Iriqui v. Latt CA2/7 ( 2024 )

Filed 10/3/24 Iriqui v. Latt CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JOSE A. MARTINEZ IRIQUI, B322005
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC682402)
v.
MICHAEL BENJAMIN LATT,
Defendant and Respondent,
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
Intervenor and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Serena R. Murillo and Margaret L. Oldendorf,
Judges. Affirmed.
The Bucklin Law Firm and Stephen Loomis Bucklin for
Plaintiff and Appellant.
Horvitz & Levy, Curt Cutting; Homan, Stone & Rossi,
J. Pat Ferraris, and Danielle M. Johnson for Intervenor and
Respondent.
___________________________
After a car crash, Jose Martinez Iriqui sued Michael Latt,1
alleging Latt’s negligent driving caused him to suffer injuries. A
court trial resulted in a judgment in favor of Latt, and Iriqui
appealed. Iriqui asserts the trial court improperly reopened
discovery sua sponte and set a deposition deadline for Iriqui’s
expert witness that was not feasible, resulting in that witness
being precluded from testifying at trial. Finding no merit to
Iriqui’s contentions, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Complaint, Trial Continuances, and Expert Witnesses
In November 2017, Iriqui sued Latt, alleging Latt
negligently collided with Iriqui in 2015. The court continued the
trial several times due to two requests from Latt, the COVID-19
pandemic, and the parties’ stipulation, which pushed the trial
date to October 22, 2021. The court’s May 2021 order granting
the continuance stated, “The deadlines for all other statutory
1 In November 2023, after the trial in this case, Latt was
murdered. Iriqui may proceed with his appeal because Latt’s
potential liability was covered by insurance. (Prob. Code, § 550,
subd. (a).) We granted the unopposed motion to intervene
brought by Latt’s insurer, State Farm Mutual Automobile
Insurance Company, which filed the responsive brief on Latt’s
behalf.
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discovery and trial-related dates shall be continued to align with
the new trial date.” Therefore, based on the October 22 trial
date, the new expert discovery cutoff was October 7. (Code Civ.
Proc., § 2024.030 [expert discovery cutoff is 15 days before trial
date].)2
In September 2021, Iriqui designated three expert
witnesses: accident reconstructionist Felix Lee, biomechanical
engineer Rami Hashish, and a medical doctor. Latt’s counsel
promptly requested the experts’ availability for depositions.
Iriqui offered dates for the medical doctor’s deposition but stated
he “may be de-designating” Lee and Hashish “because they are
very expensive.” Several days later, Iriqui’s counsel said he was
“90% sure I am not calling them. [¶] I realize I will ultimately
have to de-designate at some point.” Iriqui’s counsel noted he
was scheduled to begin a trial on October 4, and stated, “[I]f the
case gets continued for some reason . . . and I hit the lottery in
the meantime I may use them and you guys can depose them first
of course.” The same day, Latt noticed Lee’s deposition for
September 22 and Hashish’s deposition for September 23. On
September 21, both counsel stipulated that neither Lee nor
Hashish would appear for their depositions “because of a retainer
billing issue.”
Toward the end of September 2021, Iriqui’s counsel
informed Latt’s counsel that he had reserved a hearing in
February 2022 for a motion to extend the expert discovery cutoff
“for the sole purpose” of scheduling Lee and Hashish’s
depositions. The “purely financial matter” preventing their
2 Undesignated statutory references are to the Code of Civil
Procedure.
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earlier depositions had been resolved. Iriqui’s counsel requested
Latt agree to take the depositions after the expert discovery
cutoff on October 7. Latt’s counsel responded, “That is fine. We
will notice Hashish and Lee’s depos for October 7.” Two days
later, Latt did just that.
Several days later, at the beginning of October 2021,
Iriqui’s counsel informed Latt’s counsel that he was “engaged in a
lengthy trial in San Bernardino which may not end until early
November.” He stated he would request the first trial date after
the Thanksgiving holiday, and, at the conclusion of his October
trial, would “immediately contact Mr. Hashish and Mr. Lee to get
their first available date(s) for completing the pending
depositions.” At the final status conference on October 8, the
parties stipulated, and the court ordered, that the trial be
continued from October 22 to November 29. The court’s order
stated that “[a]ll discovery and motion cut-off[ ] dates remain
closed.” Thus, the expert discovery cutoff remained October 7,
2021.
