Filed 7/12/13 Bielasz v. Mestler Construction CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



ROGER BIELASZ et al.,                                                D059565

         Plaintiffs, Cross-defendants and
         Respondents,
                                                                     (Super. Ct. No. 37-2009-00052477-
         v.                                                          CU-BC-NC)

MESTLER CONSTRUCTION, INC.,

         Defendant, Cross-complainant and
         Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Thomas P.

Nugent, Judge. Affirmed.



         Law Offices of Jerome J. Schiefelbein, Jerome J. Schiefelbein; Law Offices of

James E. Swingley and James E. Swingley for Defendant, Cross-complainant and

Appellant.

         McDonnell & Associates, Michael B. McDonnell and Douglas M. Fieldfor

Plaintiffs, Cross-defendants and Respondents.
       Mestler Construction, Inc. (Mestler) appeals following a jury verdict against it in a

lawsuit brought by Roger Bielasz and Dena Bielasz (the Bielaszes) finding that Mestler

breached contracts to design a residence and to perform building pad preparation work.

Mestler contends that the trial court prejudicially erred by denying its motion in limine to

exclude evidence of the damages that the Bielaszes suffered as a result of the contractual

breaches. As we will explain, we conclude that the trial court was within its discretion to

deny the motion in limine and to admit the Bielaszes' evidence of damages. Accordingly,

we affirm the judgment.

                                              I

                   FACTUAL AND PROCEDURAL BACKGROUND

A.     The Parties' Dispute and the Jury Verdict

       As alleged in the parties' pleadings, Mestler is a licensed contractor who

(1) performed design work for a home that the Bielaszes planned to build after their

former home was destroyed in a wildfire, and (2) performed building pad preparation and

other work to prepare for construction of the home. The Bielaszes sued Mestler,

alleging — among other things — that Mestler breached the design contract by

(1) preparing plans for a home that was in excess of the square footage specified by the

Bielaszes, and (2) performing work during the pad preparation that made the pad unsafe

and created a potential for rockslides. In their first amended complaint, the Bielaszes

asserted eight causes of action against Mestler: (1) negligence; (2) breach of contract;

(3) breach of the covenant of good faith and fair dealing; (4) declaratory relief;

(5) intentional interference with prospective economic relations; (6) fraud; (7) slander of

                                              2
title; and (8) trespass to chattel. Mestler filed a cross-complaint for breach of contract

and equitable restitution.

       The matter proceeded to trial, and the jury found in favor of the Bielaszes on a

breach of contract theory. In a special verdict form, the jury found that Mestler breached

a contract to design the house; breached a contract for preparation of the lot; and

breached a contract to design a retaining wall. The jury awarded damages in the amount

of (1) $61,800 for breach of the contract for the house design, and (2) $37,500 for breach

of the contract for lot preparation. The jury awarded no damages in connection with the

contract to design a retaining wall.

B.     The Relevant Discovery

       This appeal focuses on Mestler's contention that the trial court should have

excluded evidence of damages at trial because of the Bielaszes' purportedly deficient

responses to certain discovery propounded by Mestler. We therefore describe the

relevant discovery.

       In February 2010, the Bielaszes responded to form interrogatories propounded by

Mestler.

       In response to form interrogatory No. 7.1, which asked for a description of the

property damaged, the nature of the damage, the amount of the damage, and how the

amount was calculated, the Bielaszes provided an extensive description of the damage

caused by the improper excavation of the building pad, set forth in several paragraphs.

Among other things, the response stated that "[a]ll excavation work . . . had to be

redone," but that "[t]he work that is being redone is currently ongoing so the exact cost is

                                              3
unknown at this time." The Bielaszes then provided projected costs for some of the

work, including (1) approximately $72,000 to remove boulders necessary to stabilize the

building pad, and (2) in excess of $27,000 for the design, engineering and permit costs

for a new retaining wall.

       Form interrogatory No. 7.2 asked, "Has a written estimate or evaluation been

made for any item of property referred to in your answer to [form interrogatory No. 7.1],"

and form interrogatory No. 7.3 asked if any item of property had been repaired and

inquired about the repair cost. To these interrogatories, the Bielaszes responded that

"[e]valuation, repair, and estimates are presently in the process."

       Form interrogatory No. 9.0 asked about any other damages being claimed by the

Bielaszes. They responded by providing a description of the type of expenses caused by

the flawed design plans for the house. Specifically as to the amount of damages incurred,

they stated that "[a]s discovery is still continuing[,] the exact amount is unknown at this

time[;] however it is known that it is no less than $50,000 that the Bielaszes paid to

Mestler for services that were rendered useless."

