Shahbazi v. Equilon Enterprises

Filed 10/24/06 Shahbazi v. Equilon Enterprises CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

Via a fourth amended complaint, plaintiff Mehdi Shahbazi sued defendants Equilon Enterprises LLC, Shell Oil Company, Gary Glover, George Hood, and Peninsula Petroleum, LLC for price discrimination in the sale of petroleum and related causes of action. The trial court granted defendants’ motions for summary judgment.[1] On appeal, plaintiff contends that he raised triable issues of fact. We disagree. We therefore affirm the judgment.

scope of review

“Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving party’s papers. The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. All doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment. While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented. [Citation.] A defendant moving for summary judgment meets his burden of proof showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o)(2).) Once the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or to a defense to the cause of action. In doing so, the plaintiff cannot rely on the mere allegations or denial of his pleadings, ‘but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . .’ [Citations.]” (Cochran v. Cochran (2001) 89 Cal.App.4th 283, 287.)

Our scope of review, though independent, is necessarily dependent upon the contentions made to us by plaintiff. As stated in Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, footnote 6: “Although our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in plaintiff’s brief. [Citations.] Issues not raised in an appellant’s brief are deemed waived or abandoned.”

In this regard, we make the following observations that guide our review. Plaintiff does not contest that defendants’ showings were sufficient to shift the burden to him.[2] He only claims that his showing was sufficient to defeat the motions. Defendants, however, made numerous objections to plaintiff’s evidence. (Code Civ. Proc., § 437c, subd. (b).) In particular, Equilon filed a 35-page pleading that effectively objected to all of plaintiff’s evidence (plaintiff’s declaration with exhibits, a declaration of David Lugo, and a declaration of Edith Johnson).[3] Most of the objections were directed at specific parts of the testimony and grounded on hearsay, lack of foundation, and the like. And some of the objections were directed at the entire testimony as we will note below. In any event, the difficulty with plaintiff’s position on appeal is that (1) the trial court sustained all of Equilon’s objections, and (2) plaintiff does not challenge the trial court’s evidentiary rulings. We must therefore presume that the rulings were correct and disregard plaintiff’s evidence. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

It is true that plaintiff states in the last paragraph of his 56-page brief that the trial court “abused its discretion“ by sustaining defendants’ objections. But he develops no analysis or discussion, supported by pertinent authority, which discloses to us the course of logical or legal reasoning by which he came to the conclusion he wants us to adopt. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [“[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant’s [contentions] as waived”]; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [appellate court “will not develop the appellants’ arguments for them”]; Cal. Rules of Court, rule 14(a)(1)(B) [each point in a brief must be supported by “argument and, if possible, by citation of authority”]; see also Eisenberg et al. Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) 9:21, p. 9-6 (rev.# 1, 2005) [“appellate court can treat as waived any issue that, although raised in the briefs, is not supported by pertinent or cognizable legal argument or proper citation of authority“].) And though plaintiff acknowledges the abuse-of-discretion scope of review, he fails to tailor his argument to that scope of review and instead makes conclusory statements such as “it is wrong” and “this material was competent and relevant.” “Arguments should be tailored according to the applicable standard of appellate review.” (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388.) Failure to acknowledge the proper scope of review is a concession of a lack of merit. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) “ ‘[I]t is an attempt to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondent. An appellant is not permitted to evade or shift his [or her] responsibility in this manner.’ [Citations.]” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 102.)

We acknowledge that the trial court sometimes examined the merits of plaintiff’s evidence. For example, the trial court remarked: “Plaintiff submits no expert’s declaration establishing that these stations are in the same ‘geographic market.’ Plaintiff’s own declaration and that of Edith Johnson, are conclusory.” And plaintiff interweaves in his brief such statements as “It was wrong for the Superior Court to dismiss the Johnson declaration out of hand as conclusory.”[4] But plaintiff’s passing statements are not the equivalent of a reasoned argument explaining why the trial court erred in excluding the evidence. This is especially so because, in several instances, defendants made multiple objections to the same evidence. This requires plaintiff to overcome each objection. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 341, p. 383 [if the evidence is excluded, “ ‘the ruling will be sustained, if the evidence was for any reason inadmissible’ “].)

In any event, plaintiff’s difficulty is more fundamental.