Iriqui’s counsel’s trial ended on October 19, 2021. Soon
afterward, Latt noticed the depositions of Hashish and Lee for
November 4 and November 11, respectively. Iriqui responded
that Lee would be available for deposition November 11 and that
Hashish would be available December 7.
B. Iriqui’s Request for a Continuance and Lee’s Deposition
On October 25, 2021, Iriqui moved ex parte to continue the
trial date for nine days until December 8, noting the date on
which Hashish was available for a deposition (December 7) was
after the scheduled trial date (November 29). Latt opposed
Iriqui’s request for a continuance, arguing that expert discovery
was closed and that Latt would be prejudiced if the trial started
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the day after Hashish’s deposition, because Latt’s counsel and
experts would not have a sufficient opportunity to prepare their
response to Hashish’s testimony.
On October 27, 2021, the trial court3 granted Iriqui’s
request to continue the trial for nine days until December 8. The
minute order states, “Discovery and motion cut off dates correlate
with the previous trial date.” However, the minute order reflects
the court specifically ordered Iriqui had until November 10 to
produce Hashish for a deposition.4
Iriqui did not produce Hashish for deposition by
November 102021. On November 11, Latt commenced Lee’s
deposition. On November 22, Latt noticed the continued
deposition of Lee for December 1. But on November 30, Iriqui’s
counsel wrote to Latt’s counsel with the subject line “Lee
Deposition Tomorrow,” stating “I do not see how we are going to
be able to complete Lee’s deposition Volume 2 if the trial actually
starts 12/8/21 as I anticipate and fervently hope.” The parties
stipulated that Lee failed to appear for the second day of his
deposition.
C. Further Trial Continuances, Pretrial Motions, and the Trial
On December 8, 2021, the day the trial was scheduled to
begin, the court5 granted Latt’s ex parte application to continue
the trial due to the death of Latt’s expert witness. The court
continued the trial to January 26, 2022, and ordered, “Discovery
3 Judge Serena Murillo.
4 No reporter’s transcript or settled statement of the
October 27, 2021 hearing was provided on appeal.
5 Judge Murillo.
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and motion cut off dates are NOT extended and [do] NOT to
correlate with the new trial date.” On January 12, based on the
parties’ stipulation, the trial court continued the trial to
March 14 and again ordered “[a]ll discovery and motion cut-off[]
dates remain closed.”
In March 2022, Latt moved in limine to preclude Hashish
and Lee from testifying because Iriqui did not produce Hashish
for deposition by November 10 and did not produce Lee for day
two of his deposition. Latt also moved to exclude video animation
from the two experts.
Before the court6 ruled on those motions, at a pretrial
hearing, Iriqui’s counsel informed the court that Hashish was not
available before November 10, 2021, so Iriqui was “not able to
comply with the order of the court.” Iriqui’s counsel continued,
“So there’s no way we can call him here. And [if] we can’t call Dr.
Hashish, then we can’t call . . . Mr. Lee, who is the accident
reconstructionist, and we can’t use the computer animation,”
because Iriqui intended to present Lee’s and Hashish’s testimony
together. Regarding Latt’s motions in limine to exclude Lee’s and
Hashish’s testimony, the court asked, “Does [Iriqui] need a ruling
on these motions in limine, or is [Iriqui] withdrawing Hashish
and Lee?” Iriqui’s counsel responded, “We’re withdrawing them.”
The court then stated the motions in limine were moot.
After a bench trial in March 2022, the trial court awarded
Iriqui $15,000 in damages. However, Iriqui’s damages award
plus his recoverable costs were less than the amount of Latt’s
pretrial settlement offer under section 998. As a result, Iriqui
6 Judge Margaret Oldendorf.
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recovered nothing from Latt, and Latt was awarded a net sum of
$76,158.25 for costs under section 998.
Iriqui timely appealed from the judgment in favor of Latt.
