Filed 6/30/00
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH DISTRICT
DIVISION TWO
STATE OF CALIFORNIA
MARTIN CECIL TRUE et al.,
Plaintiffs and Appellants,
E024465
v.
(Super.Ct.No. 261421)
DONALD H. SHANK et al.,
OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Gloria Connor Trask,
Judge. Affirmed.
Gary Rand, Suzanne E. Rand-Lewis and Timothy D. Rand-Lewis for Plaintiffs and
Appellants.
Sonnenschein Nath & Rosenthal, Ronald D. Kent, Jeffry Butler and Jill Golden for
Defendants and Respondents Donald H. Shank and Debra C. Shank.
Baker, Keener & Nahra and Phillip A. Baker for Defendants and Respondents,
Keller Industries, Inc., Keller Ladders, Inc. and Kmart Corporation.
*
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified
for publication with the exception of parts II. and III.
1
Plaintiffs and appellants Martin Cecil True and Nannette True, husband and wife,1
appeal from a judgment entered in favor of defendants Donald H. Shank, Debra C. Shank,
Keller Industries, Inc. (Keller) and Kmart Corporation (Kmart)2 and against plaintiffs,
after the trial court granted defendants’ motion for nonsuit. Plaintiffs contend that the
trial court erred by (1) granting defendants’ motions in limine to exclude plaintiffs’ expert
witness testimony at trial, and (2) denying plaintiffs’ request for a continuance to
complete discovery. We find no error, and we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On February 16, 1994, Martin True fell from a ladder at a property owned by the
Shanks. The ladder was manufactured by Keller and sold by Kmart.
On February 6, 1995, plaintiffs filed suit against defendants for negligence,
premises liability, products liability and loss of consortium.
On November 25, 1998, plaintiffs designated Dr. Mark Greenspan and Paige
Eskridge as experts retained to testify at trial. On December 2, 1998, pursuant to Code of
Civil Procedure3 section 2034, the Shanks noticed expert witness depositions for Dr.
Greenspan and Eskridge. On December 14, four days before the scheduled depositions,
1
Martin Cecil True and Nannette True will collectively be referred to as plaintiffs.
2
Donald H. Shank, Debra C. Shank, Keller Industries, Inc. and K-Mart
Corporation will collectively be referred to as defendants.
3
All statutory references will be to the Code of Civil Procedure unless otherwise
specified.
[footnote continued on next page]
2
plaintiffs served an opposition to the noticed depositions, objecting to the date and
location of the depositions and requesting that mutually convenient dates for the
depositions be arranged between counsel. Plaintiffs, however, did not state that the basis
of plaintiffs’ objection was defendants’ failure to tender expert witness fees with the
notice of depositions.
On December 17, Shanks’ counsel sent a letter to plaintiffs’ counsel explaining
that the depositions were properly noticed and that the objections were improper.
Shanks’ counsel indicated that she would be unavailable from December 19, 1999, (one
day after the date specified in the notice of deposition) through January 4, 1999, (last date
for expert depositions). Hence, Shanks’ counsel provided plaintiffs with no available
dates for the expert depositions, except for the originally scheduled date of December
18.4 Counsel also stated that the Shanks would seek to exclude expert testimony at trial if
plaintiffs failed to produce the experts for deposition, as required under section 2034.
Keller and Kmart’s counsel also served a notice to take Eskridge’s deposition on
January 4, 1999. Plaintiffs’ counsel again served an opposition to Keller and Kmart’s
notice of deposition based on the same grounds as the previous opposition.
[footnote continued from previous page]
4
Although the record is unclear, it appears that the discovery cut-off date of
January 4, 1999, for expert depositions was extended because (1) Keller and K-Mart’s
expert witness was deposed on January 14, 1999, and (2) at the trial management
conference on January 15, 1999, the trial court continued the hearing on the motions in
limine to January 25, so that the parties could depose plaintiffs’ experts prior to that date.
3
On December 29, 1998, Keller and Kmart’s counsel responded to plaintiffs’
counsel, advising her that the objections lacked merit and that she failed to provide
alternative dates for Eskridge’s deposition. When plaintiffs’ counsel failed to respond,
Keller and Kmart’s counsel sent another letter to plaintiffs’ counsel, noting her failure to
provide alternative dates for the expert deposition. Two days later, on January 8, 1999,
plaintiffs’ counsel wrote to defendants’ counsel indicating that she was “working on
clearing dates” for the depositions.