Equilon’s principal objection to the Lugo and Johnson declarations was that the declarations should be entirely excluded from evidence because plaintiff had failed to identify Lugo and Johnson as witnesses in response to discovery inquiries. And one of Equilon’s objections to plaintiff’s declaration was that a statement implying a pivotal fact (“the existence of competition”) should be disregarded because plaintiff had failed to identify that evidence in response to discovery inquiries.

The trial court’s power to bar testimony for misuse of the discovery process “is found in the express language of the discovery act and is an inherently necessary one if the purposes of the act are to be achieved.” (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 273 [deliberate omission of the name of a witness].) The power is a discretionary one. (See, e.g., Code Civ. Proc., § 2023.030 [“the court . . . may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process”].) Thus, when a trial court bars testimony for misuse of discovery, the question on appeal is not whether the trial court’s ruling was right or wrong but whether the trial court abused its discretion. (See, e.g., Thoren v. Johnston & Washer, supra, 29 Cal.App.3d at p. 273.) “While the concept ‘abuse of discretion’ is not easily susceptible to precise definition, the appropriate test has been enunciated in terms of whether or not the trial court exceeded ‘ “the bounds of reason, all of the circumstances before it being considered. . . .” ‘ [Citations.]” (Troxell v. Troxell (1965) 237 Cal.App.2d 147, 152.)

The point here is that an appellate argument challenging evidentiary exclusion as a discovery sanction must of necessity be separately developed and supported by citation of authority. Since plaintiff neither questions the trial court’s procedural authority to exclude evidence as a discovery sanction via sustaining a trial objection nor frames an abuse-of-discretion argument on the merits, the record in this case stands with the trial court’s evidentiary rulings intact. This, in turn, bars our consideration of plaintiff’s evidence. We therefore need only summarily review this case.

We acknowledge that plaintiff is representing himself on appeal. Under the law, one may act as his or her own attorney if he or she chooses. But when a litigant appears in propria persona, he or she is held to the same restrictive rules of procedure and evidence as an attorney--no different, no better, no worse. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160-161.)

background

In 1982, plaintiff and Shell entered into a petroleum franchise agreement whereby plaintiff operated a Shell gas station in Marina. Plaintiff bought gasoline from Shell and sold it to the public. Plaintiff also leased the station real estate from Shell. He eventually acquired a second station in Salinas. Shell and Texaco formed Equilon, which succeeded to Shell’s franchise and lease rights. Later, Equilon assigned its franchise rights to Peninsula and sold gasoline to Peninsula. Thus, plaintiff bought gasoline from Shell, Equilon, and, finally, Peninsula; and plaintiff leased his Marina station from Shell and, finally, Equilon.

Defendants charged different gasoline prices to their Monterey County dealers depending on the dealer’s competitive market. They used a system called “trade area pricing” that took into account natural boundaries, traffic flow, traffic distribution, population distribution, marketing conditions, and other factors which differentiate one competitive market from another. Plaintiff’s Marina station was in a different trade area than the Salinas Shell stations, which were 10 to 17 miles away. Plaintiff may sometimes have paid more for gasoline in Marina than Shell dealers paid in Salinas.

Plaintiff sued Shell, Equilon, and Glover and Hood (two Shell employees). He essentially alleged that they charged him higher prices for rent and gasoline than the prices they charged other Monterey County Shell dealers. He claimed that this discrimination violated Business and Professions Code[5] sections 21200, 17045, 17200, and Commercial Code section 2305.[6] At some point, plaintiff joined Peninsula as a defendant in most of the causes of action. He also sued Peninsula alleging that Equilon’s assignment of his franchise agreement to Peninsula resulted in the sale of an unregistered franchise to Peninsula or him.[7] Plaintiff claimed that Peninsula thus violated numerous provisions of the California Franchise Investment Law (CFIL). (Corp. Code, § 31300.)

