Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. YC056812, Joseph Kalin, Judge.
Stanley D. Bowman for Plaintiff and Appellant.
Richardson & Fair and Manuel Dominguez for Defendants and Respondents.
CROSKEY, J.
This appeal concerns residential rental property owned by defendants Ben Naghi and Shaila Naghi (defendants). The property, a house in Rancho Palos Verdes, California, was rented by plaintiffs Richard Noetzli and Shawn Noetzli for themselves and their minor children plaintiffs, Carrie Noetzli and Joelle Noetzli, (all together, plaintiffs). Plaintiffs contend that after they took possession of the premises they discovered that the property had a rat infestation and mold was present, and although they asked defendant to eliminate those problems, defendants failed to do so. In this appeal, plaintiffs challenge two evidentiary issues that arose in connection with the jury trial in the case. Plaintiffs contend the trial court abused its discretion when it quashed the subpoena by which they sought to secure the trial testimony of a certain person that defendants had hired to inspect the subject house for mold during the time plaintiffs lived in the house. Plaintiffs also contend the court abused its discretion when it sustained defendants’ objection to plaintiffs’ use at trial of photographs of portions of the house that were taken by the subsequent owner of the house. From our examination of the record and relevant law, we find that there was no abuse of discretion in the trial court’s rulings. Therefore, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed this case in February 2008. They alleged the following in their complaint. On August 15, 2005, the parties entered into a one-year lease of the house, with the term of the lease to begin on September 1, 2005. Rent on the property was $3,200 per month. Plaintiffs went into possession in September and the following month they discovered that the house had a severe rat infestation. Defendants failed to properly address the problem and it became an extreme health hazard. On August 21, 2006, the parties extended the lease for six months. A week after plaintiffs entered into the extension of the lease they became aware that (1) mold was present throughout in the house, (2) the mold was caused by defendants’ failure to properly maintain the premises, and (3) such mold caused plaintiffs to suffer injury to their persons. Plaintiffs alleged causes of action for breach of contract (breach of the warranty of habitability and breach of the covenant of quiet enjoyment) and negligence. Additionally they asserted a cause of action for fraud in which they alleged that prior to entering into the lease, defendants knew of the rodent infestation but failed to inform plaintiffs of it, and defendants falsely represented to plaintiffs that they had obtained a mold testing report indicating the house was free of mold; and because plaintiffs suffer from mold allegories, and the rat infestation was also serious health hazard, plaintiffs would not have rented the house had they been informed of its true condition. Defendants filed a general denial to the complaint.
As we explain below, this is the second action filed by plaintiffs against the defendants.
Plaintiff Richard Noetzli, the father of the plaintiff family (Father), testified that when plaintiffs found the subject house in a rental listing and went to view it to see if it would be good for them, the then-current tenants were still living in the house and so plaintiffs were not able to have an adequate inspection of it. Defendants handled the lease through their real estate agent. Plaintiffs met defendants for the first time just before plaintiffs were ready to move into the house. There were two walk-through inspections, one where apparently the inspection sheet was already filled out, and the second one a few days later where the plaintiffs were able to note on the inspection sheet conditions in the house that were in need of repair or attending to. Father testified that defendants did not take care of all of the noted items.
DISCUSSION
1. Defendants’ Motion to Quash Plaintiffs’ Trial Subpoena
a. Overview of the Motion to Quash
Prior to trial defendants moved to quash a subpoena that plaintiffs served on one Brian Bevan to compel his attendance at trial and production of records. According to their moving papers, defendants arranged for Mr. Beven to inspect the subject house because of a concern about plaintiffs’ complaint about mold. When plaintiffs listed Beven as one of their witnesses for trial and served a subpoena on him, defendants moved to quash the subpoena, asserting that they had Beven inspect the house for mold because they believed that plaintiffs were going to file suit against them and were going to allege in their suit that the subject house had a mold problem and plaintiffs were injured by the mold. Defendant Shelia Naghi is an attorney, and defendants claimed that Beven’s inspection was privileged information and attorney work product. The trial court granted the motion to quash. Plaintiffs challenge that ruling in this appeal.