DISCUSSION
A. Applicable Law and Standard of Review
A “ ‘trial court has the power to exercise a reasonable
control over all proceedings connected with the litigation before
it,’ ” including “ ‘the control of [its] calendar[], and the disposition
of business before [it].’ ” (Briggs v. Brown (2017) 3 Cal.5th 808,
852.) “The trial court has discretion in ruling on requests to
extend discovery deadlines or continue trial dates. Equally clear
are the trial court’s statutory obligations to enforce discovery
cutoff dates and to set firm trial dates.” (Hernandez v. Superior
Court (2004) 115 Cal.App.4th 1242, 1246.)
Parties are generally entitled to complete expert witness
discovery “on or before the 15th day . . . before the date initially
set for the trial of the action.” (§ 2024.030.) “On motion of any
party, the court may grant leave to complete discovery
proceedings . . . closer to the initial trial date, or to reopen
discovery after a new trial date has been set.” (§ 2024.050,
subd. (a); see Cottini v. Enloe Medical Center (2014)
226 Cal.App.4th 401, 420.) Unless accompanied by a motion to
reopen discovery under section 2024.050, generally “a
continuance or postponement of the trial date does not operate to
reopen discovery proceedings.” (§ 2024.020, subd. (b); see Pelton-
Shepherd Industries, Inc. v. Delta Packaging Products., Inc.
(2008) 165 Cal.App.4th 1568, 1588.)
However, in the time period at issue here, during the
COVID-19 pandemic, the California Legislature had enacted a
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temporary emergency measure that superseded the normal rule
that a continuance of the trial date does not operate to reopen
discovery. This emergency provision, former section 599, stated:
“Notwithstanding any other law and unless ordered otherwise by
a court or otherwise agreed to by the parties, a continuance or
postponement of a trial or arbitration date extends any deadlines
that have not already passed as of March 19, 2020, applicable to
discovery . . . . The deadlines are extended for the same length of
time as the continuance or postponement of the trial date.”
(Former § 599, subd. (a), added by Stats. 2020, ch. 112, § 1 (Sen.
Bill 1146), and repealed by Stats. 2021, ch. 214, § 2 (Sen. Bill
241), eff. Aug. 27, 2023.)
We review the trial court’s rulings regarding continuances
of trial dates and discovery orders under the abuse of discretion
standard. (Dailey v. Sears, Roebuck & Co. (2013)
214 Cal.App.4th 974, 1003; Avant! Corp. v. Superior Court (2000)
79 Cal.App.4th 876, 881.)
B. Iriqui Has Not Demonstrated the Trial Court Abused Its
Discretion in Setting a November 10, 2021 Deadline for
Hashish’s Deposition
Iriqui argues that because he did not bring a formal motion
to extend the expert discovery cutoff and because the court
nevertheless ordered Iriqui to produce Hashish for deposition by
November 10, 2021, the court improperly brought its own motion
to reopen discovery under section 2024.050 and failed to give
Iriqui notice of that motion. Iriqui also contends the trial court
erred by “improperly compelling plaintiff’s expert biomechanical
expert to testify on a date on which he was unavailable.” Iriqui’s
contentions are meritless.
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His main premise—that the trial court brought and
granted “its own motion” to continue the expert discovery
deadline—is faulty. On October 27, 2021, when Iriqui requested
and received a trial continuance, former section 599 governed.
Under former section 599, unless the trial court ordered or the
parties agreed otherwise, discovery deadlines automatically were
“extended for the same length of time as the continuance or
postponement of the trial date.” (Former § 599, subd. (a).)7
Therefore, when the trial court granted Iriqui’s request to
continue the trial date for nine days until December 8, 2021, the
expert discovery cutoff date was automatically continued until
November 23, 2021, unless specifically ordered otherwise. (See
former §§ 599; 2024.030 [expert discovery cutoff is on the 15th
day before the day set for trial].) The court did “order[]
otherwise”—it ordered that “[d]iscovery and motion cut off dates
correlate[d] with the previous trial date,” but also that Iriqui was
to produce Hashish for a deposition by November 10. The trial
court did not bring “its own motion.”