       During Roger Bielasz's deposition several months later on September 21, 2010,

which was two days before the discovery cutoff date, counsel for Mestler referred to

some of the earlier responses to form interrogatories and asked Mr. Bielasz whether there

were "evaluations, repairs, and estimates as described in [interrogatory No. ]7.2 that were

done sometime after" the date of the February 2010 interrogatory responses. Mr. Bielasz

answered, "I have not done all those estimates as of yet." However, counsel for the

Bielaszes interjected that that "[t]here are some from the contractors and stuff," and

                                              4
Mr. Bielasz followed up by stating, "Correct. They have not been collated and organized

into a total."

C.     Mestler's Motion in Limine to Exclude Evidence of the Bielaszes' Damages

       On October 25, 2010, Mestler filed a motion in limine, which requested an order

precluding the Bielaszes "from introducing evidence of and/or making reference to any

damages claimed to have been sustained by [the Bielaszes], or any reference to the

amount of damages [the Bielaszes] claim to have sustained as a result of any act or

omission by [Mestler]." Mestler contended that the exclusion of evidence was required

because the Bielaszes "have failed and refused to identify the amount of their damages

and/or the manner of calculation of their claimed damages in response to timely and

proper written discovery, or in response to proper deposition questions asked just two

days prior to the discovery cut[]off date."

       The trial court denied the motion. In its comments, the trial court pointed out that

bringing a motion to compel is required when a party does not adequately respond to

discovery; that the Bielaszes did produce at least 2,700 documents and had indicated that

that they were prepared to provide documentation about damages prior to trial;1 and that

it was improper to raise discovery disputes for the first time on the eve of trial. Further,

the trial court observed that it "would be a short trial" if the plaintiffs were precluded

from putting on evidence of damages.




1      It is unclear whether the Bielaszes filed a written opposition to the motion in
limine, as Mestler did not include it in the appellate record.
                                               5
       Prior to the beginning of trial, counsel for Mestler stated a "continuing and

standing objection to the admission of any evidence by the [Bielaszes] of the amount of

damages they incurred as the result of my clients' alleged conduct or the manner in which

it was calculated."

       During trial, the Bielaszes presented evidence about the damages that they

suffered as a result of Mestler's alleged breach of contract. The jury relied on that

evidence to award damages to the Bielaszes in the amount of $99,300.

                                              II

                                       DISCUSSION

       The sole issue that we resolve in this appeal is whether the trial court erred in

denying Mestler's motion in limine to exclude evidence of the Bielaszes' damages.2

A.     Standard of Review

       As an initial matter, we address the proper standard of review. Regardless of

whether the trial court's ruling is best characterized as a ruling on a request to exclude

evidence or a ruling on a request to impose a discovery sanction, we apply an abuse of

discretion standard of review. (Pannu v. Land Rover North America, Inc. (2011) 191


2       Mestler's appellate brief identifies several interrelated appellate issues, each of
which is based on a common fundamental premise, namely that the trial court erred in
denying the motion in limine to exclude the Bielaszes' evidence of damages.
Specifically, in addition to its general argument that the motion in limine was improperly
denied, Mestler argues that because evidence of damages was improperly admitted,
(1) the jury should not have been asked on the special verdict form about the amount of
the Bielaszes' damages; and (2) insufficient evidence supports the jury's findings
regarding damages. Because we conclude that the trial court did not err in admitting
evidence of the Bielaszes' damages, we need not, and do not, address either of Mestler's
additional appellate issues.
                                              6
Cal.App.4th 1298, 1317 ["Trial court rulings on the admissibility of evidence, whether in

limine or during trial, are generally reviewed for abuse of discretion."]; Bell v. H.F. Cox,

Inc. (2012) 209 Cal.App.4th 62, 76 [a ruling on a motion to exclude witness testimony at

trial as an evidence sanction for misuse of the discovery process is reviewed for abuse of

discretion].)

       Mestler asserts two different theories as to why a de novo standard of review is

appropriate. It first argues that the de novo standard of review applicable to questions of

statutory interpretation applies here because the trial court's ruling involved the

interpretation of the Evidence Code. (See Sinaiko Healthcare Consulting, Inc. v. Pacific

Healthcare Consultants (2007) 148 Cal.App.4th 390, 401 [issues of statutory

interpretation arising in the review of an order imposing discovery sanctions is reviewed

de novo].) We disagree. Nothing in the trial court's ruling or in our review presents an

issue of statutory interpretation. Second, Mestler states generally that "[w]here there is

no factual dispute, independent appellate review is appropriate." However, the cases it

cites for that proposition have nothing to do with the admission of evidence or the

imposition of evidentiary sanctions as a result of discovery abuses. (People v. Avila

(2006) 38 Cal.4th 491, 529 [review of ruling to exclude a juror for cause]; People ex rel

Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1144

[review of a ruling to disqualify a party's counsel].) As we have explained, those types of

rulings are reviewed under an abuse of discretion standard.