In granting defendants’ motions, the trial court explained that plaintiff had failed to raise a triable issue on price discrimination because (1) plaintiff did not identify in discovery any dealer who received more favorable rent than he,[8] and (2) plaintiff did not submit evidence to establish that his Marina Shell station was in competition with Salinas Shell stations or identify in discovery any facts showing injury. It further explained that plaintiff had failed to raise a triable issue on the CFIL claim because (1) Equilon’s assignment to Peninsula did not constitute a sale, (2) plaintiff did not submit evidence of actual damages, and (3) the statute of limitations applied.

price discrimination

In 1975 the California legislature passed section 21200 to regulate price discrimination by major distributors of motor fuel. The first paragraph, in language paralleling section 2(a) of the Robinson-Patman Act (15 U.S.C. § 13(a) (1970)) prohibits price discrimination where the effect of such discrimination is to lessen competition.[9] It states: “It is unlawful for any refiner, distributor, manufacturer, or transporter of motor vehicle fuels or oils engaged in business in this state, either directly or indirectly, to discriminate in price between different purchasers of motor vehicle fuels or oils of like grade and quality, where the effect of such discrimination is to lessen competition, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.”

“Mindful of the purposes of the Act and of the antitrust laws generally, we have explained that Robinson-Patman does not ‘ban all price differences charged to different purchasers of commodities of the grade and quality,’ [citation]; rather, the Act proscribes ‘price discrimination only to the extent that it threatens to injure competition,’ [citation]. Our decisions describe three categories of competitive injury that may give rise to a Robinson-Patman Act claim: primary-line, secondary-line, and tertiary-line. Primary-line cases entail conduct--most conspicuously, predatory pricing--that injures competition at the level of the discriminating seller and its direct competitors. [Citations.] Secondary-line cases, of which this is one, involve price discrimination that injures competition among the discriminating seller’s customers . . . ; cases in this category typically refer to ‘favored’ and ‘disfavored’ purchasers. [Citations.] Tertiary-line cases involve injury to competition at the level of the purchaser’s customers.” (Volvo Trucks North America v. Reeder-Simco GMC (2006) __ U.S. __ [126 S. Ct. 860, 870; 2006 U.S. LEXIS 758 at pp. 24-25].)

Secondary-line discrimination can be direct or indirect. “Direct discrimination occurs when a seller charges different prices to different buyers. [Citation.] Indirect discrimination occurs ‘when one buyer receives something of value not offered to other buyers,’ such as free goods.” (Lewis v. Philip Morris Inc. (6th Cir. 2004) 355 F.3d 515, 521.) Here, plaintiff claims that the higher gasoline prices to him constituted direct discrimination and the higher rent charged to him constituted indirect discrimination.

In order to establish secondary-line discrimination, the plaintiff who is the disfavored purchaser must establish the element “that the discrimination had a prohibited effect on competition. . . . The ‘prohibited effect on competition’ element of the prima facie case requires that the discrimination have caused an actual injury to the disfavored purchaser. Causation is established by examining whether the favored and disfavored buyers were in actual competition with each other and proof of injury. Actual competition requires that the plaintiff prove a relevant product and geographic market to be defined.” (Water Craft Management, L.L.C. v. Mercury Marine (M.D.La. 2004) 361 F.Supp.2d 518, 538.)

In Hamro v. Shell Oil Co. (9th Cir. 1982) 674 F.2d 784, 790, the court affirmed an order granting a directed verdict because of the lack of evidence on causation: “Shell admitted that from January 1, 1976 through December 1979 it sold gasoline to up to ten independent retailers at a price below that charged to Hamro. However, section 21200 prohibits price discrimination by a seller only ‘where the effect of such discrimination is to lessen competition, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them.’ [Citation.] A review of the record reveals that Hamro failed to offer any evidence from which a reasonable person could conclude that Hamro was in competition with Shell’s more favored customers.”

“It is well settled that the relevant . . . geographic markets must be defined with some degree of precision to enable the trier of fact to determine if . . . antitrust laws have been violated.” (Water Craft Management, L.L.C. v. Mercury Marine, supra, 361 F.Supp.2d at p. 541.) This is because the geographic market can be the entire nation or an area containing only a small percentage of business activity. (Ibid.) “The factors to consider in determining the economic significance of the relevant geographic market include the size, cumbersomeness, and other characteristics of the relevant product; regulatory constraints impeding the free flow of competing goods into the area; perishability of products; and transportation barriers. The economic significance of the relevant geographic market does not depend on singular elements such as population, income, political boundaries, or geographic extent. Rather, it depends on the relationship between these elements and the characteristics of competition in the relevant product market within a particular area.” (Id. at pp. 541-542, fns. omitted.) For this reason “Courts consistently require that expert testimony adequately define the relevant geographic and product markets in antitrust cases.” (Id. at p. 542; see, e.g., United Food Mart, Inc. v. Motiva Enterprises, LLC (S.D.Fla. 2005) 404 F.Supp.2d 1344, 1348 [granting motion to exclude the plaintiff’s expert testimony concluding that the defendant’s two Shell stations were in the same relevant geographic market as the plaintiff’s Shell station because the expert performed neither of two analyses generally accepted in the economics community for determining whether products or businesses compete with one another].)

