Opinion
B317024
08-17-2023
DAISY CALLEJA, Plaintiff and Respondent, v. DONNA BOGDANOVICH, as Administrator, etc., Defendant and Appellant.
Ford, Walker, Haggerty &Behar, Edye A. Hill, Neil Tardiff and Katherine M. Harwood for Defendant and Appellant. Singleton Schreiber, Benjamin I. Siminou; Simon Law Group and Greyson M. Goody for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC574549, Frederick C. Shaller, Judge. Affirmed.
Ford, Walker, Haggerty &Behar, Edye A. Hill, Neil Tardiff and Katherine M. Harwood for Defendant and Appellant.
Singleton Schreiber, Benjamin I. Siminou; Simon Law Group and Greyson M. Goody for Plaintiff and Respondent.
BENDIX, Acting P. J.
Plaintiff and respondent Daisy Calleja sued Jose Perez Chavez for personal injuries she sustained during an automobile accident. Chavez died before trial. Calleja later named appellant Donna Bogdanovich as a defendant in her capacity as administrator of Chavez's estate.
During trial, Bogdanovich moved to preclude one of Calleja's expert witnesses from offering testimony regarding Calleja's future medical expenses. Bogdanovich argued this testimony constituted a new opinion that the expert had failed to disclose during his deposition. The trial court denied the motion, the expert testified at trial regarding the costs of Calleja's future medical care, and the jury returned a verdict for Calleja that included an award of $705,600 for future medical expenses. After the trial court entered judgment, Bogdanovich moved for a new trial, arguing that the court had erred in admitting the expert's testimony on Calleja's future medical costs. The trial court denied the motion.
On appeal from the judgment, Bogdanovich asserts the trial court abused its discretion in not excluding the expert's testimony on future medical costs pursuant to Code of Civil Procedure section 2034.300, and, consequently, the trial court also erred in denying her new trial motion.
Undesignated statutory citations are to the Code of Civil Procedure.
In her opening brief, Bogdanovich fails to overcome the presumption of correctness accorded to the trial court's rulings that (1) Calleja complied with her discovery obligations; and (2) even if she did not, Calleja's noncompliance did not warrant exclusion of the expert's testimony under section 2034.300 because (a) defense counsel had been given notice three years prior to trial that Calleja's expert intended to formulate opinions on the costs of future medical treatment once the expert could review the deposition testimony of another witness, and (b) defense counsel still did not seek a subsequent deposition of the expert. Furthermore, Bogdanovich forfeits the various arguments she raises for the first time in her reply brief. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We derive our Factual and Procedural Background in part from undisputed aspects of the trial court's rulings and the parties' filings. (See Baxter v. State Teachers' Retirement System (2017) 18 Cal.App.5th 340, 349, fn. 2 [utilizing the summary of facts provided in the trial court's ruling]; Applicable Law, post [noting that the trial court's rulings are presumed correct]; Artal v. Allen (2003) 111 Cal.App.4th 273, 275, fn. 2 (Artal) [" '[B]riefs and argument . . . are reliable indications of a party's position on the facts as well as the law, and a reviewing court may make use of statements therein as admissions against the party.' "].)
We summarize only those facts relevant to our disposition of this appeal.
In March 2015, Calleja sued Chavez for personal injuries she claimed to have suffered as a result of a motor vehicle accident. Calleja asserts, and Bogdanovich does not dispute, that "Calleja designated Dr. Todd Gravori as an expert on her future medical needs, and [Dr.] Andrew Morris as an expert on the cost of that treatment." Defense counsel deposed Dr. Morris on May 30, 2018, whereas Dr. Gravori's deposition had been "taken several weeks earlier ...."
(See Rudick v. State Bd. of Optometry (2019) 41 Cal.App.5th 77, 89-90 [concluding that the appellants made an implicit concession by "failing to respond in their reply brief to the [respondent's] argument on th[at] point"]; Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, 709-710, 757 [same].)
