Tachs Property Development v. Xinos

Filed 8/16/07 Tachs Property Development v. Xinos CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Charles R. Hayes, Judge. Affirmed.

TACHS Property Development (TACHS) sued civil engineer Sydney Xinos for professional negligence in connection with a residential development project known as Reese Village. TACHS alleged Xinos was negligent in preparing grading and drainage plans, and in providing services relating to an off-site improvement plan and a land survey. Xinos represented himself at trial. On a general verdict, the jury found TACHS proved its negligence claim and that TACHS's damages were $80,567. Based on the jury's finding that Xinos was 83.5 percent responsible for these damages, the court entered a judgment against Xinos for $67,273.45 plus costs.

Xinos appeals, contending: (1) the court erred in failing to instruct the jury that Xinos had no duty of care to TACHS with respect to a 1998 grading and drainage plan; and (2) the court erred in refusing to permit him to testify as an expert. We reject these contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In setting forth the facts, we view the evidence in the light most favorable to TACHS, the prevailing party. (See Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1137-1138.)

In late 1996, TACHS, a nonprofit developer, located a site in San Diego to develop an apartment complex for persons with special needs. In April 1997, TACHS hired architect David Marshall to "put [this] vision on paper." Five months later, in September 1997, Marshall retained Xinos's firm^[1]to prepare a grading and drainage plan for the site. The written contract between Marshall and Xinos stated the grading and drainage plan would be "processed as part of the architectural plans," and the cost of Xinos's services would be $3,200.

At about the same time, Xinos contracted directly with TACHS to prepare a land survey for the site, known as an ALTA survey. As part of the discussions leading to this contract, Xinos and a TACHS representative discussed the possibility of Xinos preparing a grading and drainage plan. However, the parties did not enter into a contractual relationship for this plan, and Xinos instead entered into the contract for the grading and drainage engineering work only with Marshall.

In approximately February 1998, Xinos transmitted a copy of an uncompleted grading plan to architect Marshall. The plan had a computerized stamp, but the signature line was left blank. Xinos testified the plan was not signed or completed because he was told to stop the work while TACHS sought additional funding. Xinos billed Marshall for only a portion of the work ($2,240) pursuant to an invoice stating the work was "70%" completed. There was no evidence that Xinos billed Marshall for any additional work on the plan.

For the next two and one-half years, the project was on hold while TACHS worked to obtain funding for the project. By mid-2000, TACHS had sufficient funds to begin the permitting process.

In September 2000, TACHS retained Xinos to recertify and update the prior ATLA survey for $1,700, and to prepare an updated offsite improvement plan for $7,000. In a letter signed by both parties in which Xinos agreed to provide the offsite improvement plan, Xinos noted the possibility that the city would require a grading plan updated to "current City Standards," and stated that if a permit was required he would "send Mr. Marshall . . . a contract to complete said task." Neither TACHS nor architect Marshall responded regarding the need for an updated grading plan.

Construction began in November 2000. Southern Sun Construction was the general contractor on the project. TACHS's executive director gave Southern Sun the 1998 grading and drainage plan that had been prepared by Xinos. This plan had been attached to Marshall's architectural plans submitted to the city as part of the permitting process.

Southern Sun used Xinos's plan to begin to grade the site. However, within several months, Southern Sun realized there were significant problems with the grading and drainage plan. Xinos's surveyors also found the existing elevations on the grading and drainage plan to be incorrect. To correct these problems, Southern Sun's vice president, Brett Isaacman, asked TACHS to send the grading and drainage plan "back to the engineer," and "have them revise [the plan] based on actual field conditions." TACHS agreed to do this, and shortly thereafter, gave the plan "back to [Xinos] for the purpose of revising."

During the next year, Southern Sun continued the construction because it was too costly to delay the project for the new grading/drainage plan. During this time, Southern Sun experienced several problems with Xinos's other work (the work pertaining to the offsite plans and the ALTA survey), particularly involving substantial delay in obtaining a permit for the offsite plans. TACHS representatives found it difficult to reach Xinos or his employees to communicate about these issues.