Here, no evidence raises a triable issue as to direct or indirect price discrimination because, as we have explained, the trial court excluded all of plaintiff’s evidence. Even overlooking that critical fact does not change plaintiff’s position. Of the evidence that plaintiff did submit, none was from an expert defining a relevant geographic market so as to raise a triable issue as to causation by showing that plaintiff was in competition with the favored Salinas buyers. We agree with plaintiff that whether his Marina Shell station was in actual competition with the Salinas Shell stations is an inherently factual question. But we disagree with his argument, which is unsupported by legal authority, that expert testimony is unnecessary because a jury can use its “common sense” to decide the issue.

Since plaintiff failed to raise a triable issue as to the element of causation concerning actual competition, it is unnecessary to address whether plaintiff raised a triable issue as to the element of causation concerning actual injury, an alternative point addressed by the trial court and briefed here by the parties.

Plaintiff’s causes of action under sections 17045, 17200, and Commercial Code section 2305 fail for similar reasons.

Section 17045 is part of California’s Unfair Practices Act and also closely parallels and is based on the same policies as the Robinson-Patman Act. (ABC Internat. Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1261.) It provides: “ ‘The secret payment or allowance of rebates, refunds, commissions, or unearned discounts, whether in the form of money or otherwise, or secretly extending to certain purchasers special services or privileges not extended to all purchasers purchasing upon like terms and conditions, to the injury of a competitor and where such payment or allowance tends to destroy competition, is unlawful.’ “ (Id. at p. 1254.) The statute’s “protection extends to competition in the secondary line.” (Id. at p. 1268.) It follows that a cause of action under section 17045 has the same causation element as a cause of action under section 21200. Plaintiff’s section 17045 cause of action therefore fails for the same reason that the section 21200 fails.

Section 17200 is part of California’s Unfair Competition Law (UCL) and prohibits unfair competition, which “shall mean and include any unlawful, unfair or fraudulent business act or practice . . . .” It establishes three varieties of unfair competition and makes clear that a practice may be deemed unfair even if not specifically proscribed by some other law. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180-181 (Cel-Tech).) It governs anti-competitive business practices as well as injuries to consumers. (Id. at p. 180.) “The remedies for violation of the UCL are equitable in nature, i.e., injunction and restitution.” (McCann v. Lucky Money, Inc. (2005) 129 Cal.App.4th 1382, 1387.)

Plaintiff claims that the “unlawful” prong of section 17200 applies because defendants acted unlawfully under section 21200 and 17045. The argument fails because plaintiff failed to raise a triable issue under section 21200 or 17045.

Plaintiff also claims that the “unfair“ prong of section 17200 applies because he paid more for rent and gasoline than other Shell dealers. This argument fails because plaintiff may not plead around an absolute bar to relief simply by recasting the cause of action as one for unfair competition. (Cel-Tech, supra, 20 Cal.4th at p. 182.) “To forestall an action under the unfair competition law, another provision must actually ‘bar’ the action or clearly permit the conduct.” (Id. at p. 183.) Here, plaintiff is necessarily seeking UCL equitable remedies insofar as they reach defendants’ price discrimination. But, as we have explained, defendants’ price discrimination is permitted absent a showing of injury to competition. (See, e.g., California Medical Assn. v. Aetna U.S. Healthcare of California, Inc. (2001) 94 Cal.App.4th 151, 168-170 [where business practice did not violate statutory regulatory scheme, plaintiff could not plead derivative claim for UCL violation]; cf. Carter v. Variflex, Inc. (C.D.Cal. 2000) 101 F.Supp.2d 1261, 1270 [where competitor’s business practice did not violate anti-trust laws, UCL cause of action also fails].)

