Filed 5/17/24 Irvine Presbyterian Church v. Milner CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

IRVINE PRESBYTERIAN CHURCH et 

al.,

 Plaintiffs, Cross-defendants and 

Appellants,

v.

CAROL SCHULLER MILNER,

 Defendant, Cross-complainant and 

Appellant.

 G061041, G061434

 (Super. Ct. No. 30-2017-00954144)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Deborah 

C. Servino, Judge. Affirmed in part, reversed in part, and remanded with directions.

The Law Office of Evan D. Williams and Evan D. Williams for Defendant, 

Cross-complainant, and Appellant.

Fozi Dwork & Modaferri, Golnar J. Fozi, and Daniel S. Modaferri for 

Plaintiffs, Cross-defendants, and Appellants.

* * *
2

The underlying action arose from a dispute concerning a play called “Glory 

of Creation” that defendant Carol Schuller Milner wrote, produced, and directed. 

Plaintiff Crystal Cathedral Ministries staged the play on the campus of plaintiff Crystal 

Cathedral (which was later merged into plaintiff Irvine Presbyterian Church). We 

collectively refer to the plaintiffs as CCM. 

CCM cancelled the play after one season in 2005. Milner and CCM 

subsequently entered into a settlement agreement detailing how they would dispose of 

physical property created for the play. Some of the property was allocated to Milner, and 

some was allocated to CCM. The agreement also included language stating CCM would 

keep “all goods” in the same condition they were in at the end of the 2005 season. The 

parties later disagreed about CCM’s obligation to continue storing Milner’s property and 

its handling of the property. CCM is continuing to store Milner’s property to this day. 

In 2017, CCM initiated the underlying action seeking, among other things, 

declaratory relief that it had no continuing obligation to store Milner’s property and could 

dispose of the items. Milner filed a cross-complaint alleging CCM was required to store 

her property, breached the settlement agreement, tortiously converted her property, and 

was negligent by allowing her property to be damaged or removed.

The trial court ultimately granted summary judgment on CCM’s complaint 

in Milner’s favor and found the claims were barred by the applicable statute of 

limitations. The court also granted summary adjudication on Milner’s negligence claim

in CCM’s favor and found it was barred by the statute of limitations. Milner’s breach of 

contract and conversion claims proceeded to a trial, and the jury found in favor of CCM.

Milner raises three arguments on appeal. First, she contends the court erred 

by granting summary adjudication on her negligence claim because it was not barred by 

the statute of limitations. Second, she argues the court erred by excluding certain 

evidence at trial. Third, she claims the court improperly admitted expert testimony that 

was outside the scope of the expert’s deposition. We disagree with Milner’s contentions. 
3

Her negligence claim was barred by the statute of limitations, and the court did not abuse 

its discretion with respect to any evidentiary issues.

CCM cross-appeals and argues the court erred by granting summary 

judgment on its declaratory relief cause of action because the claim is not time-barred. 

We agree and reverse the judgment in part. On remand, the trial court is directed to enter 

an order denying Milner’s motion for summary judgment on CCM’s declaratory relief 

cause of action. In all other respects, the judgment is affirmed.

FACTS1

Milner’s Play

Milner, the daughter of CCM’s founders, wrote a play called the “Glory of 

Creation” (the Play). She registered the copyright for the Play and directed preproduction, including costume and scene design, storyboards, and key art.

CCM decided to stage the Play in 2005, and the executive committee of 

CCM’s board of directors (the Executive Committee) authorized a $15 million budget for 

the Play. The Play premiered in 2005, but CCM cancelled the Play after one season and 

disputes arose between the parties regarding the future of the Play. 

The Parties’ Settlement Agreement

In July 2006, Milner and CCM signed an agreement settling their dispute 

over the cancellation of the Play (the Settlement Agreement). Among other things, the 

parties agreed all rights to the Play reverted back to Milner, and CCM would need 

Milner’s written consent if it wanted to produce the Play or present its creative elements 

1

On our own motion, we augment the record to include: (1) CCM’s

responsive separate statement of undisputed facts regarding Milner’s summary judgment 

motion; (2) Milner’s responsive separate statement of undisputed facts regarding CCM’s 

summary judgment motion; and (3) the trial court’s October 4, 2021 minute order. (Cal. 

Rules of Court, rule 8.155(a)(1)(A).)
4

in the future. The parties also reached an agreement on how they would dispose of 

physical property commissioned and created for the Play. The latter was reflected in a 

“Schedule 1” attached to the Settlement Agreement.

The parties later agreed to a trust agreement and revised Schedule 1. The 

revised Schedule 1 identified “show specific” property to be distributed to Milner (e.g., 

effects equipment, drawings, artwork, puppets, etc.) and “non-show specific” property to 

be distributed to CCM (e.g., projectors, lighting, audio delivery system, etc.). The 

document further included the following language, which is central to part of this appeal: 

CCM would “keep all goods in same condition as they were in at the end of the ’05 

season.”

