Kophamer Farms v. Plantenga

Filed 4/13/07 Kophamer Farms v. Plantenga CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Arthur E. Wallace and John E. Stuebbe, Judges.

Law Offices of Joseph A. Uremovic and Joseph A. Uremovic; Shaw, Terhar & LaMontagne, Eric A. Amador, Ralph S. LaMontagne, Jr. and Christopher M. McDonald for Plaintiffs and Appellants.

Cooper & Hoppe, Theodore W. Hoppe and Leah Ann Alcazar for Defendants and Respondents.

-ooOoo-

This case arises from a dispute between the owner of an onion packing facility and the owner of a nearby dairy over allegations the packing facilitys business was damaged by odors, pests, and dust generated by the dairy. In an appeal from a stipulated judgment of nonsuit, the facilitys owner challenges a series of pretrial discovery rulings by the trial court limiting the prospective testimony of the facilitys designated experts regarding the type and amount of its damages. We will affirm the judgment.

FACTS AND PROCEEDINGS

The events that immediately precipitated this lawsuit occurred during the summer of 2002. We therefore begin by describing conditions as they existed at that time, while keeping in mind that farming is a very fluid enterprise.

Kophamer & Kophamer, a general partnership, grows a variety of row crops on land it owns or leases in Kern County, including about 400 acres of fresh market onions. Kophamer Farms, Inc. harvests, packs, and sells the onions through a facility -- an open-air packing shed and a cold storage building -- it has operated since 1995 on land leased from the Union Pacific Railroad on Old River Road, southwest of Bakersfield. Both the corporation and the partnership (collectively Kophamer) are owned or controlled, in turn, by Maurice Kophamer, a man who, when this dispute began, was in his early eighties.

Maurice Kophamers son, Doug, once was a partner in Kophamer & Kophamer, the farming part of the operation. The original partnership was dissolved in December of 1999, however, and a new one formed with the same name but without Doug as a partner. Since then, he has been an employee of one or the other of the two Kophamer businesses, depending on the season, where he has been in charge of its day-to-day operation.

Doug Kophamer also farms on his own account through a corporation he owns (either individually or in combination with one of the Kophamer businesses) called Taft Vegetable Farms, Inc., which leases land, in turn, to Kophamer & Kophamer. In addition, Doug Kophamer and either Maurice Kophamer or Kophamer Farms, Inc. each owns a half interest in other properties -- called Bear Mountain Ranch, 3G18, and 4P10 -- they lease to Kophamer & Kophamer (which pays the notes on the properties in lieu of rent). Thus, Doug Kophamer, although he is closely connected to Kophamer & Kophamer and Kophamer Farms, Inc., has no ownership interest in either entity.

In 1989, George and Agnes Plantenga (collectively Plantenga) bought some 630 acres of land just to the north, and upwind, of Kophamers Old River Road onion packing facility, with the intention to build what they would call Western Sky Dairy. The process to obtain all the necessary permits and approvals began in 1994 (a year before Kophamer moved its packing facility to Old River Road), and it took several years to complete. The dairy finally began operations on May 1, 2002. (The season for harvesting and packing onion begins around the end of May, and lasts for about 12 weeks.)

Kophamer brought the present action against Plantenga on February 6, 2003, asserting causes of action for negligence, negligence per se, trespass, and nuisance. The complaint alleged generally that Western Sky Dairy had produced offensive odors, fecal dust and pests during the 2002 packing year that had invaded the Kophamer packing shed and caused its customers to cancel their business for fear of contamination. As a result, Kophamer claimed, it had suffered damages in the amount of $1.5 million, equal to its investment in the Old River Road facility and its cost to relocate the onion packing and storage operations to another location. (In fact, however, Kophamer did not, or could not, relocate, and would later claim it had been put out of business altogether.)

Plantenga filed an answer to the complaint denying these allegations and asserting various affirmative defenses. The matter was set for trial on February 9, 2004.

In December of 2003, Kophamer served Plantenga with a statutory pretrial offer to compromise the case for $1,500,000. (Code Civ. Proc.,  998.)^[1] Plantenga did not accept the offer.

Three more dairies began operations in close proximity to Kophamers Old River Road facility between the 2002 and 2003 onion packing seasons. Kophamer packed its onions during the 2003 season in the field rather than in the packing shed, a less efficient process that reportedly caused it to lose more business and incur additional costs.

On December 19, 2003, Plantenga filed a motion seeking to continue the February 9, 2004 trial date and extend discovery to permit it to file a cross-complaint for equitable indemnity against these other dairies. The trial court granted the motion, but Plantenga ended up dismissing its cross-complaint four months later, in April. The trial was then set for June 7, 2004.

On April 12, 2004, Plantenga served Kophamer with an offer to settle the case for $150,000. Kophamer did not accept the offer.

Maurice Kophamers Deposition Testimony

Plantenga took Maurice Kophamers deposition on November 18 and December 5, 2003. He testified he was the person most knowledgeable about Kophamers business affairs, but he lacked sufficient information to answer questions regarding the companies profits and losses. The following excerpts from December 5, 2003 are representative of both the content and the tenor of the entire deposition.