b. Arguments in the Motion to Quash
Defendants’ attorney, Manuel Dominguez, filed a declaration in support of the motion to quash in which he stated the following. Plaintiffs’ complaint in their prior action against defendants was filed on December 27, 2006. When Dominguez initially spoke with defendant Shelia Naghi in January 2007 she indicated she had already done some preparation for the case regarding plaintiffs’ mold allegations. Specifically, she had retained consultants for the mold issue. Defendants advised Dominguez they were going to sell the property since plaintiffs had moved out of it, and so he wrote to plaintiffs’ attorney, Stanley Bowman, advising him that the property would be sold. He never heard from Bowman regarding the availability of the property for inspection and testing. Defendants sold the property in March 2007. Plaintiffs dismissed their original suit in July 2007 and refiled the exact same case in February 2008. In December 2008 Dominguez served Bowman with defendants’ designation of experts, and the designation did not include Brian Bevan because he considered Bevan’s identity, information and records privileged information that had been obtained by defendants in Bevan’s capacity as a consultant. Plaintiffs did not designate any expert witnesses.
In support of defendants’ motion to quash, defendant Sheila Naghi also submitted a declaration. She stated that in September 2006, the month after the parties agreed to extend the lease on the rental property, plaintiffs advised defendants they had conducted a test for mold. Because she is an attorney she suspected that plaintiffs intended to institute a lawsuit based on the mold issue and so in order to prepare for such anticipated litigation she contacted Brian Beven. She also contacted one Craig Borden who works for a different company than Beven. She “retained them as consultants and [she] spoke with them and provided them confidential information and requested them to evaluate the property. The communications, information, inspection and records [she] considered privileged, protected and confidential as attorney work product.” Plaintiffs’ attorney wrote to defendants about the property and defendants agreed to waive the remaining portion of the time on the lease extension. Plaintiffs vacated the property in November 2006 and the following month filed their initial lawsuit against defendants. When defendants’ homeowner’s carrier assigned attorney Dominguez to handle that suit, she informed him that as an attorney she had already retained consultants in anticipation of that litigation and she gave Dominguez all of the information about the consultants and their communications and records.
On March 26, 2009, the motion to quash the subpoena was heard and granted. The trial court ruled that the knowledge, opinions and reports of an expert consulted by an attorney in preparation of a case are immune from disclosure under the attorney work product privilege if the attorney does not use, or communicate a decision to use, the expert as a witness, and the immunity rule applies both to the other parties’ pretrial discovery requests and their attempt to call the expert as a witness at trial.
c. Analysis of the Issue
The trial court cited Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 857 as authority for its ruling. In Brokopp the court stated: “ ‘The knowledge, opinions, and report of an expert consulted by an attorney in preparation of his case remain immune from disclosure under the attorney’s work-product privilege as long as the expert does not change his status as a consultant-expert. If the attorney doesn’t use and does not communicate a decision to use the expert as a witness, the adverse party may not obtain disclosure of the expert’s knowledge, opinions, or report by means of any pretrial discovery vehicle or by calling the expert as a witness at trial.’ ” Other courts are in agreement with that analysis. (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 37; Williamson v. Superior Court (1978) 21 Cal.3d 829, 834-835; Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 297.) We observe, as did the trial court, that although Sheila Naghi was not represented by an attorney when she employed Brian Beven, and she was thus acting in propria persona for defendants’ benefit at that time, unrepresented litigants are entitled to claim the work product privilege. (Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 136.)
Plaintiffs assert that they were not subpoenaing work product when they subpoenaed Beven. They contend that the trial court should have allowed Beven to testify by restricting his testimony to that which does not constitute work product. Plaintiffs contend Beven could have testified to matters “other than the conclusions of his testing.” They contend that “[h]is testimony would cooperate [sic] the actual condition of the property that the Plaintiffs are complaining about. He would also be able to testify as to what happened in the first attempt by the parties to determine whether mold was present at that time. Plaintiffs also argue Beven had discussions “with Plaintiffs and their agents that is [sic] considered relevant to the facts in the case.”
