Filed 10/5/20 CERTIFIED FOR PUBLICATION
REALES INVESTMENT, LLC,
Cross-complainant and Appellant, E072523
v. (Super.Ct.No. RIC1711834)
THOMAS EDWARD JOHNSON, OPINION
Cross-defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge.
Affirmed.
Franceschi Law Corporation and Ernest J. Franceschi, Jr., for Appellant.
Sage Law Partners and Darrel C. Menthe, for Respondent.
1 I.
INTRODUCTION
About two months before trial was scheduled to begin, appellant Reales
Investment, LLC’s attorney moved to be relieved from the case. Because Reales did not
retain counsel until a few days before trial began, it did not participate in any of the
pretrial proceedings mandated by Riverside County Superior Court Local Rule 3401
(Rule 3401). On the morning of the first day of trial, Reales’s new attorney orally
requested a continuance of the trial. The trial court denied the request, and also excluded
all documents and witnesses Reales did not disclose in pretrial exchanges between the
parties as required by Rule 3401. Because Reales did not disclose anything under Rule
3401, it was precluded from offering any evidence or testimony at trial, so the trial court
granted a nonsuit for respondent Thomas Edward Johnson.
Reales timely appealed, arguing that the trial court’s pretrial rulings were an abuse
of discretion. We find no abuse of discretion and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Reales entered into a contract with TJ&V Builders, Inc. (TJ&V), which is owned
by Johnson, for the construction of a residential property. TJ&V purchased lumber for
the project from Grove Lumber and Building Supplies, Inc. (Grove). Reales was partially
responsible for the costs of the lumber, but did not pay TJ&V or Grove. Grove therefore
placed a mechanic’s lien against the property for the unpaid lumber costs and eventually
2 sued TJ&V, Reales, and Reales’s owners, Tammy Woloski and Vicky Cuiying Gong. 1 Reales, in turn, filed a cross-complaint against TJ&V and Johnson in February 2018.
On October 5, 2018, Reales’s counsel, Curtis Herron, moved to be relieved as 2 counsel. In light of the unopposed motion, which the trial court granted on November
15, 2018, the parties stipulated to continue the trial. The trial was continued to January
11, 2019.
About a week before the trial, Grove filed a motion in limine requesting that the
trial court not allow Woloski, Gong, or Reales’s three identified experts to testify. Grove
argued the deponents did not appear at their “repeatedly” noticed depositions on several
occasions and Reales previously stated it was not producing experts in response to
Grove’s demand for exchange of expert witness information. Grove also asked the trial
court to exclude all of the documents that it requested in its deposition notices, which
Reales never produced. Reales did not file an opposition to the motion.
On the day the trial was scheduled to begin, January 11, 2019, Reales’s new 3 counsel, Ernest J. Franceschi, filed a substitution of attorney. The trial was continued to
the following court day, January 14, 2019.
1 Reales later dismissed its claims against TJ&V. For brevity, we refer to TJ&V and Johnson collectively as “Johnson.” 2 Reales did not provide Mr. Herron’s motion in its appendix. 3 Reales did not provide a Reporter’s Transcript of the proceedings.
3 Before the trial commenced, the trial court ruled that, except for impeachment
evidence, any document or witness not disclosed during the mandatory pretrial
conference would be excluded from evidence at trial pursuant to Rule 3401 (the
exclusionary order). Because Reales did not participate in any pretrial conference with
any party, it was precluded from presenting any evidence or testimony.
After some additional pretrial housekeeping, the trial court dismissed Woloski and
Gong as defendants at Grove’s request. Reales then orally requested a continuance of the
trial, which the trial court denied. At the end of a brief bench trial, the trial court granted
Johnson’s motion for nonsuit on Reales’s cross-complaint against Johnson, “based upon
[the trial court’s] prior decision in regards to the 3401 ruling.” After the trial court
entered judgment for Johnson, Reales timely appealed.
III.
DISCUSSION
Reales’s several arguments on appeal boil down to two primary contentions: (1)
the trial court erroneously denied its counsel’s oral request for a trial continuance; and (2) 4 the trial court’s exclusionary order was an abuse of discretion. We disagree on both
points.
At the outset, we disagree with Johnson that we should dismiss this appeal because
4 Reales argues the trial court erroneously granted Grove’s motion in limine. Although the trial court initially indicated it would grant Grove’s motion, it later clarified that it did not need to decide the motion given Reales’s “failure to comply with Rule 3401.” We therefore need not address Reales’s arguments as to Grove’s motion in limine.