TACHS presented evidence at trial that in March 2002, Xinos gave TACHS a revised grading and drainage plan, and that Southern Sun conducted grading and drainage according to the specifications of the revised plan, but the plan did not correct the problems. TACHS did not produce a copy of the revised plan at trial, because the plan was no longer in its files or its contractor's files. Xinos denied that he was ever asked to prepare, or that he ever did prepare, a revised grading and drainage plan. Xinos acknowledged, however, that during the project, he (or his firm) was notified there was an issue relating to the elevations reflected on the drainage and grading plan for the buildings, and that a survey showed that the elevations on the plan were incorrect because they had been based on a topographic survey that was no longer accurate. Xinos said he "passed on" this information to the architect so the architect could make the necessary changes.

Southern Sun proposed various methods for correcting the lack of drainage at the project. However, TACHS did not agree with these proposals because they were too expensive. Southern Sun then made various efforts to mitigate the problems, but none of these efforts permanently resolved the issues.

The construction work on the Reese Village buildings was completed in May 2002. However, there was a six-week delay in the tenants being able to move in because of additional work on grading and drainage issues resulting from the defective grading and drainage plans.

TACHS brought an action against Xinos and Meridian Engineering. As amended in January 2005, the complaint asserted numerous tort and contract claims. Meridian Engineering later filed for bankruptcy and the lawsuit was stayed as to this defendant.

By the time of trial, TACHS's sole cause of action was a negligence claim against Xinos. To support this claim, TACHS called several witnesses, including TACHS's executive director, TACHS's construction consultant, and Southern Sun vice president Isaacman. TACHS also called an expert witness, civil engineer Marwan Younis, who testified about the standard of care applicable to civil engineers and opined that Xinos breached this standard in various ways, including: (1) the 1998 grading and drainage plan was deficient and incomplete; (2) Xinos failed to sign the 1998 plan or mark it as preliminary or a draft; (3) Xinos's delay in preparing the revised March 2002 grading and drainage plan was unreasonable; (4) Xinos failed to save a copy of the March 2002 plan in his files; and (5) Xinos's work on the off-site improvement plan was deficient and caused substantial delays.

Xinos testified on his own behalf. However, he was not permitted to offer his own expert opinions because he had not designated himself as an expert before trial, and the court denied his motion to rely on Meridian Engineering's expert designation. But the court permitted Xinos to testify at length about all relevant events, and to extensively cross-examine Younis and challenge the grounds for Younis's opinions.

In instructing the jury on TACHS's negligence claim, the court stated: "A civil engineer, performing professional services for a client, owes that client the following duties of care: [] 1. The duty to have that degree of learning and skill ordinarily possessed by reputable civil engineers practicing in the same or a similar locality and under similar circumstances; [] 2. The duty to use the care and skill ordinarily exercised in like cases by reputable members of the profession practicing in the same or a similar locality under similar circumstances; and [] 3. The duty to use reasonable diligence and his best judgment in the exercise of skill and the application of learning. [] A failure to perform any one of these duties is negligence."

The court did not instruct on Xinos's proposed additional paragraph which stated: "As a civil engineer, Sydney Xinos owed these duties to TACHS for services performed for preparation of the ALTA survey and street improvement plans but not for preparation of the grading plans."^[2] (Italics omitted.)

The jury returned a verdict finding Xinos negligent and that this negligence caused TACHS to suffer $80,567 in damages. The jury further found that Xinos was 83.5 percent responsible for the damages; TACHS was 8.25 percent responsible for the damages; and another entity (identified as Southern Sun) was 8.25 percent responsible for the damages. Based on this verdict, the court entered judgment against Xinos for $67,273.45 plus costs of $13,092.02.

Xinos appeals.