According to the case register included in the record, the jury trial for this matter was at one point scheduled for September 2018, and it was later continued to November 2018. Bogdanovich asserts that "[o]n November 14, 2018, Defense Counsel first learned Mr. Chavez[ ] had died" and the "[t]rial was vacated." On December 17, 2019, Calleja filed an amendment to the complaint adding Bogdanovich as a defendant in her capacity as administrator of Chavez's estate.
The case was tried by a jury in August 2021. The day before Dr. Morris was scheduled to testify, Calleja's counsel provided to Bogdanovich's attorneys a report from Dr. Morris that set forth his opinions regarding Calleja's future medical expenses. Bogdanovich concedes that when this report was provided to Bogdanovich's counsel, Calleja's attorney offered to produce Dr. Morris for a deposition later that evening or the next morning. (See Artal, supra, 111 Cal.App.4th at p. 275, fn. 2 [noting that a statement in a brief may be deemed an admission against that party].)
In response, Bogdanovich moved to exclude Dr. Morris's testimony on Calleja's future medical expenses on the ground that Calleja failed to provide Bogdanovich with notice before trial that Dr. Morris had formulated these "new opinions." The trial court denied the motion. Dr. Morris thereafter provided testimony regarding the costs of Calleja's future medical treatment.
The jury returned a verdict in favor of Calleja in the amount of $1,176,992.60, which included an award of $705,600 for her future medical expenses. On September 17, 2021, the trial court entered judgment in accordance with the jury's verdict.
On September 27, 2021, Bogdanovich filed and served notice of her intent to move for a new trial. Subsequently, Bogdanovich filed and served her motion for a new trial, wherein she argued that the trial court erred in admitting Dr. Morris's opinions concerning Calleja's future medical expenses. On November 10, 2021, the trial court denied Bogdanovich's new trial motion. On December 10, 2021, Bogdanovich timely appealed the judgment.
(See Cal. Rules of Court, rule 8.108(b) ["If any party serves and files a valid notice of intention to move for a new trial, the following extensions of time apply: [¶] (1) If the motion for a new trial is denied, the time to appeal from the judgment is extended for all parties until the earliest of: [¶] (A) 30 days after the superior court clerk or a party serves an order denying the motion or a notice of entry of that order; [¶] (B) 30 days after denial of the motion by operation of law; or [¶] (C) 180 days after entry of judgment."].)
APPLICABLE LAW
"The statutes governing expert witness discovery are part of the Civil Discovery Act. (§ 2016.010 et seq.) . . . [¶] The expert witness exchange is triggered by a timely written demand made by any party after the initial trial date is set. (§ 2034.220.) Section 2034.260 sets forth the general requirements for the exchange and the information to be provided, which includes a list of the names and addresses of the experts (§ 2034.260, subd. (b)(1)) and a declaration by the party's attorney setting forth the expert's qualifications (§ 2034.260, subd. (c)(1)), the expected nature of the testimony (§ 2034.260, subd. (c)(2)), and '[a] representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial' (§ 2034.260, subd. (c)(4))." (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1444 (Staub).)
California courts construing the Civil Discovery Act have held that the statute" 'require[s] that "the general substance of the testimony which the witness is expected to give" . . . be disclosed upon proper request[,]'" meaning that a party must"' "disclose the substance of the facts and the opinions to which the expert will testify, either in his witness exchange list, or in his deposition, or both." [Citation.]' [Citation.]" (See Easterby v. Clark (2009) 171 Cal.App.4th 772, 778 (Easterby).)
Regarding the exclusion of expert testimony, section 2034.300 provides in pertinent part: "[O]n objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: [¶] (a) List that witness as an expert under Section 2034.260. [¶] (b) Submit an expert witness declaration. [¶] (c) Produce reports and writings of expert witnesses under Section 2034.270. [¶] (D) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410)." (§ 2034.300.)