4 Reales provided an inadequate record. We agree with Johnson that Reales’s appendix is
incomplete. Most importantly, Reales omitted from its record the bulk of the evidence
supporting Grove’s motion in limine, which catalogued Grove’s discovery disputes with
Reales and which the trial court primarily relied upon when issuing its exclusionary
order. But Reales’s appendix contains Grove’s attorney’s declaration in support of the
motion in limine, which summarized Reales’s improper litigation conduct, none of which
Reales disputes. We can glean sufficient information from this declaration and the
reporter’s transcript to decide this appeal. That said, “[t]o the extent the court relied on
documents not before us, our review is hampered. We cannot presume error from an
incomplete record. [Citation.] But on the record we have, [Reales] has not shown error.”
(Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412.)
A. The Trial Court Did Not Abuse its Discretion in Denying Reales’s Request for
a Trial Continuance
Reales contends the trial court erred when it denied Mr. Franceschi’s oral request
to continue the trial. We conclude the trial court acted within its discretion in doing so.
We review a trial court’s order denying a continuance for an abuse of discretion.
(Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1126.)
“The decision to grant or deny a continuance is committed to the sound discretion of the
trial court. [Citation.] The trial court’s exercise of that discretion will be upheld if it is
based on a reasoned judgment and complies with legal principles and policies appropriate
to the case before the court. [Citation.] A reviewing court may not disturb the exercise
5 of discretion by a trial court in the absence of a clear abuse thereof appearing in the
record.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985; see also City of
Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297 [a trial court abuses its discretion
only if “its action was utterly irrational”].)
Trial continuances are “disfavored” and may be granted “only on an affirmative
showing of good cause.” (Cal. Rules of Court, rule 3.1332(c).) The party requesting a
continuance must do so “by a noticed motion or an ex parte application” and “with
supporting declarations.” (Cal. Rules of Court, rule 3.1332(b).) California Rules of
Court, rule 3.1332(c) lists seven circumstances “that may indicate good cause.”
California Rules of Court, rule 3.1332(d) lists additional factors the trial court may
consider, including “the proximity of the trial date, whether there were previous trial
continuances, the length of the requested continuance, and the prejudice that parties or
witnesses would suffer as a result of the continuance. [Citation.]” (Thurman v. Bayshore
Transit Management, Inc., supra, 203 Cal.App.4th at p. 1126.)
In County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72
Cal.App.3d 776, 781 (Doria), this court upheld the trial court’s denial of an oral motion
to continue made on the morning of the first day of trial. We concluded the denial was
justified because (1) the continuance was requested on the first day of trial, (2) the
opposing party was ready to proceed, (3) the party requesting the continuance made the
request orally, not in writing, and (4) the request did not have a supporting declaration or
any other evidence. (Id. at p. 783.)
6 Here, as in Doria, supra, 72 Cal.App.3d 776, Reales’s attorney, Mr. Franceschi,
made the request for a continuance orally and without any written supporting evidence in
violation of California Rules of Court, rule 3.1332(b). Had the trial court granted the
request, it would have violated California Rules of Court, rule 3.1332(b)’s requirement
that a request for a trial continuance be made in writing, either by a noticed motion or an
ex parte application. Further, Mr. Franceschi made the oral request on the first day of
trial, and nothing in the record suggests Grove was unprepared to proceed with the trial.
Under Doria, supra, 72 Cal.App.3d 776, the trial court did not abuse its discretion in
denying Mr. Franceschi’s improper and untimely oral request for a trial continuance.
During oral argument before this court, Reales’s counsel argued Doria is
distinguishable. In that case, counsel for the moving party, a corporation, made a special
appearance on the morning of trial to request a continuance, and explained that his client
had substituted him for their prior counsel about a week before trial. (Id. at p. 782.)
Counsel for Reales asserted at oral argument that Doria does not control here because
Reales, as a corporate entity, could not appear in pro. per. But that does not explain why
counsel for Reales, who was hired before the trial began, could not comply with rule
3.1332(c)’s requirements. If anything, Doria shows that Reales’s counsel’s failure to
comply with those requirements was less reasonable than counsel’s failure to do so in
Doria. In Doria, the corporate entity moving for a new trial substituted its counsel about
a week before trial, whereas Reales knew its counsel intended to withdraw his
representation of Reales at least three months before the trial. Because Mr. Franceschi’s
7 oral request for a trial continuance was untimely and improper, the trial court did not
abuse its discretion by denying it.
