Filed 8/28/26 Muldrow v. Ladera Crest Homeowners Assn. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DONNIE MULDROW, B338036
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC720986
v.
LADERA CREST HOMEOWNERS
ASSOCIATION, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Armen Tamzarian, Judge. Affirmed.
Barrington Legal, Eamon Jafari and Jacob R. Gould for
Plaintiff and Appellant.
Litchfield Cavo, Kere K. Tickner and Michelle M.
McCliman; Greines, Martin, Stein & Richland, Alana H. Rotter
and Kylie L. Reynolds for Defendants and Respondents.
____________________
Donnie Muldrow appeals after losing a bench trial and
a jury trial. He challenges the exclusion of an expert, the trial
court’s statement of decision, the nonsuit of one claim, and jury
instructions. We affirm because Muldrow fails to establish
reversible error. Undesignated statutory citations are to the
Code of Civil Procedure.
I
Muldrow’s briefs tell us almost nothing about the
underlying dispute between him and his homeowners’
association, which apparently started soon after he purchased his
home in 2006. It appears there were two foreclosures arising
from unpaid dues, separated by a deal that returned title of the
property to Muldrow. Muldrow filed suit against the association
and others in 2018 after the second foreclosure. We refer to the
remaining defendants collectively as the Association.
Muldrow tells us very little about his lawsuit and the
claims that ultimately went to trial. He says the key to the case
was how the Association applied his payments to his outstanding
balance. Muldrow maintains, without authority, that an expert
was needed to translate the Association’s ledgers to a jury.
We note some key events from the litigation, which was
protracted. Their relevance will appear later.
The initial trial date was in October 2019. When the
Association demanded expert information, Muldrow said he
intended to proceed without an expert. Later, he designated a
real estate expert, Richard Witkin. This expert is not at issue.
Over the years there were many continuances, and five new
complaints. Muldrow filed the operative fifth amended complaint
in June 2022. This pleading had nine causes of action, including
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a claim under Civil Code section 5655 alleging the Association
misapplied Muldrow’s assessment payments.
Around this time, Muldrow disclosed a new expert, forensic
economist Darryl Zengler. (The Association had served a second
demand for exchange of expert information in August 2021, but
Muldrow did not respond until May 2022.) Muldrow told the
Association Zengler would testify about damages. The
Association deposed this expert in June 2022, and there Zengler
apparently confirmed he would opine only on loss of earnings
damages.
The Association filed a motion in limine to exclude or limit
Zengler’s testimony. Muldrow opposed, noting Zengler “was
disclosed to offer testimony as to Plaintiff’s damages.” The trial
court granted the motion in May 2023 on two grounds: First,
Muldrow did not disclose this expert timely and did not seek
leave to disclose him late. (See § 2034.710, subd. (a) [court may
grant leave to submit tardy expert witness information “[o]n
motion of any party”].) Second, any testimony going beyond
Muldrow’s loss of earnings damages exceeded the scope of
opinions to which Zengler limited himself at his deposition.
At the time of this ruling, trial was set for July 2023. The
court ended up pushing the trial date to August to accommodate
a mandatory settlement conference.
A few weeks after the expert exclusion ruling, Muldrow
filed a motion for leave to submit tardy expert witness
information, along with an updated designation that finally
added the issue he now deems critical: “Plaintiff’s payments to
Ladera Crest Homeowners Association, Inc.” The court denied
the motion after applying the factors in section 2034.720, which
concerns late expert designations. The court explained, among
3
other things, the Association had relied on its successful
exclusion of Zengler’s testimony; Muldrow now was attempting
“to undo that victory at the 11th hour” after the adverse motion
in limine ruling; the defense was deep in trial prep; and Muldrow
had not been diligent.
The bench trial preceded these expert witness rulings, but
Muldrow’s briefs to us discuss only the statement of decision, not
the trial itself.
Ahead of the jury trial, there was an Evidence Code section
402 hearing (the 402 hearing). Muldrow’s other expert (Witkin)
testified at this hearing. The court limited the topics on which
Witkin could testify at trial. Muldrow does not challenge this
ruling.
The jury trial took place in January 2024, after at least 15
final status conferences. Muldrow summarizes the trial
testimony in a couple sentences and maintains the trial had a
“[p]ayment-application focus.”
After Muldrow concluded his case in chief, the trial court
granted a nonsuit of his breach of contract claim.
The jury found against Muldrow on his remaining claims.
Before reaching its verdict, the jury submitted what Muldrow
characterizes as “four basic law questions.”
Muldrow appealed.
II
Muldrow attacks four stages of the litigation on appeal:
1) the exclusion of his economist expert and rejection of his
updated designation, 2) the statement of decision following the
bench trial, 3) the nonsuit of his contract claim, and 4) the jury
instructions.
Muldrow did not carry his appellate burden.
4
He did not present the record fairly. His briefs largely
avoid legal citations and analysis on main issues. And he failed
to establish any prejudicial error warranting reversal. (See Cal.