Pursuant to the Shanks’ notice of deposition, the deposition of Keller and Kmart’s
designated expert, Dr. Mack Quan, took place on January 12, 1999. Plaintiffs’ counsel
did not attend the deposition because of car problems en route to the deposition.
On January 14, 1999, the Shanks filed a motion in limine to exclude testimony
from plaintiffs’ experts, Dr. Greenspan and Eskridge, and plaintiffs filed an ex parte
application to continue the trial or in the alternative, for leave to complete expert witness
depositions of Dr. Quan and plaintiffs’ experts. One day later, Keller and Kmart also
filed a motion in limine to exclude testimony from Eskridge.
At the trial management conference on January 15, 1999, the trial court deferred
ruling on defendants’ motions in limine to give the parties an opportunity to depose
plaintiffs’ experts. The trial court also did not make any rulings “with regard to Dr.
Quan.” Thereafter, although defendants’ counsel provided available dates for
depositions, the experts were not deposed.
4
On January 19, 1999, the trial court continued the trial to January 25, 1999 because
plaintiffs’ counsel was ill. At this hearing, the trial court again reiterated that her
tentative was to grant the motions in limine because the expert depositions “have not gone
forward.”
On January 25, 1999, the trial court granted defendants’ motions in limine to
preclude plaintiffs’ expert witnesses from testifying. The trial court, however, did not
rule on plaintiffs’ application to continue the trial date, or, in the alternative, for leave to
continue expert witness testimony.
Based on plaintiffs’ counsel’s statement that she would not put on a case-in-chief
in light of the court’s rulings on the motions in limine, the court granted defendants’
motion for nonsuit. Thereafter, the court entered judgment against plaintiffs. Plaintiffs
appeal.
ANALYSIS
I. Expert Witness Fees Could Be Tendered Either With the Notice of Expert Witness
Deposition or at the Commencement of the Deposition
Plaintiffs raise an issue of first impression: Whether an expert witness deposition
notice is improper unless it is accompanied by a tender of expert witness fees under
section 2034. For reasons which follow, we conclude that under section 2034, expert
witness fees could be tendered either with the deposition notice or at the commencement
of the deposition.
5
A. Standard of Review
“The proper interpretation of statutory language is a question of law which this
court reviews de novo, independent of the trial court’s ruling or reasoning. [Citations.]”
(Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 126, overruled on other grounds in
Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 39-40.)
B. Defendants Properly Noticed the Depositions of Plaintiffs’ Expert Witnesses
Plaintiffs contend that because defendants failed to tender expert witness fees with
the notices of depositions, the notices were improper, and thus, plaintiffs were not
required to produce their experts for depositions.
Section 2034, subdivision (i) sets forth the procedures for noticing expert witness
depositions. Section 2034, subdivision (i), paragraph (3) (“section 2034(i)(3)”) states that
“[t]he service of a proper deposition notice accompanied by the tender of expert witness
fee described in paragraph (2) is effective to require the party employing or retaining the
expert to produce the expert for the deposition.” However, “[i]f the party noticing the
deposition fails to tender the expert’s fee under paragraph (2), the expert shall not be
deposed at that time unless the parties stipulate otherwise.”
Under section 2034, subdivision (i), paragraph (2) (“section 2034(i)(2)”), “[t]he
party taking the [expert] deposition shall either accompany the service of the deposition
notice with a tender of the expert’s fees . . . or tender that fee at the commencement of the
deposition. . . .” (Italics added.)
6
Here, the trial court found that under section 2034, expert witness fees can be
tendered at the time the depositions are noticed or at the depositions. Plaintiffs, however,
contend that expert fees must be tendered with the deposition notice under section
2034(i)(3), unless the parties stipulate otherwise. In essence, plaintiffs argue that section
2034(i)(3) should be read in isolation, regardless of its explicit reference to section
2034(i)(2). Plaintiffs’ narrow reading of section 2034 is supported neither by the
language of section 2034 nor by common sense.
“‘[A] court is to construe a statute “‘so as to effectuate the purpose of the law.’”’