On appeal, neither side addresses whether Bogdanovich complied with section 2034.260's procedures. In its order denying Bogdanovich's motion for a new trial, the trial court analyzed whether Calleja's alleged "failure to comply with the expert witness requirements was 'unreasonable'" under section 2034.300, which is a question the court did not have to reach if Bogdanovich had not completely and timely complied with section 2034.260. (See Staub, supra, 226 Cal.App.4th at p. 1446 ["Only a party that has itself 'made a complete and timely compliance with Section 2034.260' may seek to exclude his opponent's experts for the opponent's unreasonable failure to comply with expert discovery," quoting § 2034.300].) Accordingly, we assume for the purposes of this appeal that Bogdanovich had complied with section 2034.260 in a timely and complete fashion.
In ascertaining whether a party's conduct is unreasonable under section 2034.300, "[t]he operative inquiry is whether the conduct being evaluated will compromise these evident purposes of the discovery statutes:' "to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise."' [Citation.]" (See Staub, supra, 226 Cal.App.4th at p. 1447.)
To safeguard against unfair surprise, courts have held that "a party's expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult." (See Easterby, supra, 171 Cal.App.4th at p. 780.) "[T]he fact that an expert's testimony at trial differs from his deposition testimony goes to the expert's credibility; it does not, without some further evidence of prejudice to the opposing party, serve as ground for exclusion." (Id. at p. 781.) Further," '[i]f any unfairness arising from the proffering party's late or incomplete disclosure was exacerbated by the party seeking exclusion, the court is less likely to find the conduct of the party offering the expert to be unreasonable.' [Citation.]" (Staub, supra, 226 Cal.App.4th at p. 1448.)
Concerning Bogdanovich's motion for a new trial, section 657 provides in pertinent part: "The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] . . . [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application." (§ 657 &subd. 7.) "It is well settled that an order denying a motion for new trial, while not directly appealable, may be reviewed on appeal from the underlying judgment." (Reyes v. Kruger (2020) 55 Cal.App.5th 58, 72.)
In ruling on Bogdanovich's new trial motion, the trial court observed that "[t]he motion [was] vague as to which of the specified grounds under . . . §657 it [was] based," but nonetheless "conclude[d] that the motion [was] based upon . . . §657 subdivision 7 (error in law in the court's evidentiary ruling permitting Morris's valuation testimony) ...." Bogdanovich does not challenge the court's finding that her motion invoked only subdivision 7 of section 657.
Because Bogdanovich's motion for a new trial was predicated on the trial court's alleged erroneous admission of Dr. Morris's testimony (see fn. 6, ante), the court's denial of the new trial motion and of Bogdanovich's motion to exclude Dr. Morris's testimony are both subject to the same standard of review. (See Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th 1109, 1115-1116 [" '[A]ny determination underlying any order [granting or denying a motion for a new trial] is scrutinized under the test appropriate to such determination.' "].) "We generally review the trial court's ruling on a motion to exclude expert testimony for abuse of discretion, including its determination that a party 'unreasonably' failed to comply with an expert witness demand." (Staub, supra, 226 Cal.App.4th at p. 1445.) In reviewing" 'the factual basis for an exercise of discretion,'" "a reviewing court should 'not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts[,]'" and" '" '[w]hen two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.'"' [Citations.]" (See In re Caden C. (2021) 11 Cal.5th 614, 640-641.) "A trial court's discretion is always delimited by the statutes governing the particular issue but when the exclusion of expert testimony rests on a matter of statutory interpretation, we undertake a de novo review." (Staub, at p. 1445.)
" 'A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.' [Citation.]" (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) Thus,"' "it is the appellant's responsibility to affirmatively demonstrate error" '" by"' "supply[ing] the reviewing court with some cogent argument supported by legal analysis and citation to the record."' [Citation.]" (See Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 492, 497; Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez).) The appellant bears this burden of rebutting the presumption of correctness accorded to the trial court's decision, regardless of the applicable standard of review. (See Los Angeles Unified School Dist., at p. 492 [noting that these principles apply to"' "an appeal from any judgment"' "]; see also Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 368, 399 [indicating that an appellant must affirmatively show the trial court erred even if the de novo standard of review applies].)