For several years after the 2006 Settlement Agreement, some of the 

property allocated to Milner under the agreement was stored in CCM’s warehouse and 

trailers.

CCM’s Bankruptcy and Post-Settlement Communications 

In 2010, CCM filed a Chapter 11 bankruptcy petition. In October 2010, 

Milner sent an e-mail to CCM’s bankruptcy counsel and two members of CCM’s board 

of directors (the Board) noting she owned certain property pursuant to the Settlement 

Agreement. She indicated she had attached relevant documentation if it was necessary 

for CCM to document assets in the bankruptcy proceeding. In response, a Board member 

confirmed Milner owned her property that was kept at CCM. But he stated he did not 

know what warehouse or trailers CCM would lose given the bankruptcy and suggested 

Milner “think about getting them into [her] hands and [her] own storage facility sooner 

rather than later.” Among other things, Milner responded the Settlement Agreement 

required CCM to keep the property in the same condition as when the Play ended, but she 

understood “practically speaking, that may not work.” 
5

In a November 2010 e-mail exchange, a CCM Board member again 

reassured Milner that she owned her property in CCM’s possession. In December 2011

and January 2012 e-mails, a Board member also confirmed Milner’s ownership of certain 

items hanging in the cathedral. 

In May 2012, CCM’s president and chief executive officer sent a letter to 

Milner informing her she needed to remove her property from CCM’s warehouse and 

trailers by specific dates in May and June 2012. If she did not take her items, CCM 

would consider the items abandoned and would dispose of them. A few weeks later, 

Milner’s attorney responded that Milner had inspected some of her property at CCM’s 

warehouse and discovered some of the property was missing or inaccessible for 

inspection. 

On June 25, 2012, CCM’s attorney wrote a follow-up letter to Milner’s 

attorney and indicated CCM was “storing certain items related to the [Play] that [Milner] 

allegedly owns” at CCM’s warehouse and trailers. He requested Milner take possession 

of the property by the end of June 2012. He also responded to Milner’s contentions that 

CCM had failed to provide an inventory of property in its custody and that some of the 

property was missing or damaged. According to CCM’s attorney, Milner’s alleged 

ownership interest stemmed from the Settlement Agreement, which CCM did not believe 

was a valid agreement because it was a “‘self-dealing transaction’” that was not ratified 

by the Board. A few days later, Milner’s attorney wrote a letter to CCM’s attorney

stating Milner could not remove her property until she knew where all of it was and had 

physical access to all the property.

Around October 15, 2012, Milner retrieved some of her property from 

CCM’s warehouse and took handwritten notes indicating some of the property was 

damaged. 
6

In February 2013, CCM’s attorney sent an e-mail to Milner’s attorney 

stating it was unclear if Milner wanted to take her remaining items in CCM’s possession. 

CCM’s attorney emphasized it had given Milner several opportunities to take the items 

and provided her with one last “warning” to do so. CCM and Milner subsequently 

communicated about her retrieving her property from the trailers in Riverside, California. 

Milner emphasized she had to inspect and document the items and ultimately insisted 

CCM bring the trailers to Orange County. CCM declined the latter request. In March 

2013, CCM’s attorney sent a follow-up e-mail to Milner’s attorney demanding she 

retrieve her property. He stated CCM would abandon the items because it could not 

“front the cost of storing [her] items and with the pending move [the] matter [had to] be 

resolved.” In April 2013, the parties had further communications about Milner’s property 

in CCM’s trailers. In April and May 2017, CCM’s attorney sent additional letters to 

Milner requesting she retrieve her property from CCM’s trailers. 

CCM’s Complaint and Milner’s Cross-Complaint

CCM commenced the instant action on November 7, 2017. In 2019, CCM

filed the operative first amended complaint against Milner alleging causes of action for: 

(1) cancellation or reformation of written instruments; (2) declaratory relief; and (3) 

injunctive relief. 

According to the complaint, the Settlement Agreement and Schedule 1

were subject to cancellation or reformation and were void or voidable because the 

documents had been approved by the Board’s Executive Committee, which at the time 

was controlled by Milner’s parents. Among other things, the complaint also alleged the 

documents were subject to cancellation or reformation because CCM had to indefinitely 

store a large amount of Milner’s property for no consideration and was mistaken or 

defrauded by her drafting of an unconscionable term.
7

Alternatively, assuming the Settlement Agreement and Schedule 1 were 

enforceable, the complaint sought declaratory relief. The complaint alleged there was an 

actual controversy regarding the parties’ rights and duties to store the Play items. If a 

relationship was formed between the parties, the relationship was an involuntary deposit, 

a storage agreement, or a gratuitous bailment. The complaint alleged the relationship 

terminated after CCM gave notice to Milner and told her to remove the stored items in

2012. CCM accordingly sought a judicial determination that it had no continuing 

obligation to store and maintain the stored Play items and could dispose of them. CCM 

also sought a mandatory injunction compelling Milner to remove the items from CCM’s 

premises. 