Commercial Code section 2305 is part of the California Uniform Commercial Code and allows parties to contract for open prices so long as the price is later fixed in good faith. “For a price to be fixed in good faith, the price must be set pursuant to reasonable commercial standards of fair dealing in the trade.” (Tom-Lin Enterprises, Inc. v. Sunoco, Inc. (R&M) (6th Cir. 2003) 349 F.3d 277, 282.) Plaintiff claims that defendants’ price discrimination transgressed this principle.[10] But plaintiff’s prices were calculated under its trade area pricing formula. “[Z]one pricing is commonplace in the petroleum business and constitutes a reasonable trade practice.” (Cain v. Chevron U.S.A., Inc. (D.Or. 1991) 757 F.Supp. 1120, 1125.) Plaintiff relies to some extent on discovery elicited from defendants to suggest that defendants’ trade area pricing system compares unfavorably with other pricing systems used in the industry.[11] But we have reviewed the portions of the record cited by plaintiff and none suggests that defendants’ trade area pricing system treated plaintiff so unfavorably as to amount to unreasonable commercial standards of fair dealing in the trade. This point cries out for expert testimony; plaintiff’s failure to provide such is also fatal to his claim. In short, plaintiff’s belief that “he has been the victim of pricing discrimination, that he is a captive buyer, that Shell’s prices were often higher than those of other oil companies, and that he has experienced declining sales over a period of several years” does not make out a case that defendants’ prices were not set to reasonable commercial standards of fair dealing in the trade. Plaintiff’s reliance on E.S. Bills, Inc. v. Tzucanow (1985) 38 Cal.3d 824, 833, for the proposition that Commercial Code section 2305 requires a seller of gasoline to charge prices that would enable a dealer to compete with other dealers in the area and earn a reasonable profit is erroneous. First, E.S. Bills does not state such a proposition. In holding that the trial court erroneously excluded evidence, the court described the above proposition as the appellant’s theory. It reversed the judgment on the ground that the proffered evidence seemed relevant to the issue as framed by Commercial Code section 2305, i.e., “whether plaintiff fixed the prices charged defendants in accordance with reasonable commercial standards of fair dealing in the trade.” (E.S. Bills, Inc. v. Tzucanow, supra, 38 Cal.3d at p. 833.) And second, the proposition supposes that plaintiff competes with other Shell dealers in the area. As we have explained in the context of plaintiff’s showing as to his other causes of action, plaintiff has failed to raise a triable issue as to the supposition that he competes with other Shell dealers in the area.

CFIL

“The Franchise Investment Law is designed to protect prospective franchisees by requiring the franchisor to register his franchise offering and to provide full and accurate information. (Corp. Code, § 31000 et seq.) Corporations Code section 31110 makes it unlawful to sell a franchise unless the offer has been registered. Section 31201 in turn makes it unlawful to use untrue statements in the offer or sale of a franchise. Any person who ‘willfully violates any provision’ of the franchise law is subject to criminal prosecution and imprisonment upon conviction. (Corp. Code, § 31410, italics added.)” (People v. Gonda (1982) 138 Cal.App.3d 774, 779.)

Civil liability under the CFIL is described by Corporations Code section 31300[12] as follows: “Any person who offers or sells a franchise in violation of Section 31101 [exemption from disclosure obligations], 31110 [registration requirement], 31119 [providing offering circular to prospective franchisee], or 31200 [obligation to make true statements in filed applications], 31202 [obligation to make true statements in disclosures], or [other specified provisions], shall be liable to the franchisee or subfranchisor, who may sue for damages caused thereby . . . .”

Plaintiff cannot state a theory that Peninsula is liable to him under section 31300. Here, Equilon assigned to Peninsula its fuel supply agreement with plaintiff. The agreement permitted such an assignment. Equilon remained liable to plaintiff under the agreement. Insofar as plaintiff’s franchisee rights are concerned, nothing changed; only plaintiff’s fuel supplier changed. The pivotal point is that Peninsula did not sell a franchise to plaintiff by simply accepting the assignment from Equilon. Plaintiff cites no authority for such a counterintuitive proposition. It is true, as plaintiff urges, that section 31005, subdivision (b)(2)(C), defines “franchise” as “The unexpired portion of any franchise . . . which is transferred or assigned as authorized by the provisions of such franchise [or state law].” But all this means in our context is that Equilon as franchisor assigned a franchise to Peninsula as subfranchisor. If the assignment is considered as the sale of a franchise because of section 31005, subdivision (b)(2)(C), any possible civil liability under section 31300 runs from the seller, Equilon, to the buyer, Peninsula. The point remains that Peninsula did not sell a franchise to plaintiff.

discovery

Plaintiff contends that the trial court erred by denying his motion to submit tardy expert witness information. There is no merit to this claim.