Brian Beven was actually at the subject house twice. The first time he was there, plaintiff Richard Noetzli and his wife plaintiff Shawn Noetzli were not at home. Shawn’s mother, Frances Anthony, who is a real estate agent, testified at trial that she was there instead of Shawn because Shawn had to attend a meeting at her daughter’s school. So Ms. Anthony was able to let defendant Ben Naghi and Beven into the house for the inspection. She stated that Naghi was upset that he had taken time away from his job to meet with Beven but Shawn was not there to meet with them. She also stated that when she began pointing out to Naghi black fuzzy spots in the house, that also upset him and he left the house and Beven left too.
We do not find these arguments persuasive. Plaintiffs already had the potential for substantial evidence regarding the condition of the house by means of the testimony of Richard and Shawn Noetzli, Shawn’s mother, and the new owner, Jeff Frankel. Moreover, Shawn’s mother could, and did, testify as to what occurred during Beven’s first attempt to test for mold. As for the discussions that plaintiffs assert they and their agents had with Beven, they do not explain how those discussions are relevant to the case, nor did they identify their agents.
We also note that in their papers filed in opposition to defendants’ motion to quash their subpoena of Beven, plaintiffs asserted that they had subpoenaed him “for the purpose of testifying concerning his observations of the appearance of the residence at the time he came to the property and for possible impeachment purposes concerning [Ben Naghi’s] deposition testimony that no testing had occurred prior to plaintiffs vacating the premises.” Plaintiffs also argued in their opposition papers that Beven had inspected the house for mold while plaintiffs were living there “and it is believed he had interactions with the Plaintiffs, Defendants and has firsthand knowledge of evidence relevant to the litigation.” From this bare presentation the trial court could conclude that plaintiffs were arguing that Beven should be permitted to testify regarding the observations he made about mold. Defendants’ attorney’s declaration submitted in support of the motion to quash supports this analysis. It states that not only was Beven subpoenaed to trial but the subpoena was accompanied with a request for production of documents and reports. As for the “possible impeachment purposes” concerning defendant Naghi’s deposition testimony, that was accomplished by the testimony of Shawn Noetzli’s mother.
Lastly, we observe two things. First, plaintiffs never took the opportunity to hire their own consultant to test for mold so as to have scientific evidence to support their assertion that mold existed in the house, and mold was the cause of the minor plaintiff’s nose bleeds. Second, plaintiffs are making a tardy argument when they assert that defendants fabricated the story, in the motion to quash, that they retained Beven because they believed that plaintiffs were planning to sue them. Plaintiffs did not make that argument in their opposition to the motion to quash. Although they did assert that Beven was hired because they had asked defendants for mold testing, that statement was made in their points and authorities, not in a declaration from the plaintiffs. Moreover, defendants agree that Beven was hired because plaintiffs had raised an issue about mold.
2. The Exclusion of New Owner Jeff Frankel’s Pictures Depicting Mold-Like Conditions in the Subject House
a. Background Evidence Elicited from Plaintiff Richard Noetzli At Trial Regarding the Mold Issue
Trial began in June 2009. As noted above, plaintiff Richard Noetzli is the father in the plaintiff family. Father testified that soon after plaintiffs moved into the rental house he began having conversations with defendant Ben Naghi regarding things in the house that needed repair and he mentioned to defendant that he was concerned about something that looked like mold. Father asked defendant if the house had ever been tested for mold and defendant replied that he had a mold test done and there was no mold. Plaintiffs asked defendant Ben Naghi to see the test results but Naghi did not provide them.