Iriqui further complains it was improper for the court to
order that Hashish sit for his deposition by November 10, when
Iriqui’s motion to continue the trial said Hashish was not
available until December 7. But Iriqui’s only request in his
motion was to continue the trial until December 8, 2021, a
request the court granted. As discussed, under former section
599, the corresponding default expert discovery cutoff for the
December 8 trial was November 23—a date also well before
7 Under Government Code section 68081, we requested and
received letter briefs from the parties addressing the effect of
former section 599 here, as well as addressing the effect of a lack
of a record of the oral proceedings on October 27, 2021.
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December 7. However, Iriqui did not move under section
2024.050 to have Hashish’s deposition go forward later than
November 23. “A party on appeal cannot successfully complain
because the trial court failed to do something which it was not
asked to do.” (Chyten v. Lawrence & Howell Investments (1993)
23 Cal.App.4th 607, 617, ordered published, 882 P.2d 246 (Cal.
1994).) Even if we could construe Iriqui’s motion to continue the
trial as encompassing a motion to reopen expert discovery to
allow Hashish’s deposition to be taken, Iriqui did not comply with
the statutory requirement that “a meet and confer declaration
under Section 2016.040” accompany the latter request.
(§ 2024.050, subd. (a).) Nor did his motion address the factors
listed in section 2024.050 that a trial court must consider in
deciding whether to grant or deny a motion to reopen discovery or
complete discovery closer to the trial date. (§ 2024.050, subd.
(b)(1)-(4); Pelton-Shepherd Industries, Inc. v. Delta Packaging
Products., Inc., supra, 165 Cal.App.4th at p. 1588 [trial court
abuses its discretion by granting a motion to reopen discovery
without compliance with § 2024.050]; accord, Fairmont Ins. Co. v.
Superior Court (2000) 22 Cal.4th 245, 249-250.) Moreover, Iriqui
failed to meet his burden to provide a record of the oral
proceedings on October 27, 2021, to support his contention that
the trial court abused its discretion in setting the November 10
deadline for Hashish’s deposition. (Cal. Rules of Court,
rule 8.120(b); Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027,
1034, fn. 5.) We have no way of knowing what the parties and
the court discussed with respect to Hashish’s deposition or
whether Iriqui objected to the November 10 deadline. “[A]bsent a
showing of error on the record,” we presume the trial court did
not abuse its discretion in setting that deadline. (Southern
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California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483; see
Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th
440, 447-448 [“The absence of a record concerning what actually
occurred . . . precludes a determination that the trial court
abused its discretion.”].)
C. Iriqui Withdrew His Expert Witnesses at Trial
Iriqui contends the trial court committed “structural error”
in improperly excluding Hashish’s testimony “by compelling a
deposition without any notice on a date that the expert was
unavailable.” Structural error “typically occurs when the trial
court deprives a party of its due process right to a fair trial.”
(Kline v. Zimmer, Inc. (2022) 79 Cal.App.5th 123, 135.) An
appellant need not demonstrate prejudice from a court’s error
that is deemed structural (ibid.), and instead per se reversal is
required. (Severson & Werson, P.C. v. Sepehry-Fard (2019)
37 Cal.App.5th 938, 950). “[I]mproper exclusion of expert
testimony can amount to structural error” when it deprives a
party of the right to a fair trial. (Kline, at p. 135.)
Contrary to Iriqui’s contention, the trial court did not
exclude any expert testimony. Rather, before trial, Iriqui
explicitly withdrew his expert witnesses. Regarding Latt’s
motions in limine to exclude Lee’s and Hashish’s testimony, the
court asked, “Does [Iriqui] need a ruling on these motions in
limine, or is [Iriqui] withdrawing Hashish and Lee?” Iriqui’s
counsel responded, “We’re withdrawing them.” Because Iriqui
indicated he would not be calling his experts at trial, and he
indicated he did not need a court ruling on Latt’s motion to
preclude the experts from testifying, Iriqui cannot blame the
absence of their testimony on the court. “In other words, there is
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simply no ruling for us to review.” (Farmer Bros. Co. v. Franchise
Tax Bd. (2003) 108 Cal.App.4th 976, 993.)
DISPOSITION
The judgment is affirmed.
STONE, J.
We concur:
SEGAL, Acting P. J.
FEUER, J.
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