Filed 8/28/26 Muldrow v. Ladera Crest Homeowners Assn. CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DONNIE MULDROW, B338036
Plaintiff and Appellant, Los Angeles County Super. Ct. No. BC720986
v.
LADERA CREST HOMEOWNERS ASSOCIATION, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Armen Tamzarian, Judge. Affirmed.
Barrington Legal, Eamon Jafari and Jacob R. Gould for Plaintiff and Appellant.
Litchfield Cavo, Kere K. Tickner and Michelle M.
McCliman; Greines, Martin, Stein & Richland, Alana H. Rotter and Kylie L. Reynolds for Defendants and Respondents.
____________________
Donnie Muldrow appeals after losing a bench trial and a jury trial. He challenges the exclusion of an expert, the trial court’s statement of decision, the nonsuit of one claim, and jury instructions. We affirm because Muldrow fails to establish reversible error. Undesignated statutory citations are to the Code of Civil Procedure.
I
Muldrow’s briefs tell us almost nothing about the underlying dispute between him and his homeowners’ association, which apparently started soon after he purchased his home in 2006. It appears there were two foreclosures arising from unpaid dues, separated by a deal that returned title of the property to Muldrow. Muldrow filed suit against the association and others in 2018 after the second foreclosure. We refer to the remaining defendants collectively as the Association.
Muldrow tells us very little about his lawsuit and the claims that ultimately went to trial. He says the key to the case was how the Association applied his payments to his outstanding balance. Muldrow maintains, without authority, that an expert was needed to translate the Association’s ledgers to a jury.
We note some key events from the litigation, which was protracted. Their relevance will appear later.
The initial trial date was in October 2019. When the Association demanded expert information, Muldrow said he intended to proceed without an expert. Later, he designated a real estate expert, Richard Witkin. This expert is not at issue.
Over the years there were many continuances, and five new complaints. Muldrow filed the operative fifth amended complaint in June 2022. This pleading had nine causes of action, including
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a claim under Civil Code section 5655 alleging the Association misapplied Muldrow’s assessment payments.
Around this time, Muldrow disclosed a new expert, forensic economist Darryl Zengler. (The Association had served a second demand for exchange of expert information in August 2021, but Muldrow did not respond until May 2022.) Muldrow told the Association Zengler would testify about damages. The Association deposed this expert in June 2022, and there Zengler apparently confirmed he would opine only on loss of earnings damages.
The Association filed a motion in limine to exclude or limit Zengler’s testimony. Muldrow opposed, noting Zengler “was disclosed to offer testimony as to Plaintiff’s damages.” The trial court granted the motion in May 2023 on two grounds: First, Muldrow did not disclose this expert timely and did not seek leave to disclose him late. (See § 2034.710, subd. (a) [court may grant leave to submit tardy expert witness information “[o]n motion of any party”].) Second, any testimony going beyond Muldrow’s loss of earnings damages exceeded the scope of opinions to which Zengler limited himself at his deposition.
At the time of this ruling, trial was set for July 2023. The court ended up pushing the trial date to August to accommodate a mandatory settlement conference.
A few weeks after the expert exclusion ruling, Muldrow filed a motion for leave to submit tardy expert witness information, along with an updated designation that finally added the issue he now deems critical: “Plaintiff’s payments to Ladera Crest Homeowners Association, Inc.” The court denied the motion after applying the factors in section 2034.720, which concerns late expert designations. The court explained, among
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other things, the Association had relied on its successful exclusion of Zengler’s testimony; Muldrow now was attempting “to undo that victory at the 11th hour” after the adverse motion in limine ruling; the defense was deep in trial prep; and Muldrow had not been diligent.
The bench trial preceded these expert witness rulings, but Muldrow’s briefs to us discuss only the statement of decision, not the trial itself.
Ahead of the jury trial, there was an Evidence Code section 402 hearing (the 402 hearing). Muldrow’s other expert (Witkin) testified at this hearing. The court limited the topics on which Witkin could testify at trial. Muldrow does not challenge this ruling.
The jury trial took place in January 2024, after at least 15 final status conferences. Muldrow summarizes the trial testimony in a couple sentences and maintains the trial had a “[p]ayment-application focus.”
After Muldrow concluded his case in chief, the trial court granted a nonsuit of his breach of contract claim.
The jury found against Muldrow on his remaining claims.
Before reaching its verdict, the jury submitted what Muldrow characterizes as “four basic law questions.”
Muldrow appealed.
II
Muldrow attacks four stages of the litigation on appeal:
1) the exclusion of his economist expert and rejection of his updated designation, 2) the statement of decision following the bench trial, 3) the nonsuit of his contract claim, and 4) the jury instructions.
