Opinion
A115843
6-6-2008
DAVID GRASSI, Plaintiff and Appellant, v. ROBERT Q. TANG, Defendant and Respondent
NOT TO BE PUBLISHED
INTRODUCTION
Contractor David Grassi appeals from a judgment of the San Mateo County Superior Court on cross-actions arising from appellant Grassis construction of a concrete retaining wall for respondent Robert Tang. Appellant contends the trial court abused its discretion by excluding all three of his expert witnesses from testifying at trial. He argues that the evidentiary sanction was unwarranted because: (1) respondent refused to tender witness fees; (2) lesser sanctions were available; and (3) the court did not conduct a hearing pursuant to Evidence Code section 402 before excluding the experts. We shall affirm the judgment.
FACTUAL AND Procedural Background
Appellant, a licensed general contractor and sole proprietor of Professional Concrete Work, specializes in building concrete foundations around the Bay Area. In early August 2005, appellant received a phone call from Jennifer Tang who requested a bid on a concrete retaining wall in respondents backyard, located at 831 Thornhill Drive in Daly City. Respondent had recruited his niece Jennifer to oversee the replacement of a wood retaining wall that was decaying. She served as project manager throughout the administration, permitting and construction process of respondents retaining wall.
Appellant visited the property on or around August 5, 2005, and thereafter drafted a bid to construct a steel reinforced concrete retaining wall at the rear of the property. Appellant quoted a price of $13,650 and set the time for completion as 30 days from the start date.
Appellant returned to respondents property on August 8, 2005, and handed Jennifer a pre-signed contract. At some point before the contract was returned to appellant with respondents signature, Jennifer modified the terms in her handwriting. Appellant did not object at the time to the alterations. At trial he stated, "I did not write back to her at any time saying I dont agree with this, that and the next. I only wrote later on when we almost finished the project that I didnt agree with her warranty."
Appellants crew began working on August 9, 2005. Substantial disagreements arose during the following week regarding the height of the wall and the payment terms of the contract. The site twice failed inspection by the San Mateo County building inspector on August 15 and August 19, 2005. Neither appellant nor his crew returned to the worksite to complete the wall after August 19, 2005. On August 21, appellant wrote to respondent that he "was effectively prevented from completing [his] work because [he] was not provided with . . . a revised engineer drawing" for a higher wall. Jennifer testified that she encouraged appellant to return to the job, but appellant responded, "find another contractor." Jennifer hired a new contractor to fix the items noted on the inspectors correction list. The wall passed inspection on September 14, 2005. She then hired day laborers to pour the concrete and finish the wall.
Appellant filed a complaint on September 15, 2005, for damages for breach of contract, monies due, quantum meruit, breach of covenant of good faith and fair dealing, fraud and defamation. Appellant filed a first amended complaint on May 26, 2006. On June 27, 2006, respondent filed a cross-complaint for damages for breach of contract, two counts of negligence, fraud, violation of Business and Professions Code section 17200, intentional infliction of emotional distress and relief based on rescission. After a stipulated agreement for a continuance, trial was set for September 18, 2006.
Appellant, who had represented himself in numerous cases in San Francisco and San Mateo counties prior to this suit, elected to represent himself throughout all proceedings in pro per; respondent retained pro bono counsel in June 2006.
On July 25, 2006, appellant served respondent with a list of expert witnesses retained to testify at trial. The list named three individuals: Van Vorheis, licensed general contractor; Jim Reed, licensed general contractor; and Daniel Barringer, professional engineer. It further stated that both Vorheis and Reed "will testify as to what [they] observed during a site inspection regarding the loading on the wall, the height of the wall and proper procedure of licensed contractors" and that Barringer "will testify as to the engineering of the concrete wall . . . and as to proper engineering procedure."
