Opinion
G044103
11-15-2011
JAMES O'CONNOR, Plaintiff, Cross-defendant, and Appellant, v. LARRY MYSHYNIUK, Defendant, Cross-complainant, and Respondent; VINCENT P. CARUSO et al., Cross-defendants and Respondents, VINCENT P. CARUSO, Plaintiff and Respondent, v. RICHARD POCOROBA et al., Defendants and Appellants.
Robert S. Pike, Jr., for James O'Connor and Richard Pocoroba. Hocker & Nalu and Robert N. Hocker for Vincent Caruso and Larry Myshyniuk.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2008-00101839)
(Super. Ct. No. 30-2008-00113354)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.
Robert S. Pike, Jr., for James O'Connor and Richard Pocoroba.
Hocker & Nalu and Robert N. Hocker for Vincent Caruso and Larry Myshyniuk.
* * *
The trial court opted not to exclude from evidence the testimony of an expert witness (Code Civ. Proc., § 2034.300), even though the party eliciting the testimony (Larry Myshyniuk) failed to designate the expert in a timely fashion pursuant to section 2034.260. Myshyniuk designated his expert nearly six months after the date for exchange of expert information agreed to by the parties. Moreover, Myshyniuk did not seek leave of the court to submit an augmented or tardy designation. (See §§ 2034.610, 2034.710.) James O'Connor and Richard Pocoroba appeal the ensuing judgment, claiming the court abused its discretion by allowing Myshyniuk's expert to testify. We affirm the judgment. The court was within its discretion in deciding Myshyniuk's failure to designate his expert in a timely fashion was not "unreasonable]." (§ 2034.300.)
All statutory references are to the Code of Civil Procedure.
FACTS
In December 2004, O'Connor, Pocoroba, and Vincent Caruso entered into a partnership to purchase, develop, and then profitably sell certain real property in Laguna Beach, California. Larry Myshyniuk was hired as the general contractor for the project. The project fell short of the parties' expectations. The parties to this appeal sued one another under a variety of legal theories. Judgment was entered: (1) "for Myshyniuk and Caruso on all claims brought by . . . O'Connor . . . . O'Connor to take nothing on his claims"; (2) "for Myshyniuk on his claims against . . . O'Connor and . . . Pocoroba, jointly and severally, in the amount of $555,454, plus costs of $1,873.90"; and (3) "for . . . Caruso on his claims against . . . O'Connor and . . . Pocoroba, jointly and severally, in the amount of $414,000, plus costs of $5,905.19."
Although this appeal pertains to expert witness disclosure issues, the record provided to this court omits certain key documents: (1) a copy of the alleged written demand for an exchange of expert information (§ 2034.230); and (2) a copy of the parties' respective submissions (whether timely or not) in response to the demand for the exchange of expert information (§§ 2034.260, 2034.270, 2034.280).
In their briefs, the parties cite pertinent representations in the reporter's transcript and O'Connor's motion in limine to exclude expert Ron Svarc's testimony from trial. In his motion in limine, O'Connor claimed: the parties were required to designate experts by June 30, 2009; the discovery cut-off date for experts was in November 2009; and Myshyniuk served a notice on January 20, 2010 designating Svarc as a construction expert. The motion in limine further asserted Myshyniuk did not seek leave of the court to "amend" his expert witness list and O'Connor did not have an opportunity to depose Svarc.
The motion in limine did not include a declaration and/or accompanying exhibits to provide the basis for its assertions. Instead, the motion simply states the facts according to trial counsel for O'Connor.
The court heard motions in limine on March 23, 2010. Myshyniuk (representing himself) admitted he served his designation of Svarc (including a declaration describing the subject matter of Svarc's expected testimony) on January 20, 2010. According to the court, Myshyniuk's written response to the motion in limine (this document is not in the record) conceded the accuracy of the timeline set forth in O'Connor's motion. The court asked Myshyniuk whether he had received an expert designation from his opponents on the topic of construction defects; Myshyniuk responded that he did receive a notice from O'Connor's attorney designating Robert Gardner as an expert on construction defects.
