Bielasz v. Mestler Construction
Filed 7/12/13 Bielasz v. Mestler Construction CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
ROGER BIELASZ et al.,
Plaintiffs, Cross-defendants and
Respondents,
v.
MESTLER CONSTRUCTION, INC.,
Defendant, Cross-complainant and
Appellant.
D059565
(Super. Ct.
No. 37-2009-00052477-CU-BC-NC)
APPEAL from
a judgment of the Superior Court
of
County, Thomas P. Nugent, Judge. Affirmed.
Law Offices
of Jerome J. Schiefelbein, Jerome J. Schiefelbein; Law Offices of James E.
Swingley and James E. Swingley for Defendant, Cross-complainant and Appellant.
McDonnell
& Associates, Michael B. McDonnell and Douglas M. Fieldfor Plaintiffs,
Cross-defendants and Respondents.
Mestler Construction, Inc. (Mestler) appeals following a
jury verdict against it in a lawsuit brought by Roger Bielasz and Dena Bielasz
(the Bielaszes) finding that Mestler breached contracts to design a residence
and to perform building pad preparation work.
Mestler contends that the trial court prejudicially erred by denying its
motion in limine to exclude evidence of the damages that the Bielaszes suffered
as a result of the contractual breaches.
As we will explain, we conclude that the trial court was within its
discretion to deny the motion in limine
and to admit the Bielaszes' evidence of damages. Accordingly, we affirm the judgment.
I
FACTUAL
AND PROCEDURAL BACKGROUND
A. The Parties' Dispute
and the Jury Verdict
As alleged
in the parties' pleadings, Mestler is a licensed contractor who
(1) performed design work for a home that the Bielaszes planned to build
after their former home was destroyed in a wildfire, and (2) performed
building pad preparation and other work to prepare for construction of the
home. The Bielaszes sued Mestler,
alleging — among other things — that Mestler breached the design
contract by (1) preparing plans for a home that was in excess of the
square footage specified by the Bielaszes, and (2) performing work during
the pad preparation that made the pad unsafe and created a potential for
rockslides. In their first amended
complaint, the Bielaszes asserted eight causes of action against Mestler: (1) negligence; (2) breach of
contract; (3) breach of the covenant of good faith and fair dealing;
(4) declaratory relief; (5) intentional interference with prospective
economic relations; (6) fraud; (7) slander of title; and
(8) trespass to chattel. Mestler
filed a cross-complaint for breach of contract and equitable restitution.
The matter
proceeded to trial, and the jury found in favor of the Bielaszes on a
that Mestler breached a contract to design the house; breached a contract for
preparation of the lot; and breached a contract to design a retaining
wall. The jury awarded damages in the
amount of (1) $61,800 for breach of the contract for the house design, and
(2) $37,500 for breach of the contract for lot preparation. The jury awarded no damages in connection
with the contract to design a retaining wall.
B. The Relevant Discovery
This appeal
focuses on Mestler's contention that the trial court should have excluded
evidence of damages at trial because of the Bielaszes' purportedly deficient
responses to certain discovery propounded by Mestler. We therefore describe the relevant discovery.
In February
2010, the Bielaszes responded to form interrogatories propounded by
Mestler.
In response
to form interrogatory No. 7.1, which asked for a description of the
property damaged, the nature of the damage, the amount of the damage, and how
the amount was calculated, the Bielaszes provided an extensive description of the damage caused by the improper
excavation of the building pad, set forth in several paragraphs. Among other things, the response stated that
"[a]ll excavation work . . . had to be redone," but that
"[t]he work that is being redone is currently ongoing so the exact cost is
unknown at this time." The
Bielaszes then provided projected costs for some of the work, including
(1) approximately $72,000 to remove boulders necessary to stabilize the
building pad, and (2) in excess of $27,000 for the design, engineering and
permit costs for a new retaining wall.
Form
interrogatory No. 7.2 asked, "Has a written estimate or evaluation
been made for any item of property referred to in your answer to [form
interrogatory No. 7.1]," and form interrogatory No. 7.3 asked if
any item of property had been repaired and inquired about the repair cost. To these interrogatories, the Bielaszes
responded that "[e]valuation, repair, and estimates are presently in the
process."