Respondent served notice on July 27, 2006, that he would take the depositions of appellants experts on August 23, 24 and 25, 2006. On the morning of August 23, neither appellant nor his expert appeared for the first deposition. Respondents counsel telephoned appellant that morning regarding their nonappearance and memorialized the conversation in a letter to appellant dated that same day. Respondents counsel wrote, "At no time between July 27, 2006, and August 23, 2006, did you report any difficulties with the deposition schedule as noticed. . . . [¶] . . . I also asked for an explanation as to why you failed to call me yesterday to advise me that you and your expert would not be appearing for deposition. Your only reply was that you were `not prepared to comment on that at this time. " In a response letter, also dated August 23, 2006, appellant suggested alternative deposition dates at the end of August, and added that "Daniel Barringer, structural engineer, will need to visit the site in order to testify competently both at his deposition and at trial." Appellant asked respondent to "confirm payment per my Exchange of Expert Witnesses" but otherwise focused on the timing of the depositions. Appellant wrote, "Please let me be perfectly clear: you chose to file an unmeritorious and unwarranted motion to compel my deposition . . . . Effectively, you chose to [throw] a monkey wrench into the timing, sequence and orderly progression of deposition discovery. I had rearranged my construction schedule to accommodate our agreement of August 1, 2006. I and my experts are now rearranging our schedules once again to deal with depositions and our own business activities due to scheduling changes that your behavior has made necessary. I will expect you to be helpful and patient."
Respondent moved to exclude the expert testimony of Vorheis, Reed and Barringer. On September 18, 2006, the trial court heard the parties motions in limine before the commencement of the jury trial. At this hearing, the court expressed its bafflement regarding the missed depositions, to which appellant offered two explanations. First, appellant said, respondents motion to compel appellants appearance at his deposition "put everything into conflict, [and] I had to deal with that motion."
Second, and "[m]ore significantly," appellant stated that respondent "refused to pay the witness fees." According to appellant, after an initial discussion with respondent, appellant asked his experts to accept a reduced fee, to which they agreed. However, respondent "still wouldnt agree to pay their witness fees. He wanted to pay their witness fees on a prorated basis. If he were to depose them for 15 minutes to half an hour, then it would be a quarter or one-half of $250. [The experts] werent willing to do that."
Respondents counsel countered that "[a]t no time, did [appellant] report that [the experts] were prepared to accept reduced fees. [¶] More fundamentally, at no time, did [appellant] indicate that the witnesses would not be appearing as scheduled." Appellant disagreed with this statement, remarking that when they were in an elevator together, respondents counsel reiterated his payment terms, but appellant "never agreed to that."
The court heard conflicting opinions from appellant and respondents counsel about the readiness of appellants experts to testify at their depositions and reviewed a declaration by respondents counsel in support of the motion to exclude expert testimony. The declaration presented five somewhat overlapping grounds for exclusion: (1) expert Daniel Barringer was unprepared because he would have to "visit the site in order to testify competently . . . at trial"; (2) the proposed content of the general contractors testimony was not "properly the subject of expert testimony" because it was "after the fact eyewitness observations . . . and will duplicate testimony from other witnesses including the plaintiff"; (3) the anticipated testimony of the general contractors "will be cumulative and redundant"; (4) appellant failed to make his experts available for deposition as noticed; and (5) appellants experts had only put in one to two hours of analysis, and therefore, their contribution was minimal.
In reviewing the declaration, the court responded, "it appears—in support of [respondents] motion. It appears that the notice of [appellants] three experts depositions was given . . . [and] that at no time between those dates, did [appellant] have or express any difficulty about the depositions proceeding. [¶] I dont see any correspondence from [appellant] or anything before those deposition dates indicating that [appellant] objected or that the fees werent being paid or anything." Appellant admitted that there was no correspondence, but reiterated his argument that respondent should have known the experts were not coming based on the parties earlier fee dispute in the elevator.
The court granted respondents motion to exclude expert testimony. At length, the court explained, "Well, unfortunately, this all happened on the eve of trial and here we are on September 18th, 2006, in trial. Based on the record before me, based on the motion, based on what I have heard from you gentlemen—and believe me the Court doesnt like making these kinds of rulings—the Courts ruling is that the experts designated by the plaintiff will be precluded from testifying at the time of trial. They will not be allowed to testify. [¶] So Mr. Van Vorheis, Mr. Reid as well as Mr. Barringer will not be called as witnesses in this matter. Its simply too late at this juncture."
