Filed 10/3/24 Iriqui v. Latt CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

JOSE A. MARTINEZ IRIQUI,

Plaintiff and Appellant,

v.

MICHAEL BENJAMIN LATT,

Defendant and Respondent,

STATE FARM MUTUAL 

AUTOMOBILE INSURANCE 

COMPANY,

Intervenor and Respondent.

 B322005

 (Los Angeles County 

 Super. Ct. No. BC682402)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Serena R. Murillo and Margaret L. Oldendorf, 

Judges. Affirmed.

The Bucklin Law Firm and Stephen Loomis Bucklin for 

Plaintiff and Appellant.
2

Horvitz & Levy, Curt Cutting; Homan, Stone & Rossi, 

J. Pat Ferraris, and Danielle M. Johnson for Intervenor and 

Respondent.

___________________________

After a car crash, Jose Martinez Iriqui sued Michael Latt,

1

alleging Latt’s negligent driving caused him to suffer injuries. A 

court trial resulted in a judgment in favor of Latt, and Iriqui 

appealed. Iriqui asserts the trial court improperly reopened

discovery sua sponte and set a deposition deadline for Iriqui’s 

expert witness that was not feasible, resulting in that witness

being precluded from testifying at trial. Finding no merit to 

Iriqui’s contentions, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Complaint, Trial Continuances, and Expert Witnesses

In November 2017, Iriqui sued Latt, alleging Latt

negligently collided with Iriqui in 2015. The court continued the 

trial several times due to two requests from Latt, the COVID-19 

pandemic, and the parties’ stipulation, which pushed the trial 

date to October 22, 2021. The court’s May 2021 order granting 

the continuance stated, “The deadlines for all other statutory 

1 In November 2023, after the trial in this case, Latt was 

murdered. Iriqui may proceed with his appeal because Latt’s 

potential liability was covered by insurance. (Prob. Code, § 550, 

subd. (a).) We granted the unopposed motion to intervene 

brought by Latt’s insurer, State Farm Mutual Automobile 

Insurance Company, which filed the responsive brief on Latt’s 

behalf. 
3

discovery and trial-related dates shall be continued to align with 

the new trial date.” Therefore, based on the October 22 trial 

date, the new expert discovery cutoff was October 7. (Code Civ. 

Proc., § 2024.030 [expert discovery cutoff is 15 days before trial

date].)2

In September 2021, Iriqui designated three expert 

witnesses: accident reconstructionist Felix Lee, biomechanical 

engineer Rami Hashish, and a medical doctor. Latt’s counsel 

promptly requested the experts’ availability for depositions. 

Iriqui offered dates for the medical doctor’s deposition but stated 

he “may be de-designating” Lee and Hashish “because they are 

very expensive.” Several days later, Iriqui’s counsel said he was 

“90% sure I am not calling them. [¶] I realize I will ultimately 

have to de-designate at some point.” Iriqui’s counsel noted he 

was scheduled to begin a trial on October 4, and stated, “[I]f the 

case gets continued for some reason . . . and I hit the lottery in 

the meantime I may use them and you guys can depose them first 

of course.” The same day, Latt noticed Lee’s deposition for 

September 22 and Hashish’s deposition for September 23. On 

September 21, both counsel stipulated that neither Lee nor 

Hashish would appear for their depositions “because of a retainer

billing issue.”

Toward the end of September 2021, Iriqui’s counsel 

informed Latt’s counsel that he had reserved a hearing in 

February 2022 for a motion to extend the expert discovery cutoff 

“for the sole purpose” of scheduling Lee and Hashish’s 

depositions. The “purely financial matter” preventing their

2 Undesignated statutory references are to the Code of Civil 

Procedure.
4

earlier depositions had been resolved. Iriqui’s counsel requested 

Latt agree to take the depositions after the expert discovery 

cutoff on October 7. Latt’s counsel responded, “That is fine. We 

will notice Hashish and Lee’s depos for October 7.” Two days 

later, Latt did just that. 

Several days later, at the beginning of October 2021, 

Iriqui’s counsel informed Latt’s counsel that he was “engaged in a 

lengthy trial in San Bernardino which may not end until early 

November.” He stated he would request the first trial date after 

the Thanksgiving holiday, and, at the conclusion of his October 

trial, would “immediately contact Mr. Hashish and Mr. Lee to get 

their first available date(s) for completing the pending 

depositions.” At the final status conference on October 8, the 

parties stipulated, and the court ordered, that the trial be 

continued from October 22 to November 29. The court’s order

stated that “[a]ll discovery and motion cut-off[ ] dates remain 

closed.” Thus, the expert discovery cutoff remained October 7, 

2021.