Rules of Court, rule 8.204(a)(2) [appellant’s opening brief must
provide a summary of significant facts of record]; Fernandes v.
Singh (2017) 16 Cal.App.5th 932, 940–943 [appellants must state
the facts fairly; briefs must contain meaningful legal analysis
supported by citations to authority and record facts or risk
forfeiture]; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833
(Waller) [“Prejudice is not presumed, and the burden is on the
appealing party to demonstrate that a miscarriage of justice has
occurred”].)
A
Muldrow’s first claim stems from the disputed expert
rulings: the May 2023 ruling excluding Zengler’s opinions and
the June 2023 ruling rejecting his updated expert designation.
1
On the first ruling, Muldrow argues the court erred in
excluding Zenger’s opinions as untimely. He says section 599,
enacted in the pandemic and now repealed, trailed all dates in
the case so that his updated expert designation — served a
month after the ruling — was timely.
We need not reach the timeliness issue because the court
had two independent bases for excluding this expert’s relevant
opinions (i.e., opinions on the payment allocation issue), and
Muldrow’s opening brief ignores the second basis, which is valid.
The second basis was this: Zengler told the Association at
deposition that his opinions were limited to loss of earnings
damages. The court concluded it would limit Zengler’s testimony
to these opinions if it permitted him to testify at trial.
5
This is a valid basis for refusing expert testimony. (See
e.g., Jones v. Moore (2000) 80 Cal.App.4th 557, 564–565 [“When
an expert deponent testifies as to specific opinions and
affirmatively states those are the only opinions he intends to offer
at trial, it would be grossly unfair and prejudicial to permit the
expert to offer additional opinions at trial”]; DePalma v.
Rodriguez (2007) 151 Cal.App.4th 159, 166 [trial court “did not
abuse its broad discretion” in permitting expert’s trial testimony
that “did not exceed the general scope of his deposition
testimony”].) Any error in the court’s timeliness finding thus
could not have been prejudicial. (See People v. JTH Tax, Inc.
(2013) 212 Cal.App.4th 1219, 1237 (JTH) [appellant’s failure to
address all bases for the trial court’s ruling constituted a waiver
of its appellate claim because one good reason is enough to
sustain the order].)
On the issue of prejudice, Muldrow doubly faltered. He did
not provide any offer of proof about Zengler’s opinions or delve
into the trial testimony. His brief acknowledges “[t]he prejudice
inquiry must be anchored to what this case actually required the
jury to decide,” but it does not even tell us which claims reached
the jury. Muldrow thus failed to show it is reasonably probable
Zengler’s testimony would have changed the trial result. (See
Alexander v. Community Hospital of Long Beach (2020) 46
Cal.App.5th 238, 258; see also Waller, supra, 12 Cal.App.4th at p.
833 [“When the trial court commits error in ruling on matters
relating to pleadings, procedures, or other preliminary matters,
reversal can generally be predicated thereon only if the appellant
can show resulting prejudice, and the probability of a more
favorable outcome, at trial”].)
6
Muldrow asserts the Discovery Act authorizes calibrated
remedies and did not require the total exclusion of his expert’s
testimony. But Muldrow’s minimal discussion of the law and the
facts fails to establish the trial court abused its discretion in
selecting exclusion as the remedy here.
2
Muldrow also argues the trial court wrongly denied him
leave to amend his expert’s designation in June 2023. The court
grounded its denial in section 2034.720.
We review these rulings for abuse of discretion. (See
McDonald v. Zargaryan (2025) 117 Cal.App.5th 344, 349
(McDonald).)
Muldrow failed to establish abuse.
The trial court found Muldrow did not meet the statutory
requirements for permitting tardy expert witness information.
(See § 2034.720 [listing the conditions that must be satisfied].)
Muldrow’s argument section in his opening brief does not address
these findings. It cites statutes pertaining to expert disclosures
— sections 2034.710 through 2034.730 — but it does not discuss
them. Only his reply brief mentions the statutory factors. This
brief also talks about what “[c]ases affirming exclusion typically
involve,” without naming any cases in this section of argument.
These efforts are insufficient to establish an abuse of
discretion warranting reversal.
Further, Muldrow’s briefing on this issue does not present
the record fairly, and it makes broad statements about the case
without supporting record citations. For example, his citations
do not support the statement that the case “had materially
shifted toward the HOA-payment allocation theory” as of June
2023. Another example concerns timing: Muldrow maintains he
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offered the disputed expert designation long before trial
ultimately began, in January 2024. This is irrelevant. When the
court ruled, trial was a month away. It was proper for the court
to be concerned about prejudice to the defendants or additional
delays occasioned by a pleading that had been amended a year
earlier in a case that started in 2018.
Muldrow maintains there was no unfair surprise because
there was no hidden witness: the Association had known about
Zengler for a year and had deposed him, and Muldrow offered
immediate redeposition.