[Citations.] ‘In addressing this issue we begin, as always, with the language of the statute
itself.’ (Rojo v. Kliger (1990) 52 Cal.3d 65, 73 . . . .) ‘Under familiar rules of
construction, words in a statute must be given the meaning they bear in ordinary usage
[citation]; the meaning of the enactment may not be determined from a single word or
sentence; the words must be construed in context, and provisions relating to the same
subject matter must be harmonized to the extent possible [citation].’ ( Title Ins. & Trust
Co. v. County of Riverside (1989) 48 Cal.3d 84, 91 . . . .) Moreover, ‘every word and
phrase of a statute should be given significance in order to effect the legislative intent.’
(Steinberg v. Amplica, Inc. ( 1986) 42 Cal.3d 1198, 1205 . . . .) ‘In attempting to
ascertain legislative intent when construing a statute we presume that the Legislature did
not intend absurd results. [Citation.]’ (In re Head (1986) 42 Cal.3d 223, 232 . . . .)
‘Accordingly, if a statute is susceptible to more than one interpretation, we must adopt the
reasonable meaning and reject that which would lead to an unjust and absurd result.’
7
(People v. Catelli (1991) 227 Cal.App.3d 1434, 1448 . . . .)” (In re Daniel M. (1993) 16
Cal.App.4th 878, 882.)
Here, although section 2034(i)(3) states that an expert need not be produced for a
deposition if the deposition notice is not “accompanied by the tender of the expert witness
fee,” it also states that the tender of fees shall be done in accordance with section
2034(i)(2); which states that fees may be tendered either with the deposition notice or at
the commencement of the deposition. Hence, paragraphs (2) and (3) of section 2034,
subdivision (i), appear to be in conflict with one another. However, when section
2034(i)(3), which incorporates section 2034(i)(2), is read in conjunction with section
2034(i)(2), it is clear that the Legislature, by explicitly providing two different ways
expert fees may be tendered, intended that expert fees could be given either way.
Moreover, although there are no cases interpreting section 2034(i)(2) and section
2034(i)(3), our interpretation is supported by numerous practice guides. Weil & Brown,
California Practice Guide: Civil Procedure Before Trial (The Rutter Group 1999),
paragraph 8:1698, page 8J-26, comments as follows: “The expert witness fee may be
tendered either on service of the deposition notice, or at commencement of the expert’s
deposition.” (Italics in original.) Moreover, Continuing Education of the Bar, 2 Civil
Discovery Practice (3d ed. 1999), section 11.49, page 974, comments as follows: “At the
option of the party noticing the deposition, the fee may be tendered at the commencement
of the deposition, or such tender may accompany the deposition notice delivered to the
8
attorney for the party designating the expert.”5 Furthermore, “[t]he deposing party must
tender the total fee either with the deposition notice or at the start of the deposition.”
(Cal. Judges Benchbook: Civil Proceedings (CJER 1994) Discovery, § 17.48, p. 299.)
Plaintiffs argue that this interpretation of section 2034 is wrong because it is
contrary to the holding in Tahoe Forest Inn v. Superior Court (1979) 99 Cal.App.3d 509.
Plaintiffs’ reliance on Tahoe Forest Inn, however, is misplaced. In Tahoe Forest Inn, the
court held that “a party seeking to depose another party’s expert must notice the
deposition and tender the expert a reasonable fee ‘based upon the anticipated length of
the deposition. . . .’ (§ 2037.7; italics added.)” (Id. at p. 512.) The Tahoe Forest Inn
decision was based on section 2037.7, which stated: “Any other provision of law
notwithstanding, any party desiring to take the deposition of a person retained as an
expert by another party to a case, shall pay the expert a reasonable fee. . . . A fee based
5
Following the enactment of the Civil Discovery Act of 1986, two of the
participants in the commission that formulated the Act wrote commentary on this subject.