Iriqui’s counsel’s trial ended on October 19, 2021. Soon 

afterward, Latt noticed the depositions of Hashish and Lee for 

November 4 and November 11, respectively. Iriqui responded

that Lee would be available for deposition November 11 and that 

Hashish would be available December 7. 

B. Iriqui’s Request for a Continuance and Lee’s Deposition

On October 25, 2021, Iriqui moved ex parte to continue the 

trial date for nine days until December 8, noting the date on 

which Hashish was available for a deposition (December 7) was 

after the scheduled trial date (November 29). Latt opposed 

Iriqui’s request for a continuance, arguing that expert discovery 

was closed and that Latt would be prejudiced if the trial started 
5

the day after Hashish’s deposition, because Latt’s counsel and 

experts would not have a sufficient opportunity to prepare their 

response to Hashish’s testimony. 

On October 27, 2021, the trial court3 granted Iriqui’s 

request to continue the trial for nine days until December 8. The 

minute order states, “Discovery and motion cut off dates correlate 

with the previous trial date.” However, the minute order reflects 

the court specifically ordered Iriqui had until November 10 to 

produce Hashish for a deposition.4

Iriqui did not produce Hashish for deposition by 

November 102021. On November 11, Latt commenced Lee’s 

deposition. On November 22, Latt noticed the continued 

deposition of Lee for December 1. But on November 30, Iriqui’s 

counsel wrote to Latt’s counsel with the subject line “Lee 

Deposition Tomorrow,” stating “I do not see how we are going to 

be able to complete Lee’s deposition Volume 2 if the trial actually 

starts 12/8/21 as I anticipate and fervently hope.” The parties

stipulated that Lee failed to appear for the second day of his

deposition. 

C. Further Trial Continuances, Pretrial Motions, and the Trial

On December 8, 2021, the day the trial was scheduled to 

begin, the court5 granted Latt’s ex parte application to continue 

the trial due to the death of Latt’s expert witness. The court 

continued the trial to January 26, 2022, and ordered, “Discovery 

3 Judge Serena Murillo.

4 No reporter’s transcript or settled statement of the 

October 27, 2021 hearing was provided on appeal.

5 Judge Murillo.
6

and motion cut off dates are NOT extended and [do] NOT to 

correlate with the new trial date.” On January 12, based on the 

parties’ stipulation, the trial court continued the trial to

March 14 and again ordered “[a]ll discovery and motion cut-off[] 

dates remain closed.” 

In March 2022, Latt moved in limine to preclude Hashish 

and Lee from testifying because Iriqui did not produce Hashish 

for deposition by November 10 and did not produce Lee for day 

two of his deposition. Latt also moved to exclude video animation

from the two experts. 

Before the court6 ruled on those motions, at a pretrial 

hearing, Iriqui’s counsel informed the court that Hashish was not 

available before November 10, 2021, so Iriqui was “not able to 

comply with the order of the court.” Iriqui’s counsel continued, 

“So there’s no way we can call him here. And [if] we can’t call Dr. 

Hashish, then we can’t call . . . Mr. Lee, who is the accident 

reconstructionist, and we can’t use the computer animation,” 

because Iriqui intended to present Lee’s and Hashish’s testimony 

together. Regarding Latt’s motions in limine to exclude Lee’s and 

Hashish’s testimony, the court asked, “Does [Iriqui] need a ruling 

on these motions in limine, or is [Iriqui] withdrawing Hashish 

and Lee?” Iriqui’s counsel responded, “We’re withdrawing them.” 

The court then stated the motions in limine were moot. 

After a bench trial in March 2022, the trial court awarded 

Iriqui $15,000 in damages. However, Iriqui’s damages award 

plus his recoverable costs were less than the amount of Latt’s 

pretrial settlement offer under section 998. As a result, Iriqui

6 Judge Margaret Oldendorf.
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recovered nothing from Latt, and Latt was awarded a net sum of

$76,158.25 for costs under section 998. 

Iriqui timely appealed from the judgment in favor of Latt.