Q. (By Mr. Hoppe [Plantengas attorney]) Did you make any money on lettuce in 99?

A. [by Maurice Kophamer] In 99?

Q. Right.

A. I think we did.

Q. How much?

A. I dont know.

Q. Do you have an estimate?

A. No.

Q. Not at all?

A. No.

Q. Is there anyone else at Kophamer & Kophamer who would have the information regarding your profits and losses relating to your business besides yourself? Is there someone that has more knowledge regarding these issues?

MR. UREMOVIC [Kophamers attorney]: That question is vague and ambiguous. Theres a lack of foundation.

A. Restate the question.

Q. (By Mr. Hoppe) Well, I want to make sure I have the person with the most knowledge at Kophamer & Kophamer regarding the profits and losses of the company over the last five years.

MR. UREMOVIC: Same objections.

A. Your question was regarding lettuce. Im not sure that --

Q. (By Mr. Hoppe) No, no. My last question was I want to make sure I have the person with the most knowledge concerning the profits and losses of Kophamer & Kophamer in the last five years. Is that you or is there someone else in the business that would have more information concerning these issues?

MR. UREMOVIC: Lack of foundation.

A. No.

Q. (By Mr. Hoppe) Its you?

A. Yeah.

Q. Because I just want to make sure that when we go to trial that you dont come in at trial with a ton of information concerning your profits and losses because Im entitled to your best testimony today, and thats what my concern is.

A. Well, I had no idea that you were going to ask about the specifics of four or five years ago.

MR. UREMOVIC: Dont worry about it. [] []

Mr. Hoppe, I think Ive said this probably five times now, in the farming and produce business, the objective is not to pay out income. The objective is to push income into the next year and prepay expenses so that you dont show taxable profits. And I think Mr. Kophamer has agreed with that. If you guys hire an expert, that expert, Ill bet you, will tell you the same thing. Only a fool has taxable income at the end of the year in the produce or farming business.

MR. HOPPE: So what youre saying is these businesses just have no profits whatsoever; is that --

MR. UREMOVIC: No, no.

MR. HOPPE: -- what youre saying, Mr. Uremovic? Is that the testimony you want your client to --

A. No.

MR. HOPPE: Let me finish the question. [] Is the testimony of your client that these businesses are unprofitable? Because thats what youre saying to me --

MR. UREMOVIC: No. I dont know what your background is, your undergraduate degree or anything. No. You grow, you make purchases of land, you pay off the land. And a lot of that is done without the burden of income taxes that maybe some other businesses might have to pay.

Now, if they were on a fiscal year basis -- [] [] -- thats entirely different. Then they would have to pay the taxes that other businesses would pay. But farmers have the advantage of being on a cash basis. And thats how they dont have to report income for crops that have been sold until they get the money.

MR. HOPPE: I understand.

MR. UREMOVIC: A lot of money is paid in January. They can deduct fertilizer and things that are paid in December even though its for the crop thats going to be growing in the next year.

MR. HOPPE: I understand all that. Im not asking about taxes. Im asking whether or not they made any money on these deals, and hes told me he doesnt know or hes unable to give me an estimate.

MR. UREMOVIC: No, you asked him what his profit was.

MR. HOPPE: I asked him if he made any money on the lettuce deal. He said, I dont know.^[2]

Doug Kophamers Deposition Testimony

Plantenga took Doug Kophamers deposition of on December 4, 2003, and again on April 13, 2004. By the latter date, he was farming, either as Taft Vegetable Farms or as Doug Kophamer Farms, some or all of the land that previously had been farmed by Kophamer & Kophamer to grow onions for Kophamer Farms, Inc. This land included the Bear Mountain Ranch and 3G18 properties he owned with his father, and was being used to grow, among other things, about 200 acres of onions. On the advice of Mr. Uremovic, Doug Kophamer refused on privacy grounds to answer any questions about these farming operations.

For example, he stated he and his father were in the process of selling the Bear Valley Ranch (and were planning to lease it back from the new owner) to recoup some of the losses Kophamer had suffered as a result of Plantengas dairy. He refused to discuss any details of the sale, however.

MR. UREMOVIC: Well, your client put them out of business and theyve sold the Bear Mountain Ranch so hes leasing it from the new buyers. [] Is that what you want to know?

MR. HOPPE: No, thats not the question. But thats fine. Thats not the way it was --

MR. UREMOVIC: Thats the answer. [] When the escrow closes [on June 1, 2004], he has to pay the new owners rent. [] []

Q. [by Mr. Hoppe]: And what was the purchase price?

MR. UREMOVIC: Dont answer it. Privacy. [] []

MR. HOPPE: Thats not part of your claim, that they were forced to sell this ranch as a result of my clients conduct?

MR. UREMOVIC: No, they were forced to sell it. You know that.

MR. HOPPE: All right. And thats part of your claim and youre saying that thats private?

MR. UREMOVIC: No, Im saying -- youre asking this person what he sold his property for.

MR. HOPPE: Im asking what the sales price of the property was. Im not asking for his portion.

MR. UREMOVIC: Well, I think you might get this when you take expert witness depositions. Thats when youre going to get the damages laid out for you.

MR. HOPPE: Well, Joe, Im entitled to ask this question.

MR. UREMOVIC: I understand youre not.

MR. HOPPE: So Im going to get it through experts, but Im not going to get it through witnesses. Is that what youre saying?