In response, Milner filed a cross-complaint in 2019 and the operative 

second amended cross-complaint in 2020. The cross-complaint alleged CCM was 

required to store Milner’s property under the Settlement Agreement given language in 

Schedule 1 indicating CCM would keep the goods “‘in same condition as they were in at 

the end of the ’05 season.’” CCM allegedly breached the Settlement Agreement by 

stating it would no longer store the items in April 2017 and by refusing to grant Milner 

access to the trailers in February 2018 unless she released all claims against CCM.

According to the cross-complaint, CCM did not allow Milner to access her property in 

the trailers until January 2019, and she eventually discovered some of the property was 

missing or damaged. The complaint accordingly alleged causes of action for: (1) breach 

of contract; (2) conversion; and (3) negligence. 

Milner’s Motion for Summary Judgment

In October 2019, Milner moved for summary judgment, or in the 

alternative summary adjudication, seeking judgment in her favor on CCM’s complaint.

Among other things, Milner argued CCM’s first cause of action (cancellation or 

reformation of written instruments) and second cause of action (declaratory relief) were 
8

barred by the applicable statutes of limitation. She also argued the third cause of action 

for injunctive relief was a remedy and not a proper cause of action.

In its opposition, CCM argued, inter alia, there was a factual dispute as to 

whether it was aware of any fraud or mistake regarding the Settlement Agreement’s 

terms before filing its complaint in 2017. CCM similarly argued it was disputed whether 

the Board knew the Settlement Agreement was void or voidable after the bankruptcy 

action.

The Court’s Order Granting Milner’s Motion for Summary Judgment

In January 2020, the court granted summary judgment in Milner’s favor on

CCM’s complaint. The court held CCM’s first and second causes of action were barred 

by the applicable statutes of limitation. Regarding the first cause of action (cancellation 

or reformation of written instruments), the court noted several possible statutes of 

limitation — four years for cancellation of written instruments (Code Civ. Proc., § 343); 

three years for a claim to set aside or cancel a void instrument when fraud or mistake is 

involved (Code Civ. Proc., § 338); three years to commence an action for relief on the 

ground of fraud or mistake (id., subd. (d)); and five years under Corporations Code 

section 9243, subdivision (e). Regarding the second cause of action (declaratory relief), 

the court noted the statute of limitations was four years if the claim was based on CCM’s 

“obligations founded upon” the Settlement Agreement and Schedule 1. To the extent the 

declaratory relief claim was based on a gratuitous bailment, the court held the statute of 

limitations was three years. (Code Civ. Proc., § 338, subd. (a).)

According to the court, the causes of action were time-barred under all the

above statutes. The court held CCM was “aware of the facts that started the statute of 

limitations as early as 2006, and no later than June 25, 2012.” The court relied on CCM’s

June 25, 2012 letter to Milner’s attorney demanding Milner remove her items from 

CCM’s warehouse and trailers by June 30, 2012. While CCM argued its Board did not 
9

know the Settlement Agreement and Schedule 1 were void or voidable until sometime 

after the bankruptcy action, the court was not persuaded by this argument. The court 

indicated “‘it is the discovery of facts, not their legal significance, that starts the statute.’”

Finally, the court held the third cause of action for injunctive relief failed as a matter of 

law because the underlying first and second causes of action could not be established.

CCM’s Motion for Summary Judgment

In June 2020, CCM moved for summary judgment, or in the alternative 

summary adjudication, seeking judgment in its favor on Milner’s cross-complaint.

Among other things, CCM argued Milner knew in 2012 that some of her property at 

CCM’s warehouse had been damaged. CCM accordingly argued Milner’s crosscomplaint was filed in 2019 after the statute of limitations had expired on each of her 

claims.

Milner filed an opposition and argued, inter alia, that CCM did not meet its 

burden of production on the statute of limitations issue. While CCM produced evidence 

Milner knew her property in CCM’s warehouse was damaged in 2012, she argued CCM 

did not produce any evidence about when she knew the property in CCM’s trailers was 

damaged.

The Court’s Order Granting Summary Adjudication on Milner’s Negligence Claim

In September 2020, the court denied summary judgment on Milner’s crosscomplaint but granted summary adjudication on her negligence claim. Among other 

things, the court noted the cross-complaint alleged CCM was negligent by failing to 

properly handle Milner’s property and by allowing the property to be damaged, taken, or 

lost. The court then held it was undisputed Milner realized some of her property was 

damaged on October 15, 2012, when she went to retrieve her property from CCM’s 

warehouse. Given the three-year statute of limitations for negligence claims, the court 
10

concluded the statute of limitations expired in October 2015 before Milner filed her 

cross-complaint in 2019.