During oral argument before this court, counsel for Reales also argued that the
trial court should have continued the trial under Rule 3401, which provides that the trial
court may “postpon[e] the trial” for non-compliance with Rule 3401. (Rule 3401(11).)
Because Reales did not raise this argument in its appellate briefs, we decline to consider
it. (Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th
220, 232, fn. 6 [“We need not consider points raised for the first time at oral
argument.”].)
B. The Trial Court’s Exclusionary Order Was Not an Abuse of Discretion
Reales argues the trial court prejudicially erred by precluding evidence Reales did
not disclose before trial under Rule 3401. Reviewing the trial court’s exclusionary order
for an abuse of discretion, we disagree. (Pate v. Channel Lumber Co. (1997) 51
Cal.App.4th 1447, 1454; Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228.)
Rule 3401 requires parties to exchange certain documents and information at least
14 days before trial, including witness lists, exhibit lists, and a statement of undisputed
facts and issues of law. (Rule 3401(2).) Rule 3401 also mandates that the parties or their
counsel meet at least seven days before trial to conduct an “Issues Conference,” where
the parties or their counsel must discuss several items. (Rule 3401(3).) The Rule
provides that any party or counsel that fails to comply with its terms without good cause
is subject to sanctions, including the imposition of evidentiary sanctions. (Rule
8 3401(11).)
It is undisputed that Reales did not timely comply with any of Rule 3401’s pretrial
requirements. During oral argument before this court, Reales asserted that the trial
court’s exclusionary order was improper because Johnson did not file a declaration
explaining Reales’s non-compliance with Rule 3401. (See Rule 3401(4)(d) [“If counsel
for any party fails to participate in the Issues Conference, or otherwise fails to cooperate
in the preparation of the documents specified above . . .then the Proposed Joint Pretrial
Statement shall include a declaration describing the attempts made by the remaining party
or parties to confer with or obtain the cooperation of the non-complying party.”].)
Because Reales did not raise this argument in its appellate briefs, we decline to consider
it. (Santa Clara County Local Transportation Authority v. Guardino, supra, 11 Cal.4th
220, 232, fn. 6 [“We need not consider points raised for the first time at oral
argument . . . .”].)
But the trial court’s exclusionary order was not based solely on Reales’s
noncompliance with Rule 3401. The trial court also permissibly considered Reales’s
discovery conduct. (See Liberty Mutual Fire Ins. Co. v. LcL Administration, Inc., (2008)
163 Cal.App.4th 1093, 1106 [trial court properly considered defendant’s “months-long
lack of cooperation” in discovery when issuing terminating sanctions].)
9 From what we can glean from the incomplete record Reales has provided us,
Johnson propounded requests for admissions, requests for documents, and special
interrogatories on Reales, who responded to each request with only, “This response will
be supplemented,” but never supplemented any response. In its motion in limine, Grove
argued Reales’s responses to those discovery requests were relevant to its claims and
defenses. Reales also indicated in September 2018 that it was not offering expert
testimony, but disclosed that it had three percipient witnesses, and provided Grove with 5 the witnesses’ reports. Shortly before trial, however, Reales indicated that it had
designated its percipient witnesses as experts. Grove also “repeatedly” noticed
depositions of Gong, Woloski, Reales’s person most knowledgeable, and Reales’s three
“non-retained experts,” along with demands for the production of documents at the
depositions. None of the deponents appeared for their deposition and Reales did not
produce any documents.
As the trial court explained, it has discretion as to the appropriate sanction for a
party’s failure to comply with Rule 3401, and had exercised its discretion differently in
other cases when the noncompliant party had otherwise “compl[ied] with procedures
throughout the litigation and ha[d] been responding to discovery and such.” The trial
court observed, however, that Reales had not done so, without justification. Because of
Reales’s improper litigation conduct, the trial court concluded the appropriate sanction
5 Reales did not provide the reports in the record.
10 for Reales’s noncompliance with Rule 3401 was to preclude it from presenting evidence
at trial that it did not disclose or exchange as required by Rule 3401.
We conclude the trial court did not abuse its discretion in issuing the exclusionary
order. A trial court’s “inherent power to curb abuses and promote fair process extends to
the preclusion of evidence” at trial. (Peat, Marwick, Mitchel & Co. v. Superior Court
(1988) 200 Cal.App.3d 272, 288.) Accordingly, “trial courts regularly exercise their
‘basic power to insure that all parties receive a fair trial’ by precluding evidence.” (Ibid.)
Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270 (Thoren), is instructive.