MR. UREMOVIC: Youre going to get damages from witnesses, but youre not going to delve into this persons private business.

MR. HOPPE: Well, its a joint piece of property with Maurice.

MR. UREMOVIC: Well, Ive told you the way it is. Youre going to get the information you need at the appropriate time from the experts.

MR. HOPPE: So youre instructing him not to answer based on privacy?

MR. UREMOVIC: Thats what I said.

MR. HOPPE: But you intend to introduce the purchase price through experts. Is that what youre telling me?

MR. UREMOVIC: I dont know what the experts are going to do. They havent finished their work. [] Our damages will be laid out by our experts.

MR. HOPPE: But are you intending to introduce the Bear Mountain property as part of your damage claim? Im entitled to know that.

MR. UREMOVIC: I dont know yet. The experts havent finished their work. If its a part of the damage, theyll tell you how much it was sold for and what the damage is. I dont know. [] And if its not part of the damage, youre not entitled to know it.

MR. HOPPE: Well, its certainly relevant.

MR. UREMOVIC: Well, its a privacy issue here.

MR. HOPPE: Well, its a joint piece of property owned with his father.

MR. UREMOVIC: Weve been through this. Yes.^[[3]]

Q. (By Mr. Hoppe) What is the rent youre going to pay on the Bear Mountain property?

MR. UREMOVIC: Dont answer it. [] Thats in the future. None of your business. Privacy.

Doug Kophamer also professed during his deposition to know nothing about the financial affairs of Kophamer Farms, Inc. (the harvesting, packing, and sales part of the operation), nor of Kophamer & Kophamer (the farming partnership), since having left the partnership in 1999. And he refused, again on the advice of his attorney, to talk about Kophamer & Kophamers farming operations before the 1999-2000 growing season, on the ground the partnership in that earlier configuration was not a party to the lawsuit.

Jennifer Haneys Deposition Testimony

Plantenga took the deposition of Jennifer Haney, CPA on April 28, 2004. Haney is the accountant for Kophamer Farms, Inc. and Kophamer & Kophamer, and was requested to produce all documents in her possession regarding those two businesses. She refused, however, on the advice of Mr. Uremovic, to discuss or produce documents related to the pre-2000 Kophamer & Kophamer partnership. Similarly, Kophamers bookkeeper, Lorna Brannum, failed to bring some of Kophamers business records with her to her deposition on April 22, 2004.

Kophamers Expert Witness Designation

The parties exchanged expert witness information in mid-April of 2004. ( 2034, subd. (a).) Of the seven persons designated by Kophamer as retained experts, the four who would testify about the lost value of Kophamers onion business all were associated with the AgriCapital Corporation in New York City (the New York experts). Their depositions, first set for May 11 and 12, 2004, later were moved to May 20 and 21 to accommodate the trial schedule of Kophamers attorney, Joe Uremovic.

Kophamers expert witness designation also included the names of 32 nonretained experts, including Maurice and Doug Kophamer, Jennifer Haney, and John Norton (who we will discuss shortly).

In late April or early May, Uremovic told Theodore Hoppe (one of Plantengas two attorneys) that Kophamer had decided not to use the four New York experts; that it would retain new, as-yet-unidentified experts to replace them; and that the new experts would be available for their depositions on the already scheduled dates. Despite Hoppes further inquiries, however, Uremovic failed to identify the new experts or to make them available for their depositions on either May 20 or 21, 2004. (Trial was still set for June 7, 2004.)

On May 24, Uremovic sent Hoppe an e-mail message saying, among other things, I will keep you informed so that we can try to get the depositions of John Norton [one of Kophamers non-retained experts] and Bill Gisvold done as soon as possible. Hoppe wrote back the same day: Who is Bill Gisvold? He has not been identified as an expert witness in this matter . Uremovic responded, also the same day: Are you trying to play dumb? You know full well that we are substituting William Gisvold in as a damages expert in the place and stead of the New York City experts we originally retained. Do you want a new designation of experts with his name on it? Hoppe, in a reply he sent the following day, May 25, 2004, observed that Uremovic had known for a month of the need to designate a new expert, and, now that discovery had closed, the supplemental designation would require leave of the court. Uremovic then concluded the exchange with a letter, also on May 25, 2004, which began: I cant believe that you are being such a weenie.

The Courts May 28, 2004, Order

(Motion to Compel)

On May 25, 2004, Plantenga filed a motion on shortened time seeking to compel Doug Kophamer and Jennifer Haney to answer questions, and the Kophamer businesses to produce documents, related to onion operations before 2000 and after 2003. That is, on the premise the same individuals were growing the same sorts of onions on the same land both before and after those dates, only on behalf of different business entities -- the original Kophamer & Kophamer partnership before 2000, and Taft Vegetable Farms or Doug Kophamer Farms after 2003 -- Plantenga contended information about those other entities operations was discoverable insofar as it had a bearing on Kophamers business losses allegedly incurred in 2002 and 2003 as a result of Plantengas dairy.

Kophamer filed no opposition to Plantengas motion to compel, nor did it appear at a hearing on the motion on May 28, 2004.^[4] The trial court granted the motion. It directed Doug Kophamer and Jennifer Haney to submit to further depositions, and to answer the questions and produce the documents described in the motion, within seven days of the hearing. (Trial was still set for June 7, 2004, 10 days later.) The order further provided: If said depositions are not complete and said documents are not produced within the time prescribed above, it shall be deemed that [Kophamer has] refused and failed to comply with the Courts Order.