Jury Verdict and Judgment

In October 2021, Milner’s claims against CCM for breach of contract and 

conversion proceeded to a jury trial. The jury returned a special verdict finding CCM had 

not breached any contract and did not “substantially interfere with [Milner’s] property by 

knowingly or intentionally preventing [her] from having access to, destroying, and/or 

refusing to return [her] property after [she] demanded its return.”

In November 2021, the court entered judgment that CCM “take nothing by 

[its] First Amended Complaint” and Milner “takes nothing by her Second Amended 

Cross-Complaint.” The parties timely appealed.

DISCUSSION 

Milner contends the court erred by granting summary adjudication on her 

negligence claim because it was not barred by the statute of limitations. She next argues

the court erred by excluding relevant evidence at trial. Finally, she claims the court erred

by admitting certain expert testimony. For the reasons below, we disagree with Milner’s 

contentions. CCM cross-appeals and argues the court erred by granting summary 

judgment on its declaratory relief claim. According to CCM, the claim is not timebarred. We agree and reverse the judgment. 

The Court Properly Granted Summary Adjudication on Milner’s Negligence Claim

A. Standard of Review

“‘A defendant making the motion for summary adjudication has the initial 

burden of showing that the cause of action lacks merit because one or more elements of 

the cause of action cannot be established or there is a complete defense to that cause of 
11

action. [Citations.] If the defendant fails to make this initial showing, it is unnecessary 

to examine the plaintiff’s opposing evidence and the motion must be denied. However, if 

the moving papers establish a prima facie showing that justifies a judgment in the 

defendant’s favor, the burden then shifts to the plaintiff to make a prima facie showing of 

the existence of a triable material factual issue.’” (Rehmani v. Superior Court (2012) 204 

Cal.App.4th 945, 950.)

“In reviewing an order granting summary adjudication, ‘we apply the same 

standard of review applicable on appeal from a grant of summary judgment. [Citation.] 

Accordingly, “‘. . . we take the facts from the record that was before the trial court when 

it ruled on that motion. [Citation.] “‘We review the trial court’s decision de novo, 

considering all the evidence set forth in the moving and opposing papers except that to 

which objections were made and sustained.’” [Citation.] We liberally construe the 

evidence in support of the party opposing summary [adjudication] and resolve doubts 

concerning the evidence in favor of that party.’”’” (Rehmani v. Superior Court, supra, 

204 Cal.App.4th at pp. 950-951.)

“While resolution of the statute of limitations issue is normally a question 

of fact, where the uncontradicted facts established through discovery are susceptible of 

only one legitimate inference, summary judgment is proper.” (Jolly v. Eli Lilly & Co.

(1988) 44 Cal.3d 1103, 1112 (Jolly).)

B. Statute of Limitations

The statute of limitations for negligent injury to property is three years. 

(Code Civ. Proc., § 338, subd. (c)(1).) The statute of limitations begins to run when the 

cause of action accrues. (Id., § 312; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397 

(Norgart).) A cause of action generally accrues when it “is complete with all of its 

elements.” (Norgart, at p. 397.) An exception to this rule is the discovery rule. (Ibid.) 
12

The discovery rule “postpones accrual of a cause of action until the plaintiff 

discovers, or has reason to discover, the cause of action.” (Norgart, supra, 21 Cal.4th at 

p. 397.) “[T]he plaintiff discovers the cause of action when he at least suspects a factual 

basis, as opposed to a legal theory, for its elements, even if he lacks knowledge thereof 

— when, simply put, he at least ‘suspects . . . that someone has done something wrong’ to 

him [citation], ‘wrong’ being used, not in any technical sense, but rather in accordance 

with its ‘lay understanding.’” (Id. at pp. 397-398, quoting Jolly, supra, 44 Cal.3d 1103.) 

“He has reason to suspect when he has ‘“‘“notice or information of circumstances to put 

a reasonable person on inquiry”’”’ [citation]; he need not know the ‘specific “facts” 

necessary to establish’ the cause of action; rather, he may seek to learn such facts through 

the ‘process contemplated by pretrial discovery’; but, within the applicable limitations 

period, he must indeed seek to learn the facts necessary to bring the cause of action in the 

first place . . . .” (Norgart, at p. 398.)

Here, Milner was on inquiry notice in 2012 that CCM had not cared for her 

property as she believed CCM was obligated to do. In May and June 2012, CCM 

demanded Milner take possession of all her property stored by CCM. In May 2012, 

Milner’s attorney sent an e-mail to CCM’s attorney indicating Milner had inspected her 

property at CCM’s warehouse and discovered some of the property was missing or 

inaccessible for inspection. In June 2012, Milner’s attorney sent another letter to CCM’s 

attorney stating Milner could not remove her property until she knew where all of it was

and had physical access to it. On October 15, 2012, Milner retrieved some of her 

property from CCM’s warehouse and observed some items were damaged. Given these 

facts, it is undisputed Milner had notice CCM was not taking reasonable care of her 

property as of October 2012. Milner’s negligence cause of action therefore accrued in 