Ten days after a trial date is set or 70 days before trial (whichever is closer to the trial date), a party may obtain discovery of expert trial witnesses by demanding that all parties simultaneously exchange written information about the expert witnesses. (Code Civ. Proc., §§ 2034.210, 2034.220, 2034.260, subd. (a).)[13] The demand must specify a date for the exchange that is 50 days before trial or 20 days after service of the demand (whichever is closer to the trial date). (Id. § 2034.230.) The information must include, inter alia, a brief narrative of the general substance of the testimony the expert is expected to give and a representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony the expert is expected to give at trial, including any opinion and the basis of the opinion. (Id. § 2034.260, subd. (c)(2) & (4).) A party who does not respond to a demand is precluded from calling an expert witness (with certain limited exceptions). (Id. § 2034.300.) A party who has not responded to a demand may seek leave of court to submit tardy information. (Id. § 2034.710.) Absent exceptional circumstances, a motion seeking such leave “shall be made a sufficient time in advance of the time limit for the completion of [expert] discovery [15 days before the initial trial date] to permit the deposition of any expert to whom the motion relates to be taken within that time limit.” (Id. § 2034.710, subd. (b).) The trial court must grant leave only if all of the following conditions are present: (1) the court has taken into account the extent to which the opposing party has relied on the absence of an expert; (2) the court has determined that the opposing party will not be prejudiced in presenting the case or defense; (3) the court has determined that the moving party (a) failed to exchange information because of mistake, inadvertence, surprise, or excusable neglect (b) sought leave promptly after learning of the mistake, etc., (c) promptly served the proposed information; and (4) the moving party makes the expert immediately available for discovery and agrees to other terms as may be just. (Id. § 2034.720.)

Here, trial was set for August 23, 2004. Defendants filed their motions for summary judgment on May 7 for a hearing on July 23. They timely served their expert demands designating July 5 as the exchange date. Plaintiff failed to respond or serve a demand. On July 9, he moved ex parte to continue the summary judgment hearing, discovery cutoff, and trial. The trial court allowed plaintiff until September 9 to file summary judgment opposition, continued the summary judgment hearing to September 24, and continued the trial until November 15. It specifically ordered that “All other dates shall remain the same including discovery cut-off which is July 23, 2004.” Upon another ex parte application by plaintiff, the trial court allowed plaintiff until October 7 to file summary judgment opposition and continued the summary judgment hearing to October 22. Upon another ex parte application by plaintiff, the trial court continued the summary judgment hearing to November 19.[14] Plaintiff then filed the instant motion and set it for hearing on November 19, on the same date as the summary judgment hearing.

Plaintiff based his motion on mistake, etc. He claimed that he had not retained an expert at the time of the exchange date and been unaware of the consequences of failing to respond. He added that he had been ill at the exchange date. He neither identified a proposed expert nor submitted any proposed expert information. He merely asserted that “There is sufficient time before trial so that the late disclosure of the expert witnesses will not prejudice any of the defendants.”

At the hearing, plaintiff added that he had been busy responding to discovery and was without money. In denying the motion, the trial court stated: “There clearly has been no compliance with [the statute]. It isn’t even a close issue.”

This is also not a close issue on appeal.

The decision on a motion addressed to the trial court’s discretion will not be reversed absent a showing of manifest abuse resulting in a miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.) In making a determination whether an appellant has carried his burden to demonstrate abuse of discretion we engage in all intendments and presumptions in support of the trial court’s findings and consider the evidence in a light most favorable to the ruling. (People v. Condley (1977) 69 Cal.App.3d 999, 1015.) “A decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review.” (People v. Preyer (1985) 164 Cal.App.3d 568, 573-574.)