Plantenga set the further depositions for Doug Kophamer and Jennifer Haney for June 2 and 3, 2004, respectively. Neither of them appeared at the scheduled time, nor did Kophamer file any objection to the order directing them to appear.

The Courts Pretrial Order

(Motions In Limine)

May 28, 2004 (the date the court granted Plantengas motion to compel), also was the date set for the pretrial conference. Plantenga moved in limine to preclude Maurice and Doug Kophamer from testifying at trial about Kophamers profits or losses, in light of their deposition testimony they had no detailed knowledge of the income and expenses of Kophamer Farms, Inc. and Kophamer & Kophamer.

Similarly, based on Kophamers failure to make its retained damages experts (from New York) available for their depositions, or to make a timely motion to augment its designation with a new expert (Gisvold), Plantenga moved to preclude Kophamer from presenting any such witnesses at trial.

The trial court granted both motions. Part 5 of the courts (unsigned) pretrial order included the following provisions under the heading of EVIDENTIARY RULINGS.

H. Douglas Kophamer and Maurice Kophamer are prohibited from testifying as to operating costs used to calculate the profitability and/or losses of KOPHAMER FARMS, INC., and/or KOPHAMER & KOPHAMER.

I. [Kophamer is] precluded from calling any experts, designated or otherwise, on the issue of [its] damages.

Uremovic wrote to Hoppe on June 1, 2004, objecting to the proposed pretrial order in several respects. Uremovic said in part:

1. [Referring to paragraph 5(H)] There is no basis for this language. Certainly Doug and Maurice Kophamer are entitled to testify to increased operating costs associated with field packing of onions in 2003. This information was long, long, ago disclosed in response to written discovery and in depositions. You continue to be hung up on the term profits, but I dont have any obligation to educate you.

2. [Referring to paragraph 5(I)] There is no basis for this language. The order to preclude testimony of experts was limited to William Gisvold. The many none-retained [sic] experts that you chose not to depose are clearly entitled to offer their opinions when they are qualified as experts.

The June 7, 2004, Trial Date Continued

On June 7, 2004, the date set for trial, Plantenga filed a motion asking the court to impose terminating or issue preclusion sanctions against Kophamer for failing to comply with the courts May 28, 2004, order (directing it to produce additional documents and to make Doug Kophamer and Jennifer Haney available for further depositions). Kophamer, in turn, filed a motion to strike the order on the ground it had not received a copy of the earlier order granting Plantengas motion to hold the May 28 hearing on shortened time. Kophamer also reasserted its contention the additional information the May 28 order had required it to produce -- which concerned Kophamer & Kophamers farming operations before 2000, and Doug Kophamers farming operations after 2003 -- was not relevant to the question of Kophamers damages in 2002 and 2003.

The trial court denied Kophamers motion to strike the May 28 order. It denied Plantengas motion for terminating or issue sanctions, but said it would entertain a motion for monetary sanctions. Finally, the court vacated the June 7 trial date, and declined to set a new date until Kophamer complied with the May 28 order. Notably, however, the court stated it was not, by continuing the trial date, reopening discovery or modifying the terms of its pretrial order.

Kophamers Motion to Augment

its Expert Witness Designation

On June 14, 2004 (a week after the trial court had reaffirmed its pretrial order precluding Kophamer from presenting any expert witnesses on the subject of damages), Kophamer filed a motion requesting permission to augment its expert witness designation to substitute William Gisvold for the New York experts. Uremovic, in a declaration in support of the motion, asserted that attorney Hoppe had welshed on an earlier oral agreement to permit the substitution without the need for a formal motion.^[5]Plantenga opposed the motion. The court denied it following a hearing on July 1, 2004, at which attorney Uremovic failed to appear.

Plantengas Motion for Monetary Sanctions

On June 30, 2004, Plantenga filed a motion for monetary sanctions seeking to recover its costs incurred as a result of Kophamers noncompliance with the courts May 28, 2004, order. These costs, which came to about $48,000, included, in addition to lost time resulting from the nonappearance of Doug Kophamer and Jennifer Haney for their continued depositions, the cost of preparing for the trial that had been scheduled to begin on June 7, 2004.

In opposition to the motion, Kophamer reiterated its claims it had not received proper notice of the May 28, 2004, hearing on Plantengas motion to compel, and that the information it had been ordered to produce (pre-2000 records of Kophamer & Kophamer and post-2003 records of Doug Kophamer Farms) was private to Doug Kophamer, and/or was not relevant to the issue of Kophamers damages. Kophamer also argued the amount of Plantengas claim was excessive.

Kophamer made similar arguments in support of a petition to this court for a writ of mandate. We denied the petition on July 16, 2004.

The trial court held a hearing on Plantengas motion for monetary sanctions on July 20, 2004. In an order issued on August 3, 2004, it imposed sanctions in the amount of $6,828.25.

On September 1, 2004, the California Supreme Court denied Kophamers petition seeking review of our denial of the writ petition.