Additionally, "[w]hen the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574, citing People v. Watson (1956) 46 Cal.2d 818, 835.) An appellant bears the burden of satisfying this state law prejudice standard. (See Conservatorship of Maria B. (2013) 218 Cal.App.4th 514, 532-533 [discussing the Watson standard]; see also Parkford Owners for a Better Community v. County of Placer (2020) 54 Cal.App.5th 714, 721 ["[T]he ultimate burden of demonstrating reversible error is always on the appellant," italics added].)
DISCUSSION
In its order denying Bogdanovich's new trial motion, the trial court identified two justifications for its decision to admit Dr. Morris's testimony concerning Calleja's future medical costs.
First, the trial court stated, "The disclosure by Morris at his deposition was adequate even though the opinion did not disclose every specific medical cost associated with the recommended future medical care and treatment . . . and . . . he expanded [his] opinions based upon additional information reviewed prior to trial." The court reasoned that section 2034.260, subdivision (c) requires only that" 'the general substance of the testimony which the witness is expected to give' . . . be disclosed upon proper request[,] .... either in his witness exchange list, or in his deposition or both[,]'" and that "[i]n his deposition, Morris disclosed the general substance of the facts and opinions to which he was to testify at trial ...." In particular, the trial court found that at his deposition, Dr. Morris provided testimony indicating that the total fee for a spine fusion procedure "adds up to a number between $199,500 and $271,[5]00 ...." The court observed, "Considering that Dr. Gravoriopined that [Calleja] would need three 'adjacent level' spine fusions over her life, there was clearly no surprise to [Bogdanovich] that medical special damages for three procedures would add up to a number between $585,000 and $814,500." The court further noted that "[a]t trial, Dr. Morris . . . revised his opinion regarding the value of a spinal fusion surgery to a more precise number of $259,660 per fusion or $778,980 for three procedures."
Although this passage from the order denying the new trial motion actually states that Dr. Morris testified "[t]he total fee for one of these procedures . . . adds up to a number between $199,500 and $271,000 per fusion," this is a typographical error that does not affect our analysis.
Second, the court concluded that even if Calleja did have an obligation "to offer Dr. Morris for an earlier deposition or to provide further estimates of the future value of [her] needed medical care," "[e]xclusion of Morris's expanded opinion" was unwarranted because her "failure to comply with the expert witness requirements" was not unreasonable. (Citing § 2034.300.) In particular, the court explained that Bogdanovich "did not seek a further deposition of Dr. Morris at any time before he testified [at trial], and actually rebuffed a late offer of Dr. Morris's deposition, in spite of the notice given at the deposition in May 2018 (about three years earlier) that further opinions would be given after Dr. Morris read the deposition of Dr. Gravori." The court remarked that Bogdanovich "was clearly on notice that Dr. Morris intended to prepare a further calculation of the future medical care needs of [Calleja]" because Dr. Morris stated at his deposition that "he was initially asked to give opinions as to future medical care needs for [Calleja], but that he had not 'to date' received that information." The court also found that "defense counsel identified the transcript as 'Volume I' of Dr. Morris's deposit[ion] as a second session was obviously contemplated and needed." The court opined, "The failure to follow up with the Morris deposition over all the years since he gave the first volume of his deposition even has the appearance of some kind of strategic choice on the part of [Bogdanovich] to somehow weaken the impact of his opinion by acting as if it had been generated at the last minute."
As we explain below, in her opening brief, Bogdanovich fails to overcome the presumption of correctness accorded to the trial court's decision to admit Dr. Morris's testimony regarding Calleja's future medical costs. We also reject as untimely the challenges to the trial court's rulings that Bogdanovich includes in her reply but not in her opening brief. Because Bogdanovich fails to demonstrate that the trial court erred, we affirm the judgment.
A. In Her Opening Brief, Bogdanovich Fails To Overcome the Presumption of Correctness Accorded to the Trial Court's Rulings
In her opening brief, Bogdanovich argues, "It was an abuse of discretion and a violation of Code of Civil Procedure section 2034.300 for the Trial Court to have allowed Dr. Morris to testify about future medical expenses when these opinions were not disclosed in Dr. Morris'[s] deposition. The trial court shall exclude expert opinion testimony offered by a party who has unreasonably failed to comply with the exchange requirements on objection of one who has complied." (Citing § 2034.300.) She further claims the trial court committed reversible error by denying her motion that sought a new trial based on the erroneous admission of Dr. Morris's trial testimony on Calleja's future medical expenses. Bogdanovich's position rests on premises that are erroneous or lack adequate support.