But Zengler never opined on the payments issue and
apparently testified his opinions were limited to a different issue
(loss of earnings damages). Seeking to expand this expert’s
testimony at the 11th hour after an adverse ruling in a five-year-
long case is unfair surprise. (See McDonald, supra, 117
Cal.App.5th at pp. 350–351 [experts can be powerful witnesses;
time-consuming homework can be essential to challenge a true
expert; and judges should guard against tactics that jam the
other side for preparation time].)
Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180
Cal.App.3d 1244, which Muldrow cites in his reply brief without
pinpoints, does not help him. (See id. at p. 1258 [record
established there were no new, surprise, or undisclosed opinions,
and appellants did not show the court abused its discretion in
permitting expert testimony]; id. at pp. 1261–1262 [trial court
reasonably exercised its discretion to deny continuance for
deposition purposes].)
B
Muldrow’s second appellate issue concerns the court’s final
statement of decision in the bench trial. He says he objected to
8
the tentative decision and asked the court to identify the
principal controverted issues, but the court did not address his
request in its final decision and therefore impeded our appellate
review.
This claim is mistaken. The final statement of decision
devotes three pages to Muldrow’s objections and his request for a
decision on four issues.
Muldrow’s reply brief recognizes his error. There, he
ignores the Association’s claim that the objections were untimely,
and he makes a new argument about the adequacy of the final
statement and its handling of his objections. Muldrow forfeited
this new argument by raising it first in reply and by failing to
specify in what ways the statement supposedly was deficient.
C
Muldrow’s third claim is the trial court improperly granted
a nonsuit of his contract cause of action. He argues substantial
evidence supported this claim if the court would have considered
excluded expert testimony with admitted exhibits relating to the
Association’s ledger and other key documents. Muldrow seems to
refer both to Zengler’s excluded testimony and Witkin’s testimony
at the 402 hearing.
Inadequate briefing and proof doom this appellate issue.
We do not know what Zengler’s testimony would have been
because Muldrow made no offer of proof.
Muldrow refers to his counsel’s “section 402 proffer”
concerning Witkin. But he does not argue Witkin’s testimony
was excluded erroneously or explain why it should count for
purposes of the midtrial nonsuit.
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Muldrow also does not discuss the court’s reasoning for the
nonsuit or how the evidence would satisfy each element of his
contract claim.
In passing, Muldrow claims the court at least should have
used its inherent authority to reopen the case and allow
supplementation or an expedited deposition to cure the gap in
proof. This cursory claim lacks legal analysis and is forfeited.
(See JTH, supra, 212 Cal.App.4th at p. 1237 [every brief should
contain legal argument with citation of authorities on the points
made; if none is furnished on a point, the court may treat it as
waived and pass it without consideration].)
Muldrow does not respond to the Association’s claim that
he sought to reopen the testimony of an Association witness and
then failed to respond to the court’s request for an offer of proof
about how this witness’s testimony would affect the contract
claim. (See Alpert v. Villa Romano Homeowners Assn. (2000) 81
Cal.App.4th 1320, 1337 [right to present further evidence waived
if not accompanied by an offer of proof “describing the evidence
and explaining how it would cure the deficiencies”].)
D
Muldrow’s final claim is the jury instructions on agency
and reliance were incomplete and misleading. He maintains the
jury’s questions during deliberations show jurors were uncertain
about the governing statutory framework and needed not only
better instructions, but expert help. Muldrow again eschews
specifics, which defeats his claims.
Muldrow does not identify the ways in which the disputed
instructions were deficient or how they should have been revised.
Nor does he show that he proffered these revisions at the trial
court. (See Metcalf v. County of San Joaquin (2008) 42 Cal.4th
10
1121, 1131 [where a party complains a correct instruction is too
general, lacks clarity, or is incomplete, the party must request
the additional or qualifying instruction to have the error
reviewed; “Plaintiff’s failure to request any different instructions
means he may not argue on appeal the trial court should have
instructed differently”]; Thompson Pacific Construction, Inc. v.
City of Sunnyvale (2007) 155 Cal.App.4th 525, 547, 552
[aggrieved party must have requested and submitted the specific
proper instructions].)
Muldrow’s reply brief appears to recognize these failings.
He responds to the Association’s arguments about forfeiture and
harmlessness by claiming “[t]he jury’s questions still matter” and
by acknowledging this issue may not “stand alone.”
The Association claims Muldrow invited error with the
instructions. It notes, for example, that the trial court sanctioned
Muldrow for failing to cooperate in submitting joint instructions;
then Muldrow did not object to most instructions the court
proposed. Muldrow does not answer any of this.
We need not decide whether Muldrow invited instructional
error because he has failed to demonstrate error warranting
reversal.
III
The Association asked us to take judicial notice of a
postjudgment fees and costs order. The order is unnecessary to
resolve this appeal. We deny the request.
///
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DISPOSITION
We affirm and award costs to the respondents.
WILEY, J.
We concur:
STRATTON, P. J.
SCHERB, J.
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