The March 14, 2005, Trial Date Continued

At some point after the Supreme Court denied review, Kophamer complied with the trial courts May 28, 2004, order to produce the disputed business records. In addition, Plantenga was able to take the further deposition of Doug Kophamer, who, as directed by the court, provided information about Doug Kophamer Farms and Taft Vegetable Farms, Inc., and about the arrangement he made with his father to assume the farming operations of Kophamer & Kophamer.

In January of 2005, the trial court set a new trial date for March 14, 2005. The courts order provided that all remaining non-expert discovery was to be completed by February 11, 2005. The trial was later continued, at Plantengas request, to May 16, 2005, due to a scheduling conflict.

The Pretrial Order Revisited

(April 29, 2005)

On March 21, 2005, the trial court signed, without change, the pretrial order it had first issued 10 months earlier.

In April of 2005, Kophamer filed a motion on shortened time seeking to vacate or modify the pretrial order (particularly the courts evidentiary rulings in paragraphs 5(H) and 5(I)), in light of Kophamers subsequent compliance with the courts May 28, 2004, order. The matter was set for a hearing on April 29, 2005.^[6]

The trial court, in effect, denied Kophamers motion and reaffirmed the pretrial order, subject to some clarification. The court noted the pretrial order was not directed at Kophamers failure to comply with the May 28, 2004, order, i.e., compliance with the latter did not resolve the problem addressed by the former. The May 28 order, the court observed, was concerned with Kophamers refusal to provide information (either directly or through the testimony of Doug Kophamer and Jennifer Haley) about the farming operations of Kophamer & Kophamer before 2000, and of Doug Kophamer Farms and Taft Vegetable Farms, Inc. after 2003. The pretrial order, on the other hand, essentially precluded Kophamers designated damages experts, retained and non-retained, from expressing any opinions at trial beyond those they had given at their depositions. Thus, the court clarified the pretrial order as follows:

THE COURT: With regard to the pretrial order and paragraphs 5(h) and 5(i), the enforcement of those orders is going to be in accordance with [Code of Civil Procedure section] 2034. In other words [referring to paragraph 5(h) of the pretrial order], neither Doug Kophamer [n]or Maurice Kophamer will be permitted to offer opinions that they were unable to offer at the time that their depositions were taken as nonretained experts, and thats just black letter law.

As to paragraph [5(i)], to the extent an expert has been appropriately designated on the issue of damages and made available for deposition , that expert will be able to testify in accordance with whatever opinions that expert offered at the time of those depositions[,] or was prepared to offer at the time of those depositions.^[7]

The discussion that followed focused principally on the second part of the courts ruling. As we have said, Kophamer originally designated the four New York experts to testify regarding the lost value of its onion packing business. Kophamer later withdrew these experts, however, and then failed to make a timely motion to augment its expert witness designation to substitute the name of its newly retained expert, William Gisvold. Kophamer thus was left with no retained damages experts (and its two main nonretained experts, Maurice and Doug Kophamer, had testified they lacked any specific knowledge of Kophamers income and expenses).

Attorney Uremovic advised the court at this point in the hearing that he intended to call John Norton, whom he had designated a nonretained expert, as his principal witness regarding Kophamers damages. Norton had, in the past, loaned a considerable amount of money to Maurice Kophamer for his farming operations, and had, until recently, held a lien against Kophamers potential recovery in the present lawsuit. Norton also had some business interests with Kophamers attorney, Joe Uremovic.

Mr. Hoppe (Plantengas attorney) complained he had been frustrated repeatedly in his efforts to take Nortons deposition. The court directed that Norton be made available for his deposition as soon as possible. (This was April 29, 2005; the trial was set to begin 17 days later, on May 16, 2005.) The court stated:

If Mr.Norton is to be called as an expert witness on the issue of damages, he will be made available as soon as possible for deposition, and I suspect it will depend considerably on what he has to say in his deposition as to what we do beyond that point. [] There may be a need for [a] brief extension of time in order [for Plantenga] to respond to that deposition information. And, again, thats only if Im convinced that Mr. Hoppe has made a reasonable effort to get that deposition taken earlier and has been frustrated for one reason or another in getting that information.^[8]

John Nortons Deposition

Plantenga took Nortons deposition on May 3, 2005. Norton testified he was in the business of buying and selling produce; that he had in the past bought lettuce and cabbage from Maurice Kophamer (meaning presumably Kophamer Farms, Inc.), but never onions; and that he had loaned upwards of a million dollars to Maurice Kophamer in a revolving loan fund of sorts to help finance Kophamers various farming and/or packing operations. Norton also testified, however, that he had no direct knowledge of or involvement in those operations, or in Kophamers financial affairs.

Norton said he had met the year before with Maurice and Doug Kophamer in Joe Uremovics office to discuss the subject of Kophamers damages, but he had not himself done any actual calculations. In fact, Norton was unaware until the deposition that he had been designated a nonretained expert on Kophamers damages.

Q [by Mr. Hoppe] And what were you asked to testify about?

A [by Mr. Norton] Damages.

Q In what regard?

A The lost product damages, the damages for a business that was ruined, the damages on the season in which the dairy interrupted the normal onion operation.

Q And what type of information do you have about those factors?

A I was provided some worksheets that were worked up by Doug and Maury [Kophamer] in their office on the damage assessments. [] []

Q So what did you do with those onion summary sheets?

A I didnt do anything with them. They showed them to me. We reviewed them together. [] []

Q Did you use any of these documents to come up with the damage calculations?