Form
interrogatory No. 9.0 asked about any other damages being claimed by the
Bielaszes. They responded by providing a
description of the type of expenses caused by the flawed design plans for the
house. Specifically as to the amount of
damages incurred, they stated that "[a]s discovery is still continuing[,]
the exact amount is unknown at this time[;] however it is known that it is no
less than $50,000 that the Bielaszes paid to Mestler for services that were
rendered useless."
During
Roger Bielasz's deposition several months later on September 21, 2010,
which was two days before the discovery cutoff date, counsel for Mestler
referred to some of the earlier responses to form interrogatories and asked
Mr. Bielasz whether there were "evaluations, repairs, and estimates
as described in [interrogatory No. ]7.2 that were done sometime
after" the date of the February 2010 interrogatory responses. Mr. Bielasz answered, "I have not
done all those estimates as of yet."
However, counsel for the Bielaszes interjected that that "[t]here
are some from the contractors and stuff," and Mr. Bielasz followed up
by stating, "Correct. They have not
been collated and organized into a total."
C. Mestler's Motion in
Limine to Exclude Evidence of the Bielaszes' Damages
On
October 25, 2010, Mestler filed a motion in limine, which requested an
order precluding the Bielaszes "from introducing evidence of and/or making
reference to any damages claimed to have been sustained by [the Bielaszes], or
any reference to the amount of damages [the Bielaszes] claim to have sustained
as a result of any act or omission by [Mestler]." Mestler contended that the exclusion of
evidence was required because the Bielaszes "have failed and refused to
identify the amount of their damages and/or the manner of calculation of their
claimed damages in response to timely and proper written discovery, or in
response to proper deposition questions asked just two days prior to the
discovery cut[]off date."
The trial
court denied the motion. In its
comments, the trial court pointed out that bringing a motion to compel is
required when a party does not adequately respond to discovery; that the
Bielaszes did produce at least 2,700
documents and had indicated that that they were prepared to provide
documentation about damages prior to trial;
and that it was improper to raise discovery disputes for the first time on the
eve of trial. Further, the trial court
observed that it "would be a short trial" if the plaintiffs were
precluded from putting on evidence of damages.
Prior to
the beginning of trial, counsel for Mestler stated a "continuing and
standing objection to the admission of any evidence by the [Bielaszes] of the
amount of damages they incurred as the result of my clients' alleged conduct or
the manner in which it was calculated."
During
trial, the Bielaszes presented evidence about the damages that they suffered as
a result of Mestler's alleged breach of contract. The jury relied on that evidence to award
damages to the Bielaszes in the amount of $99,300.
II
DISCUSSION
The sole
issue that we resolve in this appeal is whether the trial court erred in
denying Mestler's motion in limine to exclude evidence of the Bielaszes'
damages.
A. Standard of Review
As an
initial matter, we address the proper standard of review. Regardless of whether the trial court's
ruling is best characterized as a ruling on a request to exclude evidence or a
ruling on a request to impose a discovery sanction, we apply an abuse of
discretion standard of review. (Pannu
v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317
["Trial court rulings on the admissibility of
limine or during trial, are generally reviewed for
Cal.App.4th 62, 76 [a ruling on a motion to exclude witness testimony at trial
as an evidence sanction for misuse of the discovery process is reviewed for
abuse of discretion].)
Mestler
asserts two different theories as to why a de novo standard of review is
appropriate. It first argues that the de
novo standard of review applicable to questions of statutory interpretation
applies here because the trial court's ruling involved the interpretation of
the Evidence Code. (See Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148
Cal.App.4th 390, 401 [issues of statutory interpretation arising in the review
of an order imposing discovery sanctions is reviewed de novo].) We disagree.
Nothing in the trial court's ruling or in our review presents an issue
of statutory interpretation. Second,
Mestler states generally that "[w]here there is no factual dispute, independent
appellate review is appropriate."