DISCUSSION

A. Applicable Law and Standard of Review

A “ ‘trial court has the power to exercise a reasonable 

control over all proceedings connected with the litigation before 

it,’ ” including “ ‘the control of [its] calendar[], and the disposition 

of business before [it].’ ” (Briggs v. Brown (2017) 3 Cal.5th 808, 

852.) “The trial court has discretion in ruling on requests to 

extend discovery deadlines or continue trial dates. Equally clear 

are the trial court’s statutory obligations to enforce discovery 

cutoff dates and to set firm trial dates.” (Hernandez v. Superior 

Court (2004) 115 Cal.App.4th 1242, 1246.) 

Parties are generally entitled to complete expert witness 

discovery “on or before the 15th day . . . before the date initially 

set for the trial of the action.” (§ 2024.030.) “On motion of any 

party, the court may grant leave to complete discovery 

proceedings . . . closer to the initial trial date, or to reopen 

discovery after a new trial date has been set.” (§ 2024.050, 

subd. (a); see Cottini v. Enloe Medical Center (2014) 

226 Cal.App.4th 401, 420.) Unless accompanied by a motion to 

reopen discovery under section 2024.050, generally “a 

continuance or postponement of the trial date does not operate to 

reopen discovery proceedings.” (§ 2024.020, subd. (b); see PeltonShepherd Industries, Inc. v. Delta Packaging Products., Inc. 

(2008) 165 Cal.App.4th 1568, 1588.)

However, in the time period at issue here, during the

COVID-19 pandemic, the California Legislature had enacted a 
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temporary emergency measure that superseded the normal rule 

that a continuance of the trial date does not operate to reopen 

discovery. This emergency provision, former section 599, stated: 

“Notwithstanding any other law and unless ordered otherwise by 

a court or otherwise agreed to by the parties, a continuance or 

postponement of a trial or arbitration date extends any deadlines 

that have not already passed as of March 19, 2020, applicable to

discovery . . . . The deadlines are extended for the same length of 

time as the continuance or postponement of the trial date.”

(Former § 599, subd. (a), added by Stats. 2020, ch. 112, § 1 (Sen. 

Bill 1146), and repealed by Stats. 2021, ch. 214, § 2 (Sen. Bill

241), eff. Aug. 27, 2023.)

We review the trial court’s rulings regarding continuances 

of trial dates and discovery orders under the abuse of discretion 

standard. (Dailey v. Sears, Roebuck & Co. (2013) 

214 Cal.App.4th 974, 1003; Avant! Corp. v. Superior Court (2000) 

79 Cal.App.4th 876, 881.) 

B. Iriqui Has Not Demonstrated the Trial Court Abused Its 

Discretion in Setting a November 10, 2021 Deadline for 

Hashish’s Deposition

Iriqui argues that because he did not bring a formal motion 

to extend the expert discovery cutoff and because the court 

nevertheless ordered Iriqui to produce Hashish for deposition by 

November 10, 2021, the court improperly brought its own motion 

to reopen discovery under section 2024.050 and failed to give 

Iriqui notice of that motion. Iriqui also contends the trial court 

erred by “improperly compelling plaintiff’s expert biomechanical 

expert to testify on a date on which he was unavailable.” Iriqui’s 

contentions are meritless.
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His main premise—that the trial court brought and 

granted “its own motion” to continue the expert discovery 

deadline—is faulty. On October 27, 2021, when Iriqui requested

and received a trial continuance, former section 599 governed. 

Under former section 599, unless the trial court ordered or the 

parties agreed otherwise, discovery deadlines automatically were

“extended for the same length of time as the continuance or 

postponement of the trial date.” (Former § 599, subd. (a).)

7 

Therefore, when the trial court granted Iriqui’s request to 

continue the trial date for nine days until December 8, 2021, the 

expert discovery cutoff date was automatically continued until 

November 23, 2021, unless specifically ordered otherwise. (See 

former §§ 599; 2024.030 [expert discovery cutoff is on the 15th

day before the day set for trial].) The court did “order[] 

otherwise”—it ordered that “[d]iscovery and motion cut off dates 

correlate[d] with the previous trial date,” but also that Iriqui was 

to produce Hashish for a deposition by November 10. The trial 

court did not bring “its own motion.”