                                              7
B.      The Trial Court Did Not Err in Denying the Motion in Limine to Exclude Evidence
        of the Bielaszes' Damages

        We now turn to Mestler's main argument — that the trial court should have

excluded evidence of the Bielaszes' damages based on "undisputed facts of discovery

abuse" that were purportedly demonstrated by the Bielaszes' responses to Mestler's form

interrogatories and by Mr. Bielasz's statements during his deposition regarding damages.

        1.    Mestler Did Not Establish an Abuse of the Discovery Process

        The fundamental problem with Mestler's argument is that Mestler has not

established any discovery abuses by the Bielaszes.

        Mestler contends that the Bielaszes failed to provide information about their

damages in their responses to the form interrogatories. That is not accurate. The

Bielaszes provided lengthy responses that thoroughly discussed the factual basis for their

damage claims against Mestler. Further, to the extent possible at the time, the Bielaszes

quantified their damages by providing specific monetary amounts relating to some of the

items. There is no indication in the record that the Bielaszes were untruthful in

responding to the form interrogatories or omitted any information that was available to

them.

        Although Mestler takes issue with the Bielaszes' failure to provide any written

estimates of their damages, there is no indication in the record that any such written

estimates existed at the time. Therefore, the responses to the form interrogatories

properly stated that "[e]valuation, repair, and estimates are presently in the process." By

responding in this way, the Bielaszes followed the statutory requirement that responses


                                             8
should be as "complete and straightforward as the information reasonably available to the

responding party permits," and that "[i]f an interrogatory cannot be answered completely,

it shall be answered to the extent possible." (Code. Civ. Proc., § 2030.220, subds. (a),

(b).)

        It is well established that as long as responses to interrogatories contain the

information that is currently known to the responding party, that party will not be

prevented at trial "from presenting subsequently discovered facts." (Singer v. Superior

Court of Contra Costa County (1960) 54 Cal.2d 318, 326.) Therefore, the Bielaszes

properly presented evidence at trial about damages developed after they responded to the

form interrogatories.

        If Mestler means to argue that the Bielaszes were required to provide additional

information about their damages as that information became available, there is no merit

to that position. Code of Civil Procedure specifically prohibits continuing interrogatories

that require a party to "supplement an answer . . . that was initially correct and complete

with later acquired information." (Id., § 2030.060, subd. (g).) Mestler was required to

propound supplemental interrogatories if it wanted to know if there were additional

investigations or factual developments that would change the original responses given by

the Bielaszes, but there is no indication that it did so. (Id., § 2030.070, subd. (a) ["a party

may propound a supplemental interrogatory to elicit any later acquired information

bearing on all answers previously made by any party in response to interrogatories"].)

        The record also reveals no abuse of the discovery process with respect to how

Mr. Bielasz answered questions about damages at his deposition. As we have described,

                                               9
when counsel for Mestler asked Mr. Bielasz whether he had prepared a written estimate

of damages as referred to in form interrogatory No. 7.2, Mr. Bielasz responded that he

had not yet prepared any such estimate. Mestler has presented no evidence suggesting

that Mr. Bielasz's answer was untruthful. Further, as shown in other statements during

Mr. Bielasz's deposition, Mestler did receive all of the existing evidence concerning the

Bielaszes' damages through the Bielaszes' extensive document production.3 The trial

court noted in its ruling on the motion in limine that the Bielaszes had produced

numerous documents. 4



3      In the excerpt from Mr. Bielasz's deposition that appears in the record, after
confirming that the Bielaszes had complied with a request for production of documents,
counsel for Mestler asked, "That means that if we look in the documents that you
provided to us, we will find all of the evidence which you have with respect to the
damages incurred by you, for example?" Mr. Bielasz replied, "Correct." In its appellate
brief, Mestler argues that there is no evidence in the appellate record that the Bielaszes
produced all of the documents concerning their damages. We disagree. Mr. Bielasz's
deposition provides that evidence. Mestler also contends that the documents produced by
the Bielaszes could not have contained evidence concerning the Bielaszes' damages
because the responses to the form interrogatories "indicate[] the non-existence of such
documents." Mestler is wrong. The form interrogatories do not ask whether any
documents exist evidencing the Bielaszes damages; instead they ask about the existence
of a written estimate of damages.