A I didnt come up with damage calculations.

Q Who did?

A The Kophamers came up with the damage calculations.

Q Which Kophamers?

A Doug and and Maury and their counsel, I believe. [] []

Q Okay. What is it that you have done to prepare yourself for this deposition?

A Reviewed the documents on damage calculations prepared by the Kophamer and counsel group.

Nortons principal contribution, so far as appears from his deposition testimony, had been to suggest a capitalization rate to apply to Kophamers figures in order to come up with an estimate of the fair market value of Kophamers onion business.

A I said that you should probably use a certain capitalization rate on the net revenues at some fair market value to determine what an enterprise is worth, and I said to him [Mr. Uremovic] I think that that should be about an 8-percent CAP rate. And he said that he would -- he would agree -- he agrees with that.^[9]

Based on an eight percent capitalization rate, applied to the average of the net revenue reported by Kophamer for the five years from 1997 through 2001, the fair market value of the onion part Mr. Kophamers business (evidently meaning Kophamer Farms, Inc.) was $4 million.

Trial Begins on May 16, 2005

On May 9, 2005, the case was transferred from Department 6 of the Superior Court (Judge Arthur Wallace) to Department 15 (Judge Jon Stuebbe) for the trial still scheduled to begin on May 16, 2005.

The first matter taken up by Judge Stuebbe on May 16, 2005, was a motion in limine by Plantenga to preclude Norton from testifying as an expert witness on the subject of Kophamers damages. Plantenga argued both that Nortons opinions lacked sufficient foundation, and that, under the circumstances, he should have been designated a retained expert (i.e., one who is hired to form an opinion for the purpose of litigation based on information provided to him or her by the retaining party), as opposed to a nonretained expert (i.e., one who forms an opinion based on personal knowledge he or she acquired independently of the litigation). This contention, in turn, required Judge Stuebbe to apply Judge Wallaces pretrial order, as that order subsequently was clarified by Judge Wallace in anticipation of Nortons deposition.

Judge Stuebbe granted the motion in limine. He explained:

[T]o the degree that he [Norton] has percipient knowledge [of Kophamers onion business], he certainly can testify. To the degree that he participated in, developed, or in any way organized a method of analysis, that is -- that is not characteristic of a non-retained expert. That is characteristic of a retained expert, even if hes not paid, and the fact that hes owed $1.7 million, I dont know what -- that comes awfully close to being paid to see to it that the litigation is successful.

But my finding as to whether or not he should have been designated is that he should have been designated because of his involvement in the development of these theories on behalf of the party, and that was not properly done.

Id like to add that, and as an entirely separate basis for my ruling, Ive read the declaration of Mr. Hoppe and the attached segments from his [Nortons] deposition, and it appears to the Court that he [Norton] has so little information and so little background and so little in the way of any meaningful opinions, that he is not capable of, based on what he testified to there, he has nothing to contribute in terms of his testimony as an expert in the way of damages.^[[10]]

So his deposition was taken after all of this extensive discussion that we had regarding Judge Wallaces modification of the pretrial order [as] the net result of which everybody ran out and took his deposition and he [Norton], frankly, had nothing to say.

And so Im going to find that Mr. Norton -- Im going to grant the motion in limine. He may testify as to percipiency but not as to any expert opinions, because[,] to the degree his deposition was taken, he didnt give any and he didnt have access to any information on which a rational opinion could be founded.

The discussion then turned to the ten other persons Kophamer had designated as nonretained experts on the subject of damages (none of whom Plantenga had deposed). The court directed attorney Uremovic to provide a declaration by the next day setting out these witnesses qualifications and the facts upon which they had based their opinions.

Uremovics declaration gave each witnesses name and address, a brief description of his education and employment history, and then made the following identical statement about each one of them:

Mr. [Name] first discussed the possibility of his testifying as to market conditions, the value of the plaintiffs businesses, how fresh produce businesses are valued and sold[,] and the adequately [sic] of the model to be prepared and used by the plaintiffs to determine damages [in some period between the summer of 2002 and May of 2004]. He has since reviewed the final damage calculations and the deposition transcript of John Norton and indicated that he agrees with the conclusions of Mr. Norton.

On May 17, 2005, the second day of trial, the court ruled Uremovics declaration failed to show that any of these ten witnesses had acquired information independently of the litigation sufficient to qualify them to testify as nonretained experts about the value of Kophamers business.

[I]t appears to me that these are secondhand experts who have simply reviewed what Mr. Norton did and are saying, yeah, I think that makes sense. And thats not expertise; thats agreement.

So as to these individuals listed here, they can testify as to percipiency, to the degree its relevant, but none of these individuals is an expert in the sense of being able to give a valuation of [Kophamers] business, how fresh produce businesses are valued, and the adequacy of the [damages] model to be used.

Much of the rest of the day was taken up with jury selection. Once that was completed, Mr. Uremovic advised the court that, when the trial resumed on Monday, May 23, 2004, he intended to call as witnesses several of the people the court had just ruled could not testify as damages experts. Uremovic took the position he was not precluded from presenting experts who had not been deposed as such by Plantenga. This included, most notably, Maurice and Doug Kophamer, who had been deposed before Kophamer served its expert witness list designating them nonretained experts.^[11] The matter was put over to the next trial day; both parties submitted written arguments in the meantime.