Muldrow did not carry his appellate burden.
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He did not present the record fairly. His briefs largely avoid legal citations and analysis on main issues. And he failed to establish any prejudicial error warranting reversal. (See Cal. Rules of Court, rule 8.204(a)(2) [appellant’s opening brief must provide a summary of significant facts of record]; Fernandes v. Singh (2017) 16 Cal.App.5th 932, 940–943 [appellants must state the facts fairly; briefs must contain meaningful legal analysis supported by citations to authority and record facts or risk forfeiture]; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833 (Waller) [“Prejudice is not presumed, and the burden is on the appealing party to demonstrate that a miscarriage of justice has occurred”].)
A
Muldrow’s first claim stems from the disputed expert rulings: the May 2023 ruling excluding Zengler’s opinions and the June 2023 ruling rejecting his updated expert designation.
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On the first ruling, Muldrow argues the court erred in excluding Zenger’s opinions as untimely. He says section 599, enacted in the pandemic and now repealed, trailed all dates in the case so that his updated expert designation — served a month after the ruling — was timely.
We need not reach the timeliness issue because the court had two independent bases for excluding this expert’s relevant opinions (i.e., opinions on the payment allocation issue), and Muldrow’s opening brief ignores the second basis, which is valid.
The second basis was this: Zengler told the Association at deposition that his opinions were limited to loss of earnings damages. The court concluded it would limit Zengler’s testimony to these opinions if it permitted him to testify at trial.
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This is a valid basis for refusing expert testimony. (See e.g., Jones v. Moore (2000) 80 Cal.App.4th 557, 564–565 [“When an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial”]; DePalma v. Rodriguez (2007) 151 Cal.App.4th 159, 166 [trial court “did not abuse its broad discretion” in permitting expert’s trial testimony that “did not exceed the general scope of his deposition testimony”].) Any error in the court’s timeliness finding thus could not have been prejudicial. (See People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1237 (JTH) [appellant’s failure to address all bases for the trial court’s ruling constituted a waiver of its appellate claim because one good reason is enough to sustain the order].)
On the issue of prejudice, Muldrow doubly faltered. He did not provide any offer of proof about Zengler’s opinions or delve into the trial testimony. His brief acknowledges “[t]he prejudice inquiry must be anchored to what this case actually required the jury to decide,” but it does not even tell us which claims reached the jury. Muldrow thus failed to show it is reasonably probable Zengler’s testimony would have changed the trial result. (See Alexander v. Community Hospital of Long Beach (2020) 46 Cal.App.5th 238, 258; see also Waller, supra, 12 Cal.App.4th at p. 833 [“When the trial court commits error in ruling on matters relating to pleadings, procedures, or other preliminary matters, reversal can generally be predicated thereon only if the appellant can show resulting prejudice, and the probability of a more favorable outcome, at trial”].)
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Muldrow asserts the Discovery Act authorizes calibrated remedies and did not require the total exclusion of his expert’s testimony. But Muldrow’s minimal discussion of the law and the facts fails to establish the trial court abused its discretion in selecting exclusion as the remedy here.
2
Muldrow also argues the trial court wrongly denied him leave to amend his expert’s designation in June 2023. The court grounded its denial in section 2034.720.
We review these rulings for abuse of discretion. (See McDonald v. Zargaryan (2025) 117 Cal.App.5th 344, 349 (McDonald).)
Muldrow failed to establish abuse. The trial court found Muldrow did not meet the statutory requirements for permitting tardy expert witness information. (See § 2034.720 [listing the conditions that must be satisfied].) Muldrow’s argument section in his opening brief does not address these findings. It cites statutes pertaining to expert disclosures — sections 2034.710 through 2034.730 — but it does not discuss them. Only his reply brief mentions the statutory factors. This brief also talks about what “[c]ases affirming exclusion typically involve,” without naming any cases in this section of argument.
These efforts are insufficient to establish an abuse of discretion warranting reversal.
Further, Muldrow’s briefing on this issue does not present the record fairly, and it makes broad statements about the case without supporting record citations. For example, his citations do not support the statement that the case “had materially shifted toward the HOA-payment allocation theory” as of June 2023. Another example concerns timing: Muldrow maintains he
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offered the disputed expert designation long before trial ultimately began, in January 2024. This is irrelevant. When the court ruled, trial was a month away. It was proper for the court to be concerned about prejudice to the defendants or additional delays occasioned by a pleading that had been amended a year earlier in a case that started in 2018.
Muldrow maintains there was no unfair surprise because there was no hidden witness: the Association had known about Zengler for a year and had deposed him, and Muldrow offered immediate redeposition.