Professor James E. Hogan, who was the reporter for the commission, wrote “It would be
wise for a party who wants to avoid a wrangle over whether a trial expert must appear for
a deposition to tender the expert’s fee with the deposition notice.” (1 Hogan, Modern
Cal. Discovery (4th ed. 1988) § 10.10, p. 637 [this text was the predecessor of the current
California Civil Discovery].) Commentator James D. Ward, who was the chair of the
commission, wrote “To assure attendance of the expert who is entitled to expert witness
fees, the tender of fees should accompany the service of the deposition notice on counsel
for the party designating the expert.” (2 Civil Discovery Practice in California
(Cont.Ed.Bar 1988) § 12.23, p. 802.) This comment has been carried forward as a
“practice tip” in the current CEB text. (2 Cal. Civil Discovery Practice (Cont.Ed.Bar 3rd
ed. 1999) § 11.5, p. 974, section 11.5) This comment was, and is, merely a
recommendation for practitioners. Regardless of the recommendation, there is a clear
option to tender the fees either with the service of notice or at the commencement of the
deposition, in the current version of section 2034(i)(2).
9
upon the anticipated length of the deposition shall be tendered to the expert. . . .” (Tahoe
Forest Inn v. Superior Court, supra, 99 Cal.3d at p. 512.) Section 2037.7, however, was
repealed by the Discovery Act in 1986, and replaced with section 2034 (Stats. 1987, ch.
86, § 17, p. 350). Unlike section 2037.7, section 2034 explicitly provides for the tender
of expert witness fees at the commencement of the expert’s deposition.6 Hence, the
holding in Tahoe Forest Inn does not apply to section 2034, subdivision (i), paragraphs
(2) and (3).
Accordingly, the trial court correctly held that defendants’ deposition notices,
which were not accompanied by the tender of expert witness fees, were proper because
section 2034, subdivision (i) allows expert witness fees to be tendered either with the
deposition notice or at the commencement of the deposition.
6
Section 2034(i)(2), as originally drafted by the Joint Commission on Discovery
of the State Bar and Judicial Council, codified the holding in Tahoe Forest Inn v.
Superior Court, supra, 99 Cal.App.3d 509, and provided that the fees should be tendered
with the service of the deposition notice. (Stats. 1986, ch. 1336, § 2, p. 4755.) The
Legislature, however, provided for a period to complete “clean up” legislation. (See 2
Hogan, Cal. Civil Discovery (1997) Appendix D, p. 465.) A change was made to section
2034(i)(2) and the final version, which became a part of the Statutes of 1987, gave the
party taking the deposition the option of tendering the fee at the beginning of the
deposition. (1 Hogan, Cal. Civil Discovery (1997) Tender of Fee § 10.10, p. 555.)
10
II. The Trial Court Properly Granted Defendants’ Motions in Limine
to Exclude Plaintiffs’ Expert Witnesses
Next, we must determine whether the trial court abused its discretion in granting
defendants’ motions in limine to exclude plaintiffs’ expert witnesses from testifying at
trial.7
A. Standard of Review
Trial court rulings regarding the exclusion of testimony by expert witnesses are
reviewed under the abuse of discretion standard. (Stanchfield v. Hamer Toyota, Inc.
(1995) 37 Cal.App.4th 1495, 1504; Zellerino v. Brown (1991) 235 Cal.App.3d 1097,
1117.) Under the abuse of discretion standard of review, appellate courts will disturb trial
court rulings only upon a showing of clear abuse and a miscarriage of justice. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 331; Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
B. The Trial Court Did Not Abuse Its Discretion in Granting Defendants’ Motions
in Limine to Exclude Plaintiffs’ Expert Witnesses
Under section 2034, subdivision (j), the trial court “shall exclude from evidence
the expert opinion of any witness that is offered by any party who has unreasonably failed
to . . . . [¶] . . . [¶] (4) Make that expert available for a deposition under subdivision
(i).” (Italics added.)
7
Plaintiffs failed to address whether the trial court abused its discretion in granting
the motions in limine to exclude plaintiffs’ expert witness opinions at trial because
plaintiffs applied the wrong standard of review. Nevertheless, we will address whether
the trial court abused its discretion.
[footnote continued on next page]
11
Because we have determined that defendants complied with section 2034,
subdivision (i), the issue on appeal is whether plaintiffs “unreasonably” failed to make
their expert witnesses available for depositions.
Here, plaintiffs do not refute that defendants timely noticed expert witness
depositions for both of plaintiffs’ experts. Plaintiffs, however, complain that defendants
failed to consult with them to ensure that either plaintiffs’ counsel or the experts would
be available on the date selected by defendants. Although it would have been common
courtesy to enlist available dates from all parties involved, there is no statutory duty to do
so.
