Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. KC044612. Peter J. Meeka, Judge.
Law Offices of Robert A. Brown and Robert A. Brown; Law Offices of Patrick M. Saboorian and Patrick M. Saboorian for Plaintiffs and Appellants.
Ropers, Majeski, Kohn & Bentley, Lawrence Borys and Terry Anastassiou; Sabaitis, O’Callaghan, Michael T. O’Callaghan and Bret A. Lunsford for Defendant and Respondent.
WOODS, J.
Plaintiffs and appellants appeal a judgment of nonsuit in favor of defendant and respondent LaPuente Valley Water District (LaPuente). Appellants claim on appeal (1) good cause existed to vacate the trial date for a review to determine whether the case should be designated as a long cause, complex case and (2) good cause existed for a continuance of the trial date. The trial court declined to continue the trial and since plaintiffs had not designated a single expert and failed to present any case at all, the case was dismissed. We affirm.
FACTUAL & PROCEDURAL BACKGROUND
Respondent LaPuente is a municipal water district organized pursuant to the California Water Code. The underlying toxic tort complaint includes a single cause of action for negligence brought by appellants, 13 individual employees of Suburban Water System, a business located adjacent to a facility operated by LaPuente.
On July 30, 2004, appellants filed a complaint alleging they suffered personal injuries as a result of exposure to mold caused by the failure of LaPuente to control the flow of water from a water treatment plant The 13 individuals also proceeded against their own employer Suburban Water System in a separate workers’ compensation action but the status of the claims was unclear from the record on appeal. In December 2004, the trial court set the matter for trial on September 12, 2005.
Ex Parte Application to Designate As Long Cause Complex Litigation
On May 6, 2005, appellants made an ex parte application to designate the case as “long cause complex” based in part on the assertion the action would take 60 days of trial and 45 to 50 witnesses would testify. Counsel for appellants also stated “At least forty pre-trial depositions will be taken, none of which have been completed to date. Completion of pre-trial discovery will involve coordination of calendars of at least 15 physicians and surgeons and other experts.” The trial court denied the request without prejudice to a future meeting with the court, conditional upon counsel “bring[ing in] medical history records and current medical treatment of the thirteen plaintiffs if said meeting is conducted.”
The Status Conference
On July 19, 2005, the parties reported on the completion of court-ordered mediation. The court pointed out both sides stipulated to private mediation and the mediation was to be completed by July 19, 2005. However, appellants’ counsel reported that mediation had not even begun and in fact “we just got started with the plaintiffs[’] depositions.” The trial court inquired as to what other discovery had taken place the past year and counsel for appellants responded “Just on – well, formal discovery, none. We’re just getting started with the formal discovery now, . . .” The court noted “the fact that almost zero discovery has taken place here suggests . . . the best course of action is to leave the jury trial on calendar September 12th.” The court continued the matter to August 30th for a final status conference.
Ex Parte Application to Vacate the Trial Date
One week later, on July 27, 2005, appellants submitted an ex parte application to vacate or continue the trial date. According to appellants’ counsel, their expert, Dr. Bruce Gillis, wanted to delay his deposition testimony, not because of his schedule, but because “there has been a new development in DNA testing” that would allow him to verify the extent of genetic damage to each of the appellants. Dr. Gillis was also the workers’ compensation Qualified Medical Examiner for appellants.
In denying the ex parte application, the trial court noted (1) mediation had not even begun as of the status conference date; (2) no mention was made on either May 6, 2005, or July 19, 2005, of any new genetic DNA study, and (3) “[n]ow, on July 27, 2005, Dr. Gillis [the treating physician] wants to put all thirteen plaintiffs through a . . . DNA study to determine if each plaintiff suffered permanent chromosomal damage due to mold.” The court concluded that even assuming such study were relevant, it was reasonable to assume such tests could be completed within 30 days and before the trial date. Notably, a declaration from Dr. Gillis in support of the July 27, 2005, ex parte application does not appear to have been “filed under separate cover” as indicated by appellants’ counsel.
A declaration from Dr. Gillis dated July 22, 2005, was included with appellants’ opening brief but was not part of the clerk’s transcript on appeal. Appellants are requesting this court augment the record on appeal with this declaration. The request is denied as untimely. Moreover, even if this court were to augment the record with this declaration, it does not advance appellants’ cause in that Dr. Gillis stated in his declaration “I cannot and will not commit to any specific opinion about the extent of injury as to any particular plaintiff until I have reviewed the results of each and every DNA test for the plaintiffs.”