DISCUSSION

I. Alleged Instructional Error on Duty Issue

Xinos contends the court erred in instructing the jury on an engineer's duty of care, and in rejecting Xinos's proposed instruction that he did not owe duties to TACHS for "preparation of the grading plans." Xinos contends his proposed instruction should have been given because an engineer owes no duty to a property owner for services provided pursuant to a contract with a third party. We find this contention has no merit under the particular factual circumstances of this case.

"The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.] Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court. [Citation.]" (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) Where, as here, there is no privity of contract between the parties, a duty is owed to a third party only if certain policy factors support the imposition of a duty in the particular case. (Ibid.) These factors include: " 'the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.' " (Ibid., quoting Biakanja v. Irving (1958) 49 Cal.2d 647, 650; Calderon v. Glick (2005) 131 Cal.App.4th 224, 233; see also Aas v. Superior Court (2000) 24 Cal.4th 627, 642.) Although foreseeability is relevant in the analysis, it is insufficient by itself to impose liability for negligent conduct. (Bily, supra, 3 Cal.4th at p. 399.) Even when foreseeability is present, courts "decline[ ] to allow recovery on a negligence theory when damage awards threatened to impose liability out of proportion to fault or to promote virtually unlimited responsibility for intangible injury." (Id. at p. 398.)

Relying on the factors discussed in Bily and Biakanja, one Court of Appeal held an engineer hired by a subcontractor owed no duty of care to the property owners even if the injury to the property was a foreseeable result of the engineer's alleged negligence. (Weseloh Family Ltd. Partnership v. K.L. Wessel Construction Co., Inc. (2004) 125 Cal.App.4th 152, 166-173 (Weseloh).) In Weseloh, a subcontractor hired an engineer to design two retaining walls for an automobile dealership construction project. (Id. at p. 159.) The engineer performed consulting work, supervised the design work, and inspected the walls following construction. (Id. at pp. 168-169.) The walls failed, and the owner and lessees sued the contractor, subcontractor, and engineer for negligent design. (Id. at p. 158.) The contractor filed a cross-complaint against the engineer for professional negligence and indemnity. (Ibid.)

The appellate court held the plaintiffs failed to meet their summary judgment burden to show the engineer owed them a duty under the Biakanja and Bily factors. (Weseloh, supra, 125 Cal.App.4th at pp. 166-173.) The court reasoned that the engineer's work was primarily for the benefit of the subcontractor, and to the extent the work was to benefit the owner and the contractor, it was only through the subcontractor. (Id. at p. 167.) Additionally, although the plaintiffs suffered injury, there was insufficient evidence to establish a close connection between the engineer's conduct and the injury because there was no evidence the subcontractor had used the engineer's design without alteration and there was no evidence the engineer had participated or supervised any physical construction work. (Id. at p.168.)Rather, the engineer merely "provided engineering services akin to professional advice and opinion." (Id. at p. 169.) Additionally the court found there was no evidence from which to assign moral blame and there was no evidence that greater care in design engineering would result from expanded liability. (Id. at pp. 169-170.)

Xinos contends the facts in this case are indistinguishable from Weseloh, and thus he owed no duty to TACHS for his alleged negligence in drafting the 1998 grading and drainage plan. We would agree with this argument if the only thing Xinos did regarding grading and drainage issues at Reese Village was to prepare the 1998 plan under his contract with the architect. The undisputed facts show that Xinos prepared this plan solely for the architect's use and that Xinos never completed this plan because he was told to stop the work while the project was on hold. " '[W]hen a defendant's liability rests partially under the control of another party's conduct and the plaintiff is free to contract with the other party, the defendants "moral blame" and connection to the plaintiff's alleged injury is too remote to justify imposition of a tort duty.' " (Weseloh, supra, 125 Cal.App.4th at p. 169, quoting Ratcliff Architects v. Vanir Construction Management, Inc. (2001) 88 Cal.App.4th 595, 606-607.)