4       Mestler also relies on a provision in the Code of Civil Procedure under which a
complaint for money damages must include a statement as to the amount demanded. (Id.,
§ 425.10, subd. (a)(2).) Citing this provision, Mestler contends that the Bielaszes were
required to respond to discovery requests about their damages by providing exact
information about the amount of damages they were claiming. We reject that argument
because Code of Civil Procedure section 425.10, subdivision (a)(2) concerns the
standards for deciding whether a complaint is properly pled, not for whether a plaintiff
has a specific obligation to produce evidence of damages during discovery. Except in a
default judgment where the relief granted to the plaintiff "cannot exceed that demanded
in the complaint," in all other cases "the court may grant the plaintiff any relief consistent
with the case made by the complaint and embraced within the issues." (Id., § 580,
                                             10
         Accordingly, because Mestler did not establish any discovery abuse by the

Bielaszes, the trial court was well within its discretion to reject Mestler's motion in limine

to exclude evidence of damages as a remedy for the Bielaszes' purported discovery

abuses.

         2.     Mestler's Remaining Arguments Lack Merit

         Mestler asserts additional arguments to support its contention that the trial court

erred in denying the motion in limine. As we will explain, none of the arguments has

merit.

         First, Mestler takes issue with the trial court's comment that Mestler should have

earlier dealt with perceived discovery abuses by bringing a motion to compel rather than

seeking the drastic remedy of an evidentiary sanction on the eve of trial. According to

Mestler, the trial court's comments were improper in that Mestler could not have brought

a motion to compel further responses from the Bielaszes because they claimed that they

did not have any additional information to turn over. This argument is puzzling because

Mestler clearly believes that the Bielaszes did something wrong in responding to

Mestler's discovery requests that constituted an abuse of the discovery process. Although

Mestler is not clear about what it thinks the Bielaszes should have done differently, it was

Mestler's responsibility to file a discovery motion to obtain an order compelling the

Bielaszes to respond the discovery in the manner that Mestler believed to be required. As

the trial court properly recognized, if Mestler had acted diligently during the discovery


subd. (a), italics added.) Thus, the omission from a complaint of a precise damages
figure does not limit the ability of the plaintiff to obtain a judgment awarding damages.
                                               11
process, the problem with the Bielaszes perceived discovery abuses could have been

addressed and resolved without requiring Mestler to seek an order excluding all evidence

of damages from the trial.5

       In a related argument, Mestler contends that the trial court improperly denied the

motion in limine because it incorrectly viewed a motion in limine as an improper forum

for seeking a discovery sanction. This argument fails because it misapprehends the trial

court's ruling. Mestler apparently relies on the trial court's comment that "this isn't the

time to take care of those issues," which followed the trial's observation that Mestler

should have brought a motion to compel. As we understand the trial court's comments, it

was not stating that a motion in limine is always an improper forum for obtaining

exclusion of evidence from trial as a result of discovery abuses. Indeed, a trial court

could reasonably choose to make such an order in ruling on a motion in limine if the

party seeking that order had diligently pursued all other avenues of remedying the

discovery abuses during the pretrial discovery process, and if the opposing party received

the notice and opportunity to respond required by the Code of Civil Procedure prior to the

imposition of evidentiary sanctions. (See Code Civ. Proc., §§ 2023.030, subd. (c),

2023.040; Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 216-217 [trial court

granted motion in limine to exclude all evidence of economic loss as a sanction for

party's willful noncompliance with court-ordered discovery after extensive discovery


5     To the extent Mestler argues that there was insufficient time to bring a motion to
compel regarding Mr. Bielasz's deposition, which took place two days before the
discovery cutoff date, the trial court reasonably pointed out that an ex parte procedure
was available to Mestler.
                                              12
motion practice].) However, the trial court indicated that in this particular case it was

improper for Mestler to bring up the issue of discovery abuses for the first time in the

context of a motion in limine because those issues could have been addressed more

efficiently and effectively at an earlier stage of the litigation. That observation is

reasonable and well grounded, and the trial court was thus well within its discretion to

rely on Mestler's belated attention to discovery issues as one ground to deny the request

to exclude evidence of the Bielaszes' damages.

       Finally, Mestler argues that the trial court should have excluded evidence of the

Bielaszes' damages pursuant to Evidence Code section 352. However, Mestler did not

develop that argument in the trial court, and accordingly it may not rely on Evidence

Code section 352 as a ground for its appellate argument. "Evidence Code section 353,

subdivision (a) allows a judgment to be reversed because of erroneous admission of

evidence only if an objection to the evidence or a motion to strike it was 'timely made and

so stated as to make clear the specific ground of the objection,' " and " ' " 'defendant's

failure to make a timely and specific objection' on the ground asserted on appeal makes

that ground not cognizable." ' " (People v. Demetrulias (2006) 39 Cal.4th 1, 20.)




                                               13
                                DISPOSITION

    The judgment is affirmed.



                                              IRION, J.

WE CONCUR:



          NARES, Acting P. J.



              MCDONALD, J.




                                    14