The court commented: "So you were six, seven months behind time. And the Code has a procedure by which you can supplement your designation of experts. So why are you waiting until January 20 to disclose it?" According to Myshyniuk, he thought another party (Caruso) had already designated Svarc because Myshyniuk was provided with an unsigned copy of Caruso's expert designation identifying Svarc. It is possible Myshyniuk received this document in June 2009. Myshyniuk explained he ultimately learned in December 2009 that Caruso had not actually designated Svarc as an expert. Furthermore, Myshyniuk was concerned about whether O'Connor's trial presentation would involve construction defects, contrary (in Myshyniuk's view) to the pleadings: "They brought up some issue about workmanship defects . . . in their exhibit list. [I am] [j]ust a little bit unsure if they're able to bring that into court or not. And I thought it was better to be safe than sorry, your Honor. . . . Unless the court is going to preclude them from any evidence about construction defects, I felt I would need him as an expert witness." Myshyniuk did not intend to elicit testimony from Svarc with regard to Myshyniuk's causes of action.
Other than the lack of a deposition of Svarc, O'Connor did not make any showing of prejudice with regard to the late designation of Svarc.
The court framed the issue: "The question is whether Mr. Myshyniuk unreasonably failed to [disclose Svarc by the applicable deadline]. Part of the analysis is whether someone else disclosed . . . the expert, or whether Mr. Myshyniuk was reasonable in thinking that someone else had disclosed it. . . . [¶] I also need to know why a motion was not made . . . to either amend or augment the disclosure of experts."
The court ruled: "Mr. Myshyniuk, a rookie attorney would never make [this] mistake. Just because it looks like a pleading doesn't mean it is a pleading." But "[i]t seems to me under these circumstances where he has received an exchange of expert witness [purportedly designating Svarc] he is not unreasonable in relying on that to say that Svarc was disclosed as an expert." "So I am not going to exclude Mr. Svarc. However, Mr. Svarc will need to be deposed . . . in the next week." The court ordered Myshyniuk to pay the costs of expediting a transcript from the deposition. According to the parties' briefs, O'Connor did not take Svarc's deposition.
The parties disagreed with regard to the amount of money it would cost to complete construction at the property. O'Connor's expert, John Gardner, testified it would cost more than $1.3 million to repair various defects at the property. Myshyniuk called Svarc to testify at trial. Svarc testified he did not find any construction defects, and it would cost approximately $200,000 to complete the work at the property.
DISCUSSION
O'Connor and Pocoroba claim the court committed prejudicial error by allowing Svarc to testify at trial. We interpret statutes de novo, but "review the trial court's reasonableness determination under section 2034.300 for abuse of discretion." (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950 (Boston).)
"The disclosure of expert witness information and testimony is specifically regulated in Code of Civil Procedure sections 2034.010 through and including 2034.730 . . . ." (Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 906.) "Upon the demand of any party, all parties must exchange written information about their expert trial witnesses. (§ 2034.210.) The information must include a sworn declaration containing, among other things, a brief narrative statement of the general substance of the testimony the expert is expected to give. (§ 2034.260, subd. (c).) A party may also demand production of any discoverable reports and writings made by expert witnesses in the course of preparing their opinions. (§ 2034.210, subd. (c).)" (Boston, supra, 170 Cal.App.4th at p. 951.)
"Except as provided in Section 2034.310[] and in Articles 4 (commencing with Section 2034.610)[] and 5 (commencing with Section 2034.710),[] on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] (a) List that witness as an expert under Section 2034.260. [¶] (b) Submit an expert witness declaration. [¶] (c) Produce reports and writings of expert witnesses under Section 2034.270. [¶] (d) Make that expert available for a deposition. . . ." (§ 2034.300, italics & fns. added.)
"A party may call as a witness at trial an expert not previously designated by that party if either of the following conditions is satisfied: [¶] (a) That expert has been designated by another party and has thereafter been deposed under Article 3 (commencing with Section 2034.410). [¶] (b) That expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial. This impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation for any opinion by any other party's expert witness, but may not include testimony that contradicts the opinion." (§ 2034.310.)
Article 4 pertains to a court's power, under certain conditions, to grant a party's motion to augment or amend their expert witness disclosures, when the party's initial disclosures were made in a timely fashion. (See §§ 2034.610, 2034.620.)
Article 5 pertains to a court's power, under certain conditions, to grant a party's motion to submit tardy expert witness disclosures. (See §§ 2034.710, 2034.720.)
One issue not addressed by the parties at trial or in their appellate briefs is whether O'Connor had standing to object to Myshyniuk's late designation. Based on Myshyniuk's oral representations at the motion in limine hearing, the court apparently was satisfied that O'Connor, the party objecting to Myshyniuk's late designation, "made a complete and timely compliance with Section 2034.260." (§ 2034.300; see West Hills Hospital v. Superior Court (1979) 98 Cal.App.3d 656, 660 [applying prior version of Discovery Act, suggests a party not in strict compliance with expert disclosure requirements does not have standing to object to other party's expert disclosure failures]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 8:1710 to 8:1711, p. 8J-31 (rev. #1 2009).