But the evidence showed Xinos had substantial additional involvement in grading and drainage issues at the Reese Village project. Xinos was TACHS's civil engineer for the entire project, and in this role Xinos (or his employees) were on the site throughout the construction project providing a wide range of engineering services directly to TACHS. Most significant, TACHS presented evidence that Xinos provided a revised grading and drainage plan to TACHS in March 2002, the purpose of which was to correct the deficiencies in Xinos's prior plan. At trial, Xinos acknowledged that during the project, he (or his firm) was notified there was an issue with the elevations reflected on the drainage and grading plan, and that a survey showed that the elevations on the plan were incorrect because they had been based on a topographic survey that was no longer accurate. This testimony supports that Xinos knew his prior plans were being used by Southern Sun, and Xinos recognized those plans were incorrect. TACHS additionally presented evidence showing that Xinos agreed to provide a revised plan to correct the deficiencies, but that Xinos took 11 months to provide this corrected plan, and that when the contractor attempted to build from these plans, it found the new plan did not correct the problems.

By continuing to advise the property owner regarding the grading and drainage issues and agreeing to provide a corrected plan directly to TACHS, Xinos did more than merely provide services to a subcontractor, as did the engineer in Weseloh. Xinos had a direct relationship with TACHS with respect to grading and drainage issues during construction. These facts support the imposition of duty under the Biakanja and Bily factors. Xinos's conduct in providing the March 2002 corrected plan to TACHS was "directly intended" to benefit TACHS. There was no evidence that Xinos provided this updated plan for the architect's use. Further, it was highly foreseeable that Xinos's delay in providing the corrected plan would harm TACHS's interests, and that the construction would be compromised when Xinos provided a plan that was deficient and did not correct the prior problems. Additionally, there was a close connection between Xinos's alleged negligence and TACHS's damages, and the evidence showed TACHS continued to rely on Xinos for engineering expertise on the grading and drainage issues.

Xinos contends the evidence submitted at trial does not support a conclusion that he agreed to, or that he did, provide a revised grading and drainage plan. Relying solely on his own testimony, he argues that he did not prepare a revised grading and drainage plan and states that he had no involvement in grading and drainage issues after 1998.

In examining this argument, we are bound by the rule that when a factual finding is attacked based on claimed insufficiency of the evidence, the power of an appellate court begins and ends with the determination whether there is any substantial evidence contradicted or uncontradicted that will support the finding of fact. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) An appellant assumes a " 'daunting burden' " in meeting this standard. (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678.) We must view the whole record in the light most favorable to the judgment, resolving all evidentiary conflicts and drawing all reasonable inferences in favor of the decision of the trial court. A court may not substitute its view of the credibility of witnesses for that of the trier of fact. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)

Under these principles, substantial evidence supports that Xinos agreed to, and did, provide TACHS with an updated grading and drainage plan to correct the deficiencies in its original plan. At trial, the general contractor's vice president, Isaacman, testified that he asked TACHS's executive director to send the grading and drainage plan "back to the engineer" to "have them revise [the plan] based on actual field conditions." TACHS's executive director testified that in early 2001 the plan was "given back" to Xinos "for the purpose of revising." Isaacman said he was later given a copy of the March 2002 revised grading and drainage plan prepared and signed by Xinos, and that he conducted grading and drainage according to the specifications of the revised plan, but that the new plan did not correct the problems. This testimony was corroborated by TACHS's executive director. Although neither TACHS nor its general contractor could find a copy of the plan, TACHS's expert testified that an engineer has a duty to retain copies of its plans, particularly where, as here, it is given timely notice of problems with the plans.

Although there was some uncertainty and inconsistency in the testimony on this issue, we may reject testimony only " 'when it is inherently improbable or incredible, i.e., " 'unbelievable per se,' " physically impossible or " 'wholly unacceptable to reasonable minds.' " ' " (Lenk v. Total-Western, Inc., supra, 89 Cal.App.4th at p. 968.) The testimony on the existence of the March 2002 revised grading and drainage plan was neither inherently improbable nor incredible. Xinos adamantly denied preparing a new plan, but the jury had a reasonable basis to reject his testimony on this point, particularly given that he was only minimally involved in the project and left much of the work to engineers working under him.

