In this case, the Fourth District affirmed a Riverside County trial court’s grant of nonsuit.
“About two months before trial was scheduled to begin, appellant Reales Investment, LLC’s attorney moved to be relieved from the case. Because Reales did not retain counsel until a few days before trial began, it did not participate in any of the pretrial proceedings mandated by Riverside County Superior Court Local Rule 3401 (Rule 3401). On the morning of the first day of trial, Reales’s new attorney orally requested a continuance of the trial. The trial court denied the request, and also excluded all documents and witnesses Reales did not disclose in pretrial exchanges between the parties as required by Rule 3401. Because Reales did not disclose anything under Rule 3401, it was precluded from offering any evidence or testimony at trial, so the trial court granted a nonsuit for respondent Thomas Edward Johnson.”
“Reales timely appealed, arguing that the trial court’s pretrial rulings were an abuse of discretion. We find no abuse of discretion and affirm the judgment.”
In affirming, the panel held that the trial court did not abuse its discretion in denying the new attorney’s oral request for a continuance, and then held that the order for exclusion of evidence based on P’s noncompliance with Rule 3401 was permissible because P had also been recalcitrant in his responses to pretrial discovery.
“Rule 3401 requires parties to exchange certain documents and information at least 14 days before trial, including witness lists, exhibit lists, and a statement of undisputed facts and issues of law. (Rule 3401(2).) Rule 3401 also mandates that the parties or their counsel meet at least seven days before trial to conduct an ‘Issues Conference,’ where the parties or their counsel must discuss several items. (Rule 3401(3).) The Rule provides that any party or counsel that fails to comply with its terms without good cause is subject to sanctions, including the imposition of evidentiary sanctions. (Rule 3401(11).)”
“It is undisputed that Reales did not timely comply with any of Rule 3401’s pretrial requirements. During oral argument before this court, Reales asserted that the trial court’s exclusionary order was improper because Johnson did not file a declaration explaining Reales’s non-compliance with Rule 3401. (See Rule 3401(4)(d) [‘If counsel for any party fails to participate in the Issues Conference, or otherwise fails to cooperate in the preparation of the documents specified above …then the Proposed Joint Pretrial Statement shall include a declaration describing the attempts made by the remaining party or parties to confer with or obtain the cooperation of the non-complying party.’].) Because Reales did not raise this argument in its appellate briefs, we decline to consider it. (Santa Clara County Local Transportation Authority v. Guardino, supra, 11 Cal.4th 220, 232, fn. 6 ['We need not consider points raised for the first time at oral argument…’].)”
“But the trial court’s exclusionary order was not based solely on Reales’s noncompliance with Rule 3401. The trial court also permissibly considered Reales’s discovery conduct…”
“…Reales did not adequately respond to several sets of discovery requests, failed to produce witnesses at six depositions, did not participate in Rule 3401 pretrial proceedings, designated experts days before trial after previously stating it had no experts, and did not produce any evidence before trial beyond three percipient witness reports (which are not in the record, so we know nothing about their evidentiary value). In short, Reales completely failed to participate in discovery and mandatory pretrial proceedings.”
Read the court’s full opinion here.