October 2012, and the statute of limitations expired in October 2015.
13

Milner concedes she discovered some of her property was damaged in 

October 2012. She also agrees “[a]ny cause of action for the negligent storage of items in 

the warehouse undoubtedly accrued in 2012.” But she contends her retrieval of damaged 

property from the warehouse did not cause her negligence claim to accrue because “there 

is no basis for which [she] would be expected to inspect [her property in the] trailers

based on the shoddy condition of . . . warehouses.” (Italics added.) She notes her crosscomplaint sought relief for damage to property stored in the trailers and not to property in 

the warehouse. As the trial court held, this is a distinction without a difference. Milner 

was on inquiry notice, having been notified that some property was damaged and that the

entity storing the remainder claimed it had no responsibility to even store the property. 

Once Milner had suspicion of wrongdoing — i.e., damage to her property — “and 

therefore an incentive to sue, she [had to] decide whether to file suit or sit on her rights.” 

(Jolly, supra, 44 Cal.3d at p. 1111.) “So long as a suspicion exist[ed, Milner had to] go 

find the facts [and could not] wait for the facts to find her.” (Ibid.) 

Milner also argues “[t]he evidence . . . does not indicate that the trailers 

were opened between 2005 and 2017.” She concludes: “If [a] jury believes . . . the 

damage occurred when Mr. Dawson opened and inspected . . . Milner’s property [in 

2017], then the cause of action would not have accrued until 2017 and this action would 

be timely.” Regardless of when the trailers were opened, Milner had suspicion of 

wrongdoing in 2012 when she learned some of her property was damaged. CCM also 

repeatedly informed her it did not have any storage obligations and would dispose of the 

property in both the warehouse and trailers in 2012.

For the foregoing reasons, the trial court correctly held Milner’s negligence 

claim was time-barred because she did not assert the claim until 2019 — after the statute 

of limitations expired in 2015.
14

The Court Did Not Abuse Its Discretion by Excluding Certain Evidence

Milner next claims the court erred by excluding evidence relevant to her 

conversion claim. The court did not abuse its discretion. (Litinsky v. Kaplan (2019) 40 

Cal.App.5th 970, 988 [“We review a trial court’s decision to admit or exclude evidence 

under an abuse of discretion standard”].)

A. Evidence Regarding CCM’s Bankruptcy Court Proceedings

1. Relevant Background

In 2018, CCM’s attorney filed a motion in the bankruptcy court for an order 

to show cause why Milner and her counsel should not be held in contempt for violating 

the bankruptcy court’s discharge injunction. CCM argued Milner violated the bankruptcy 

court’s discharge injunction by asserting affirmative defenses in this action arising out of 

the allegedly rejected Settlement Agreement. The bankruptcy court denied the contempt 

motion, finding the Settlement Agreement was not discharged in the bankruptcy 

proceedings because it was not an executory contract. The bankruptcy court also 

sanctioned CCM’s attorney for filing a frivolous contempt motion intended to pressure 

Milner to release her claims. The Bankruptcy Appellate Panel of the Ninth Circuit (BAP) 

affirmed the sanctions award against CCM’s counsel. In 2019, CCM filed an amended 

complaint omitting allegations regarding discharge of the Settlement Agreement in 

bankruptcy.

Before trial on Milner’s breach of contract and conversion claims, Milner 

filed a motion in limine seeking to preclude CCM from arguing the Settlement 

Agreement was unenforceable or Milner had not fulfilled her obligations under it. In 

support of the motion, she requested the court take judicial notice of CCM’s contempt 

motion in the bankruptcy court, the bankruptcy court’s order denying the contempt 

motion, and the BAP’s decision. The court denied Milner’s motion. 
15

At trial, Milner sought to elicit witness testimony about the bankruptcy 

proceedings. It appears the trial court generally sustained CCM’s objections on the 

grounds of relevance and Evidence Code 352.2 In a sidebar, Milner’s counsel insisted the 

jury should hear testimony about CCM’s contempt motion in the bankruptcy court. He 

explained CCM had claimed the Settlement Agreement was rejected and Milner therefore 

did not own the property in the trailers. He added: “If . . . Milner had not defended that 

case, the property would have been gone, she would not have it . . . . Therefore it was her 

actions — taking actions basically to get back her property which had been converted.”

2. Analysis

Milner contends the trial court improperly excluded the documents 

concerning CCM’s contempt motion in the bankruptcy proceedings. She argues the 

documents were relevant to prove her conversion claim because they show she owned the 

property stored in CCM’s trailers and CCM interfered with her access to it and further 

refused to return the property. She emphasizes the BAP’s findings that CCM’s counsel 

tried to pressure her into releasing her claims is probative as to whether CCM denied her 

access to her property when she asked for it. 

Despite Milner’s assertions, she does not cite to any portion of the record 

where her counsel attempted to present the bankruptcy documents to the jury as evidence. 