Assuming O'Connor had standing to object, section 2034.300 required the court to exclude Svarc's testimony if Myshyniuk unreasonably failed to disclose Svarc's identity (and provide a declaration describing Svarc's qualifications, the general substance of his expected testimony, etc.) in a timely fashion. Here, Myshyniuk did not provide any expert witness information pertaining to Svarc (including his name) on the date set for the exchange of expert information. Nor did Myshyniuk file a motion under sections 2034.610 or 2034.710 to obtain leave to submit the information on a later date. Instead, Myshyniuk simply served his expert witness information six months late and awaited trial.
To reiterate, the record does not include any of the expert disclosure documents that the parties may or may not have exchanged. It is therefore unclear whether Myshyniuk provided any expert witness information (e.g., by designating an expert other than Svarc) on the date set for the exchange of expert witness information.
7 Section 2034.620 provides: "The court shall grant leave to augment or amend an expert witness list or declaration only if 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 . . . 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 . . . . [¶] (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 . . . ."
On the other hand, section 2034.720 provides: "The court shall grant leave to submit tardy expert witness information only if 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 absence of a 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 that the moving party did all of the following: [¶] (1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect. [¶] (2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect. (3) Promptly thereafter served a copy of the proposed expert witness information . . . on all other parties . . . . [¶] (d) The order is conditioned on the moving party making the expert available immediately for a deposition . . . and on any other terms as may be just . . . ."
Undoubtedly, the court would have been within its discretion had it opted to exclude Svarc's testimony. (See, e.g., Fish v. Guevara (1993) 12 Cal.App.4th 142, 145-146; Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1112-1118.) The question presented is whether there is a basis in the record for the court's conclusion that Myshyniuk's failure was not "unreasonable."
Section 2034.300 does not provide explicit guidance as to how a court should decide if the party's failure was reasonable or unreasonable. Section 2034.300 "apparently gives courts discretion to overlook excusable delays and trivial defects in the documents exchanged." (Weil & Brown, Cal. Practice Guide; Civil Procedure Before Trial, supra, ¶8:1719.2, p. 8J-34.1 (rev. #1 2009).) There is no "statutory requirement that the objecting party have been prejudiced from the nondisclosure in order to object to the expert testimony at trial. Again, however, absent some showing of prejudice, the court may be more likely to find that the failure to comply with the expert witness disclosure requirements was not 'unreasonable.'" (Id., at p. 8J-31.) Moreover, "[i]f any unfairness arising from the proffering party's late or incomplete disclosure was exacerbated by the party seeking exclusion, the court is less likely to find the conduct of the party offering the expert to be unreasonable." (Boston, supra, 170 Cal.App.4th at p. 954.)
By denying O'Connor's motion in limine, the court, in essence, retroactively granted Myshyniuk leave to file a tardy (or augmented) expert disclosure. Had Myshyniuk sought leave of court, he would have done so under either section 2034.610, subdivision (a) (if he was augmenting a prior "timely exchange"), or section 2034.710, subdivision (a) (if he "failed to submit expert witness information on the date specified"). "A motion under subdivision (a) 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, subd. (b), 2034.710, subd. (b).) Such motions must include "meet and confer" declarations. (§§ 2034.610, subd. (c), 2034.710, subd. (c).)
Sections 2034.620 and 2034.720 set forth specific findings a court must make if it is to grant a motion for leave to file untimely expert disclosures. The statutes are similar, but not identical.7 Basically, sections 2034.620 and 2034.720 both require the court to find: (1) the moving party had a good reason or excuse for the delayed expert disclosure; (2) the opposing party or parties will not be prejudiced if the motion is granted; and (3) the moving party filed his or her motion promptly. Late expert disclosures prejudice a party if the party "is not prepared and cannot be prepared in time. A party is not 'prejudiced' simply because the new expert will give testimony adverse to the party." (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1479.)