There, the trial court excluded testimony from a witness that the party willfully did not
identify in its response to an interrogatory seeking the names of witnesses. The Thoren
court held this was not an abuse of discretion because “[w]here the party served with an
interrogatory asking the names of witnesses to an occurrence then known to him deprives
his adversary of that information by a willfully false response, he subjects the adversary
to unfair surprise at trial. He deprives his adversary of the opportunity of preparation
which could disclose whether the witness will tell the truth and whether a claim based
upon the witness’ testimony is a sham, false, or fraudulent.” (Id. at p. 274.)
The court in Deeter v. Angus (1986) 179 Cal.App.3d 241 (Deeter) followed
Thoren in upholding the trial court’s exclusion of an audio tape a party willfully withheld
from production in discovery. The Deeter court reasoned that there was “no reason why”
Thoren’s reasoning “should not apply to the willful withholding of evidence such as the
[audio] tape.” (Deeter, supra, at pp. 245-255.) Similarly, in Castaline v. City of Los
11 Angeles (1975) 47 Cal.App.3d 580, the appellate court held the trial court did not abuse
its discretion when it precluded the testimony of a “surprise witness” at trial who had not
been disclosed to the opposing party.
These cases lead us to conclude that the trial court did not abuse its discretion in
precluding Reales from introducing evidence and testimony at trial that it did not disclose
or exchange pursuant to Rule 3401. Reales did not adequately respond to several sets of
discovery requests, failed to produce witnesses at six depositions, did not participate in
Rule 3401 pretrial proceedings, designated experts days before trial after previously
stating it had no experts, and did not produce any evidence before trial beyond three
percipient witness reports (which are not in the record, so we know nothing about their
evidentiary value). In short, Reales completely failed to participate in discovery and
mandatory pretrial proceedings.
Reales argues the trial court’s exclusionary order is “infirm” because the court did
not expressly find that Reales willfully failed to provide adequate discovery responses.
The authorities Reales relies on pertain to the trial court’s authority to sanction a party
under former Code of Civil Procedure section 2034, which has since been repealed. (See
Fairfield v. Superior Court (1966) 246 Cal.App.2d 113, 118; Weinkauf v. Superior Court
(1966) 64 Cal.2d 662, 664.) Moreover, while some courts have held that a trial court can
issue evidentiary or terminating sanctions only if the offending party’s conduct was
willful, they do not hold that the trial court must make an express finding of willfulness.
(E.g., Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327.)
12 Regardless, the trial court need not expressly find that a party’s conduct is willful
before excluding that party’s evidence at trial in order to ensure a fair trial. The court in
Crumpton v. Dickstein (1978) 82 Cal.App.3d 166, 168, held the trial court abused its
discretion by allowing two defense experts to testify at trial who were not identified in
the defendant’s responses to interrogatories, even though the experts’ names were not
willfully withheld. (Id. at p. 172.) The Crumpton court explained that by allowing the
experts to testify, the trial court had “effectively thwarted a legitimate purpose of the
discovery statute by impeding plaintiff’s preparation for trial.” (Ibid.)
Reales also offers two primary arguments for why its failures are excusable, or at
least did not warrant the exclusion of its evidence from trial. First, Reales faults Johnson
for not timely filing motions to compel responses to its discovery requests. We reject this
argument because Reales does not offer, and we cannot find, any authority that suggests a
party’s failure to file a motion to compel excuses the offending party’s noncompliance
with discovery. (Cf. Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin &
Berns (1992) 7 Cal.App.4th 27, 36 [rejecting argument that party had to violate prior
discovery order before trial court could impose evidentiary sanctions at trial].) Further,
Grove filed motions to compel regarding the six depositions where Reales failed to
provide a witness.
13 Second, Reales argues it could not have met the Rule 3401 deadlines because it
did not have counsel at the time, and corporate entities cannot represent themselves in
propria persona. But Mr. Herron moved to be relieved as counsel in early October 2018,
more than three months before trial, and his motion was granted in mid-November 2018,
about two months before trial. Reales had over a month to retain counsel in order to meet
its Rule 3401 obligations, yet it failed to do so. Although Mr. Franceschi represented to
the trial court that Reales “diligently look[ed]” for counsel after Mr. Herron was relieved,
there is nothing in the record about Reales’s search for counsel. As it stands, the record
indicates that Reales waited without justification to obtain counsel until just days before
trial. The trial court reasonably concluded that Reales’s unreasonable delay in hiring an
attorney was inexcusable. (Cf. Mahoney v. Southland Mental Health Assoc. (1990) 223
Cal.App.3d 167, 172 [affirming trial court’s finding of no good cause for a continuance
when counsel had four months’ notice of change in attorneys before requesting a
continuance].)