Further, although the jury did not make an express finding on the existence of the March 2002 revised plan issue, a reviewing court must infer that the jury found for the respondent on every factual issue necessary for its verdict if no special findings on an issue are requested. A jury verdict " 'imports findings in favor of the prevailing party on all material issues; and if the evidence supports implied findings on any set of issues which will sustain the verdict, it will be assumed that the jury so found. The court on appeal [may not] speculate on what particular ground the jury may have found in favor of the prevailing party.' [Citations.]" (Everett v. Everett (1984) 150 Cal.App.3d 1053, 1063-1064.)

We agree that it would have been appropriate to give a pinpoint jury instruction that Xinos did not owe a duty to TACHS solely for Xinos's preparation of the 1998 plan. Alternatively, if requested, it would have been appropriate for the court to require the jury to make a finding on the verdict form as to whether Xinos agreed to, and did, provide an updated grading and drainage plan in March 2002. However, Xinos did not request this instruction or ask the jury to make the finding on the verdict form. Instead, Xinos asked the court to instruct the jurors that no duty was owed for any of its "gradingplans." Because the instruction was overly broad, the court had a proper basis to reject the instruction.

The court had no duty to propose its own tailored instruction or to ensure that the jury made particular findings on the verdict form. "Whereas in criminal cases a court has strong sua sponte duties to instruct the jury on a wide variety of subjects, a court in a civil case has no parallel responsibilities. A civil litigant must propose complete instructions in accordance with his or her theory of the litigation and a trial court is not 'obligated to seek out theories [a party] might have advanced, or to articulate for him that which he has left unspoken.' (Finn v. G. D. Searle & Co. (1984) 35 Cal.3d 691, 701-702; see Gagosian v. Burdick's Television & Appliances (1967) 254 Cal.App.2d 316, 318 ['there is neither reason nor justification for compelling a trial judge to act as a sort of advisory or "backup" counsel, with all the frustration of the employed attorneys' trial strategy and tactics which such a holding could encompass'].)" (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1686.) These rules apply equally to a party who chooses to represent himself at trial. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

On the record before us, the court did not err in instructing the jury on the duty of care issue.

II. Court Did Not Abuse Discretion in Refusing to Permit Xinos to Testify as an Expert

Xinos contends the court erred in precluding him from offering his own expert testimony at trial regarding the standard of care for a civil engineer.

A. Background Facts

TACHS's complaint named Xinos and Meridian Engineering as defendants. Although the appellate record is not completely clear, it appears that Xinos was a principal in the Meridian Engineering firm.

On December 6, 2004, the parties served their expert witness designations. TACHS identified civil engineer Younis as its standard of care expert. Meridian Engineering identified Xinos as its standard of care expert. Xinos did not designate any experts.

Several weeks later, TACHS noticed Xinos's deposition for January 19, 2005 in Austin, Texas (where Xinos lived). TACHS also served a notice to take the deposition of Meridian's "designated expert, Sydney Xinos," and requested Xinos to bring several categories of documents related to his qualifications and expert opinions. Xinos's expert deposition was noticed for January 26, 2005 in Texas.

On the date scheduled for Xinos's individual deposition (January 19), Meridian filed for bankruptcy. Xinos did not appear at the deposition scheduled for that date, claiming it was his position that the automatic stay applied to his deposition as an individual defendant and thus he would not appear.

TACHS thereafter cancelled the January 26 expert deposition of Xinos, based on its belief that the bankruptcy filing had stayed its claims against Meridian and thus precluded it from taking the deposition of Meridian's experts.