The jury trial proceeded over the following week. At the close of appellants testimony on September 21, 2006, the trial court granted respondents motion to dismiss appellants claims of fraud and defamation based on a lack of evidence to support the claims. On September 25, 2006, the jury returned a net verdict of $380.48 for respondent. The jury found in favor of respondent on appellants claims of breach of contract, breach of covenant of good faith and fair dealing and quantum meruit, but in favor of appellant on his claim for monies due. On respondents cross-claims for breach of contract and negligence, the jury found in favor of respondent. The jury awarded damages of $2,074.00 to appellant and $2,454.48 to respondent. This appeal followed.
On December 13, 2006, the trial court awarded respondent costs in the amount of $3,106.90.
DISCUSSION
I. Standard of Review
We review the trial courts ruling on the exclusion of appellants expert witnesses for abuse of discretion. The California Supreme Court has confirmed that trial courts have broad discretion in determining the admissibility of evidence. (People v. Williams (1997) 16 Cal.4th 153, 196 (Williams); accord, Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 885 ["[w]e review a trial courts decision to admit or exclude evidence under the abuse of discretion standard"].) In Williams, the court held that "on appeal, a trial courts decision to admit or not admit evidence, whether made in limine or following a hearing pursuant to Evidence Code section 402, is reviewed only for abuse of discretion." (Williams, supra, 16 Cal.4th at p. 196, italics omitted.) The standard of review does not deviate for a review of evidentiary sanctions. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545 [" ` "[t]he power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious or whimsical action. [Citations.]" "].) Therefore, we must apply a deferential standard of review upholding the trial courts ruling unless it " `falls outside the bounds of reason under the applicable law and the relevant facts [citations]." (People v. Williams (1998) 17 Cal.4th 148, 162.)
Appellant cites Raber v. Tumin (1951) 36 Cal.2d 654, 656 (Raber) to support his proposition that "[t]he correct standard of review is that the evidence must be viewed in the light most favorable to Appellant." However, the Raber court reviewed a motion for nonsuit and is inapplicable to the evidentiary ruling at issue here. (Ibid.) Indeed, Raber recognized that "in most appeals it is the duty of the reviewing court to indulge every reasonable intendment in favor of sustaining the trial court." (Ibid.)
II. Waiver of Appeal
As a threshold matter, respondent contends that we should affirm the judgment on the grounds that appellants opening brief has "woefully inadequate—citations to the record." While it is established in the case law that it is " `neither practical nor appropriate for [the reviewing court] to comb the record on [appellants] behalf, " appellant provided enough references and legal citations to allow this court to follow and evaluate his arguments. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) That appellant "invoke[d] but five pages of the 471[-page] trial transcript as the basis for his claim of error" is irrelevant when the factual support for his legal argument is largely contained within those five pages.
California Rules of Court, rule 8.204(a), provides in relevant part:
"(1) Each brief must:
"(A) Begin with a table of contents and a table of authorities separately listing cases, constitutions, statutes, court rules, and other authorities cited;
"(B) State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority; and
"(C) Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. . . ."
While pro per litigants must follow the same rules of procedure as attorneys (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247), appellants omissions are not as egregious as those that have caused other courts to dismiss a claim of error. (In re S.C. (2006) 138 Cal.App.4th 396, 400, 410 [appellant forfeited claim of error by submitting a "rambling and ranting" 76,235 word brief with "no legal analysis at all"]; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [brief "fail[ed] to provide any citations to the record to support any of the assertions"].) Here, appellants opening brief cited to the California Code of Civil Procedure, state case law and the trial court reporters transcript sufficiently to allow us to locate the relevant materials. While his citations are not thorough, they are adequate for the purposes of this appeal, and therefore we exercise our discretion to consider appellants claim of error. (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1024-1025; see also Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶¶ 9:36 & 9:42, pp. 9-11 to 9-12, 9-13 to 9-14.)
III. Abuse of Discretion
Appellant asserts that the trial courts exclusion of his expert witnesses was an abuse of discretion because: (1) respondent withheld witness fees; (2) other lesser sanctions were available; and (3) the trial court failed to conduct a hearing pursuant to Evidence Code section 402. We will address each of these in turn.