Father testified that at the end of the parties’ one-year lease plaintiffs made offers on various homes but the offers were not accepted, and so they tried to have the lease on the subject house extended as a month-to-month rental because they wanted to leave the house. Defendants would not agree to that. In mid-August 2006 the parties settled on a six-month extension of the lease. Father stated that later that month plaintiffs sent defendants a letter because “we were still concerned about the mold condition in the house.”
Father testified that the oldest child in the family was “starting to get nose bleeds on a fairly regular basis” and the nose bleeding condition began in the summer when the child was spending more time in the house than she did when she was going to school. He stated the house had a musty smell, like a wet carpet, and wallpaper in the house was peeling in several of the rooms. He stated “[t]here was mold spotting in the master bathroom that would be wiped down, cleaned up and it would appear 2 or 3 days later, start to grow back, get wiped down again with bleach or mold cleaner and then it would start growing back again.”
In October 2006 Father again asked defendant Ben Naghi for the results of the mold test that Naghi told them defendants had performed on the house. Father told him that because of his daughter’s illness, plaintiffs needed the test results so that they would know if the daughter needed additional treatment “or how serious the situation is. [¶] Exactly what kind of air are we breathing in the house.” Naghi told him that the test results were his business and not to worry about it. Also in October Father asked Naghi to conduct a mold test and Naghi complied. Present for that test were the plaintiffs and the mold inspector, Brian Bevins. Bevins had “a lot of sophisticated testing equipment [and] a device that looked like a camera tripod.” Bevins set up equipment in three or four sections of the house and also outside the house to capture air samples for testing. Bevins was at the house for about an hour. Shortly after the test Father asked Ben Naghi for the test results but Naghi declined to give them to Father, telling Father that the results were his (Naghi’s) information and were not for Father.
After the testing defendants sent plaintiffs a letter dated October 20, 2006, and there was a follow-up discussion regarding work to be done on the house. When Father was asked at trial what the letter stated, he testified that it advised plaintiffs that remediation work was needed for the house. However, the court granted defendants’ motion to strike, saying “[A]gain sustained, counsel, because we always come back to whether there was expert testimony regarding mold in this house.” Asked if there was a discussion regarding “what you were going to do while the work was being done, ” Father stated not at that point. He stated: “We were honestly kind of shocked when we received the letter and confused. We didn’t understand exactly what was going on. So we were trying to find out more information.” Father called Ben Naghi and asked him “What is going on. Really. What is this all about. What has to be done. What kind of air have we been breathing.” Ben Naghi’s response was that contractors would do work on the house and plaintiffs would need to make the property available for them.
The appellate record shows that the trial court had already sustained several objections by defendants to Father’s testimony, starting with plaintiffs’ attorney’s question to Father whether the house had “any kind of odor that you related as being caused by mold.” To that question the court sustained a foundation objection, saying: “I would sustain that counsel. It takes expert testimony to make a determination as to whether mold or not mold[, ] the types of it[, ] what are results[, ] and so forth so, he can’t make that connection, that is expert testimony. [¶] Also with regard to the young ladies [sic] nose bleeds that is a medical condition and require [sic] the testimony of a doctor as to whether there is causation there.”
Ultimately, plaintiffs were given three choices as to what plaintiffs could do about the work that defendants intended for the house. Plaintiffs could stay in the house and defendants would do nothing to the house; plaintiffs could stay while work was being done and two of the rooms in the house would be unusable; or plaintiffs could be let out of their extended lease and move out of the house. Plaintiffs chose to leave as soon as they could, and they vacated the premises in late November 2006.