Instead, she cites to her motion in limine and various portions of the record where her 

counsel made offers of proof as to why it would be appropriate to elicit witness testimony 

about the bankruptcy proceedings. As noted ante, it appears the trial court generally 

sustained objections to this line of questioning on relevancy and section 352 grounds.

2

All further statutory references are to the Evidence Code unless otherwise 

stated.
16

The court did not abuse its discretion. “No evidence is admissible except 

relevant evidence.” (§ 350.) “‘Relevant evidence’ means evidence, including evidence 

relevant to the credibility of a witness or hearsay declarant, having any tendency in 

reason to prove or disprove any disputed fact that is of consequence to the determination 

of the action.” (§ 210.) Trial courts have broad discretion to “exclude evidence if its 

probative value is substantially outweighed by the probability that its admission will (a) 

necessitate undue consumption of time or (b) create substantial danger of undue 

prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) Here, the 

proffered testimony about the bankruptcy proceedings was not relevant to the action. 

Indeed, CCM’s amended complaint omitted all allegations regarding discharge of the 

Settlement Agreement in bankruptcy. And the bankruptcy court had no jurisdiction to 

consider whether CCM converted Milner’s property. Even assuming, arguendo, the 

bankruptcy proceedings were relevant, the evidence created a substantial danger of 

confusing the issues for the jury. A jury unfamiliar with bankruptcy law might have 

believed the bankruptcy court found CCM was liable for converting Milner’s property or 

violating her rights, which it did not do. We cannot say the court’s ruling was “‘arbitrary, 

capricious, or patently absurd.’” (San Lorenzo Valley Community Advocates for

Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 

Cal.App.4th 1356, 1419.)

We also note Milner cites to a portion of the reporter’s transcript where her 

attorney questioned a witness about CCM’s contract with Milner’s father regarding his 

retirement and involvement with church matters. Her attorney tried to elicit testimony 

about CCM’s rejection of the latter contract in the bankruptcy proceedings. The court 

sustained CCM’s objections to this line of questioning based on relevance and section 

352. In a side bar, Milner’s attorney insisted the jury should be informed about Milner’s 

negotiations with CCM and her attempts to avoid having her father’s contract rejected in 
17

the bankruptcy proceedings. For the same reasons discussed above, this evidence has no 

probative value with respect to Milner’s conversion claim. 

In short, the court did not abuse its discretion by excluding testimony about 

the bankruptcy proceedings.

B. Evidence of the Parties’ April 2013 Communications

1. Relevant Background

In April 2013, CCM offered to transfer title to the trailers containing

Milner’s property to Milner if she could get them “roadworthy.” But on April 25, 2013, 

CCM’s attorney sent an e-mail to Milner’s attorney indicating he had to “revise the 

comments regarding . . . title to the trailers.” He explained: “Due to the fact that all 

assets of CCM are still subject to the BK lien, CCM cannot allow the assets to be 

transferred . . . for no value. (Edict from the trustee — not from CCM). The trailers are 

valued at $1800 each. If [Milner] wants to drive off the trailers she will need to 

remit . . . the fee.” In response, Milner’s counsel stated: “[This] is a game changer 

regarding the trailers.” CCM’s attorney then responded: “If [Milner] drops the appeal 

she can have the trailers as trustee’s obligations will be terminated.” This apparently 

referred to an appeal by Milner’s parents (not Milner) in CCM’s bankruptcy proceedings.

At trial, Milner’s counsel attempted to admit the above e-mails into 

evidence. Milner testified CCM initially offered the trailers, which stored some of her 

property, for free if she relieved CCM of its storage obligations. She explained CCM

later “reneged” and asked her to pay $1,800 for each trailer, and her counsel indicated she

was not interested. Milner’s counsel then asked about CCM’s next proposal. It appears 

her counsel was seeking to elicit testimony about CCM’s suggestion that Milner’s parents 

drop the bankruptcy appeal in exchange for the trailers. CCM’s counsel objected based 

on section 1152.
18

In a sidebar, CCM’s counsel argued the April 2013 e-mails concerned an 

attempt by the attorneys to settle the parties’ outstanding issues. He stated: 

“[N]egotiations [took] a hit because she can’t get the trailers for free” so “the response 

from counsel for CCM [is] if she drops the bankruptcy appeal, which is keeping the 

bankruptcy in place — then she can have the trailer.” CCM’s counsel then argued the 

evidence was inadmissible under section 1152 because the parties should have been 

allowed to engage in settlement discussions “without that communication creating a basis 

for liability down the road.” In response, Milner’s counsel insisted the evidence had 

nothing to do with liability and related to CCM’s statute of limitations defense. He also 

suggested the evidence would rebut CCM’s assertions that it did not prevent Milner from 

retrieving her property. 