A. Witness Fees
Section 2034.450, subdivision (a), of the California Code of Civil Procedure provides, "[t]he party taking the deposition of an expert witness shall either accompany the service of the deposition notice with a tender of the experts fee based on the anticipated length of the deposition, or tender that fee at the commencement of the deposition." True v. Shank (2000) 81 Cal.App.4th 1250, 1254 reiterated that deposing parties have two options for presenting fees, stating, "expert witness fees c[an] be tendered either with the deposition notice or at the commencement of the deposition."
All further statutory references are to the California Code of Civil Procedure unless otherwise indicated.
It is uncontested in this appeal that respondent did not tender fees along with notice of the depositions of Barringer, Reed and Vorheis. Appellant claims that he had a good faith belief that respondent would not pay at any time. However, there is little evidence in the record to support appellants contention. Appellant acknowledged that respondent was willing to pay fees on a prorated basis. During the in limine hearing, appellant admitted that respondent was willing to pay "half of [a four-hour minimum], if its half an hour." Appellant continued, "I got back to [my experts], and they didnt agree to it because theyre engineers and builders, and they have working lives."
During this hearing, respondents counsel agreed with appellant on one point: respondent refused to pay for the preparation time of appellants experts. As respondents counsel noted, the Code of Civil Procedure does not require the payment of preparation time. (See § 2034.440.) Although appellant alleged that he did not agree to respondents terms during an elevator ride with respondents counsel, that does not negate his knowledge that respondent was willing to pay some expert fee amount.
More to the point, appellant admitted that he did not communicate with respondent about the fee dispute, aside from the elevator ride, after receiving notice of the depositions. Nor did he comment about the disagreement over fees when respondents counsel telephoned after appellant and his expert did not appear for the first deposition on August 23, 2006. His letter to respondents counsel that same day clearly focused on the inconvenience of deposition schedule changes rather than any confusion or dissatisfaction about expert fees. This letter asked for payment of fees according to the original expert witness list rather than the reduced sum appellant claims he offered or any other terms appellant supposedly discussed with respondents counsel. Respondents counsel denied discussing reduced fees with appellant. He stated, "[a]t no time did [appellant] report that [the experts] were prepared to accept reduced fees."
Moreover, appellant concedes he did not file a response to respondents motion to exclude his experts despite apparently receiving notice of the motion a week before the hearing. This relative silence on the fee dispute until the hearing on the motion in limine suggests that there was little conversation about this issue between appellant and respondent, and therefore very little reason for appellant to assume that his experts would not be paid.
In his reply brief, appellant states he "hand delivered [his opposition to the motion] to opposing counsel on September 18, 2006 [the hearing date], without a filed endorsed clerk stamp." The record does not contain either a proof of service of the motion or appellants opposition.
Appellant argues that "[a]s the Noticing Party, Respondent bore the burden of compliance to exhaust all the alternatives available to him, which included: [¶] [r]e-notice the depositions[;] . . . [¶] [u]nder the provisions of Section 2034.470, move for an order to set compensation of expert witnesses; [¶] [f]ile a Motion to Compel Depositions pursuant to the notice served." We find no case law to support appellants allocation of the discovery burden in this way, and appellant does not provide any. While respondent had the opportunity to pursue these options, they were not mandatory measures. For example, section 2034.470, subdivision (a) provides, "[I]f a party desiring to take the deposition of an expert witness under this article deems that the hourly or daily fee of that expert . . . is unreasonable, that party may move for an order setting the compensation of that expert. . . ." (Italics added.) Clearly the language in the statute is not compulsory.
In sum, we find no abuse of discretion because credibility determinations are the purview of the trial court, and the trial court here could have believed that respondent did not refuse fees. Moreover, failure to tender fees with notice of depositions does not justify or excuse appellant and his experts failure to appear, without notifying respondent, as fees are not due until the deposition. (True v. Shank, supra, 81 Cal.App.4th at p. 1254.) Appellant simply cannot impose upon respondent additional procedural requirements that are not mandated by case law or statute.
B. Lesser Sanctions
Appellant also argues that the trial court should have imposed lesser sanctions, such as a monetary fine or the exclusion of just one or two of his experts. Although lesser sanctions were available, they were not required. Section 2023.030, subdivision (c), states that when discovery abuse is found, a court may "impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence." Only two facts are absolutely prerequisite to the imposition of sanctions: "`(1) there must be a failure to comply . . . and (2) the failure must be willful [citation]. [Citation.]" (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36; accord, Vallbona v. Springer, supra, 43 Cal.App.4th at p. 1545.)