In the "statement of appealability" section of her opening brief, Bogdanovich asserts that she is also appealing "the trial court's denial of [her] motion[ ] for judgment notwithstanding the verdict." (Capitalization, underscoring, & boldface omitted from the first quotation.) We do not address this issue further because Bogdanovich does not explain why she believes the trial court erred in denying her motion for judgment notwithstanding the verdict. (See Hernandez, supra, 37 Cal.App.5th at p. 277 ["We may and do 'disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.' "].)
First, Bogdanovich contends, "Dr. Morris was unable to offer any opinions about future medical expenses at his deposition because he was not asked to formulate any such opinions on May 30, 2018." It seems Bogdanovich makes these claims to undercut the court's conclusion that "[t]he opinions [Dr. Morris] stated at trial were not new opinions, but merely were a more complete calculation of the [future] costs." As we explain below, Bogdanovich's assertions are false.
Dr. Morris testified at his deposition that he "believe[d] in his initial retention, [he] was asked to give opinions as it relates to potential future medical care," but he did "not know that any expert ha[d] given testimony on [future medical care] yet."
When asked whether his "opinions concerning this case [were] limited to the past medical care that Ms. Calleja ha[d] received," Dr. Morris responded, "I know of recommendations for potential future adjacent level spinal fusion. I've read it in deposition, both through the defense expert, as well as I believe I read it through the medical records."
Furthermore, Dr. Morris stated he "could give a valuation of what that potential future surgical procedure would be, all inclusive, if it was performed inpatient." The defense attorney thereafter asked, "[W]ould you be able to give us your preliminary or draft opinion on that topic?" Dr. Morris replied in the affirmative, and opined that for a "spinal fusion procedure, the facility fee could be anywhere from 140- to $180,000, .... [¶] [t]he professional service fee would be anywhere between 40- to $60,000, .... between 15- to $25,000 for the assist fee[,] [¶] .... [a]nd it would roughly run around maybe 4500 to $6,500 [for the anesthesiologist]." Defense counsel asked, "And that's just based on your experience and education?" Dr. Morris answered, "It's based on my experience, knowledge, education, and analyzing these types of numbers on a day-to-day basis."
Accordingly, we reject Bogdanovich's claim that Dr. Morris did not offer any testimony regarding Calleja's future medical expenses until trial.
Second, Bogdanovich argues she "never had a reason to depose Dr. Morris a second time because there was no notice that he had done any post-deposition work or that he had formulated new opinions about future medical expenses." Bogdanovich further contends, "It was not until the week before trial that [Calleja's c]ounsel asked Dr. Morris to review the deposition for Dr. Gravori and to generate a report with opinions on future medical expenses. Then these new opinions and post-deposition work was [sic] not disclosed until after trial started and long after expert witness discovery had been closed." Insofar as Bogdanovich advances these contentions to undermine the trial court's conclusion that Calleja's "failure to disclose Morris's full opinion before trial was not unreasonable" (some capitalization omitted), Bogdanovich fails to support that challenge.
As we noted at the beginning of our Discussion, the trial court concluded that Bogdanovich "was clearly on notice" at Dr. Morris's deposition in May 2018 that he "intended to prepare a further calculation of the future medical care needs of [Calleja]" after "read[ing] the deposition of Dr. Gravori." The court also found that defense counsel "obviously contemplated" a second deposition of Dr. Morris by labeling the transcript for the May 30, 2018 deposition as" 'Volume I[.]'" Bogdanovich fails to address these trial court findings at all in her opening brief.
Furthermore, we acknowledge that Dr. Morris's report concerning the costs of Calleja's future medical care is dated August 17, 2021. Given the fact that the parties gave their opening statements on August 19, 2021, the record appears to substantiate Bogdanovich's assertion that "[i]t was not until the week before trial that [Calleja's c]ounsel asked Dr. Morris to review the deposition for Dr. Gravori and to generate a report with opinions on future medical expenses."