The court ultimately excluded the evidence and found CCM’s 

counterproposal that Milner’s parents drop the bankruptcy appeal was not relevant. The 

court generally emphasized the bankruptcy matters were not relevant. To the extent they 

were relevant, the court held the probative value was substantially outweighed by the 

probability its admission would necessitate undue consumption of time or create undue 

prejudice, confusion of the issues, and misleading of the jury.

2. Analysis

Milner claims the court erred because section 1152 did not render the 

evidence inadmissible. She argues the latter statute “does not apply to situations [where] 

the conduct that occurred during the negotiations was tortious.” According to Milner, 

CCM’s refusal to return her property unless it received payment or her parents abandoned 

a pending appeal was an act of conversion. Contrary to Milner’s assertion, the trial court 

did not exclude the evidence based on section 1152. Instead, the court excluded the 

evidence on relevancy grounds and based on section 352. 
19

Even assuming the court erred by excluding the evidence, any error was 

harmless. The April 2013 e-mails do not suggest CCM refused to return Milner’s 

property. Indeed, other evidence suggests CCM had been asking Milner to retrieve her 

property since 2012. And the jury was allowed to hear Milner’s testimony about CCM’s 

initial offer to give her the trailers for free and its subsequent withdrawal of the offer and 

request for $1,800 per trailer. Hearing additional testimony about offering the trailers for 

free if the bankruptcy appeal were dismissed would not have impacted the jury’s verdict. 

(Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 [“[W]e . . . will not 

reverse the judgment in the absence of an affirmative showing there was a miscarriage of 

justice”].)

Purported Error Regarding Expert Testimony Did Not Result in a Miscarriage of Justice

Relying on Kennemur v. State of California (1982) 133 Cal.App.3d 907

(Kennemur), Milner contends the court erred by allowing CCM’s expert, Edward Testo, 

to provide valuation opinions based on a “cost approach” methodology because he 

developed the opinions after his deposition, and she did not have an opportunity to 

examine him about those opinions. In response, CCM argues Testo did not rely on the 

cost approach for his valuation opinions, Milner’s counsel did not raise a timely 

Kennemur objection, and any error was harmless. We agree there was no miscarriage of 

justice even assuming the court erred by admitting the testimony.

A. Standard of Review and Applicable Law

“The overarching principle in Kennemur [and other cases] is clear: a 

party’s expert may not offer testimony at trial that exceeds the scope of his deposition 

testimony if the opposing party has no notice or expectation that the expert will offer the 

new testimony, or if notice of the new testimony comes at a time when deposing the 

expert is unreasonably difficult.” (Easterby v. Clark (2009) 171 Cal.App.4th 772, 780.)
20

“We review a trial court’s decision to admit expert testimony for an abuse 

of discretion. [Citation.] An abuse of discretion occurs only if ‘“the trial court’s decision 

exceeds the bounds of reason and results in a miscarriage of justice.”’” (Lurner v.

American Golf Corporation (2023) 97 Cal.App.5th 121, 137-138.)

B. Disputed Testimony

In arguing Testo improperly testified about the cost approach, Milner points 

to the following example of his testimony: “Q[:] From a cost approach — a cost-based 

approach, did you — do you have any opinions about the fair market value of the 

property that was listed in this missing and damaged list?” “[A]: I do have an opinion on 

92 of the 211 items in that exhibit that relate to that, but they require a little more of an 

explanation as to what that opinion is and how it’s formulated.” 

Milner’s counsel objected and requested a sidebar. He argued Testo’s 

testimony about the cost approach went beyond his deposition and requested the court 

strike the testimony. The court asked the basis for striking the testimony, and Milner’s 

counsel stated: “You are right. I don’t have a motion before your honor.”

After Testo completed his entire testimony, Milner’s counsel later asked to 

be heard on a Kennemur objection. He argued Testo rendered valuation opinions that 

were not disclosed during his deposition and conducted post-deposition research to 

support his opinions. He further noted he had asked Testo during his deposition if he 

expected to do any further work before trial. Testo allegedly stated he did not expect to 

do further work unless he was requested to do “‘more work data services from client.’”

Milner’s counsel concluded by asking the court to strike Testo’s testimony or instruct the 

jury to consider the post-deposition opinions in assessing credibility.
21

The trial court denied Milner’s request and held her counsel had not asked 

the appropriate questions at Testo’s deposition to lay the foundation for a Kennemur 

objection. The court explained: “[Testo] said at first he did not expect to do any more 

hours of work other than maybe trial preparation, unless he got requested to do more 

work, data services from my client. [¶] Kennemur and it’s progeny then at that time it 

would behoove counsel to then say, ‘Well, okay, if you are requested to do more work or 

data services, you are to . . . have . . . defense counsel inform me’ . . . ‘of this additional 

work as soon as possible.’”

Assuming it was error to permit Testo to testify on the above issues, we 

may reverse only if the error resulted in a miscarriage of justice. (Cal. Const., art. VI, 

§ 13; § 354.) A miscarriage of justice occurs when there is a reasonable chance a result 

more favorable to the appealing party would have been reached. (Cassim v. Allstate Ins.

