Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07CC04114, Sheila Fell, Judge.
Law Office of Timothy P. Peabody and Timothy P. Peabody for Plaintiff and Appellant.
Reback, McAndrews, Kjar, Warford & Stockalper and Michael S. Ayers for Defendant and Respondent.
OPINION
IKOLA, J.
Plaintiff Jon W. Williamson appeals from a stipulated judgment entered to facilitate his challenge to an order denying his ex parte application to reopen discovery and submit tardy expert witness information. No abuse of discretion appears in the scant record. And a nine-month trial continuance mitigated any prejudice. We affirm.
FACTS
Plaintiff sued defendant for legal malpractice in March 2007. He alleged defendant negligently represented him in the dispute with an investment bank and one of its brokers. (See Citigroup Global Markets Inc. v. Williamson (March 27, 2006, B181876) [nonpub. opn.] [affirming judgment confirming arbitration award against plaintiff].) Plaintiff claimed defendant’s negligence deprived him of the $800,000 judgment he otherwise would have obtained.
Defendant served a demand for exchange of expert witness information in September 2007. (See Code of Civ. Proc., § 2034.230, subd. (a).) He specified the date of the exchange as April 11, 2008. (See § 2034.230, subd. (b).) Defendant complied with the demand by serving a designation of retained and consulting experts on that date. Plaintiff served no expert designation on that date, or thereafter.
All further statutory references are to the Code of Civil Procedure.
Twenty-four days before the June 2008 trial date, plaintiff applied ex parte to continue trial for 90 days, continue all discovery dates, and allow a tardy expert witness designation. Plaintiff explained he had recently terminated his counsel, who had conducted no discovery. Plaintiff’s new counsel needed time to propound written discovery, depose defendant, retain an expert witness on the standard of care, and otherwise prepare for trial.
The court issued an order on May 9, 2008, granting the ex parte application in part. It vacated the trial date and continued trial for almost nine months, until February 2, 2009. It did not reopen discovery.
In January 2009, the parties entered into a stipulated judgment for defendant “to facilitate the filing of an appeal....” The stipulation stated “plaintiff cannot meet his burden of proof in this particular action, as a matter of law, without the assistance of expert testimony, ” and “plaintiff wishes to pursue an appeal of the Court’s decision to deny the ex parte motion....” The court signed the stipulated judgment, but in a handwritten note added, “Court’s order of May 9, 2008, did not specifically preclude the late designation of experts or a noticed motion to allow such late designation.”
DISCUSSION
Plaintiff may appeal from a stipulated judgment entered into “‘“to facilitate an appeal following adverse determination of a critical issue.”’” (Villano v. Waterman Convalescent Hospital, Inc. (2010) 181 Cal.App.4th 1189, 1198 (Villano).) But plaintiff still must satisfy the usual requirements for obtaining a reversal. (Id. at pp. 1199-1200.) He must “‘first make a record by raising the point in the trial court, ’” “‘develop the fullest possible evidentiary record before seeking review, ’” and “show prejudice.” (Id. at p. 1200.) Plaintiff failed to do the latter two with respect to the adverse determination underlying the stipulated judgment: i.e., the order denying his ex parte requests to reopen discovery and make a tardy expert witness designation.
Discovery deadlines are set by statute. Parties must complete non-expert discovery no later than 30 days before trial (§ 2024.020, subd. (a)). They must serve expert witness designations at a specified date no later than 50 days before trial or 20 days after service of the demand, whichever is closer to the trial date. (§ 2034.230, subd. (b).)
The court has discretion to relieve a party of these statutory deadlines. The court may reopen discovery within 30 days of trial. (§ 2024.050, subd. (a).) It may allow a party to serve a tardy expert witness designation. (§ 2034.710, subd. (a).) In exercising its discretion to grant relief, the court must consider several specified factors. (§ 2024.050, subd. (b) [factors for reopening discovery]; § 2034.720 [conditions for allowing tardy expert witness designation].)
The court’s discretionary order denying plaintiff’s ex parte requests “is presumed correct”; plaintiff “must affirmatively show error by an adequate record.” (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448; accord Villano, supra, 181 Cal.App.4th at p. 1200.) “As the party challenging a discretionary ruling, [plaintiff has] an affirmative obligation to provide an adequate record so that we [can] assess whether the court abused its discretion.” (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.)
Plaintiff gives us no basis to conclude the court arbitrarily applied the statutory factors for reopening discovery or allowing a tardy expert witness designation. (See §§ 2024.050, subd. (b), 2034.720.) The minute order and a written order are in the record - courtesy of the respondent’s appendix - but neither describes the court’s reasoning. The record contains no reporter’s transcript. “Our review of the court’s ruling on this motion... has been thwarted by [plaintiff’s] failure to provide us with a transcript of the hearing on the motion....” (Wagner v. Wagner, supra, 162 Cal.App.4th at p. 259.) “The absence of a record concerning what actually occurred at the hearing precludes a determination that the court abused its discretion.” (Ibid; accord Interinsurance Exchange v. Collins, supra, 30 Cal.App.4th at p. 1448.)
And the record, as it stands, suggests no abuse of discretion. Plaintiff’s ex parte application shows no diligence in pursuing discovery. (§ 2024.050, subd. (b)(2).) Plaintiff simply asserts his counsel conducted no discovery, without explanation. Similarly, the ex parte application fails to satisfy the conditions to making a tardy expert witness designation. (§ 2034.720.) Plaintiff shows no excusable neglect (§ 2034.720, subd. (c)(1)) or prompt service of the tardy expert witness information (§ 2034.720, subd. (c)(3)). On the latter point, plaintiff had not yet retained an expert. He thus had no expert witness to designate.
Moreover, plaintiff cannot show any prejudice because the court granted his request to continue trial. (Cal. Const., art. VI., § 13; accord Villano, supra, 181 Cal.App.4th at p. 1200.) The court continued trial for nearly nine months - far more than the 90 days plaintiff sought. The only reasonable inference from this extended continuance is that the court wanted to give plaintiff’s new counsel sufficient time to investigate the case and bring noticed motions to reopen discovery or serve a tardy expert witness designation. The court’s handwritten notation on the stipulated judgment supports this conclusion; she wrote, “Court’s order of May 9, 2008, did not specifically preclude the late designation of experts or a noticed motion to allow such late designation.”
Plaintiff’s ultimate lack of discovery and expert testimony cannot be fairly attributed to the court’s denial of his ex parte requests. Fault lies with plaintiff’s own failure to pursue discovery and expert testimony with proper noticed motions during the ensuing continuance.
DISPOSITION
The judgment is affirmed. Defendant shall recover his costs on appeal.
WE CONCUR: O’LEARY, ACTING P. J.FYBEL, J.