Motion In Limine to Bar Expert Testimony for Appellants’ Failure to Designate
On August 8, 2005, La Puente filed a motion in limine to preclude appellants from calling any expert witnesses at the time of trial. Counsel for La Puente relied on Code of Civil Procedure section 2034.260 in stating that plaintiffs unreasonably failed to comply with the statute requiring service of an expert witness designation. La Puente had served a demand for exchange of expert witness information on July 5, 2005, and counsel for appellants did not designate a single treating physician to testify nor any expert on mold. The court heard argument, considered the matter and ultimately granted the motion to preclude appellants from calling expert witnesses for failure to submit any expert witness declaration. The court stated “I cannot excuse plaintiff[s’] failure to comply with 2034 . . . there was no exchange. In fact, it’s clear as a bell they don’t have any witnesses right now. And Dr. Gillis is either not cooperating or he has no opinion . . . .”
Appellants’ Motion to Vacate or Continue Trial Date and Final Status Conference
On August 17, 2005, appellants filed a motion to vacate or continue the trial on the basis that Dr. Gillis needed to perform DNA testing and the testing could not be completed within 30 days. Again, a declaration from Dr. Gillis was not submitted even though the motion indicated the declaration of Dr. Gillis was “filed under separate cover.”
In addition, appellants’ attorney Robert Brown sought a continuance on the basis he was “not available for this trial until at least the next April” because his 13-year-old daughter was undergoing chemotherapy treatments and it would be “impossible and unreasonable that my co-counsel [Attorney Patrick Saboorian] be expected to conduct this case . . . by himself. If the court does not continue the trial for reasons relating to the plaintiffs’ DNA testing, then I respectfully request that the court continue the trial due to my unavailability for trial at this time.”
On August 30, 2005, a final status conference was scheduled but the matter was continued to September 6, 2005. On September 6, 2005, the parties met with the trial court in chambers at which time Attorney Brown said he expected to have a declaration from Dr. Gillis the following day. However, on September 8, 2005, Attorney Brown filed a declaration stating that the mother of co-counsel Saboorian had died the previous week and Saboorian would be leaving that day for Iran to attend the funeral, returning “at the end of the month.” Attorney Brown also stated in his declaration (1) he learned of Attorney Saboorian’s imminent departure after trying to reach Saboorian to arrange payment to Dr. Gillis; (2) Dr. Gillis wanted a retainer of $2,500 and was refusing to sign a supplemental declaration unless he was paid; and (3) Attorney Brown was “simply employed by Mr. Saboorian in this case for pretrial litigation and jury trial. . . . I am in this case at Mr. Saboorian’s will. I do not have an extra $2,500.00 lying around to finance this case . . . [and] I realize at this moment that Mr. Saboorian’s departure for Iran also leaves me without the daily fees . . . if this case were to commence as scheduled . . . .”
The September 9, 2005, Hearing
On September 9, 2007, the parties appeared for a hearing on the motion to continue the trial. The trial court expressed concern that Mr. Saboorian left on the eve of trial without notifying the court and his co-counsel. The trial court granted a continuance to October 3, 2005, based on the absence of Mr. Saboorian but declined to do so on the basis of either the illness of Mr. Brown’s daughter or Dr. Gillis’s nonparticipation.
The October 3, 2005, Trial
On October 3, 2005, the parties appeared for trial. The trial court refused further continuances and granted the motion in limine brought by La Puente to bar plaintiffs from offering any expert testimony for the failure of plaintiffs to timely designate a single expert witness.
Thereafter, plaintiffs waived opening statement and informed the court that no witnesses would be called. Counsel for LaPuente then moved for nonsuit. The trial court heard and granted the LaPuente’s motion for nonsuit pursuant to Code of Civil Procedure section 585.1.
Appellants filed a timely notice of appeal.
DISCUSSION
Appellants contend (1) “[g]ood cause existed to vacate the trial date for review in Department 38, Los Angeles Superior Court, for a determination as to whether the case should be designated as a long cause, complex case”; and (2) “[g]ood cause existed for a continuance of the trial date.” For the reasons stated hereafter, we find no abuse of discretion by the trial court in declining to designate this case as complex litigation or to continue the trial.
1. The trial court did not abuse its discretion in declining to transfer the case for “long cause complex litigation” determination.
“A complex case is an action that requires exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties, and counsel.” (Cal. Rules of Court, rule 3.400(a); former rule 1800.)
“In deciding whether an action is a complex case . . . the court must consider, among other things, whether the action is likely to involve: [¶] (1) Numerous pretrial motions raising difficult or novel legal issues that will be time-consuming to resolve; [¶] (2) Management of a large number of witnesses or a substantial amount of documentary evidence; [¶] (3) Management of a large number of separately represented parties; [¶] (4) Coordination with related actions pending in one or more courts in other counties, states, or countries, or in a federal court; or [¶] (5) Substantial postjudgment judicial supervision.” (Cal. Rules of Court, rule 3.400(b).)
On appeal, appellants contend this toxic tort case brought by 13 plaintiffs was “patently a long cause matter” because “plaintiffs do not have identical injuries, . . . [and] forty five to fifty witnesses will testify at trial including numerous medical experts, mold experts, water treatment experts, construction experts, management personnel, the plaintiffs and their spouses.” However, there was no indication there would ever be any witnesses other than appellants and the treating physician. The large number of witnesses predicted by appellants was completely absent here. Rather, this case involved a single defendant and 13 similarly-situated plaintiffs.