The record supports the court's finding that Myshyniuk, through mistake and excusable neglect, thought he did not need to designate Svarc at the time set for the exchange of expert witnesses. Moreover, the only showing of prejudice by O'Connor was the lack of a deposition, and the court mitigated any prejudice by ordering Myshyniuk to make Svarc available immediately for a deposition. But Myshyniuk did not promptly file a motion seeking leave to disclose Svarc or meet and confer with opposing parties concerning his late disclosures. Was the court empowered to overlook Myshyniuk's procedural failures? Or is the failure by a party to seek leave under sections 2034.610 or 2034.710 per se "unreasonabl[e]" under section 2034.300?
Two cases, in the context of affirming trial courts' exclusion of expert testimony, have utilized language suggesting the existence of a bright line rule. "To expand the scope of an expert's testimony beyond what is stated in the declaration, a party must successfully move for leave to amend the declaration . . . ." (Bonds v. Roy (1999) 20 Cal.4th 140, 149 (Bonds), italics added [affirming exclusion of expert testimony beyond that disclosed in declaration].) "The spirit . . . though apparently not the letter of [the predecessor of section 2034.300] implies that a party who wishes to call at trial an expert who was not designated when expert witness information was exchanged . . . must make a motion . . . to augment that party's expert witness list to include the new expert. The party cannot do nothing and then insist that the replacement expert can be called at trial on the ground that the party's failure to list the replacement expert when expert witness information was exchanged was not 'unreasonable.' Nor can the party comply with the statute by unilaterally, without leave of court and at any time the party chooses, simply serving a so-called 'supplemental' expert witness designation listing the new replacement expert." (Richaud v. Jennings (1993) 16 Cal.App.4th 81, 90-91 (Richaud) fn. omitted [affirming exclusion of late-designated expert].)
We are, of course, bound by our Supreme Court's opinion in Bonds, supra, 20 Cal.4th 140. And we agree with the holding and reasoning of Richaud, supra, 16 Cal.App.4th 81. A court does not err by excluding expert testimony when a party has not complied with the procedures explicitly provided under the Discovery Act to augment timely expert disclosures or exchange tardy expert disclosures. But these cases do not hold that a trial court can never forgive noncompliance with sections 2034.610 or 2034.710.
Indeed, the structure of section 2034.300 suggests that a trial court may, in appropriate circumstances, forgive such noncompliance. Section 2034.300 does not apply if a party already has moved successfully for leave to augment an expert designation or submit an untimely designation. (§ 2034.300 ["Except as provided in . . . Articles 4 . . . and 5"].) In other words, section 2034.300 does not provide an objecting party an opportunity to relitigate motions already granted under sections 2034.620 and 2034.720. Section 2034.300 instead applies to cases in which a party allegedly has both: (1) failed to comply with expert discovery obligations; and (2) failed to obtain leave of court to remedy such failures before trial. In such cases, the trial court "shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed" (ibid.) to comply with expert discovery obligations (including the identification of the expert and the submission of an expert witness declaration).
The court did not err in its application of the "unreasonably failed" standard of section 2034.300 to the circumstances of this case. First, O'Connor did not provide an adequate record to the trial court or this court to assess his standing to object to Svarc's testimony. Second, Myshyniuk was a self-represented party who sought to use a late-designated expert (who Myshyniuk previously thought was already designated by Caruso) defensively against what he perceived as a new legal theory in O'Connor's case. Third, there was no finding by the court that Myshyniuk's procedural errors were willful attempts to game the discovery process. (See, e.g., Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1026-1027 [defendant intentionally refrained from participating in simultaneous exchange of expert witnesses to gain advantage].) Fourth, O'Connor exacerbated any prejudice that might have accrued to him by not seeking to depose Svarc immediately after finding out about his late designation. And fifth, the court addressed any remaining prejudice by authorizing a deposition before trial with costs of an expedited transcript to be paid by Myshyniuk.
Even assuming the court erred, we would not conclude the error resulted in a miscarriage of justice. (See Evid. Code, § 353.) "Prejudice from error is never presumed but must be affirmatively demonstrated by the appellant." (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853-854.) "An appellant must provide an argument and legal authority to support his contentions. . . . It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852, citation omitted.)
Appellants O'Connor and Pocoroba fail to describe in their briefs all parties' legal theories and the evidence admitted at trial. Nor do appellants' briefs explain the pertinence of Svarc's testimony to the jury's liability or damages findings on each of the parties' various claims. We are not obligated to perform this task.
DISPOSITION
The judgment is affirmed. Caruso and Myshyniuk shall recover costs incurred on appeal.
IKOLA, J. WE CONCUR: ARONSON, ACTING P. J. FYBEL, J.