However, the cases it cites for that proposition have nothing to do with
the admission of evidence or the imposition of evidentiary sanctions as a
result of discovery abuses. (
529 [review of ruling to exclude a juror for cause]; People ex rel Dept. of Corporations v. SpeeDee Oil Change Systems, Inc.
(1999) 20 Cal.4th 1135, 1144 [review of a ruling to disqualify a party's
counsel].) As we have explained, those
types of rulings are reviewed under an abuse of discretion standard.
B. The
Trial Court Did Not Err in Denying the Motion in Limine to Exclude Evidence of the Bielaszes' Damages
We now turn
to Mestler's main argument — that the trial court should have excluded
evidence of the Bielaszes' damages based on "undisputed facts of discovery
abuse" that were purportedly demonstrated by the Bielaszes' responses to
Mestler's form interrogatories and by Mr. Bielasz's statements during his
deposition regarding damages.
1.
Discovery Process
The
fundamental problem with Mestler's argument is that Mestler has not established
any discovery abuses by the Bielaszes.
Mestler
contends that the Bielaszes failed to provide information about their damages
in their responses to the form interrogatories.
That is not accurate. The
Bielaszes provided lengthy responses that thoroughly discussed the factual
basis for their damage claims against Mestler.
Further, to the extent possible at the time, the Bielaszes quantified
their damages by providing specific monetary amounts relating to some of the
items. There is no indication in the
record that the Bielaszes were untruthful in responding to the form interrogatories
or omitted any information that was available to them.
Although
Mestler takes issue with the Bielaszes' failure to provide any
there is no indication in the record that any such written estimates existed at
the time. Therefore, the responses to the
form interrogatories properly stated that "[e]valuation, repair, and
estimates are presently in the process."
By responding in this way, the Bielaszes followed the statutory
requirement that responses should be as "complete and straightforward as
the information reasonably available to the responding party permits," and
that "[i]f an interrogatory cannot be answered completely, it shall be
answered to the extent possible."
(Code. Civ. Proc., § 2030.220, subds. (a), (b).)
It is well
established that as long as responses to interrogatories contain the
information that is currently known to the responding party, that party will
not be prevented at trial "from presenting subsequently discovered
facts." (Singer v. Superior Court of Contra Costa County (1960) 54 Cal.2d
318, 326.) Therefore, the Bielaszes
properly presented evidence at trial about damages developed after they
responded to the form interrogatories.
If Mestler
means to argue that the Bielaszes were required to provide additional
information about their damages as that
information became available, there is no merit to that position. Code of Civil Procedure specifically
prohibits continuing interrogatories that require a party to "supplement
an answer . . . that was initially correct and complete with later
acquired information." (
subd. (g).) Mestler was required to
propound supplemental interrogatories
if it wanted to know if there were additional investigations or factual
developments that would change the original responses given by the Bielaszes,
but there is no indication that it did so.
(Id., § 2030.070,
subd. (a) ["a party may propound a supplemental interrogatory to
elicit any later acquired information bearing on all answers previously made by
any party in response to interrogatories"].)
The record
also reveals no abuse of the discovery process with respect to how
Mr. Bielasz answered questions about damages at his deposition. As we have described, when counsel for
Mestler asked Mr. Bielasz whether he had prepared a written estimate of
damages as referred to in form interrogatory No. 7.2, Mr. Bielasz
responded that he had not yet prepared any such estimate. Mestler has presented no evidence suggesting
that Mr. Bielasz's answer was untruthful.
Further, as shown in other statements during Mr. Bielasz's
deposition, Mestler did receive all
of the existing evidence concerning the Bielaszes' damages through the
Bielaszes' extensive document production.
motion in limine that the Bielaszes had produced numerous documents.
Accordingly,
because Mestler did not establish any discovery abuse by the Bielaszes, the
trial court was well within its discretion to reject Mestler's motion in limine
to exclude evidence of damages as a remedy for the Bielaszes' purported
discovery abuses.
2.
Mestler
asserts additional arguments to support its contention that the trial court
erred in denying the motion in limine.
As we will explain, none of the arguments has merit.