b. Testimony from Jeff Frankel
Defendants sold the property after plaintiffs moved. It was purchased by one Jeff Frankel. At trial, Frankel testified that he initially looked at the house in February 2007. At that time he “did not see any obvious problems.” The interior and exterior of the property had been painted recently and the carpets cleaned. When he viewed the property again before purchasing it, he noticed that “in the garage there was an area where some of the wall that was from the garage to the kitchen... you could nick some paint up, and under the paint you’re able to see some black mold.” The court sustained defendants’ objection, saying that whether it was mold is a question for an expert. Frankel re-described what he saw in the garage by saying that “in the garage where some paint had chipped it was black/gray in a circular fashion. Couple of circular pieces.” Frankel stated that there were kitchen cabinets that also had the same round spots on the inside of the cabinets. The spots were on the plaster wall at the back of the cabinets. He stated that “[t]he entire area was just covered with multiple round black dots.” He also saw the round black dots under the shower in the master bedroom. After he purchased the house he “ripped most of the house apart, ” gutting about 95 percent of it, and when he did that he found “more of those circular dots and areas where would look like... a black fur... within some of the walls.” He saw that in the two bathrooms. The area under the kitchen floor “was almost as if it was a black carpet.”
c. Attempt by Plaintiff to Introduce Photographs
After Frankel testified to the presence of the numerous round black circles and the black carpet effect under the kitchen floor, plaintiffs’ attempted to introduce some photographs apparently taken by Frankel. Defendants’ attorney informed the court that it was the first time he had seen the pictures. Plaintiffs sought to have Frankel testify that the pictures depicted the conditions in the house that Frankel had described in his testimony. Based on defense counsel’s statement that he had not seen the photographs before, the court held an off-the-record hearing in chambers regarding the pictures. The court then ruled that plaintiffs could not use them as evidence. Later in the day, outside the presence of the jury, plaintiff’s attorney requested the court to put its reasons for its evidentiary ruling on the record and the court obliged. The court stated the pictures were apparently taken long ago because they were taken when Frankel was gutting the house, and plaintiffs could have deposed Frankel and obtained knowledge of the pictures that way. Plaintiffs’ attorney responded that he did not neglect his discovery rights because it was not until “today” that he obtained the photographs. However, the court again observed that the pictures were available when Frankel could have been deposed. The court stated that the purpose of the discovery statutes is for both sides to be prepared for trial so that when trial commences each attorney “knows everything about the other counsel’s case.”
We find no grounds for reversal on this issue. The trial court was correct. The discovery statutes are designed to “do away with ‘the sporting theory of litigation-namely, surprise at the trial.’ [Citation.]” (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274.) Evidence Code section 352 provides that trial courts have discretion to exclude evidence when “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” If a picture is worth a thousand words, then seeing the dark, fuzzy spots on the walls and cupboards of the subject house, and the black carpet of mold or mold-like substance under the kitchen floor would deliver more of an impact than hearing Frankel describe those portions of the house. The photographs would have been available to plaintiffs had they deposed Frankel and inquired as to whether he had any “before and after” pictures of his work on the house. Permitting plaintiffs to use them at trial when defendants had not previously seen them and been able to adjust their defense to include plaintiffs’ use of the pictures at trial would be unduly prejudicial to defendants.
Additionally, the court reasonably rejected plaintiffs’ argument that use of the pictures was proper because defendants’ attorney never made a request for further discovery after he had made his initial discovery request. Even if defendants’ attorney had submitted a second discovery request, the pictures would not have been mentioned in plaintiffs’ discovery response because plaintiffs had not bothered to depose Frankel and thus apparently did not know of the photographs until the day of trial.
Moreover, plaintiffs cannot reasonably claim prejudice from the exclusion of the photographs. This is not a case where a litigant prepared for trial by having an expert available to testify regarding mold, types of mold that can cause illness, and the chances that someone’s nose bleeds can be the result of mold. Plaintiffs had no such expert(s) and thus, even if the pictures had been admitted into evidence, a jury’s verdict for plaintiffs based on injury from mold would not have been supported by the necessary expert testimony.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
We Concur: KLEIN, P. J., ALDRICH, J.
During her testimony, Ms. Anthony described at length the black spots she observed in the house and stated the house had a musty smell. When she identified the spots as mold the court sustained an objection, informing the jury that whether there was mold in the house, and if so what kind of mold, was a matter for an expert’s opinion. During the trial the court sustained many such objections and gave many such admonitions to the jury.