Iriqui further complains it was improper for the court to 

order that Hashish sit for his deposition by November 10, when 

Iriqui’s motion to continue the trial said Hashish was not 

available until December 7. But Iriqui’s only request in his 

motion was to continue the trial until December 8, 2021, a 

request the court granted. As discussed, under former section 

599, the corresponding default expert discovery cutoff for the 

December 8 trial was November 23—a date also well before 

7 Under Government Code section 68081, we requested and 

received letter briefs from the parties addressing the effect of 

former section 599 here, as well as addressing the effect of a lack 

of a record of the oral proceedings on October 27, 2021. 
10

December 7. However, Iriqui did not move under section 

2024.050 to have Hashish’s deposition go forward later than 

November 23. “A party on appeal cannot successfully complain 

because the trial court failed to do something which it was not 

asked to do.” (Chyten v. Lawrence & Howell Investments (1993) 

23 Cal.App.4th 607, 617, ordered published, 882 P.2d 246 (Cal. 

1994).) Even if we could construe Iriqui’s motion to continue the 

trial as encompassing a motion to reopen expert discovery to 

allow Hashish’s deposition to be taken, Iriqui did not comply with 

the statutory requirement that “a meet and confer declaration 

under Section 2016.040” accompany the latter request. 

(§ 2024.050, subd. (a).) Nor did his motion address the factors 

listed in section 2024.050 that a trial court must consider in

deciding whether to grant or deny a motion to reopen discovery or 

complete discovery closer to the trial date. (§ 2024.050, subd. 

(b)(1)-(4); Pelton-Shepherd Industries, Inc. v. Delta Packaging 

Products., Inc., supra, 165 Cal.App.4th at p. 1588 [trial court 

abuses its discretion by granting a motion to reopen discovery 

without compliance with § 2024.050]; accord, Fairmont Ins. Co. v. 

Superior Court (2000) 22 Cal.4th 245, 249-250.) Moreover, Iriqui 

failed to meet his burden to provide a record of the oral 

proceedings on October 27, 2021, to support his contention that 

the trial court abused its discretion in setting the November 10 

deadline for Hashish’s deposition. (Cal. Rules of Court, 

rule 8.120(b); Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 

1034, fn. 5.) We have no way of knowing what the parties and 

the court discussed with respect to Hashish’s deposition or 

whether Iriqui objected to the November 10 deadline. “[A]bsent a 

showing of error on the record,” we presume the trial court did 

not abuse its discretion in setting that deadline. (Southern 
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California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483; see

Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 

440, 447-448 [“The absence of a record concerning what actually 

occurred . . . precludes a determination that the trial court 

abused its discretion.”].) 

C. Iriqui Withdrew His Expert Witnesses at Trial

Iriqui contends the trial court committed “structural error”

in improperly excluding Hashish’s testimony “by compelling a 

deposition without any notice on a date that the expert was 

unavailable.” Structural error “typically occurs when the trial 

court deprives a party of its due process right to a fair trial.” 

(Kline v. Zimmer, Inc. (2022) 79 Cal.App.5th 123, 135.) An 

appellant need not demonstrate prejudice from a court’s error 

that is deemed structural (ibid.), and instead per se reversal is 

required. (Severson & Werson, P.C. v. Sepehry-Fard (2019) 

37 Cal.App.5th 938, 950). “[I]mproper exclusion of expert 

testimony can amount to structural error” when it deprives a 

party of the right to a fair trial. (Kline, at p. 135.)

Contrary to Iriqui’s contention, the trial court did not 

exclude any expert testimony. Rather, before trial, Iriqui 

explicitly withdrew his expert witnesses. Regarding Latt’s 

motions in limine to exclude Lee’s and Hashish’s testimony, the 

court asked, “Does [Iriqui] need a ruling on these motions in 

limine, or is [Iriqui] withdrawing Hashish and Lee?” Iriqui’s 

counsel responded, “We’re withdrawing them.” Because Iriqui 

indicated he would not be calling his experts at trial, and he

indicated he did not need a court ruling on Latt’s motion to 

preclude the experts from testifying, Iriqui cannot blame the 

absence of their testimony on the court. “In other words, there is 
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simply no ruling for us to review.” (Farmer Bros. Co. v. Franchise 

Tax Bd. (2003) 108 Cal.App.4th 976, 993.)

DISPOSITION

The judgment is affirmed. 

STONE, J.

We concur:

SEGAL, Acting P. J.

FEUER, J.