At the start of the third day of trial, on May 23, 2005, the court, at Mr. Uremovics request, dismissed without prejudice Kophamers first two causes of action for negligence and negligence per se, respectively. Kophamers complaint thus was reduced to its causes of action for trespass and nuisance.^[12]

The court then returned yet again to the pretrial order and to whether it precluded, or ought to preclude, Maurice and Doug Kophamer from testifying as nonretained experts on the subject of damages. Mr. Uremovic maintained his position was consistent with the pretrial order.

As I understand this Courts interpretation of what Judge Wallace said, were going to have these individuals testify pursuant to the Code of Civil Procedure section that relates to expert witnesses. [] And so if we follow the rules, I designated them as experts on damage and causation of damages, and Mr. Hoppe never took their deposition; therefore he cannot at this time say that he was prejudiced because he didnt get the chance to question them about damages.

The court rejected this argument. It said their subsequent designation as experts did not alter the fact that Maurice and Doug Kophamer both testified at their depositions they lacked specific knowledge of Kophamers income and expenses. The court declined on this basis to modify the pretrial order.

After some further discussion of other questions, attorney Uremovic proposed to stipulate that the trial courts discovery rulings had effectively precluded Kophamer from proving its damages, such that the court should grant a nonsuit to permit him to pursue an appeal. (See  581c, subd. (c) [unless court provides otherwise, judgment of nonsuit acts as an adjudication on the merits].) Attorney Hoppe, while expressly declining to accept Uremovics premise, agreed to stipulate to a judgment of nonsuit. The court accepted the stipulations.

THE COURT: All right. Gentlemen, I will, in effect, rule on a motion for a nonsuit based on the state of the offer of proof and stipulations before the Court as to the issue of damages in this matter.

And so the Court will order a nonsuit verdict in favor of the defendant, costs to defendant, and Mr. Hoppe to prepare the judgment in the matter.

The judgment was entered on May 31, 2005. Notice of entry was served by mail on June 6, 2005.

Kophamers New Trial Motion

On June 8, 2005, Kophamer filed a motion seeking a new trial on the ground the trial court improperly limited the expert testimony of Maurice and Doug Kophamer, John Norton, and Kophamers other nonretained experts. Plantenga opposed the motion on the ground, among others, that it was procedurally improper. (See Cal. Rules of Court, former rule 236.5, now rule 3.1600)^[13] The court denied the motion on this ground on July 21, 2005.

Plantengas Costs

On June 21, 2005, Plantenga filed a verified memorandum of costs totaling $165,586.77, including $149,114.06 for expert witness fees claimed pursuant to section 998.^[14] On July 11, 2005, Kophamer filed a motion to tax costs on the ground, primarily, that Plantengas $150,000 settlement offer had not been made in good faith. The court awarded Plantenga the full amount of its claimed costs following a hearing on January 10, 2006. That award is the subject of another appeal in our case number F050233.

Kophamers Appeal

On July 26, 2005, Kophamer filed a timely notice of appeal from the judgment entered on May 31, 2005.

DISCUSSION

Any party to an action may demand a simultaneous exchange of expert witness information after the initial trial date has been set. ( 2034, subd. (a).) In response, each party must provide either a list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial, or a statement that the party does not presently intend to offer the testimony of any expert witness. (Id., subd. (f)(1)(A) & (B).) If a designated expert is a party or an employee of a party to the action, or if the expert has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action (id., subd. (a)(2)), the exchange must also include an expert witness declaration signed by the attorney for the party designating the expert. (Id., subd. (f)(2).) This declaration must contain a brief narrative statement of the experts qualifications; the general substance of the testimony the expert is expected to give; a representation the expert has agreed to testify at trial; a representation the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition; and a statement of the experts hourly or daily fee. (Id., subd. (f)(2)(A)-(E).)

A party who fails to submit an expert witness declaration for an expert for whom such a declaration is required may, unless granted relief, be precluded from presenting that experts testimony at trial. ( 2034, subd. (j)(2).) Similarly, an expert may be precluded from expressing opinions about matters that were not disclosed in the expert witness declaration (Bonds v. Roy (1999) 20 Cal.4th 140), or about which the expert, when deposed, stated he or she had no opinions (Jones v. Moore (2000) 80 Cal.App.4th 557).

Therefore, it is necessary in applying these rules to distinguish between the expert witnesses for whom an expert witness declaration is required, e.g., those who have been retained by a party to form and express an opinion about the subject of the litigation, and the experts for whom no declaration is required, i.e., nonretained experts and those who are neither a party nor an employee of a party to the action.

The distinction between retained and nonretained (percipient) experts was discussed at some length in Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, an action to recover damages for personal injuries suffered in an automobile accident. The issue there was whether the plaintiffs treating physicians, whom she had identified as experts but had not included in her expert witness declaration, could express the opinion at trial that her injuries were caused by the accident. The trial court ruled they could not. The Court of Appeal, in agreeing with the trial court, reasoned that the ordinary role of a treating physician is to testify as a percipient witness about what he or she observed, concluded, and did in the way of diagnosis and treatment. A treating physician who intends to offer an opinion about causation, the court said, goes beyond this ordinary role and becomes a retained expert within the meaning of section 2034, subdivision (a)(2), such that his or her opinion must be disclosed in an expert witness declaration. (Id. at p. 33.)