On January 27, 2005, TACHS filed a motion for sanctions, claiming that Xinos had failed to comply with discovery requests or to appear at his January 19 deposition. The court denied the motion "in all respects," but ordered Xinos to appear at a deposition on April 1. Xinos's deposition was taken on this date.

The trial was then continued several times. At a trial readiness conference held in late September 2005, Xinos's counsel said that Xinos would testify as an expert, but after TACHS's counsel pointed out that he had not designated himself to testify as an expert, Xinos did not suggest any statutory basis for his testimony or reassert this position.

It was not until two weeks before trial, on November 8, 2005, that Xinos filed an ex parte motion seeking permission to call himself as an expert witness. Xinos claimed for the first time that although he did not designate himself as an expert, he was entitled to testify based on Meridian Engineering's designation, citing a code section that permits a witness to testify if the "expert has been designated by another party and has thereafter been deposed . . . ." (Code Civ. Proc.,^[3] 2034.310, subd. (a).)

In opposition, TACHS argued that it never deposed Xinos in his capacity as a designated expert for Meridian because TACHS believed it was prohibited from doing so by the bankruptcy stay. TACHS's counsel stated that although she had deposed Xinos on April 1, the deposition was taken of Xinos solely in his capacity as an individual party and a percipient witness. TACHS's counsel further stated that the application was untimely and prejudicial because she had based her trial preparation on the absence of any defense expert testimony and the trial was less than two weeks away.

After reading Xinos's deposition transcript, the court denied Xinos's motion. The court stated that Xinos "was not deposed as an expert witness but was only deposed in his capacity as a percipient witness. The examination of [Xinos] did not involve an inquiry into his education, training and experience as a civil engineer or call for the expression of any expert opinions regarding the pending matter. Accordingly, although he was designated as an expert by another [party], he was not thereafter deposed as an expert and does not satisfy the requirements of section 2034.310."

B. Analysis

Section 2034.300 provides upon objection of any party, a trial court shall exclude a witness's expert opinion if the party offering the testimony did not timely designate the witness as an expert. Xinos agrees he did not designate himself as an expert. However, he seeks to invoke an exception to this rule contained in section 2034.310, subdivision (a) which states: "A party may call as a witness at trial an expert not previously designated by that party if . . . [t]hat expert has been designated by another party and has thereafter been deposed under Article 3 (commencing with Section 2034.410)." (Italics added.) Article 3 sets forth the rules governing expert depositions, including the proper location for the deposition and requirements for expert fee payment.

The trial court found this statutory exception was inapplicable because Xinos had not been "deposed as an expert." Xinos contends the court's finding was erroneous as a matter of law because his deposition was taken by TACHS, and the statute does not expressly state the deposition must be an "expert" deposition.

This argument is unavailing. The statute states that the exception applies if the witness was "deposed under Article 3" after the witness was designated as an expert. ( 2034.310, italics added.) Article 3 is entitled "Deposition of Expert Witnesses" and contains rules applicable only to expert depositions. Thus, the statute plainly requires that the deposition was noticed and conducted under expert witness rules. When interpreting a statute, "[c]ourts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage." (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22.)

This interpretation is supported by the purpose underlying the statutory scheme governing expert testimony. " '[T]he exchange of information about expert witnesses is a critical event in the course of any civil litigation' " and the Legislature enacted " 'well-defined procedures . . . to insure fairness to the parties and efficient resolution of disputes.' " (Province v. Center for Women's Health & Family Birth (1993) 20 Cal.App.4th 1673, 1683.) " ' "Modern litigation relies increasingly on expert testimony. To prepare for trial, each side needs to know which expert will testify for the other side and what they will have to say . . . ." ' " (Ibid.) When a party elicits testimony from a witness who has been designated as an expert by another party and whose expert deposition has been taken, these purposes are satisfied. There will be no surprise at trial because the opinions of the expert and the grounds for those opinions will be known. However, where as here, a witness's expert deposition was not taken, the opposing party will not be adequately prepared to meet and rebut the testimony.