First, Mestler takes issue with the trial court's comment
that Mestler should have earlier dealt with perceived discovery abuses by
bringing a motion to compel rather than seeking the drastic remedy of an
evidentiary sanction on the eve of trial.
According to Mestler, the trial court's comments were improper in that
Mestler could not have brought a motion to compel further responses from the
Bielaszes because they claimed that they did not have any additional
information to turn over. This argument
is puzzling because Mestler clearly believes that the Bielaszes did
Mestler's discovery requests that constituted an abuse of the discovery
process. Although Mestler is not clear
about what it thinks the Bielaszes
should have done differently, it was Mestler's responsibility to file a
discovery motion to obtain an order compelling the Bielaszes to respond the
discovery in the manner that Mestler believed to be required. As the trial court properly recognized, if
Mestler had acted diligently during the discovery process, the problem with the
Bielaszes perceived discovery abuses could have been addressed and resolved
without requiring Mestler to seek an order excluding all evidence of damages
from the trial.
title="">[5]
In a related argument, Mestler contends that the trial
court improperly denied the motion in limine because it incorrectly viewed a
motion in limine as an improper forum for seeking a discovery sanction. This argument fails because it misapprehends
the trial court's ruling. Mestler
apparently relies on the trial court's comment that "this isn't the time
to take care of those issues," which followed the trial's observation that
Mestler should have brought a motion to compel.
As we understand the trial court's comments, it was not stating that a
motion in limine is always an
improper forum for obtaining exclusion of evidence from trial as a result of
discovery abuses. Indeed, a trial court
could reasonably choose to make such an order in ruling on a motion in limine
diligently pursued all other avenues of remedying the discovery abuses during
the pretrial discovery process, and if
the opposing party received the notice and opportunity to respond required by
the Code of Civil Procedure prior to the imposition of evidentiary
sanctions. (See Code Civ. Proc.,
§§ 2023.030, subd. (c), 2023.040; Sauer
v. Superior Court (1987) 195 Cal.App.3d 213, 216-217 [trial court granted
motion in limine to exclude all
evidence of economic loss as a sanction for party's willful noncompliance with
court-ordered discovery after extensive discovery motion practice].) However, the trial court indicated that
for Mestler to bring up the issue of discovery abuses for the first time in the
context of a motion in limine because those issues could have been addressed
more efficiently and effectively at an earlier stage of the litigation. That observation is reasonable and well
grounded, and the trial court was thus well within its discretion to rely on
Mestler's belated attention to discovery issues as one ground to deny the
request to exclude evidence of the Bielaszes' damages.
Finally, Mestler argues that the trial court should have
excluded evidence of the Bielaszes' damages pursuant to Evidence Code section
352. However, Mestler did not develop
that argument in the trial court, and accordingly it may not rely on Evidence
Code section 352 as a ground for its appellate argument. "Evidence Code section 353, subdivision
(a) allows a judgment to be reversed because of erroneous admission of evidence
only if an objection to the evidence or a motion to strike it was 'timely made
and so stated as to make clear the specific ground of the objection,' " and " ' " 'defendant's failure to make a timely and
specific objection' on the ground asserted on appeal makes that ground not
cognizable." ' " (People
v. Demetrulias (2006) 39 Cal.4th 1, 20.)
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
NARES,
Acting P. J.
McDONALD, J.
name="_ftn1" title="">[1] It is unclear whether the Bielaszes filed a written
opposition to the motion in limine, as Mestler did not include it in the
appellate record.
name="_ftn2" title="">[2] Mestler's appellate brief identifies several interrelated
appellate issues, each of which is based on a common fundamental premise,
namely that the trial court erred in denying the motion in limine to exclude
the Bielaszes' evidence of damages.
Specifically, in addition to its general argument that the motion in
limine was improperly denied, Mestler argues that because evidence of damages
was improperly admitted, (1) the jury should not have been asked on the
special verdict form about the amount of the Bielaszes' damages; and
(2) insufficient evidence supports the jury's findings regarding
damages. Because we conclude that the
trial court did not err in admitting evidence of the Bielaszes' damages, we
need not, and do not, address either of Mestler's additional appellate issues.
