [Kausch] did not agree with and did not approve of Defendants’ request to greatly lower the settlement demand and did not authorize or approve Defendants to convey a lower settlement number than [Kausch] was willing to accept. In disregard of their duties owed to [Kausch], and without the concurrence or approval of [Kausch], defendants Wimsatt and Magana... conveyed a demand for settlement that was fifty per cent less then the last demand at the first mediation.
“13. As a result of that unauthorized communication, the second mediation concluded at a settlement number much less than [Kausch] could have otherwise received had Defendants not reduced [Kausch’s] settlement demand by 50% prior to the second mediation.
“14. A Such conduct greatly impaired [Kausch’s] ability to achieve his desired results and undermined his position and efforts in the mediation.”
The trial court did not strike these allegations from paragraph 14 of the complaint: “A. Defendants unilaterally informed the defendants in the airplane case... that [Kausch] was lowering his settlement demand by more than one-half, from $3.5 Million to $1.5 Million, which was done without the knowledge, permission or consent of [Kausch]. This was done on the eve of the second mediation and constituted a complete departure and breach of defendants’ fiduciary duties that they owed to [Kausch].”
Kausch further suggests he could prove a legal malpractice cause of action by showing Magaña failed to inform him that by settling the case in mediation, he would be barred from bringing any malpractice case against Magaña. However, Kausch never brought forth such allegations in the trial court.