In addition, appellants argue the case was “provisionally” a long cause, complex litigation case under former rule 1800, now renumbered rule 3.400(c), because it specifically involved a “toxic tort” matter and a “trial court has no discretion to ignore the express requirements of a Rule of Court.” Rule 3.400(c)(4) provides “Except as provided in (d), an action is provisionally a complex case if it involves one or more of the following types of claims: . . . [¶] (4) Environmental or toxic tort claims involving many parties; . . .”
However, while the Rules of Court provide for provisional designation of cases as complex where the claims involve environmental or toxic tort claims, the trial court still has discretion under rule 3.400(d). That subdivision provides in part “A court may declare . . . that certain types of cases are or are not provisionally complex under this subdivision.” (Cal. Rules of Court, rule 3.400(d); italics added.) The absence of mandatory language in the rule makes clear the Legislature intended for the trial court to exercise its discretion in applying this rule. Furthermore, regardless of the parties’ stipulation that a case be designated long cause complex, the trial court still has the inherent power to control litigation before it and may consider the expeditious and timely resolution of a case on its merits.
In denying the application to transfer this case to another department for determination whether it was a long cause complex litigation case, the trial court noted “almost zero discovery has taken place . . . [and] the best course of action is to leave the jury trial on calendar . . . unless there is a need to bring it on calendar sooner for any discovery motions.” Although the trial court denied the request to transfer the case, it left open the possibility of a long cause designation provided counsel brought forth medical records of appellants. Counsel for appellants failed to do so.
Here, all 13 individuals were represented by the same counsel -- attorneys Brown and Saboorian. LaPuente was the only named defendant and appellants’ prediction about the length of trial being 60 days was merely an estimate. More importantly, appellants failed to designate any expert witnesses other than Dr. Gillis, who declined to involve himself. Thus, where the injuries at issue implicate medical questions, causation requires proof that the conduct of LaPuente contributed to the injury. In this case, appellants failed to satisfy the essential element of causation and thus their negligence claims failed as a matter of law.
In addition, a trial court is not required to delay a case indefinitely based on the incapacity or availability of a witness, especially where it is unknown when or if the witness will ever be available to appear. In sum, the trial court did not abuse its discretion in declining to transfer this case for a determination as to whether it was a long cause complex litigation case.
2. The trial court properly declined to continue the trial.
“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits.” (Cal. Rules of Court, rule 3.1332; formerly rule 375.) “Continuances should not be granted without good cause. The granting or refusing thereof is usually a matter largely within the discretion of the trial court. An abuse of discretion must be shown to justify a reversal of the judgment . . . .” (Marcucci v. Vowinckel (1913) 164 Cal. 693, 695.)
Appellants argue good cause existed for a continuance of the trial date because “DNA testing of appellants served both the goals of judicial economy and trial on the merits; the tests would narrow, perhaps greatly, the issues in this case and may actually have lead [sic] to settlements of all of the plaintiffs’ claims. Moreover, appellants should not be denied trial counsel who has become unavailable for personal medical reasons . . . [and] the [t]rial date should have been continued . . . to have permitted appellants to find other counsel.” We disagree.
As to the DNA testing, appellants were unable to present DNA evidence from Dr. Gillis – their only witness. Trial counsel repeatedly filed documents with the trial court indicating a declaration from Dr. Gillis was to be filed “under separate cover” yet a declaration was never forthcoming; nor was a declaration ever filed from Dr. Gillis to indicate he would testify if paid. In fact, there was no evidence that Dr. Gillis was ever going to testify on behalf of appellants. Based on the absence of evidence in making a prima facie showing of negligence, the trial court properly denied the continuance.
As to the unavailability of counsel for personal medical reasons -- namely attorney Brown’s desire to be with his daughter who was being treated for leukemia -- attorney Brown knew in advance his daughter’s treatment schedule and did nothing to seek replacement counsel. Furthermore, the trial court did grant a continuance of nearly a month based on the unexpected absence of co-counsel Saboorian due to the death of his mother. It appears attorney Brown either failed to prepare for trial on October 3, 2005, or to secure representation for his clients. Appellants were not diligent in preparing their case -- discovery had barely begun seven months after the trial court set the matter for trial, appellants failed to respond to a demand for exchange of expert witness information, and even after a nearly month-long continuance, counsel admitted on October 3, 2005, their case was not ready to go to trial. Appellants made a number of requests for continuances and relied on declarations to be filed “under separate cover” that were never filed. Ultimately, counsel argued the importance of the DNA tests except that their expert was undesignated and unretained. The motion for continuance was properly denied. The trial court’s rejection of further continuances was not an abuse of discretion.
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
We concur: PERLUSS, P.J. JOHNSON, J.