The Supreme Court reversed the judgment. Whether an expert witness has been retained, the court explained, depends not on the subject of the experts opinion, but on the source of the information upon which his or her opinion is based.

A treating physician is a percipient expert, but that does not mean that his testimony is limited only to personal observations. Rather, like any other expert, he may provide both fact and opinion testimony. [W]hat distinguishes the treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar with the plaintiffs injuries that were ultimately the subject of litigation, and which form the factual basis for the medical opinion. The contextual nature of the inquiry is implicit in the language of section 2034, subdivision (a)(2), which describes a retained expert as one retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action. (Italics added.) A treating physician is not consulted for litigation purposes, but rather learns of the plaintiffs injuries and medical history because of the underlying physician-patient relationship. (Schreiber, supra, 22 Cal.4th at pp. 35-36.)

To the extent a physician is retained for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, his identity and opinions are generally privileged unless he testifies. ( 2034, subd. (a)(2).) Should the [retained] physician testify, an expert witness declaration is required. On the other hand, to the extent a physician acquires personal knowledge of the relevant facts independently of the litigation, his identity and opinions based on those facts are not privileged in litigation presenting an issue concerning the condition of the patient. [Citations.] For such a witness, no expert witness declaration is required, and he may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience. This may well include opinions regarding causation and standard of care because such issues are inherent in a physicians work. (Schreiber, supra, 22 Cal.4th at p. 39; see also Kalaba v. Gray (2002) 95 Cal.App.4th 1416, 1420 [treating physician must be identified by name even if no expert witness declaration is required].)

On this basis, the court rejected the defendants contention a causation opinion is per se outside the role of a treating physician because it requires information from the patient or other sources, and is not based solely on the physicians personal observations. (Schrieber, supra, 22 Cal.4th at p. 38, fn. 5, italics added.) Consequently, the court found it unnecessary to discuss the circumstances under which a percipient expert can be said to have undergone a metamorphosis into a retained expert. (Ibid.)

Turning to the present case, Kophamer maintains the trial court erred in barring Maurice Kophamer, Doug Kophamer, John Norton, and its other nonretained experts from testifying about damages. Of course, as ought to be apparent from the foregoing history, the court did not bar them from testifying about damages; it limited their opinion testimony on that subject (to the extent they qualified as experts) to the opinions they expressed, or were prepared to express, at their depositions. And, since they were nonretained experts, the court further limited them to opinions based on information they had acquired independently of the litigation, as percipient witnesses. These limitations, considered in the abstract, are noncontroversial. Thus, Kophamer does not challenge the limitations so much as the way it anticipates the court would have applied them at trial to specific testimony Kophamer hoped to present through one or more of these witnesses. But we cannot review decisions the trial court has not made. And we do not accept the premise the decisions the court did make necessarily left Kophamer without the means to prove its damages.^[15]

Moreover, the court limited these witnesses testimony only insofar as they would be asked to express their opinions as experts. It did not restrict their testimony as fact witnesses regarding events or circumstances of which they had personal knowledge. This would seem to include much of the disputed testimony Maurice if not Doug Kophamer proposed to give about Kophamers income and expenses (with the possible exception of the cash basis accounting method to which Mr. Uremovic kept referring).^[16] In any event, although the prospective trial testimony of Maurice and Doug Kophamer (insofar as it required them to be experts) was limited by their professed lack of knowledge regarding Kophamers financial affairs, neither Kophamers bookkeeper (Lorna Brannum) nor its accountant (Jennifer Haney) was limited to the same extent by their deposition testimony.

Finally, it is worth noting that Kophamers income and expenses were important primarily as the basis for estimating the fair market value of Kophamers onion operations (utilizing the capitalized income method described by John Norton). That is, Kophamer maintained the flies, odors, and fecal dust from Plantengas dairy forced it to shut down its onion packing facility on Old River Road, which caused it in turn to go out of business altogether. Hence, Kophamer sought to recover the value of its business, or at least the value of the onion packing part of its business to the extent it was severable. It is as to this category of damages -- the fair market value of its onion business -- that Kophamer effectively was barred from presenting any expert testimony. Business valuation is not a subject about which either Maurice or Doug Kophamer was claimed or shown to have any expertise. And the other nonretained experts (John Norton particularly), assuming they possessed the expertise, lacked percipient knowledge of the facts necessary to form an opinion on the subject. The opinion could only have come from retained experts, and Kophamer was precluded from presenting such experts for reasons that are not before us in this appeal.^[17]

DISPOSITION

The judgment is affirmed. Plantenga shall recover its costs on appeal.

_____________________

HILL, J.

WE CONCUR:

_____________________

WISEMAN, Acting P.J.

_____________________

LEVY, J.

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^[1] Except as noted, all further statutory citations will refer to the Code of Civil Procedure.

^[2] As we have said, Kophamer grew and/or packed other crops in addition to onions, sometimes including lettuce. Therefore, inasmuch as Kophamer was claiming Plantengas dairy put it out of business completely, the contribution these other crops made to Kophamers income and expenses had a bearing on the issues of causation and damages as to its onion operation.

^[3] Doug Kophamer had testified during his December dep