Grassi v. Tang, A115843 (Cal. App. 6/6/2008), A115843

• Court: California Court of Appeals
• Writing for the Court: Kline
• Docket Number: A115843
• Parties: DAVID GRASSI, Plaintiff and Appellant, v. ROBERT Q. TANG, Defendant and Respondent
• Decision Date: 06 June 2008

Page 1

DAVID GRASSI, Plaintiff and Appellant,
v.
ROBERT Q. TANG, Defendant and Respondent A115843 Court of Appeal of California, First District, Division Two June 6, 2008 NOT TO BE PUBLISHED

Appeal from the San Mateo County Super. Ct. No. CIV449605.

KLINE, P. J.

INTRODUCTION

Contractor David Grassi appeals from a judgment of the San Mateo County Superior Court on cross-actions arising from appellant Grassi's 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 respondent's 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 respondent's 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 respondent's property on August 8, 2005, and handed Jennifer a pre-signed contract. At some point before the contract was returned to appellant with respondent's 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 don't agree with this, that and the next. I only wrote later on when we almost finished the project that I didn't agree with her warranty."

Appellant's 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 inspector's 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.¹ 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.

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 appellant's experts on August 23, 24 and 25, 2006. On the morning of August 23, neither appellant nor his expert appeared for the first deposition. Respondent's counsel telephoned appellant that morning regarding their nonappearance and memorialized the conversation in a letter to appellant dated that same day. Respondent's 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, respondent's motion to compel appellant's 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 wouldn't 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] weren't willing to do that."

Respondent's 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, respondent's counsel reiterated his payment terms, but appellant "never agreed to that."

The court heard conflicting opinions from appellant and respondent's counsel about the readiness of appellant's experts to testify at their depositions and reviewed a declaration by respondent's 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) appellant's 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 [respondent's] motion. It appears that the notice of [appellant's] 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 don't see any correspondence from [appellant] or anything before those deposition dates indicating that [appellant] objected or that the fees weren't 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 respondent's 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 doesn't like making these kinds of rulings—the Court's 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...