Co. (2004) 33 Cal.4th 780, 800.) We do not believe that to be the case here. Testo was 

CCM’s damages expert and offered opinions on the fair market value of Milner’s 

property given Milner’s allegation that she had incurred economic losses from her 

damaged or lost property. The jury returned a special verdict, finding CCM had not 

breached any contract or converted Milner’s property. In other words, the jury found no 

liability. Because Testo’s opinions pertained only to the calculation of damages and the 

jury did not reach the damages issue, any error in the admission of Testo’s testimony did 

not result in a miscarriage of justice.

Cross-appeal: The Court Erred by Finding CCM’s Declaratory Relief Claim Was Timebarred

CCM cross-appeals from the court’s order granting Milner’s motion for 

summary judgment on its first amended complaint. The cross-appeal only concerns the 

court’s holding that CCM’s declaratory relief claim was barred by the statute of 

limitations. According to CCM, the court erred because there is an ongoing controversy 
22

between the parties about CCM’s duty to continue storing Milner’s property. CCM also 

argues its declaratory relief claim alleges something akin to a continuing nuisance or 

continuing trespass claim for which no statute of limitations has expired. CCM notes it is 

still incurring costs to store Milner’s property and emphasizes it repeatedly informed 

Milner to retrieve her property in 2012 through 2017. While CCM argues it terminated

any storage agreement given its communications in 2012 through 2017, it does not want 

to dispose of Milner’s property absent a court declaration regarding the parties’ rights and 

duties. We agree CCM’s declaratory relief claim is not time-barred.

A. Standard of Review

Whether an action is barred by the statute of limitations is a question of fact 

unless the facts are undisputed, in which case the issue may be decided as a matter of 

law. (Jolly, supra, 44 Cal.3d at p. 1112.) An appellate court also reviews a grant of 

summary judgment de novo, “considering all the evidence set forth in the moving and 

opposition papers except that to which objections have been made and sustained.” (Guz

v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334.) The motion shall be granted if “all 

the papers submitted show that there is no triable issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, 

subd. (c).) “There is a triable issue of material fact if, and only if, the evidence would 

allow a reasonable trier of fact to find the underlying fact in favor of the party opposing 

the motion . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

B. Statute of Limitations

As discussed ante, the trial court found two possible statutes of limitations 

applied to CCM’s declaratory relief claim: (1) four years under Code of Civil Procedure, 

section 337, subdivision (a) assuming the claim was based on CCM’s “obligations

founded upon” the Settlement Agreement; or (2) three years for a gratuitous bailment.
23

The court then concluded the action was time-barred because CCM filed the action in 

2017 — more than four years after it was aware of facts starting the statute of limitations 

in 2006 and no later than June 25, 2012, when its counsel sent a letter to Milner’s 

attorney demanding she remove her property.

The court erred because CCM sought a judicial declaration in connection 

with its continual storage of property against its will and at its own expense. In other 

words, CCM’s claim alleged something more akin to a continuing nuisance or continuing 

trespass by Milner given her refusal to take possession of her property. Indeed, CCM’s 

complaint alleged: “Based on [CCM’s] . . . notice[s] of termination and [Milner’s] 

unreasonable delay in retrieving the Stored Play Items, [CCM] contends it may now 

dispose of the property with no obligations to [Milner]” but “[Milner] disagrees with 

this.” The complaint also alleged: “Since 2012, CCM has repeated its demand for 

[Milner] to retrieve the Stored Play Items . . . .” “Where a continuing nuisance is alleged, 

every continuation of the nuisance gives rise to a separate claim for damages caused by 

the nuisance.” (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1143.) 

“[I]f the nuisance may be discontinued at any time it is considered continuing in 

character. [Citations.] Every repetition of a continuing nuisance is a separate wrong for 

which the person injured may bring successive actions for damages until the nuisance is 

abated, even though an action based on the original wrong may be barred.” (Phillips v. 

City of Pasadena (1945) 27 Cal.2d 104, 107-108.) Likewise, “[c]ontinuing trespasses are 

essentially a series of successive injuries, and the statute of limitations begins anew with 

each injury.” (Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 

Cal.App.4th 583, 592.)

For the foregoing reasons, the statute of limitations has not expired on 

CCM’s declaratory relief claim because “every continuation of the nuisance gives rise to 

a separate claim . . . .” (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at 

p. 1143.)
24

DISPOSITION

The judgment is reversed, and the matter is remanded with directions that 

the trial court enter an order denying Milner’s motion for summary judgment on CCM’s 

declaratory relief cause of action. In all other respects, the judgment is affirmed. CCM 

shall recover its costs incurred on appeal.

SANCHEZ, J.

WE CONCUR:

GOETHALS, ACTING P. J.

GOODING, J.