Whether Reales’s conduct was intentional or inadvertent, the fact remains that
Reales did not meaningfully engage in discovery or comply with Rule 3401’s pretrial
requirements. Its failures resulted in Grove and Johnson knowing next to nothing about
Reales’s evidence, witnesses, and arguments before trial. By failing to respond to
discovery, produce evidence, procure witnesses at depositions, and participate in pretrial
proceedings pursuant to Rule 3401, Reales deprived Grove and Johnson of the
14 opportunity to fairly prepare for trial. (See Thoren, supra, 29 Cal.App.3d at p. 275;
Crumpton v. Dickstein, supra, 82 Cal.App.3d at p.p. 169-170.)
The purpose of discovery is to make trial “‘less a game of blindman’s bluff and
more a fair contest with the basic issues and facts disclosed to the fullest practicable
extent.’” (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376.) “An
important aspect of legitimate discovery from a defendant’s point of view is the
ascertainment, in advance of trial, of the specific components of plaintiff’s case so that
appropriate preparations can be made to meet them. It is impossible to discover this other
than from the plaintiff.” (Karz v. Karl (1982) 137 Cal.App.3d 637, 650.) Allowing
Reales to present evidence at trial that Grove and Johnson likely had not seen before,
much less had the opportunity to analyze before trial, would have been unfair. (See
Deeter, supra, 179 Cal.App.3d at pp. 244-245; see also Sauer v. Superior Court, supra,
195 Cal.App.3d at p. 228 [“Where a party has refused to supply information relevant to a
particular claim, an order precluding that claim is an appropriate sanction.”].) Allowing
Reales to present witnesses that Grove and Johnson never had the opportunity to depose
likewise would have been unfair, particularly given that Reales identified three witnesses
as fact witnesses, but then designated them as expert witnesses on the eve of trial. (See
Crumpton v. Dickstein, supra, 82 Cal.App.3d at p. 168 [excluding testimony from expert
witnesses that had not been disclosed before trial].)
15 Despite the indisputable prejudice that Grove and Johnson would have suffered
had Reales been allowed to introduce its undisclosed evidence and witnesses at trial,
Reales contends that the exclusionary order violated its due process rights. We disagree.
“We cannot accept the notion that due process of law entitles a litigant to present certain
evidence after it has compromised its opponent’s ability to counter that evidence with the
sort of litigation abuse found in this case.” (Peat, Marwick, Mitchel & Co. v. Superior
Court, supra, 200 Cal.App.3d at p. 290.) The fact that Reales could not prove its case
because of the exclusionary order does not alter our conclusion. (See Thoren, supra, 29
Cal.App.3d at p. 273 [affirming trial court’s order excluding plaintiff’s evidence that
resulted in nonsuit for defendants]; Biles v. Exxon Mobil Corp., supra, 124 Cal.App.4th
at p. 1327 [“[W]hen a party repeatedly and willfully fails to provide certain evidence to
the opposing party as required by the discovery rules, preclusion of that evidence may be
appropriate, even if such a sanction proves determinative in terminating the plaintiff’s
case.” italics added].)
Regardless of whether Reales’s conduct was intentional or inadvertent, the trial
court could reasonably conclude that Grove and Johnson would have suffered prejudice
from the introduction of Reales’s evidence and witnesses at trial. Because of Reales’s
failure to properly engage in the discovery process, Grove and Johnson had no
opportunity to examine Reales’s evidence before trial, depose its witnesses, conduct
relevant discovery, or otherwise fairly prepare for a trial that included Reales’s excluded
evidence and witnesses. Given Reales’s entirely inadequate participation throughout the
16 litigation, the trial court’s exclusionary order was not an abuse of discretion. This is
particularly true given that, as Johnson aptly puts it, there is “nothing in the record from
Reales as to excusable neglect or good cause on which the trial court could have based
any other decision: just a record of admitted, unexcused, prejudicial noncompliance with
crucial pre-trial Local Rules and an uncontroverted history of failure to participate in
discovery.” We therefore conclude the trial court’s exclusionary order was a proper
exercise of its wide discretion to ensure a fair trial.
IV.
DISPOSITION
The judgment is affirmed. Johnson shall recover his costs on appeal.
CERTIFIED FOR PUBLICATION
CODRINGTON Acting P. J.
We concur:
FIELDS J.
MENETREZ J.