Here, appellant failed to comply with a proper discovery procedure because he did not produce his experts for their scheduled and properly noticed depositions. (See § 2023.010.) Furthermore, substantial evidence supports the implied finding by the trial court that appellants conduct was willful. Not only did appellant and his experts skip the depositions, but appellant never informed respondent of their planned nonappearance. Respondents counsel noted this in his letter of August 23, 2006, writing, "At no time between July 27, 2006, and August 23, 2006, did you report any difficulties with the deposition schedule as noticed." Appellants response letter of the same day did not offer an explanation or apology but instead admonished respondent to be "helpful and patient" while he rearranged his schedule.
Section 2023.010, subdivision (d), provides that misuse of the discovery process includes "failing to respond or to submit to an authorized method of discovery."
The factual question of whether appellant acted willfully is reviewed by the substantial evidence standard. "When a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination . . . ." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
The hearing on the motion to exclude appellants experts further supports the trial courts inference that appellant willfully abused discovery. Respondents counsel stated that appellant never informed him of the proposed reduced fees, never indicated that the witnesses would not appear, and refused to pay for the court reporters fee for the missed deposition of August 23. Appellant admitted "there was no correspondence." Furthermore, appellants first justification for the discovery abuse was not his alleged good faith belief that his experts would not be paid, but rather his discontent at respondents pretrial motions to compel his own deposition. He explained, "Well, [the experts] were certainly lined up. A date was established for each of them, and then [respondents counsel] made a motion in Redwood City to compel me to my deposition and for a protective order as to Jennifer Tang. And yet both Jennifer Tangs motion was specified at a given date, and I had agreed to be the date thereafter. That put everything into conflict [and] I had to deal with that motion as to when they would come. That is number one." Considering appellants explanations and his lack of notification to respondent regarding his intention to miss the depositions, there was substantial evidence that appellant acted willfully. Consequently, the trial court did not abuse its discretion in applying an evidentiary sanction.
Appellant correctly asserts that there are limitations to the evidentiary sanctions a trial court can wield. A court " `"may not impose sanctions which are designed not to accomplish the objects of discovery but to impose punishment. [Citations.]" [Citations.]" (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487-488.) Additionally, a trial court cannot impose a terminating sanction in the first instance without a court order compelling the party to comply with the discovery request. (Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579, 1581.)
The trial court here did not violate these principles. First, appellate courts have upheld the imposition of terminating and other serious non-monetary sanctions in the first instance in egregious cases. (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497 [terminating sanctions not an abuse of discretion for the spoliation of evidence]; Vallbona v. Spinger, supra, 43 Cal.App.4th at p. 1545 [no abuse of discretion for an evidence sanction after defendant brought documents to trial that he previously claimed were stolen]; compare Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 137 [disallowance of expert testimony was abuse of discretion although plaintiff failed to declare the expert witness because attorney made an honest mistake]; McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 212-213 [it was abuse of discretion to exclude evidence that was under a protective order because attorneys conduct was not willful].) This review of the case law demonstrates that the primary consideration is the conduct and willfulness of the abusing party. As noted earlier, there was substantial evidence to support the trial courts implied finding that appellant acted willfully in refusing to produce his witnesses. Therefore a non-monetary sanction in the first instance was not inappropriate.
Moreover, the exclusion of appellants three experts was not effectively a terminating sanction. A full trial commenced the day after the trial court granted respondents motion. Appellant, an experienced contractor with a masters degree in architecture, competently testified on his own behalf regarding many of the things he wished his experts to discuss, namely the loading and height of the wall, proper procedures of a licensed contractor, and proper engineering procedure. He also called witnesses on his behalf, including Lawrence Koo, a civil engineer, Luis Larrazabal, a contractor, and Nellie Ingraham, a structural engineer. That the jury found for appellant on his claim for monies due is further evidence that the exclusion of his experts did not constructively act as a terminating sanction and that appellant was not unduly prejudiced.