This fact does not undermine the trial court's determination that "[t]he follow up deposition [for Dr. Morris] could have been taken well before the trial since there was more than three years['] delay between the Morris deposition and his trial testimony." Bogdanovich concedes that Dr. Gravori was deposed long before trial. Well before trial commenced, defense counsel presumably could have consulted Calleja's counsel as to whether Dr. Morris had reviewed that deposition and was going to give further testimony regarding the cost of future medical care. Had defense counsel undertaken this course of action, then presumably Dr. Morris could have reviewed Dr. Gravori's deposition transcript and been deposed a second time by defense counsel prior to trial. We draw this inference in support of the trial court's judgment. (See Estate of Sapp (2019) 36 Cal.App.5th 86, 104 [" 'It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from ....' "].)
(See Artal, supra, 111 Cal.App.4th at p. 275, fn. 2.)
In her opening brief, Bogdanovich does not raise any other arguments that are responsive to the trial court's justifications for permitting Dr. Morris to offer testimony on Calleja's future medical expenses. Accordingly, she fails to rebut the presumption of correctness, and affirmance of the trial court's judgment is appropriate. (See Needelman v. DeWolf Realty Co., Inc. (2015) 239 Cal.App.4th 750, 762 ["It is not this court's role to construct arguments that would undermine the lower court's judgment and defeat the presumption of correctness. Rather, an appellant is required to present a cognizable legal argument in support of reversal of the judgment ...."].) Our conclusion on this point moots Bogdanovich's argument that the "Trial Court prejudicially erred in allowing Dr. Morris to testify about new opinions disclosed in the middle of trial regarding future medical expenses." (Italics added; see Conservatorship of Maria B., supra, 218 Cal.App.4th at p. 532 [indicating that the Watson prejudice standard is applicable only if error has been shown].)
B. Bogdanovich Forfeits Arguments First Raised in Her Reply
In her reply, Bogdanovich raises challenges to the trial court's decision to admit Dr. Morris's opinions on Calleja's future medical costs that Bogdanovich omitted from her opening brief. We conclude that Bogdanovich has forfeited these new arguments.
Recall the trial court found that "[t]he disclosure by Morris at his deposition was adequate" in part because section 2034.260, subdivision (c) requires only that" 'the general substance of the testimony which the witness is expected to give' . . . be disclosed ....either in his witness exchange list, or in his deposition or both.' "
In her reply, Bogdanovich seems to challenge that conclusion by arguing for the first time that the Civil Discovery Act requires an expert to disclose more than just the" 'general substance' of his trial testimony" at a deposition. In particular, Bogdanovich argues that section 2034.260, subdivision (c)(4) "requires the party retaining the expert to verify that 'the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including an opinion and its basis, that the expert is expected to give at trial.'" (Quoting § 2034.260, subd. (c)(4); italics &boldface added by Bogdanovich.) She also insists that "the 'general substance' of Mr. Morris's deposition testimony regarding future medical costs was that he had not finalized his opinions and [the] basis for his opinions." Bogdanovich further maintains, "[Calleja] . . . violate[d] the spirit of the expert statutory scheme because Mr. Morris was not fully prepared to provide his final opinions at his deposition, and he had to resort to postdeposition work to finalize his opinions ...."
The trial court indicated in its order denying Bogdanovich's new trial motion that this expert witness has the title "Dr.," as did Bogdanovich in her opening brief. Without explanation, Bogdanovich removed that designation from her references to this witness in her reply brief. This discrepancy has no impact on our decision.
Furthermore, Bogdanovich appears to raise new challenges to the trial court's conclusion that any failure on Calleja's part to comply with her statutory expert witness discovery obligations "was not unreasonable." (Capitalization omitted.) As we noted in the beginning of our Discussion, the court had reasoned, inter alia, that even though defense counsel had "notice . . . in May 2018 . . . that further opinions would be given after Dr. Morris read the deposition of Dr. Gravori," Bogdanovich "fail[ed] to take a further deposition of Dr. Morris ...."