Moreover, even if plaintiffs and their experts were unavailable for the initial date
selected, plaintiffs were given numerous other opportunities to make their experts
available for depositions, but failed to do so. The record below indicates that plaintiffs
failed to provide defendants with a single date wherein the experts’ depositions could be
taken. Instead, plaintiffs’ counsel continually informed defendants that she was “working
on clearing dates” for the depositions. Also, at the trial management conference on
January 15, 1999, the trial court deferred ruling on defendants’ motions in limine to give
all parties another opportunity to depose plaintiffs’ experts. At this hearing, the court
warned plaintiffs that “if [the expert witnesses] are not ultimately presented for whatever
reason, they will be precluded.” Hence, when plaintiffs failed to make their expert
[footnote continued from previous page]
12
available for depositions, on January 25, 1999, the trial court granted defendants’ motions
in limine to preclude plaintiffs’ expert witnesses from testifying.
Furthermore, although plaintiffs challenge the validity of the deposition because
defendants did not tender expert witness fees with the notices, plaintiffs never stated this
as a reason for objecting to the deposition notices below. Plaintiffs raised this argument
for the first time in their opposition to defendants’ motions in limine. Hence, plaintiffs
never gave defendants an opportunity to rectify the alleged defect and move forward with
the expert depositions.
The record supports the trial court’s implicit finding that plaintiffs unreasonably
failed to make their expert witnesses available for depositions. Consequently, the trial
court did not abuse its discretion in granting defendants’ motions in limine to exclude
plaintiffs’ expert witnesses from testifying at trial under section 2034, subdivision (j).
III. Plaintiffs Waived Their Right to Raise the Issue of Dr. Quan’s Deposition
Plaintiffs contend that the trial court erroneously denied their ex parte application
for relief to depose Dr. Quan, Keller and Kmart’s designated expert.8 Defendants
contend that the issue is not properly before us because the trial court never made a ruling
on the issue.
Plaintiffs’ ex parte application requested that the court continue the trial, or in the
alternative, that the court grant relief to conduct expert depositions of Dr. Quan and
plaintiffs’ expert witnesses. On appeal, however, plaintiffs address the portion of the
application pertaining to Dr. Quan only.
8
13
“‘[W]here the court, through inadvertence or neglect, neither rules nor reserves its
ruling . . . the party who objected must make some effort to have the court actually rule.
If the point is not pressed and is forgotten, he may be deemed to have waived or
abandoned it, just as if he had failed to make the objection in the first place.’
[Citations.]” (People v. Obie (1974) 41 Cal.App.3d 744, 750 (italics added), overruled on
another ground in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4 [failure to secure
ruling on Penal Code section 995 motion waived issue on appeal].)
Here, at the trial management conference on January 15, 1999, the trial court
specifically stated that it “did not make any ruling with regard to Dr. Quan.” Thereafter,
at the January 25, 1999 hearing, although the court stated its “intention to deny
[plaintiffs’] application to continue and for relief to take depositions,” the court never
ruled on the matter.9 “[I]f the trial court has taken no action, we have nothing to review.”
(Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 667.)
Accordingly, having failed to request a ruling, plaintiffs have waived the right to
raise the issue of Dr. Quan’s deposition on appeal.10
At the hearing, plaintiffs’ counsel stated that she believed that the court had
denied the application at the prior hearing. The court neither confirmed nor denied
counsel’s statement. The transcript of the January 15, 1999, hearing, however, reveals
that the court specifically stated that it had “not made any ruling with regard to Dr.
Quan.”
9
Moreover, plaintiffs’ counsel admitted that, because the trial court granted
defendants’ motions in limine to exclude testimony from plaintiffs’ expert witnesses,
plaintiffs would be unable “to meet the requisite standard of proof in this case,” and
10
[footnote continued on next page]
14
DISPOSITION
The judgment is affirmed.
/s/ Ward
J.
We concur:
/s/ Hollenhorst
Acting P. J.
/s/ Richli
J.
[footnote continued from previous page]
declined to proffer a case in chief. Hence, because we affirm the trial court’s rulings on
the motions in limine, the issue regarding Dr. Quan’s deposition is moot.
15