Furthermore, considering appellants conduct and the timing of the motion, it was not an act of punishment or a disproportionate sanction to exclude appellants experts. In Waicis v. Superior Court (1990) 226 Cal.App.3d 283, 288 (Waicis), a case which also involved a dispute over expert witness fees and deposition scheduling, the reviewing court upheld the exclusion of an uncooperative expert from testifying at trial as an appropriate sanction. In Waicis, it took over five months and several re-notices to schedule a deposition with the plaintiffs medical expert due to the experts scheduling conflicts. (Id. at p. 285.) When the expert was finally made available, he walked out of the deposition three and one-half hours after it began in order to attend a personal meeting. (Id. at p. 286.) The court in Waicis wrote, "that `acceptable alternative solutions were available, i.e., the trial court could have imposed a lesser sanction such as monetary sanctions . . . does not establish that the imposition of a more severe sanction was an abuse of discretion." (Id. at p. 287.)
Similarly, in the present case, experts were excluded because they were uncooperative. While it did not require six months to schedule the depositions of Barringer, Vorheis and Reid, appellant did not produce them for one minute, let alone three and one-half hours, and never informed respondent that they would not appear for their depositions. Therefore, like the trial court in Waicis, the court here did not abuse its discretion to exclude appellants experts.
Furthermore, the trial court was well aware that the parties had had a contentious relationship over the proceeding months during the discovery process. In particular, there was vigorous disagreement regarding deposition dates, as appellant wanted to depose Jennifer Tang for a third day before being deposed himself. At one point, appellant made himself unavailable until the close of discovery, resulting in an order compelling appellant to attend his deposition on August 28, 2006. Appellant argues that depositions of his experts could have been scheduled immediately after the hearing in limine and before opening statements. However, the court stated that "unfortunately, this all happened on the eve of trial and here we are on September 18th, 2006, in trial. . . . [¶] . . . Its simply too late at this juncture." Given the history of the parties scheduling conflicts, it was rational for the court to conclude that it was "a little late for discovery because youre in trial at this point," and therefore to exclude appellants experts. As the Waicis court noted, "[t]he trial court must exercise its inherent and statutory powers to prevent abuse of the system which causes delay." (Waicis v. Superior Court, supra, 226 Cal.App.3d at p. 288.)
At the beginning of the hearing on the motions in limine, the court said, "no matter how difficult it has been up to this point in time, were at the end of the journey. But were going to make it fair to both sides."
C. Evidence Code Section 402 Hearing
Appellant contends in his opening brief that "the court had every opportunity to conduct an evidentiary hearing pursuant to Evidence Code Section 402 to determine the qualifications of each of Appellants disclosed expert witnesses . . . ." Later, in his reply brief, appellant asserts that this failure to hold such a hearing was an abuse of discretion. However, the hearing on the motion in limine revealed that appellants experts were not excluded based on a lack of qualification, but rather primarily based on the nonappearance of the experts at their depositions and the imminence of the upcoming trial.
While respondents counsel asserted (and still asserts) that appellants experts were unprepared to testify, the trial court never pursued this line of argument. After appellant described his experts preparation efforts and declared that "they [were] prepared to testify in court competently," the court returned to the fact that appellant did not produce his experts for their depositions. At length, the court said, "Im looking at the declaration of [respondents counsel]. And it appears—in support of his motion. It appears that notice of your three experts depositions was given on July 27th, 2006, . . . [a]nd then [respondent] indicates that at no time . . . did you have or express any difficulty about the depositions proceeding. [¶] I dont see any correspondence from you or anything before those deposition dates indicating that you objected or that the fees werent being paid or anything."
There simply is no evidence to support appellants contention that his experts were improperly excluded based on their qualifications. The courts focus was squarely on appellants conduct as chronicled in the record and discussed during the hearing, as well as the timing of the trial. The court granted respondents motion in limine saying, "Based on the record before me, based on the motion, based on what I have heard from you gentlemen . . . [t]hey will not be allowed to testify. [¶] . . . Mr. Van Vorheis, Mr. Reid as well as Mr. Barringer will not be called as witnesses in this matter. Its simply too late at this juncture." Multiple justifications for an evidence sanction are not required. As the trial court made a rational decision to exclude appellants experts based on appellants willful discovery abuse, this evidence sanction was not an abuse of discretion.
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs on this appeal.
We concur:
Lambden, J.
Richman, J.