But Zengler never opined on the payments issue and apparently testified his opinions were limited to a different issue (loss of earnings damages). Seeking to expand this expert’s testimony at the 11th hour after an adverse ruling in a five-yearlong case is unfair surprise. (See McDonald, supra, 117 Cal.App.5th at pp. 350–351 [experts can be powerful witnesses; time-consuming homework can be essential to challenge a true expert; and judges should guard against tactics that jam the other side for preparation time].)
Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1244, which Muldrow cites in his reply brief without pinpoints, does not help him. (See id. at p. 1258 [record established there were no new, surprise, or undisclosed opinions, and appellants did not show the court abused its discretion in permitting expert testimony]; id. at pp. 1261–1262 [trial court reasonably exercised its discretion to deny continuance for deposition purposes].)
B
Muldrow’s second appellate issue concerns the court’s final statement of decision in the bench trial. He says he objected to
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the tentative decision and asked the court to identify the principal controverted issues, but the court did not address his request in its final decision and therefore impeded our appellate review.
This claim is mistaken. The final statement of decision devotes three pages to Muldrow’s objections and his request for a decision on four issues.
Muldrow’s reply brief recognizes his error. There, he ignores the Association’s claim that the objections were untimely, and he makes a new argument about the adequacy of the final statement and its handling of his objections. Muldrow forfeited this new argument by raising it first in reply and by failing to specify in what ways the statement supposedly was deficient.
C
Muldrow’s third claim is the trial court improperly granted a nonsuit of his contract cause of action. He argues substantial evidence supported this claim if the court would have considered excluded expert testimony with admitted exhibits relating to the Association’s ledger and other key documents. Muldrow seems to refer both to Zengler’s excluded testimony and Witkin’s testimony at the 402 hearing.
Inadequate briefing and proof doom this appellate issue. We do not know what Zengler’s testimony would have been because Muldrow made no offer of proof.
Muldrow refers to his counsel’s “section 402 proffer”
concerning Witkin. But he does not argue Witkin’s testimony was excluded erroneously or explain why it should count for purposes of the midtrial nonsuit.
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Muldrow also does not discuss the court’s reasoning for the nonsuit or how the evidence would satisfy each element of his contract claim.
In passing, Muldrow claims the court at least should have used its inherent authority to reopen the case and allow supplementation or an expedited deposition to cure the gap in proof. This cursory claim lacks legal analysis and is forfeited. (See JTH, supra, 212 Cal.App.4th at p. 1237 [every brief should contain legal argument with citation of authorities on the points made; if none is furnished on a point, the court may treat it as waived and pass it without consideration].)
Muldrow does not respond to the Association’s claim that he sought to reopen the testimony of an Association witness and then failed to respond to the court’s request for an offer of proof about how this witness’s testimony would affect the contract claim. (See Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1337 [right to present further evidence waived if not accompanied by an offer of proof “describing the evidence and explaining how it would cure the deficiencies”].)
D
Muldrow’s final claim is the jury instructions on agency and reliance were incomplete and misleading. He maintains the jury’s questions during deliberations show jurors were uncertain about the governing statutory framework and needed not only better instructions, but expert help. Muldrow again eschews specifics, which defeats his claims.
Muldrow does not identify the ways in which the disputed instructions were deficient or how they should have been revised. Nor does he show that he proffered these revisions at the trial court. (See Metcalf v. County of San Joaquin (2008) 42 Cal.4th
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1121, 1131 [where a party complains a correct instruction is too general, lacks clarity, or is incomplete, the party must request the additional or qualifying instruction to have the error reviewed; “Plaintiff’s failure to request any different instructions means he may not argue on appeal the trial court should have instructed differently”]; Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Cal.App.4th 525, 547, 552 [aggrieved party must have requested and submitted the specific proper instructions].)
Muldrow’s reply brief appears to recognize these failings.
He responds to the Association’s arguments about forfeiture and harmlessness by claiming “[t]he jury’s questions still matter” and by acknowledging this issue may not “stand alone.”
The Association claims Muldrow invited error with the instructions. It notes, for example, that the trial court sanctioned Muldrow for failing to cooperate in submitting joint instructions; then Muldrow did not object to most instructions the court proposed. Muldrow does not answer any of this.
We need not decide whether Muldrow invited instructional error because he has failed to demonstrate error warranting reversal.
III
The Association asked us to take judicial notice of a postjudgment fees and costs order. The order is unnecessary to resolve this appeal. We deny the request. ///
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DISPOSITION
We affirm and award costs to the respondents.
WILEY, J.
We concur:
STRATTON, P. J.
SCHERB, J.