Specifically, Bogdanovich argues in her reply: "Mr. Morris giving a few numbers in his deposition from the top of his head without providing any basis for that opinion other than his experience put the defense on notice of nothing other than the fact that Mr. Morris was not prepared to provide a meaningful deposition with specific testimony of the opinions he intended to provide at trial regarding future medical costs and the basis for those opinions." Bogdanovich denied Calleja the opportunity to respond to this new argument in her appellate brief, given that Bogdanovich had claimed in her opening brief that "Dr. Morris was unable to offer any opinions about future medical expenses at his deposition ...." (Italics added.) Bogdanovich does not claim in her opening brief that Dr. Morris's deposition testimony on future medical expenses lacked an adequate foundation or demonstrated that he was not sufficiently prepared to provide meaningful deposition testimony.
Bogdanovich also complains that Calleja "waited so long" to provide the defense with a copy of Dr. Morris's report because "[Calleja's] counsel made a tactical decision not to call Mr. Morris and then later changed his mind in the middle of trial," and that this change in tactics prejudiced Bogdanovich by causing her "not to call [her] billing expert at trial as to future medical costs." At no point in Bogdanovich's opening brief does she claim that Calleja's counsel had initially made a tactical decision not to call Dr. Morris or that counsel's supposed change in tactics prejudiced Bogdanovich's defense.
Bogdanovich makes several new factual representations in her reply brief to support her argument that Calleja's counsel made a tactical decision not to call Dr. Morris but then changed tactics in the midst of trial. Bogdanovich's counsel repeated several of these factual assertions at oral argument. We decline to consider these claims because Bogdanovich deprived Calleja of an opportunity to address these new factual representations and argument by failing to raise them in her opening brief.
Additionally, Bogdanovich claims that because "Mr. Morris did not complete his final analysis until August 17, 2021, after the trial had already begun[,] . . . any follow-up by the defense prior to trial would have been fruitless." Bogdanovich does not argue in her opening brief that any attempt to depose Dr. Morris before trial would have been futile. In any event, as we have explained in Discussion, part A, ante, we presume that had defense counsel consulted Calleja's attorneys, Dr. Morris could have reviewed Dr. Gravori's deposition transcript in time to sit for another deposition prior to trial.
Bogdanovich also seems to contend that she was under no obligation to ask Calleja before trial whether Dr. Morris had reviewed Dr. Gravori's deposition transcript because "[Calleja] had the duty to advise the defense when Mr. Morris completed his workup in order to finalize his opinions within a sufficient time to be redeposed."
Relatedly, Bogdanovich argues that "[t]he main reason the trial court denied the motion to exclude Mr. Morris's testimony was [that] . . . the burden was on the defense to follow up with [Calleja] to see if Mr. Morris had completed his workup of the future medical costs." She claims "[t]his is an improper interpretation of the expert statutes and thus de novo review is appropriate," even though she argues in her opening brief that the abuse of discretion standard governs our review of the trial court's decision to admit Dr. Morris's testimony.
On appeal, our review"' "is limited to issues which have been adequately raised and supported in [the appellant's opening] brief. [Citations.] ...."' [Citation.]" (See Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 554-555, first alteration in original.)" '" 'Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission.'" '" (Id. at p. 518.) In accordance with these fundamental principles, we conclude that Bogdanovich forfeited the appellate claims identified in this part by failing to raise them in her opening brief. (See id. at pp. 482, 518 [concluding that an appellant "forfeited [a] point" "[b]y not raising [it] in [the] opening brief"].) By forfeiting these new arguments, Bogdanovich leaves undisturbed our conclusion in Discussion, part A, ante, that she has not overcome the presumption of correctness accorded to the trial court's rulings. (See Golden Door Properties, LLC, at pp. 557-558 [concluding that an appellant's "failure to address [an issue] in its opening brief compel[led] the conclusion the trial court's ruling on that point must be affirmed"].)
DISPOSITION
The judgment is affirmed. Respondent Daisy Calleja is awarded her costs on appeal.
We concur: CHANEY, J. WEINGART, J.