Nowhere does plaintiff frame an abuse of discretion argument. Plaintiff’s arguments are no more than rearguments rather than a citation of the reasons supporting the trial court’s decision and an explanation why the trial court’s reliance on those reasons was outside the bounds of reason. We will not entertain rearguments to the effect that sufficient evidence was presented below to justify a different decision. In short, plaintiff’s argument is not tailored to the scope of review. He has therefore waived the point. Nor could plaintiff make a successful argument. One of the factors supporting the trial court’s decision is that the motion was untimely; plaintiff brought it well beyond sufficient time for discovery in advance of 15 days before the initial trial date. Another factor is that plaintiff showed no mistake, etc. Rather, the trial court could have rationally concluded that plaintiff showed conscious indifference given that plaintiff had neither hired an expert nor apprised himself of his exchange obligations. Moreover, the trial court could have rationally concluded that plaintiff’s motion was deficient given that no proposed expert information accompanied it. And finally, the trial court could have rationally concluded that the point was moot given that plaintiff’s argument was that the January 24, 2005 trial date was sufficiently in the future to permit tardy expert discovery but that case was destined to end after the fully briefed and frequently continued summary judgment hearing.^[15]

disposition

The judgment is affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

[1] Equilon, Shell, Glover, and Hood are aligned and filed one motion. We sometimes refer to these defendants collectively as Equilon. Peninsula filed its own motion together with Andretti Petroleum, LLC, whom plaintiff also sued. The trial court granted Andretti’s motion for summary judgment on the ground that Andretti was a legal entity separate from Peninsula. Plaintiff does not challenge the judgment insofar as this ruling is concerned.

[2] Defendants’ showing consisted, in part, of plaintiff’s discovery responses that revealed a lack of evidence to support critical elements of the causes of action.

[3] Peninsula also filed objections to plaintiff’s declaration and Johnson’s declaration.

[4] Plaintiff apparently offered the Johnson declaration to support the element of his causes of action requiring that his disfavored Marina Shell station was in the same geographic market as favored Salinas Shell stations. Johnson, however, was not an expert witness and her statements appear to be vague and anecdotal, to the effect that she was plaintiff’s customer but also bought gasoline from Salinas Shell stations because Salinas stations frequently had lower prices than plaintiff’s prices.

[5] Unspecified statutory references are to the Business and Professions Code until we note differently.

[6] Plaintiff alleged a cause of action for civil conspiracy. But he does not challenge the judgment insofar as it disposed of this cause of action.

[7] The fourth amended complaint is unclear about plaintiff’s precise theory.

[8] The trial court acknowledged that plaintiff had submitted the Lugo declaration on this point (this likely generated Equilon’s discovery-misuse objection). It nevertheless commented that the declaration was insufficient on the merits because plaintiff made no showing that Lugo’s Shell station in Carmel competed with plaintiff’s Marina Shell station or that two different rents charged to different stations in different cities was discriminatory.

[9] When California’s laws are patterned on federal statutes, federal cases construing those federal statutes may be looked to for persuasive guidance. (Alcala v. Western Ag Enterprises (1986) 182 Cal.App.3d 546, 550.)

[10] Plaintiff principally relies on his own declaration to support his Commercial Code arguments.

[11] Plaintiff also cites to a chart he made which ostensibly compares a one-month period of Union 76 prices to defendants’ prices. But plaintiff offered the chart in opposition to defendants’ successful motion for sanctions generated by plaintiff’s unsuccessful motion to reconsider the summary judgment grant. “[T]he validity of a summary judgment is to be determined solely by the sufficiency of the affidavits which were before the court when the motion was heard, and this court will consider only the facts before the trial court at the time it ruled on the motion.” (Jacobs v. Retail Clerks Union, Local 1222 (1975) 49 Cal.App.3d 959, 966.) Thus, on appeal, a party may not commingle evidence opposing summary judgment and supporting subsequent proceedings. Here, plaintiff does not seek review of the order denying reconsideration or granting sanctions. The chart is therefore of no consequence to plaintiff’s appeal.

[12] Unspecified statutory references are now to the Corporations Code until we note differently.

[13] Effective July 1, 2005, the Code of Civil Procedure sections governing discovery were renumbered without substantive change. (Stats. 2004, ch. 182, § 23.) For convenience, all references are to the current sections, even though the sections were numbered differently at the time of this cases’s proceedings. Further unspecified statutory references are to the Code of Civil Procedure.

[14] At some point, the trial court continued the trial to January 24, 2005.

[15] Plaintiff makes one final complaint in passing that asserts that the trial court abused its discretion by refusing to extend the trial discovery cut off. Plaintiff cites no part of the record where we can examine this order and the context in which it was made. We will therefore pass the matter without further consideration. “The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly, every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” (9 Witkin, supra, § 594, p. 627.)