Xinos argues that because he made himself available as a percipient witness TACHS's counsel had the full opportunity to expand the scope of the deposition to ask for his expert opinions. He posits that it would be unfair to permit a party to preclude an opposing party from taking advantage of the section 2034.310 exception merely by failing to conduct the deposition of an expert designated by another party.

This argument is based on a misconception of the nature of expert discovery in general and the particular discovery that took place in this case. At the time TACHS took Xinos's percipient deposition, Xinos had been designated as an expert only by a party that had filed for bankruptcy. TACHS had previously noticed Xinos's expert deposition, but then postponed the deposition based on Xinos's prior objections (to his own deposition) and based on TACHS's interpretation of federal bankruptcy law that requires all pending litigation to be stayed.

Thus, when it took Xinos's deposition in April 2005, TACHS had no notice that Xinos intended to use his codefendant's designation to offer expert opinions on his own behalf. Absent such information, TACHS had no reason to take Xinos's expert deposition. TACHS's conclusion that it could not take Xinos's deposition as Meridian's expert was reasonable. The filing of a bankruptcy petition creates an automatic stay that generally prohibits the continuation of a judicial action against the debtor. (See 11 U.S.C.  362(a)(1).) Moreover, Xinos had the full opportunity to notify TACHS that he intended to use Meridian's designation as a basis for offering his own expert opinions at trial. If Xinos had given TACHS timely notification of this intention, this would have allowed TACHS to take his expert deposition in sufficient time to prepare for trial. Under the circumstances, it was not TACHS's obligation to predict that Xinos might want to act as his own expert at trial.

Further, contrary to Xinos's arguments, Xinos's deposition was not an expert deposition within the meaning of section 2034.310. As the trial court found, TACHS's counsel did not seek information regarding Xinos's qualifications, nor did counsel ask for Xinos's opinions on the critical standard of care issues in the case. Additionally, the deposition was not noticed as an expert deposition under Article 3. The deposition was taken pursuant to the court's order after Xinos failed to appear for his non-expert deposition. Xinos did not bring any documents that had been requested in the prior expert deposition notice. A court's determination whether to exclude expert testimony because the witness was not listed on an expert designation is reviewed on an abuse of discretion standard. (See FMC Corp. v. Plaisted & Companies (1998) 61 Cal.App.4th 1132, 1216.) In this case, the court did not abuse its discretion.

We reject Xinos's additional suggestion (asserted in a footnote in his opening brief) that the court erred in instructing the jury that uncontradicted, unimpeached expert testimony is "binding and conclusive" on the standard of care issue. Xinos does not assert this as a separate argument, nor has he cited relevant authority supporting the argument. Thus, it is waived. (See Santa Teresa Citizen Action Group v. State Energy Resources Conservation & Development Com. (2003) 105 Cal.App.4th 1441, 1451.) In any event, the argument is without merit. Uncontradicted and unimpeached expert testimony on the standard of care in a professional negligence case is conclusive and binding on the jury. (See Liberty Mut. Ins. Co. v. Industrial Acc. Com. (1948) 33 Cal.2d 89, 95; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632.)

DISPOSITION

Judgment affirmed. Appellant to bear respondent's costs on appeal.

HALLER, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

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^[1] Xinos was a principal in two engineering firms that had involvement in the project: XEI and Texas Professional Management, Inc. (referred to as "Meridian Engineering" or "Meridian"). Because Xinos does not challenge his responsibility for the work of these firms, we refer to these entities and Xinos collectively as Xinos.

^[2] Although the record shows this proposed instruction was "withdrawn" by the parties, there is no indication on the record that Xinos waived, or intended to waive, his right to challenge the legal duty issue. Xinos repeatedly raised the duty issue throughout the trial, and by withdrawing this instruction or failing to specifically object to the instructions given, Xinos did not waive his right to raise the issue on appeal.

^[3] All further statutory references are to the Code of Civil Procedure.